United States v. Scrinopskie

179 F.2d 959, 1950 U.S. App. LEXIS 2293

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 6, 1950
• Docket: 12841_1
• Status: Published

Opinions

WALLER, Circuit Judge.

Appellees purchased from the War Assets Administration at Oak Ridge, Tennessee, “as is, where is,” F. O. B. cars Oak Ridge, approximately 400 portable welding machines. All of these machines had been used and some were in a very bad state, and some were in a less bad state, of repair, while some were in fair condition. Concededly, however, a number were valuable only for their parts or for junk. Ap-pellees bought them at $80.00 per machine. When they arrived in Grand Prairie, Texas, most of them were in bad shape, due either to the condition they were in before the purchase, or the negligence of the United States in handling and loading, or of the railroad in transportation. The Government and the Texas & Pacific Railroad, the last carrier, were sued jointly by the purchasers. They alleged that the employees of the United States were negligent in failing to brace and to fasten down these machines when loading them in the freight cars. They alleged that the Railroad Company was negligent: (1) in the operation of the train that carried the machines; (2) in not ascertaining by proper inspection whether or not the loading of the machines was adequate for their transportation without resulting damage. They also alleged that the Railroad was liable as an insurer for the damage to the machines which it had agreed and undertaken to transport safely,

Even though whatever duty the United States owed to the Plaintiffs in this case arose out of a contract of sale wherein the seller agreed to load the machines on the cars, nevertheless, counsel for the Government conceded in oral argument that since the breach was of an implied obligation, as distinguished from the breach of a specific promise in the contract, the Court had jurisdiction under t'he Federal Tort Claims Act. 28 U.S.C.A. § 1346, 2671 et seq. The Court below agreed, and so do we, that this view was correct.

The United States filed a motion to dismiss and asserted, among other things, that there was no authority in the law for the joinder of the Railroad Company as a party defendant in the suit with the United States. The motion to dismiss was overruled except that the Court ordered the cause dismissed as to the Railroad Company. To this action no exception or appeal was taken by the United States.

There was great difficulty in ascertaining or establishing a computable difference in market value of the machines when purchased from the United States at Oak Ridge and the market value of same when they arrived at Grand Prairie. There was testimony that many of the breaks, bends, and batterings were fresh, and that the damages claimed took into consideration only such mutilations as revealed fresh breaks, scratches, indentations, etc., of the metallic elements of the machines.

The record does not reveal why the Railroad Company was dismissed from the suit, but we assume it was because it would have been entitled to a trial by jury in any suit charging negligence, whereas no jury could be allowed in a suit against the United States under the Tort Claims Act. It does not appear to have been considered by the lower Court whether the claim against each Defendant might not well have been tried separately under Rule 42(b), Federal Rules Civil Procedure, 28 U.S.C.A.¹ Be that as it may, there is no appeal or cross assignment of error based upon the order dismissing the Railroad Company, and since the dismissal was procured at the instance of the Government it now should not be heard to assert error in such dismissal or to insist that judgment should have been rendered against the codefendant whose dismissal from the case it had procured.

The trial Judge, during the concluding part of the trial, éxpressed grave doubt as to whether or not the amount of the damages had been proven with sufficient accuracy to enable the Court to reduce same to judgment. Nevertheless, his findings of fact and conclusions of law, formally filed in the case sometime later, expressed no such doubt but found all the essential facts of the case with the Plaintiffs, and it is to these that we must look in order to discover the judicial thinking and conclusions that went into the judgment, which he rendered for the Plaintiff in the sum of $7,500.00, in which amount, we think, is well within the range of the testimony—in fact, considerably below the testimony of the Pl'ain-tiffs as to the amount of the damages sustained.

There was ample testimony in the record to justify the Court in concluding that the employees of the United States were negligent in failing properly to brace, block, and fasten these machines in the cars—many of which were on wheels and susceptible of rolling back and forth— and that such failure was a proximate cause of the damage.

The Government in its brief insists that since three of the carloads of machines came through to Grand Prairie without substantial damage to the machines it must be concluded that the Railroad was negligent in the handling of the other shipments and that its negligence was the proximate cause of the damage.

Even though the evidence undertaking to measure the damages is not as definite and assuring as the Court craves in its quest for certainty, nevertheless, Plaintiffs’ damages, being based upon the difference, if any, in the fair market value on the date of the acquisition by Plaintiffs and on the date of the delivery to them at Grand Prairie, are here, as often elsewhere, a matter of opinion and not susceptible of proof to a mathematical certainty in dollars and cents. However, it does appear that the Plaintiffs paid $80.00 per machine at Oak Ridge and there is testimony in the record that the market value of the machines at Grand Prairie would not be in excess of $35.00 per machine as a lot, or $50.00 per machine if each were sold separately. There is testimony by the Plaintiff that the machines were in vastly better condition before shipment than when received, and that the fresh breaks reveal recently inflicted injury. There are photographs in evidence of practically every machine showing the damaged parts of some on arrival 'at Grand Prairie. There are also photgraphs of many of the machines in the railroad cars before unloading showing their dishevelled position and battered condition.

We are convinced from the evidence that substantial damage was caused to the machines either through negligence in lbad-ing or in transportation, but since there is no evidence to fasten the proximate cause upon the Railroad, save the inference to be drawn from the fact that three out of the ten carloads shipped came through in fair shape, and since there is sufficient evidence in the record to support the Judge’s findings that the negligence of the United States in failing to brace, support, and tie down the machines in the cars was the proximate cause of the damages, the judgment should be affirmed, and it will be so ordered.

Affirmed.

1 . Rule 42(b), F.R.O.P., reads as follows: “Separate trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any daim, cross-daim, eounterdaim, or third-party daim, or of any separate issue or of any number of daims, cross-daims, counterdaims, third-party daims, or issues.”