Meltzer v. Pennsylvania R. Co.

• Decision Date: 25 March 1939
• Docket Number: No. 20346.,20346.
• Citation: 29 F. Supp. 840
• Parties: MELTZER v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Western District of Pennsylvania

29 F. Supp. 840

MELTZER v. PENNSYLVANIA R. CO.

No. 20346.

District Court, E. D. Pennsylvania.

March 25, 1939.

Joseph S. Kleinbard, of Philadelphia, Pa., for plaintiff.

Barnes, Biddle & Myers and Robert V. Massey, Jr., all of Philadelphia, Pa., for defendant.

KIRKPATRICK, District Judge.

This is a suit to recover damages for injury to thirty-five carloads of watermelons delivered by the defendant railroad company to the plaintiff, the consignee, at Philadelphia. The case was tried at the same term of court as Bronstein v. Baltimore & Ohio Railroad Company, D. C., 29 F.Supp. 837, in which an opinion has been filed this day. Upon the general question of liability, the issues were much the same, and the discussion of that point in the Bronstein case is fully applicable here and need not be repeated but may be referred to if need be.

In this case, I make the same finding that I made in the Bronstein case, namely, that as to each car in suit a number of watermelons were injured by the negligent handling of the car, resulting in damage to the plaintiff.

In the Bronstein case, the parties agreed not only upon the measure of damages applicable, but also upon the evidence appropriate to proving damages, thus eliminating that very troublesome question. There is no such agreement here, and the theories of the plaintiff and defendant are widely at variance.

The substance of the dispute upon this point is not so much as to the measure of damages as to the sufficiency of the evidence produced to establish it. Both parties accept in principle the general rule that the correct measure is the difference between the value of the damaged melons, had they arrived in good condition, and their value in the condition in which they did arrive. But the defendant contends that, inasmuch as the plaintiff has offered no evidence of the fair market value of the damaged melons as such and separately from the uninjured ones, he has failed to prove legally recoverable damages and is therefore not entitled to a verdict in any amount. The plaintiff replies that the damaged melons were not and could not well have been sold separately, and that the evidence offered by him meets the requirements of an accurate estimate of damages better than opinion testimony based upon a theoretical market price, there being no actual market for damaged melons as such.

The merit of the plaintiff's position and the injustice of compelling him to produce the kind of testimony usually offered arises from the manner in which watermelons delivered in the yards at Philadelphia are sold by the consignees, who are in this case, and almost invariably, wholesale dealers. As business is transacted there, it is neither customary nor feasible to unload the cars, separate the damaged melons from the good ones, and sell them separately. I am satisfied that such procedure could not have been adopted by this plaintiff, and, if adopted, probably would not have produced as good a price as the method which he used. Whether or not better prices could be obtained if all the dealers in the Philadelphia yards should change the entire system of doing business there, is impossible to say.

There are no facilities for sorting and piling the melons at the point of arrival. It would take time and involve expense, and might mean delay and loss of the market. What happens is that, when a car arrives, it is opened, the buyer looks at the load, makes an offer for the number he wants — 100, 200, 300 or more, as the case may be — based upon his estimate of the number of damaged melons which he will get in his lot. This practice involves the understanding that he will accept bruised and cracked melons provided they are not decayed or smashed or in a condition which everyone...