Illinois Central Railroad Company v. Zucchero

• Decision Date: 09 May 1955
• Docket Number: No. 15216.,15216.
• Citation: 221 F.2d 934
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, Appellant, v. Vincent ZUCCHERO, Cosimo Zucchero, Joseph Zucchero and Vincent Zucchero, Jr., Partners, d/b/a Sugar Ripe Banana Company (formerly V. Zucchero & Company), Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F.2d 934 (1955)

ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, Appellant, v. Vincent ZUCCHERO, Cosimo Zucchero, Joseph Zucchero and Vincent Zucchero, Jr., Partners, d/b/a Sugar Ripe Banana Company (formerly V. Zucchero & Company), Appellees.

No. 15216.

United States Court of Appeals Eighth Circuit.

May 9, 1955.

Herbert E. Bryant, St. Louis, Mo. (Wm. R. Gentry, St. Louis, Mo., Joseph H. Wright and Herbert J. Deany, Chicago, Ill., were with him on the brief), for appellant.

H. C. Gaebe, Jr., St. Louis, Mo. (Jones, Hocker, Gladney & Grand, St. Louis, Mo., were with him on the brief), for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

GARDNER, Chief Judge.

Appellees who are partners doing business at St. Louis, Missouri, under the name and style of the Sugar Ripe Banana Company brought this action against the Illinois Central Railroad Company, an interstate common carrier to recover damages to twelve carloads of bananas transported at various dates between February 9, 1950, and November 5, 1950, from New Orleans, Louisiana, to St. Louis, Missouri. The parties will be referred to as they appeared below. The complaint set forth twelve causes of action, one for each of the carloads of bananas involved in the action. The complaint as a basis of liability in substance charged that the defendant at all times pertinent to the action was a common carrier of goods and passengers for hire and maintained and operated a railroad between the city of New Orleans, Louisiana, and the city of St. Louis, Missouri. The pertinent allegations of the first cause of action may be taken as typical from which we quote as follows:

"4. On the 9th day of February, 1950, in consideration of the sum of $276.06 then and there duly paid to it by the plaintiff, defendant undertook and agreed safely to carry to St. Louis, Missouri, by way of the defendant railroad, and deliver to plaintiff in good, sound condition, certain goods and merchandise, the property of plaintiff, consisting of 21,790 pounds of bananas, which bananas were then and there delivered to the defendant at New Orleans, Louisiana, in good, sound condition, which the defendant so received for the purposes and upon the agreement above mentioned.

"5. Defendant did not safely carry and deliver said goods pursuant to said agreement, but, on the contrary, when said bananas were delivered at the St. Louis destination, they arrived in a damaged and depreciated condition, and that 6390 pounds of said bananas were wholly lost to the plaintiff, to its damage in the sum of $896.73, which amount includes handling charges incident to banana salvage."

In the aggregate plaintiffs sought to recover $10,470.60. Defendant by its answer admitted that it was a common carrier; that it maintained and operated a railroad line between New Orleans, Louisiana, and St. Louis, Missouri; that it received for transportation the bananas as alleged, but denied that when they were received and transported from New Orleans, Louisiana, to St. Louis, Missouri, they were in good sound condition and in effect denied all other material allegations of the several causes of action set out in the complaint except the jurisdictional and formal allegations.

Before trial defendant admitted certain damage to the bananas in each of the cars involved and there were other admissions which materially relieved plaintiffs of proof of details as to the weights of the shipments involved and dates of transportation and deliveries.

In accordance with the accepted practice the bananas were transported in bunches while yet green and at the various times they were unloaded and delivered to the plaintiffs they were inspected for damage by representatives of the Western Weighing and Inspection Bureau, an agency of the defendant. Following delivery to plaintiffs they were placed in a banana processing room by them where they were retained for three to five days in accordance with the accepted practice of the trade. After having been processed they were inspected by the plaintiffs and their employees for bruises and damages and there was evidence that bruises to the bananas were not readily discoverable until after the bananas had been processed or ripened. There was evidence that when the fruit was fully processed the bunches of bananas were moved out of the processing room and placed on a cutting table where the damaged fruit was removed from the cut hands of bananas and placed on a scale. The weight of the damage to each bunch of bananas was recorded on a tally sheet. It resulted that the evidence produced by plaintiffs was based upon an inspection and handling of the bananas after they had gone through the ripening process, while the evidence produced by the defendant was based upon an inspection of the bananas while they were still green as they were unloaded from the freight cars. When distributed to retail dealers these stalks of bananas are customarily cut into smaller bunches called hands containing six to nine bananas and this is the only form in which they are salable to the retail trade.

There was testimony that the demand for bananas exceeded the supply and that plaintiffs could have sold not only the undamaged bananas actually delivered...