National Distillers & Chemical Corp. v. Federal Barge Lines, Inc.

• Decision Date: 06 January 1964
• Docket Number: No. 1231,1231
• Citation: 159 So.2d 717
• Parties: NATIONAL DISTILLERS AND CHEMICAL CORPORATION v. FEDERAL BARGE LINES, INC., Chotin Transporation Co., Inc., Clifford C. Northon, Jr., d/b/a Star Towing Company and the Travelers Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 717

159 So.2d 717

NATIONAL DISTILLERS AND CHEMICAL CORPORATION v. FEDERAL BARGE LINES, INC., Chotin Transporation Co., Inc. Clifford C. Northon, Jr., d/b/a Star Towing Company and the Travelers Insurance Company.

No. 1231.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 6, 1964.

Rehearing Denied Feb. 3, 1964.

John W. Bryan, Jr., New Orleans, for plaintiff-appellee.

Phelps, Dunbar, Marks, Claverie & Sims, Harry S. Redmon, Jr., New Orleans, for defendant-appellant.

Robert B. Acomb, Jr., Edmond C. Salassi, New Orleans, for defendant-appellee.

Before REGAN, SAMUEL and HALL, JJ.

SAMUEL, Judge.

Plaintiff brought this suit for damages to its Pine Street Wharf on the Mississippi River in the City of New Orleans. A cluster of pilings was damaged when two barges being towed by the Tug ANNIE H drifted into the wharf. The defendants are Clifford C. Northon, Jr., and Star Towing Co., Inc., respectively the owner and the operator of the Tug ANNIE H, Federal Barge Lines, owner of the barges involved, Travelers Insurance Co., Federal's liability insurer, and Chotin Transportation Co., Inc., owner of the Tug CHOTIN. Federal Barge Lines and Travelers Insurance Co. filed with their answers a third party petition against Northon and Star Towing Co., Inc., for indemnification of any judgment rendered against those two third party petitioners.

Plaintiff introduced into evidence three bids submitted by Boh Bros. Construction Co., Inc., H. B. Fowler & Co., Inc. and W. Horace Williams Co., which concerns, respectively, proposed to perform the repair work for $2,960.00, $1,885.00 and $1,876.00. Defendants introduced into evidence a repair estimate submitted by Harvey Tug & Barge Co., Inc., in the amount of $1,250.00. In addition, one of defendants' witnesses, Durwood Dunn, owner of Durwood Dunn, Inc., testified that he had examined the damage and estimated the cost of repair at $1,002.00. With the exception of the bid by W. Horace Williams Co., which was made a few days after the collision, none of the bids or estimates was made until the first day of the trial in the district court.

The record also contains a report of survey by Arthur A. Grant, marine surveyor and appraiser, which describes the damage to the cluster and recommends what should be done to repair the same. The report mentions the fact that W. Horace Williams Co. had submitted a price of $1,876.00 (this was the only bid or estimate which had been made at the time of the survey six days after the collision) to make the repairs and concludes with this paragraph:

'The cluster and bracing is about ten years old, so the pile is therefore soft, and a depreciation of 50% Should be allowed from the cost of material only, say $250.00.'

Judgment was rendered in the trial court in favor of plaintiff and against Northon and Star Towing Co., Inc., in the amount of $1,626.00, the amount of the bid submitted by W. Horace Williams Co. less the depreciation allowance of $250.00 as recommended in the Grant report. The judgment dismissed plaintiff's suit against the other named defendants and also dismissed the third party demand. Northon and Star Towing have appealed. The appeal is limited to the question of quantum; appellants now concede liability on their part and contend only that the damages awarded by the trial court should be reduced.

Defendants make two contentions: (1) damages should have been awarded on the basis of the lowest estimate, that of Durwood Dunn, Inc., of $1,002.00 instead of on the basis of the bid...