McNeil Higgins Co. v. Old Dominion S.S. Co.

• Decision Date: 28 June 1916
• Docket Number: 2365.
• Parties: McNEIL HIGGINS CO. v. OLD DOMINION S.S. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

235 F. 854

McNEIL HIGGINS CO. v. OLD DOMINION S.S. CO.

No. 2365.

United States Court of Appeals, Seventh Circuit.

June 28, 1916

Charles A. Butler, of Chicago, Ill., for plaintiff in error.

James Stillwell, Frank J. Loesch, R. W. Richards, and T. J Scofield, all of Chicago, Ill., for defendant in error.

Action to recover damages arising out of the shipment of a carload of coffee. Judgment for carrier upon directed verdict.

On March 15, 1913, defendant received from plaintiff 279 bags of coffee of the alleged value of $10,000 to be carried from New York to Chicago. The shipment passed from New York City to Newport News, Va., and thence to Cincinnati, Ohio, and was there transferred to the Chesapeake& & Ohio Railroad Company to be carried to plaintiff. On March 24th, at Peru, Ind., the shipment met the so-called Dayton flood and windstorm. The top of the car was blown off, and the coffee was soaked by the rain from above and by water rising until it entered the car.

Plaintiff admits that the storm thus encountered was extraordinary unusual, and unprecedented, and constituted what is termed an 'act of God.' Its action is based upon carrier's alleged negligence after such catastrophe was encountered.

The defendant held the car at Peru from March 24th to April 10th when it was taken back to Cincinnati where the coffee was offered for sale, but no bid was received. Ten days later it was taken to Chicago.

Defendant's explanation for shipping the car to Cincinnati was that all evidences of the routing as well as the name of the consignee were destroyed in the flood, and in the opinion of its claim agent Cincinnati was a good coffee market. Peru is 120 miles from Chicago, and Cincinnati is 234 miles from Chicago.

Plaintiff contends that the coffee was only partially damaged by the water at Peru, and that if the car had been promptly and properly cared for the damage would have been comparatively slight. Defendant's evidence tended to show that the coffee was first offered for sale at Peru, that the shipment to Cincinnati was made as soon as possible, and that its line from Peru to Chicago was not open prior to April 10th. Defendant's evidence also tended to show that the coffee was utterly worthless before the water receded.

The car reached Chicago April 24th and was rejected by plaintiff, and thereafter sold by defendant at public auction to coffee dealers. The amount realized therefrom was $101.01 after paying all freight charges and expenses of handling.

At the close of the trial the court continued the case for a day to permit plaintiff to furnish additional proof that defendant's line was open between Peru and Chicago at the time the shipment was made to Cincinnati. The court held the testimony offered failed to establish that fact. The request for additional time in which to secure such proof was refused.

Before MACK, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge (after stating the facts as above).

Defendant contends that the District Court correctly directed a verdict in its favor for two reasons: (a) That the evidence conclusively established that the soaking which the coffee received before the water receded left it utterly valueless and that subsequent delay, excusable or otherwise, resulted in no damage. (b) That the evidence conclusively showed the carrier was not guilty of any want of ordinary care after encountering the storm.

We are unable to agree with the defendant on either proposition.

Whether the value of the coffee was totally destroyed by the rains at Peru and before the car could possibly be moved or the cargo unloaded is hardly debatable. The car reached Peru March 24th. It left Peru April 10th. It left Cincinnati about April 20th and arrived in Chicago April 24th. If, thereafter, it brought the sum of $101.01 over and above all freight charges and expenses of sale in Chicago, it is inconceivable that the coffee was valueless when it left Peru.

The testimony of plaintiff's witnesses was that the coffee would have depreciated in value by reason of the rain, but that, if it had reached a roaster within 3 or 4 days after being soaked, its value would have decreased only about 2 or 3 cents a pound; that, if it had reached a roaster 7 or 8 days after it had been submerged in water, there would have been a reduction in value of 3 or 4 cents a pound....