E. I. Du Pont De Nemours & Co. v. Tomlinson

• Decision Date: 05 February 1924
• Docket Number: 2118.
• Parties: E. I. DU PONT DE NEMOURS & CO. v. TOMLINSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

296 F. 634

E. I. DU PONT DE NEMOURS & CO. v. TOMLINSON et al.

No. 2118.

United States Court of Appeals, Fourth Circuit.

February 5, 1924

Edward R. Baird, Jr., of Norfolk, Va., and V. S. Thomas, of Wilmington Del. (H. G. Connor, Jr., of Wilson, N.C., and Baird, White & Lanning, of Norfolk, Va., on the brief), for plaintiff in error.

P. W McMullan, of Elizabeth City, N.C., and J.S. Manning, of Raleigh, N.C. (manning & Manning, of Raleigh, N.C., and W. A Lucas, of Wilson, N.C., on the brief), for defendants in error.

Before WOODS and ROSE, Circuit Judges, and SOPER, District Judge.

SOPER District Judge.

Separate suits were brought by E. I. Du Pont de Nemours & Co. against seven defendants in the District Court of the United States for the Eastern District of North Carolina. The object of the suits was to recover the value of a large quantity of nitrate of soda which the plaintiff claimed was its property, but had been stolen by its agent, a certain W. B. Tredwell, and wrongfully sold by him to the defendants. Similar facts were involved in the cases of Tredwell v. U.S. (C.C.A.) 266 F. 350; Whitehurst v. U.S. (C.C.A.) 272 F. 46; Richmond Guano Co. v. E. I. Du Pont de Nemours & Co (C.C.A.) 284 F. 803; Richmond Guano Co. v. W. R Grace Co. (C.C.A.) 284 F. 801. In the f case a judgment against Tredwell entered upon a verdict of guilty of larceny of nitrate from the United States was affirmed, and in the other cases judgments in favor of the owners against the purchasers from Tredwell of stolen nitrate were likewise affirmed.

The cases at bar, by consent, were tried together. In each case the trial judge framed and submitted to the jury three issues namely:

(1) Was the plaintiff the owner of the nitrate in question?

(2) Did the defendants unlawfully convert the nitrate to their own use?

(3) What damages, if any, is the plaintiff entitled to recover from the defendants by reason of such unlawful conversion?

The substantial issue was the first, for it was conceded that if the plaintiff owned the nitrate it was entitled to a verdict. The jury decided this issue in each case for the defendant.

The contention of the plaintiff was that the evidence of ownership by it of the nitrate was clear, convincing, and uncontradicted, and it therefore requested the court to direct a verdict in each case for the plaintiff. The court overruled this motion, and submitted the issue above outlined, from which action the plaintiff appealed. It becomes necessary, therefore, to examine the testimony presented to the court.

Between October, 1917, and June, 1918, the plaintiff imported from Chile, in 13 ships chartered by it, a large quantity of nitrate of soda. The material was intended exclusively for its own use in the manufacture of explosives at its principal plant at Hopewell, Va., and also at its other plants in the United States. The vessels were entered at the United States custom house at Norfolk, Va., and were unloaded at the terminal docks of the Norfolk & Western Railroad Company at Lambert's Point, near that city. These facts were substantiated by the production of the Chilean nitrate contracts and invoices, by the bills of lading and charter parties of the vessels, and by the official records of the custom house at Norfolk.

W. B. Tredwell was employed by the plaintiff as a stevedore to unload the vessels. He was given a power of attorney by the plaintiff to enter the vessels on its behalf at the custom house. He was given shipping directions by the plaintiff after the railroad cars were loaded, and was authorized to transmit these directions to the railroad company. He had no authority to sell the material to the defendants or to any one else. As a matter of fact, none of the material was sold by the plaintiff to the defendants. He was also employed by the railroad company as a stevedore to load the nitrate into its cars. The circumstances of his employment by the plaintiff and by the railroad are not disputed.

At the time that each of the ships was being unloaded Tredwell caused from one to three cars to be loaded with nitrate, and consigned to one or another of the defendants. The quantities thus shipped were substantial, ranging in value, as to each defendant, from $5,000 to $18,000, approximately, but the shipments were small in comparison to the quantities imported by the plaintiff. For instance, 3 cars out of a total cargo of 222 cars were improperly diverted. It appears that the defendants purchased and paid for the shipments in good faith, through De Jarnette, a broker, who had died before the trial. Tredwell was also dead at that time. The receipt of the material by the defendants and its appropriation to their use is admitted or uncontroverted.

The defendants contend that there was not sufficient proof that the nitrate purchased by them came from the cargoes imported by the plaintiff, or at least that the evidence on this point was so doubtful as to require the submission of the first issue to the jury. In order to establish the connection, the plaintiff offered in evidence the records of the Norfolk & Western Railroad Company at Lambert's Point. They showed, in general, the vessels which docked at Lambert's Point during 1917 and 1918; what portion of the cargoes of such vessels were loaded into cars; when the cars were loaded and shipped, and the destination thereof. With reference to the cars of nitrate received of the defendants, the records showed that in each instance the merchandise formed part of the cargo of one or another of the vessels under charter by the plaintiff. On their face, therefore, the records furnished convincing proof of the plaintiff's ownership of the nitrate in question, and constituted a connecting link between the nitrate imported by the plaintiff and the nitrate purchased and appropriated by the defendants.

If, then, the credibility of the records was not impeached, there was no question to submit to the jury. Under such circumstances, it would become the duty of the trial court to direct a verdict for the plaintiff. It is well settled by the decisions, and conceded by the defendants, that a federal court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or defendant, when the evidence is undisputed or of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Patton v. Texas & Pacific Railroad Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361.

Since the records were admitted in evidence by the trial court, let us first consider their probative force. They are attacked by the defendants chiefly on the ground that the information upon which they were based was furnished by Tredwell, a person who has since been convicted of the larceny of nitrate under similar circumstances. It is pointed out that vessels containing nitrate of other importers were docked at Lambert's Point at the same time as the plaintiff's ships; that Tredwell, as stevedore, also discharged them; and it is suggested that for purposes of his own he might have reported falsely to the railroad as to the origin of the nitrate loaded by him into the cars. No evidence is offered to support this theory. It is urged merely as a possibility. It gives rise to the conjecture whether the nitrate purchased by the defendants was stolen from the plaintiff or from somebody else.

The railroad records do not depend entirely upon Tredwell's uncorroborated word. He was agent of both the plaintiff and the railroad company. He had authority to give shipping directions to the railroad company, and had, therefore, ample opportunity to commit the particular crime and misappropriate the particular goods in question. His work was not entirely without supervision. Officers of the plaintiff company were frequently on the pier and in the railroad office during the unloading of the ships. Clerks of the railroad company, engaged in sealing the very cars in question, were constantly on the piers, and had ample opportunity to observe the discharge of cargo from the plaintiff's ships into the cars. The railroad officials undoubtedly relied upon Tredwell for detailed information as to the ships from which the cars were loaded, but opportunities for independent observation were not lacking. It is a significant fact that in each case the vessel from which Tredwell claimed to have loaded the cars was at that particular time alongside the pier in the course of unloading. It is equally significant that the defendants offered no evidence excepting as hereinafter noted to controvert the truth of the records in question. For the most part they confined themselves to the claim of insufficiency of the evidence adduced by the plaintiff, and made no effort to show that in fact Tredwell had falsified the records to conceal his crime. The custom house records, as well as the bills of lading of the plaintiff, showed the total amounts of nitrate in each cargo. The railroad records showed the disposition of the cargo in each ship. If the cars purchased by the defendants did not come from the plaintiff's ships, it would not have been a difficult matter for the defendants to show the discrepancies between the railroad records of the disposition of the nitrate and the bills of lading and custom house records showing the amount of the various cargoes. The defendants did not examine or produce the records of other importers from which it is contended the nitrate might have been stolen.

A vice president of the plaintiff company testified that the loss of the nitrate was discovered by a comparison of the import records of the company with the records of the railroad showing the shipment of the cars. The defendants severely...