Joseph Denunzio Fruit Co. v. Louisville & N.R. Co.

• Decision Date: 29 November 1938
• Citation: 276 Ky. 168,123 S.W.2d 813
• Parties: JOSEPH DENUNZIO FRUIT CO. v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

123 S.W.2d 813

276 Ky. 168

JOSEPH DENUNZIO FRUIT CO. v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky

November 29, 1938

Rehearing Denied Jan. 31, 1939.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by the Joseph Denunzio Fruit Company against the Louisville &amp Nashville Railroad Company to recover for physical loss and damage caused by delay in the shipment of plaintiff's peaches. Judgment for plaintiff for $10.43, and plaintiff appeals.

Affirmed.

Thomas C. Mapother, of Louisville, for appellant.

Woodward Dawson & Hobson, H. T. Lively, and Wilbur O. Fields, all of Louisville, for appellee.

CAMMACK Justice.

Appellant, Joseph Denunzio Fruit Company, shipped three carloads of peaches from Henderson, Kentucky, to New York City in August, 1935, over the line of appellee, Louisville & Nashville Railroad Company, as initial carrier. The Fruit Company originally sought to recover $2,326.50 from appellee, claiming market loss and physical loss and damage caused by delay in shipment and the manner in which the shipments were handled. After depositions were taken in New York appellant amended its petition, abandoning the claim of market loss, thereby lowering its claim to $1,684. Appellee's answer admitted liability in the sum of $10.43, because of damage to a few of the baskets of peaches in handling. During the trial appellee offered to confess judgment for $20 but the offer was rejected by the appellant. Eleven jurors signed a verdict for defendant. The judgment on the verdict directed that appellee recover costs from appellant to be offset by the judgment for $10.43 in favor of appellant. The Denunzio Fruit Company appeals.

Appellant urges reversal because (1) there were errors in the instructions given by the court, and the court erred in refusing the instructions offered by appellant; (2) the court erred in permitting certain evidence to be admitted; and (3) the verdict and judgment are flagrantly against the evidence.

One of the carloads of peaches was released to the carrier at Henderson at 7:30 p. m. August 16th, and the other two were released at 6:40 and 9:25 p. m. August 19th. The first car moved out of Henderson on the first train available between 2 and 3 a. m. on August 17th. The other two cars were picked up by the first train available at about the same hour on August 20th. The first car was consigned to Cincinnati, but before reaching its destination was duly consigned to New York. This car was taken from Cincinnati to New York by the Pennsylvania Railroad Company. The other two cars were taken by the same railroad from Louisville via Indianapolis to New York. The first car reached Harsimus Cove (Jersey City, New Jersey) at 9:55 a. m. August 20th. The other two cars reached the same point at 1:25 a. m. August 23d. The final destination of the cars was the Pennsylvania Railway market pier, New York. To reach this point it is necessary to place cars on a ferry at Harsimus Cove and take them across North River to the pier. In both cases the cars of peaches remained at Harsimus Cove until shortly before midnight of the day they reached that point. It was shown that a car must reach the pier by 2 a. m. to permit its being unloaded and inspected for that day's market. Witnesses testified that the peach market at the pier opens between 3 and 4 a. m.

Appellant insists that the cars were a day late in being delivered at the pier, because they should have arrived in New York on the third night out for a fourth morning market. Appellee insists that the cars did arrive in New York on the third night out for fourth morning delivery.

Appellant counts time from the time the cars were released to the carrier at Henderson, while appellee makes the count from the time the cars were picked up at Henderson on the first available train. There is no indication that appellee gave any assurance to appellant that the cars would reach New York for any particular day's market. Appellant had a right to expect, however, that the cars would move on regular schedule time for perishable freight. While appellant attempts to show that the last two cars could have been delivered at Indianapolis in time to reach a fast moving freight train between St. Louis and New York, it appears that the three carloads of peaches were handled by the Louisville &amp Nashville Railroad and the Pennsylvania Railroad Company on the same schedule that other perishable freight was handled between the points in question. Appellant objected to the testimony of appellee's witnesses showing the movement of the cars between various terminal and division points. The evidence was based upon the reports of train conductors showing the movement of trains and cars in question and made in the regular course of their duties. The evidence was given by employees of the railway companies charged with the keeping of such records. Under the circumstances, it is our conclusion that the evidence was competent. See Dattilo Fruit Company v. Louisville & Nashville Railroad Company, 238 Ky. 322, 37 S.W.2d 856, and cases cited...