Watjen v. Louisville Tobacco Warehouse Co.

• Decision Date: 18 December 1928
• Docket Number: No. 5108.,5108.
• Citation: 29 F.2d 801
• Parties: WATJEN et al. v. LOUISVILLE TOBACCO WAREHOUSE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

29 F.2d 801 (1928)

WATJEN et al. v. LOUISVILLE TOBACCO WAREHOUSE CO.

No. 5108.

Circuit Court of Appeals, Sixth Circuit.

December 18, 1928.

Wm. Marshall Bullitt, of Louisville, Ky. (R. Lee Blackwell and Bruce & Bullitt, all of Louisville, Ky., on the brief), for plaintiffs in error.

Charles W. Milner, of Louisville, Ky. (Edward P. Humphrey and Humphrey, Crawford & Middleton, all of Louisville, Ky., on the brief), for defendant in error.

Before DENISON and HICKS, Circuit Judges, and HICKENLOOPER, District Judge.

HICKS, Circuit Judge.

This case is here for the third time. Watjen & Co. v. Louisville Tobacco Warehouse Co., 240 F. 919; D. H. Watjen & Co. v. Louisville Tobacco Warehouse Co., 294 F. 264. The suit is one for damages for alleged breach of a contract. So far as is material here, it relates to 245 hogsheads of tobacco. Plaintiffs in error insist that defendant in error sold them this tobacco by sample, but delivered inferior tobacco. The recovery sought is for the difference in value between the tobacco sold and that delivered. The facts are substantially stated in the opinion in 240 F. at page 920.

Upon the eighth and last trial the jury found the following verdict:

"We, the jury, agree * * * and on the 245 hogsheads we find for the plaintiffs in the sum of $1,000.00 without interest."

Judgment was entered upon this verdict.

Plaintiffs in error insist that this verdict and judgment was erroneous, in that, as an undisputed fact, the record establishes their damages in the sum of $5,960.34. The insistence is that this error was caused by certain instructions of the court leaving to the jury discretion in the assessment of damages. This insistence is fairly preserved in the first assignment of error and subdivisions 1, 3, and 4 thereof. The instructions complained of are as follows:

"You will award plaintiffs such a sum as you may believe from the evidence fairly represents the difference, if any, between what would have been the fair market value in Louisville of said 245 hogsheads had they been equal to the samples by which they were sold as of date of their delivery, and the fair market value in Louisville of the tobacco actually contained in said hogsheads as of the date of their delivery, not to exceed in all, however, the sum of $5,960.34." * * * "In determining what would have been the fair market value of the tobacco contained in said 245 hogsheads had it been equal to the samples by which it was sold, you have a right to take into consideration the price paid for same by the plaintiffs, although this in and of itself is not conclusive upon you."

"4. The Court erred in charging the jury as follows: `In determining what was the fair market value of the tobacco actually delivered and contained in the 245 hogsheads as of date of delivery you should take into consideration the testimony of the witnesses as to what was the market value in Louisville, Kentucky, on the day of delivery of tobacco of the type, quality and condition represented by what is known in the evidence as the "Jarvis" samples,' without at the same time telling the jury that there was no other evidence before them as to such market value."

Three impartial and experienced tobacco men testified for plaintiffs in error on the matter of values. They carefully examined 245 samples by which this tobacco was sold and known in the record as the "Exchange" samples and the 245 samples taken from the hogsheads of tobacco actually delivered and known herein as the "Jarvis" samples, and compared these samples each with the other according to the corresponding serial numbers thereon, and filed a carefully tabulated report showing a "falling off" or difference in value between the 245 hogsheads sold and the 245 hogsheads delivered of $5,960.34. This was their joint and common action and judgment made up and reported as if by a valuation or appraisal board. This was substantially all the testimony on the subject of values, except a brief statement by the witness Luckett, as follows:

"The 245 original samples were short, common leaf of good color and condition, sweet, whereas the `Jarvis' samples represented inferior tobacco, inferior in quality and condition, being lugs and trash, and badly sweated, funked. When we made the comparison, we went over each one separately and made an estimate of the difference in value per pound and per hogshead between the two samples."

These witnesses were not cross-examined. Neither their competency nor integrity was attacked. Their credibility was not questioned, and no color, bias, prejudice, or self-interest appears in their testimony. There was no independent, countervailing testimony and no substantive evidence legitimately supporting the verdict in the particular amount of $1,000. However, defendant in error takes the view that the testimony of plaintiff in error's witnesses is expert or opinion evidence by which under familiar rules the jury was not necessarily bound, and that the subject-matter of this evidence was of common knowledge upon which the jury might exercise its independent judgment based upon its own experience. Defendant in error relies upon such cases as The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937. This involves at least two considerations: First, was plaintiffs' evidence expert or opinion evidence? And, second, if so, did the subject-matter thereof embrace matters of common knowledge? The type, quality, and condition of tobacco is of course to be determined from the opinions of men experienced in the tobacco business, but such opinions necessarily shade into knowledge, as nearly as this is possible in the nature of things. Such is peculiarly true here, where the testimony of the experienced witnesses was based, not upon conditions of the tobacco as reported by others, but upon knowledge arrived at by a personal inspection of the tobacco samples. Market value at any given place or time is not a matter of opinion. McNamara v. Georgia Cotton Co., 10 Ga. App. 669, 73 S. E. 1092. It is a matter of personal knowledge to be proven by men who out of their experience had become acquainted with the facts. Assuming that the plaintiffs' evidence as to the type and quality of the tobaccos bought as well as of the tobaccos delivered has in it somewhat of the element of opinion which a jury might disregard, it does not necessarily follow that the subject of such opinion is a matter of such common knowledge as to justify the assumption that the jury could safely base a conclusion of its own thereon. It is indeed difficult to justify the verdict here upon any such idea as that the jury could know for itself the type and quality of the tobaccos in question based upon the meager description of their condition in the record, and that, in addition thereto, it could out of its own experience know the market value thereof in Louisville, Ky., on August 12, 1913, the...