Marquette Cement Mfg. Co. v. Louisville & Nashville RR Co.
| Decision Date | 06 February 1969 |
| Docket Number | 18299.,No. 18298,18298 |
| Citation | 406 F.2d 731 |
| Parties | MARQUETTE CEMENT MFG. CO., and Chattanooga Rock Products Div'n of Vulcan Materials Co., Plaintiffs-Appellants, v. The LOUISVILLE & NASHVILLE R. R. Co., Defendant-Appellee. CO., Defendant-Appellee. MARQUETTE CEMENT MFG. CO., and Chattanooga Rock Products Div'n of Vulcan Materials Co., Plaintiffs-Cross-Appellees, v. The LOUISVILLE & NASHVILLE R. R. CO., Defendant-Cross-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James W. Gentry, Jr., Chattanooga, Tenn., Witt, Gaither, Abernathy & Wilson, Chattanooga, Tenn., on brief, for Marquette Cement and others.
William D. Spears, Chattanooga, Tenn., Spears, Moore, Rebman & Williams, Chattanooga, Tenn., Eugene W. Herde, Louisville, Ky., on brief, for L & N R.R.
Before O'SULLIVAN and PHILLIPS, Circuit Judges, and CECIL, Senior Circuit Judge.
This cause is before the Court upon the appeal of Marquette Cement Manufacturing Company and the cross-appeal of The Louisville and Nashville Railroad Company from a judgment entered in the United States District Court for the Eastern District of Tennessee, Southern Division, on September 29, 1967. The judgment awarded damages to Marquette, plaintiff in the District Court, in the sum of $1,499.26 against The Louisville and Nashville Railroad Company, defendant therein. The case was tried to District Judge Frank W. Wilson upon a stipulation of facts. On this appeal, Marquette charges that the judgment was inadequate and the L & N urges that it was excessive.
Vulcan Materials Company, a customer of Marquette, operated two manufacturing plants in Chattanooga, Tennessee. One, Chattanooga Rock Products Division, was located at 2001 Rossville Boulevard, and the other, Concrete Pipe Division, was located at 1111 Oak Street. Rock Products manufactured only ready-mix concrete; Concrete Pipe manufactured only concrete pipe. Marquette regularly sold and shipped cement made by it to the two Chattanooga plants of Vulcan Materials. The cement made for the Pipe Division was known as "air-entrained," because air was introduced into it in the process of manufacture. Such "air-entrained" cement was suitable for use in making concrete pipe, but not for Rock Products' production of ready-mix concrete.
Marquette, as shipper, prepared the bill of lading for a carload of air-entrained cement ordered by Vulcan for its Concrete Pipe Division. The consignee was properly identified as "Vulcan Materials Co., Conc. Pipe Div." at its Oak Street address. The commodity was also properly described as "air-entrained cement." The route of the carriage was given as "L & N, C of Ga." — Louisville and Nashville and Central of Georgia. This was erroneous because ...
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