Meletio Sea Food Co. v. Gordons Transports, 26894.

• Decision Date: 15 January 1946
• Docket Number: No. 26894.,26894.
• Parties: MELETIO SEA FOOD CO., Inc., v. GORDONS TRANSPORTS, Inc.
• Court: Missouri Court of Appeals

191 S.W.2d 983

MELETIO SEA FOOD CO., Inc., v. GORDONS TRANSPORTS, Inc.

No. 26894.

St. Louis Court of Appeals. Missouri.

January 15, 1946.

Appeal from St. Louis Circuit Court, William L. Mason, Judge.

"Not to be reported in State Reports."

Action by the Meletio Sea Food Company, Inc., against the Gordons Transports, Incorporated, for damage to foodstuffs defendant had undertaken to transport, originating in a justice court, and on appeal to circuit court tried to the court alone on an agreed statement of facts. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant appeals.

Judgment reversed and cause remanded with directions.

B. W. LaTourette and G. M. Rebman, both of St. Louis, for appellant.

Oliver T. Remmers, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action to recover for the loss, damage, and injury to a certain shipment of foodstuff which defendant, a common carrier by motor truck had undertaken to transport from St. Louis, Missouri, to plaintiff's customer at New Orleans, Louisiana.

Originating in a justice's court, the case went on appeal to the circuit court, wherein, upon a trial to the court alone, a judgment was rendered in favor of plaintiff, and against defendant, for the sum of $145.34. Following the overruling of its motion for a new trial, defendant gave notice of appeal to this court, and has perfected the same by the proper course.

The case was tried in the lower court upon an agreed statement of facts.

The shipment in question consisted of twenty-five cases of a preparation known as "Golden Dipt," a breading for fish and meats, weighing 1,250 pounds.

While the shipment was en route to New Orleans in the hands of defendant as a carrier, twenty cases, weighing 1,000 pounds, became saturated and tainted with turpentine so that the contents were rendered unfit for human consumption.

The invoice price of "Golden Dipt" to plaintiff's customer at New Orleans was $13.20 per one hundred pounds. The cost to plaintiff, before state and federal income taxes, was $10.349 per one hundred pounds.

Plaintiff's consignee refused the shipment, whereupon plaintiff replaced the same at the same invoice price, and at the same original cost to itself. In addition, plaintiff expended the sum of $13.34 in examining the returned cases in order to determine the question of the extent of the damage to the shipment.

Plaintiff seasonably presented its claim against the carrier, basing the amount of the same on its invoice price to its customer at New Orleans. Defendant declined the claim upon the basis that the amount of the same should have been calculated at plaintiff's cost price, especially in view of the fact that plaintiff, having replaced the damaged shipment, lost no profit on the transaction.

The legal question thus presented was whether plaintiff, as consignor of a shipment which was damaged in transit, was entitled to recover from the carrier the full price contracted to be paid by the consignee, where the shipment, after loss, had been replaced by the consignor at the same agreed price to the consignee; or whether, on the contrary, plaintiff should be limited in its recovery to the actual cost price to itself.

Figured at the invoice price of $13.20 per one hundred pounds, the amount of plaintiff's damage, under its theory, was $132, plus $13.34 additional expense, aggregating $145.34. Figured at the actual cost price to plaintiff of $10.349 per one hundred pounds, the amount of plaintiff's damage, under defendant's theory, was $103.49, plus $13.34 additional expense, aggregating $116.83, or $28.51 less than under plaintiff's theory. As already indicated, the court rendered judgment for plaintiff for the amount of $145.34, thereby approving plaintiff's theory in regard to the measure of damages in such a case. The parties are obviously not concerned with the inconsequential difference between the respective amounts contended for, but rather with the legal principle involved, which is doubtless of much importance to both shippers and carriers alike.

The shipment in question having been interstate, the matter of liability is governed by the federal act, 49 U.S.C.A. § 20(11), which provides that the carrier shall be liable to the holder of the bill of lading "for any loss, damage, or injury to such property." This has been held to imply that the carrier shall be liable for the full actual loss, which, generally speaking, means the value of the property at the point of destination at the time delivery should have been made. Chicago, Milwaukee & St. Paul R. Co. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801; Illinois Cent. R. Co. v. Crail, 281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699, 67 A.L.R. 1423. By value is meant the market value at destination, except that the contract price, rather than the market value, may constitute the proper basis for estimating the damage where the goods are shipped pursuant to a contract of sale at a stipulated price, so long as the contract price does not exceed the market value, unless the carrier has been notified at the time of shipment that the goods have been sold for a higher figure. 13 C.J.S., Carriers, § 264, subd. e; 9 Am.Jur., Carriers, sec. 783.

It is to be noted, however, that the test of market value, whether considered independently or in its relation to a contract price, is at best but a convenient means of determining the extent of the loss; and it may therefore be discarded, and other more accurate means resorted to, if, for special reasons, or under the circumstances of the particular case, it is not exact, or is otherwise inapplicable. As already pointed out, the federal act gives only a right of recovery for actual loss, and in that respect conforms to the basic principle of the law of damages, which contemplates that the remedy provided in a given case shall only afford compensation for whatever injury is actually sustained. Illinois Cent. R. Co. v. Crail, supra; 9 Am. Jur., Carriers, sec. 781.

The case at bar, with its agreed statement of facts, furnishes a striking example of the type of situation in which the actual loss is to be ascertained from the special circumstances of the case rather than by rigid adherence to some fixed rule or formula.

The important factor in the...