Reider v. Thompson

• Decision Date: 14 July 1952
• Docket Number: No. 13838.,13838.
• Citation: 197 F.2d 158
• Parties: REIDER v. THOMPSON.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 158 (1952)

REIDER v. THOMPSON.

No. 13838.

United States Court of Appeals Fifth Circuit.

June 6, 1952.

Rehearing Denied July 14, 1952.

Malcolm W. Monroe, New Orleans, La., for appellant.

M. Truman Woodward, Jr., Elizabeth Ridnour Haak, New Orleans, La., for appellee.

Before HOLMES, RUSSELL and RIVES, Circuit Judges.

RUSSELL, Circuit Judge.

The trial here under review followed the decision of the Supreme Court in Reider v. Thompson, 339 U.S. 113, 70 S.Ct. 499, 94 L.Ed. 698, reversing 5 Cir., 176 F.2d 13, that Reider's complaint, seeking to recover damages claimed to have been inflicted upon a shipment of sheepskins and wools while being transported under a through bill of lading from New Orleans, Louisiana to Boston, Massachusetts, set forth a claim upon which relief could be granted. At the conclusion of the plaintiff's evidence, the Court, trying the case without a jury granted appellee's motion to dismiss and entered judgment accordingly. This ruling was induced by the Court's conclusion that the appellant had failed to introduce evidence sufficient to prove the amount of his damages because it appeared that the sheepskins, which the evidence disclosed were received in a damaged condition, were subsequently sold, and the evidence for the plaintiff did not disclose the sales price.¹ The matter of sales price was not inquired about upon either direct or cross examination of the plaintiff, who testified to the fact of sale.

The evidence as to the amount of damage is furnished by the testimony of Gale, a cargo surveyor and appraiser, and appellant. Gale had been in the business of surveying cargoes and merchandise for approximately 17 years (in 1944). He testified that he made between three and four hundred surveys per year, ten to twenty per cent of which involved shipments of leather. He inspected the shipment in question in September, 1944, and found that seven cases containing sheepskins evidenced that they had been penetrated by water and that the contents were water stained and molded and that there was "quite some rotting." He estimated that the sheepskins in these seven cases had sustained a "depreciation" of 27½ per cent. Appellant, who had been in the business of importing and exporting leather for approximately 20 years (in 1944), testified that the sheepskins contained in the seven cases were stained and moldy. The fair market value of these skins in Boston at that time, had they been undamaged, would have been $5,400. The market varied, however, according to the ceiling price fixed by the Office of Price Administration, but at that time the price was "17 cents to 19 cents a foot if they were in good condition." In his opinion the fair market value of the sheepskins in their damaged condition as he observed them was $2,700 in Boston at that time. He also testified that none of the sheepskins were still in his possession on November 1, 1950, but that they were "all sold. At that time everything was going. Normally they would not be able to sell it."

We find the evidence sufficient to establish a prima facie case of the market value of the sheepskins had they been received in good condition, and their market value in the condition in which they did arrive. This is the well established measure of damages in such cases. Gulf, Colorado & S. F. Ry. Co. v. Texas Packing Co., 244 U.S. 31, 37, 37 S.Ct. 487, 61 L.Ed. 970; Chicago, M. & St. P. R. Co. v. McCaull-Dinsmore Co., 253 U.S. 97, 40 S.Ct. 504, 64 L.Ed. 801; St. Johns N. F. Shipping Corp. v. S. A. Companhia, 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201.

It is true that the amount received by a sale may be fundamental in restricting or defeating the right of recovery. But the sales price is not conclusive, nor controlling. As said in New York, Lake Erie & Western R. Co. v. Estill, 147 U.S. 591, 618, 13 S.Ct. 444, 455, 37 L.Ed. 292:

"The plaintiffs may have received on the sale of the cattle more or less than their market value. The defendant might have brought out evidence as to what the animals were sold for by the plaintiffs, to contradict the evidence as to their market value; but the plaintiffs could not bind the defendant by the prices for which the animals were sold."

The admission that the damaged goods had been sold, conjoined with the absence of proof as to the amount thereby received, is not at all fatal to the plaintiff's right of recovery where the legal measure of damages is otherwise properly shown, although as a matter of defense of course the amount received by the sale may be shown to diminish or defeat the recovery of damages. The trial Court erred in ruling to the contrary. The case should have been disposed of on the merits, and not dismissed as a matter of law.

It is also urged that the evidence as to the fair market value of the damaged sheepskins at the time and place of receipt is not satisfactory, because it consists wholly of opinion testimony. The best evidence, appellee contends, would be...