Railway Express Agency v. Smith

• Decision Date: 10 December 1953
• Docket Number: Civ. A. No. 3601.
• Citation: 116 F. Supp. 609
• Court: U.S. District Court — District of South Carolina
• Parties: RAILWAY EXPRESS AGENCY v. SMITH.

116 F. Supp. 609

RAILWAY EXPRESS AGENCY v. SMITH.

Civ. A. No. 3601.

United States District Court E. D. South Carolina, Columbia Division.

December 10, 1953.

McKay & McKay, Columbia, S. C., for plaintiff.

Robinson, Robinson & Dreher, Columbia, S. C., for defendant.

WYCHE, District Judge.

In this case the plaintiff brought suit to recover express charges on a shipment of peaches from Columbia, S. C., to Baltimore, Maryland, in the month of July, 1952. The complaint alleged the refusal of the Baltimore consignee to accept delivery, necessitating a forced sale by plaintiff of this perishable commodity, netting the sum of $55, and leaving a balance due on the express charges in the amount of $184.09.

In his answer defendant admitted the shipment but alleged that plaintiff had delayed the shipment en route to the consignee to such an extent that the market was closed by the time the peaches reached Baltimore, although plaintiff had assured defendant the shipment would reach the consignee in Baltimore in ample time for the early morning market of July 3, 1953. Defendant counterclaimed for the value of the peaches, $650, less proper freight charges.

At the hearing before me the testimony of plaintiff's Columbia agent and of the defendant was taken. The deposition of the Baltimore consignee was read and placed in evidence, as were defendant's interrogatories to plaintiff and the answers thereto, the shipper's receipt, a Department of Agriculture bulletin showing the condition of the Baltimore peach market on July 3, 1952, and the pertinent I.C.C. rules as to express companies.

Based on the pleadings, testimony and exhibits, I make the following findings of fact and conclusions of law:

Findings of Fact

1. On July 1, 1952, the defendant, a peach grower of Lexington County, South Carolina, had arranged to ship, by motor truck under the control of the South Carolina Peach Growers' Association, some 250 half-bushel baskets of Golden Jubilee and Red Haven peaches to a Baltimore consignee for disposition on the early morning (twelve midnight to seven A.M.) market of July 3.

2. During the afternoon of July 1, defendant learned that the truck would be fully loaded before it reached his farm. He was advised to attempt shipment by railway express.

3. Defendant telephoned plaintiff's Columbia agent and was assured the peaches would leave Columbia on an early morning Seaboard Air Line train on July 2, arriving in Washington about 2:30 P.M. the same day, and that they would reach Baltimore later the same evening, in ample time for the early morning market of July 3.

4. Relying on this assurance defendant delivered the peaches to plaintiff's Columbia office at 10:00 P.M., July 1. The peaches were loaded on Seaboard train 8 at 3:04 A.M. July 2, in Columbia, and reached Washington at 2:25 P.M. July 2.

5. Although trains carrying express from Washington to Baltimore left Washington at 6:05 P.M. and at 11:25 P.M. on July 2, this shipment of peaches did not leave Washington until 6:00 A.M. July 3, on Baltimore & Ohio train 140.

6. The shipment arrived in Baltimore at 7:30 A.M. July 3 and was offered to the consignee at 10:15 A.M., at which time the consignee refused to accept delivery.

7. By the time the peaches were offered for delivery to the consignee, there were no buyers left on the Baltimore market, and the market was closed the following three days, July 4, 5, 6, 1952, therefore the shipment of peaches was practically worthless at the time of delivery; the actual...