# Petition for Writ of Certiorari — Maddox v. Shroyer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0444%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1962 - **Citation:** 371 U.S. 825 ## Text hn , : : ; Office Supreme Court, US. ee ne "9 Iae> J. = JU; 7 19 ) miGbltink DAVIS. CLERK ea as INTHE oe SEN curr OF THE UNITED SATE No, a i : ‘ ROCK ISLAND MOTOR TRANSIT COMPANY, - - Petitioner, © i a . CONDITIONED AIR CORPORATION, ie Respondent. - - PETITION FOR WRIT OF CERTIORARI To the Supreme Court of the State of Iowa. i: - pk , —_14- “In the present ease, therefore, the failure of the _ carrier to have transported the soybeans to Kansas . City before the expiration of the ten orgwelve, days’* period, in which the. court found that they . would " spoil because: of their special condition, would not make the carrier liable for their spoiling (such as’ might perhaps be the situation generally in the éase of perishable goods as # matter of contemplated dam- ages) if the carrier had no notice of the special von dition of the soybeans, so as to impose upon it a duty to act in relation thereto.” Additional authorities from state and federal courts might be cited to demonstrate that damage items, such as ' the discount -allowed to. respondent have universally’ been held recoverable, only ‘upon a showing of advarice notice - to the carrier of the.cireumstances of .the parties which would produce loss. The Iowa court disregarded the au- ‘thorities in holding that the discount item of $1,250 was ' ‘general damages”, and not “special damages.” Thus, the Iowa court has reached an erroneous conclu-ion of law, in part by disregarding established’ rules of the common law, and in part by.a construction of the statute;- not justified by its terms and contrary. to that adopted by this court in the case of Illinois Central Railroad Company v. Crail, 281 U. S. 57, 74 L. Ed. 99, wherein this court guled that the measure of damages for toss of 5,500 lbs. from a -earload of coal was the cost of replacement and no more. The case of Gardner v. Mid-Continent Grain Co., 168 F. 2d 819, clearly shows that had‘this case been decided -in the United States Court of Appeals for the Eighth Circuit, imposes liability upon a earrier for such special, remote and consequential damages as were awarded by the high- est Iowa court. This holding of the Iowa court makes remote and consequential damages sustained by a shipper | @ directly contrary result would ‘have: been reached. Neither the Interstate Commerce Act nor the common law —————————— — _ recoverable in the absence-of notice to the carrier of special circumstances from Which such damages’ will follow, : } @* The “Overhead Expense” Claim. As we have seen after computing all material, labor, ‘ transportation, anodizing, and other incidental costs in- ‘ eurred by respondent to replace the damaged panels, the trial court added 17 per cent of the total for - “fair and reasonable overhead charges for the use ‘of machinery, rent, management’ salaries, etc., in the sum of $929.56." ae ° As we have seen, the. lowa Supreme Court sustained - this award ‘saying: - “The full nite loss, which the federal statute con- templates, ineludes not only the direct. cost, of labor and materials in replacing the injured panels which is concededly due, but also a fair allowance. for the cost of furnishing officers and supervisors, buildings, ‘machinery, , and power and other items of operation and overhead. ” v ‘No attempt was made to show that any of the overhead expense items were incurred or increased by the necessity - to replace the panels damaged. While respondent’s presi- dent testified that the replacenient. required. the time of supervisory employees, no record of which was kept, the accuracy of this statement was challenged by the evidence of the superintendent. of. respondent's sheet metal depart- ment who testified’ that much of the replacement work was done at night, when he was not present ( Record, page 59, lines 13 to 20,ine.). At the close of the evidence, petitioner’s counsel re- quested the court to rule as a matter of law that the dis-. . count ‘item of $1,750 (consisting “of $4,250 for the school’ district, and $500 to the contractor, vendee; for extra fil cia labor, no ‘allowed by the trial court) “constitute special ‘damages, and that the ev idence is wholly insufficient to establish that defendant is in any manner liable for such. Joss” (Record, pg. 74, lines ‘19-27 and see Appendix 2, page 47). Counsel for petitioner further requested the ‘¢ourt to rule that thé measure of respondent’s recovery was the actual cost. of reproducing the panels (Record pg. 75, line 11; and Appendix 2 , pages 47 and 48). With respect to the so-called “overhead cost” of $928.56 | when counsel for respondent -first made inquiry concern- ing Exhibit “F”, the accountant’s audit report of respond- ent’s business counsel for petitioner stated that he wished to Sbject to the report. as irrelevant and immaterial, not bearing on-any element of damage for which defendant could possibly be responsible (Record; pg. 19, lines 3-9 ine., and see Appendix 2, pg. 42). To the offer* of Ex- hibit “F”, petitioner objected “as immaterial and irréle- vant to any issue before the court, that the general overall business situation and volume of business and the over- head items of rent, officéfs’ salaries, . -expenses, ete., gre wholly immaterisi \to any issue presented, and have no ' bearing upon the. proper measure of damage atid do not in any way measure the actual loss suffered or incurred | by plaintiff.” These objections were overruled but were allowed as standing objections to all further inquiries concerning the Exhibit (Record pg. 19, lines 21-34, pg. 20, lines 1 to 20, ine., and Appendix 2, pages 42 and 43). At the close of the evidence, counsel for potstiener Te- | quested the trial court to rule that: ‘The cost of doing business on the basis suggested by. counsel in his opening statement and by the evi- dence received. over objection is not a recoverable item of damage, is speculative and remote, and in the - nature of special damages, not recoverable in this proceeding”’ (Record, p. 75, lines 12-19, ine., and - pendix 2, pages 47 and 48). ep ; ot It is appar _ that o-called overhead expense items in- volved-no los. r damage to the property itself, and no -actual loss to respondent within the meaning of the words, ‘‘loss, —* and injury,’’ as used in the Inter- state Commerce Act. | We think it clear that ‘the pane tw we of the Iowa Conrt that the statute authorizes recovery for so-called ‘‘over- head expense’’ ignores the decision of this Court in IIli- nois Central. Railroad Company v. Crail, 281 U. S. 57, 74 L. Ed. 699, a coal dealer sued the. railroad for.the retail price of 500 pounds of coal lost from a carload in transit. He contended that the statute could be satisfied only by an award of damages for the cost of replacing, the coal in the retail market at destination. .The Court of — Appeals for the Eighth Circuit ‘agreed, but this. court re- versed in an opinion. written by Mr. Justice Stone, who . . said: piers ty . ‘‘This contention (consignee’s claim) ignores the basic principle underlying commion I¢w. remedies that they shall afford only “neato for the injury: 9 (citing cases), and leaves’ out of account the — language of the amendment which likewise gives only a right of recovery for ‘actual loss.’ ’’ . Continuing, Mr. Justice Stone pointed out that had the entire car of coal been lost, the cost of replacement would - have been the wholesale cost of the car at destination. Respondent there suffered no loss of either overhead, or of profits, since the éoal. was replaced from carload ship- “ments at the mine price. It seems plain that the Towa Court has ignored this pronouncement which is closely in point with the case at bar. | | In Marcia Dress Frocks, Inc., v. New York Dress De- | livery, 29 N. Y. Supp. 2d -322, defendant, a common car- rier, lost a number of dress fronts consigned to plaintiff. Plaintiff claimed the remainirig portions of. the dresses, j= 1B which were not shipped, were rendered valueless ‘because’ * of impossibility of: procuring matching materials to make new dress fronts. The trial court rendered judgment for the ful] value of dresses as though completed. In ‘re- | gversing thie judgment, the appellate division of the New York Supreme Court said: ‘*The defendant, truckman, is s liable’ only for the value’ of the merchandise lost.’ me eo In Meletio’ Sea Foods Company: v.-Gordon’s Transport, . Ine., 191 8. W. 2d 983 (Missouri Court of Appeals), plain- tiff shipped 1,250 pounds of a prepared food product, portions of which became contaminated in transit. The ‘invoice price to the purchaser was $13.20 per. ewt.° The trial court found the actual cost to prepare the product was $10. 349 per ¢wt., but awarded the shipper the in- voice — price. On aypeal, the Missouri court ruled that the actual cost of replacement | of the, quantity damaged ‘or destroyed was the measure of plaintiff’s Tecayety. The court said: : As already pointed out, the federal act gives only ; ‘ a right of recovery. for actual loss, and in that re- °. spect conforms to the basic principle of the law of ‘damages, which contemplates. that the remedy pro- vided in a given case shall only. afford compensation for whatever : ‘injury is actually sustained. ”’ Tilinois . Cent. R. R. Co. v. Crail, supra; . Am. Jur., Carriers, Ree. 781. Continning its diseussion of the rules to be spnlint, the Missouri vourt said: : _‘*While the federal act. unquestionably provides that in'the event of the carrier’s failure to make de- _ livery of afy part ‘of a shipment without legal ex- use, the holder of the bill‘of lading is ‘entitled’ to recover his full actual loss at the point of destina- —S ‘ d ie ore oF ie rey tion, we do aot understand that the full actuat loss ‘for which the carrier is liable may exceed the market | value of the lost or damaged goods at destination, or the contract price where tht goods were*shipped pursuant to a contract of sale, plus whatever inci- dental damages may naturally and proximately have resulted from the loss or injury coimplaired of. In other words, the act does not contemplate that the shipper shall be pernfitted to enhance his damages by manufacturing goods, to. replace ‘those whieh had been lost, and afterwards recover the cost. of manu- facture if such cost exceeds the contract price. But, of course, if he replaces the damaged goods, and the cost of replacement (as in this ease) ix less 4 the contract “price, then the carrier, under the general law of damages, may show and rely upon such fact in mitigation’ or reduction of the amount which it Y must pay in order to afford just compensation. @ -The very recent ease of isonet Pacific: Railroad Com- - pany v. H. Rouw Company, 268 F, 24445, involved an in- ‘ _ terstate shipment of perishable vegetables, to a commis- “ion, merchant for siile for shipper’s account on the market at destination. A commission was charged ‘to .the ship- per and deducted from the destination price. The district court, sitting without a jury, ‘granted judgment for the . difference in ‘the selling price at destination, and its full. market value had it been delivered without damage. The sole question urged op appeal was that the carrier was entitled to a. déductidl of. the commission charged. The’ United States Court of Appeals for the Pifth Cirenit re-, ferring “to ‘the ision of this courf in Tllinois Central Railroad Company v. Crail, 281 0. S. 57, 58. Ct. 180, 74 L. Ed. 699, said: “We think that the rigid application of the eae | value rife“ here resulted in awarding Sgr more ff y increased more than. 5% above its average cost of pro- + 9) — than. its actual loss; and there is ground to believe that the court helow, had the same'feeling, = ‘““We are not, eke. undertaking | to weigh or appraise the evidence as to damages. We hold simply - that the judgment appealed from clearly includes the award of some damages to which appellee was not entitled, growing out of the holding of the court below that no deduction should be made of sales commissions and other charges figured on the amount of the dif- ference in market: value between delivery in good order and delivery in had order. A/ppellee’s recovery . should be based’ upon this. difference in market values, - but not to exceed indemnity. = 5 These authorities, we believe, ‘make it plain that the owner of property damaged in transit is entitled only to his actual loss and no more. ‘It-is~ plain that respondent incurred no loss in connection: with the rental of build- | | ‘ings, executives’ salaries, depreciation of machinery and. equipment, or the other items ~éntering into its so-called overhead costs of ‘doing business, because of damage to _ the panels: These items of expense were n ither incurred nor increased because the shipment was damaged. They were simply a part of. respondent’s cost of doing business ‘which would have been the sanie- ; ierebpective of - the dam-.: ‘age in transit. The Iowa court cites .in support of its conelugions that. purely overhead costs are. recoverable as damages, deci- * sions of which Pacific Portland Cement Co. v. Food Ma- chinery ‘and Chemical Corporation, 178 F. 2d 541, is typical. ° There ,the parties entered into a contract by which the cement company agreed to purchase all gypsum produced at a certain. ‘plant for a period of twenty-five years, but with an ‘‘esealator’’ clause which. proyided if vendor’s cost of production, for any. twelve month period , a” ‘ducing gypsum in the preceding . twelve ‘months, then vendor after notice might increase its selling’ price, ‘‘not _ to exceed the actual advance in cost of manufacture.”’ The trial court ruled that general and administrative ex- pense was not to be included in determining ‘‘cost. of nyanufacture.’? This conclusion was held erroneous by the . Court of Appeals for the Ninth Circuit. That court re- ferred to the fact that there had been no production of gypsum _at the defendant’s plant prior to the contract and large expenditures had been made ‘to equip the plant for such production, entailing supervisory costs. Also in ‘ereases had been accepted including general, administra-. tive expense prior to suit. The decision of this Court in Standard Oil v. U. S., 107 F. 2d 402, 419, is etted 3 in sup- port of the decision sence. : It is s apparent, of course, that inclusion of ‘‘overhead @osts’’ in a transaction of the character here ‘under con- sideration is not supported by the statute or the record before ‘the Iowa Court. Here respondent was entitled to’ . its “full actual loss’’. It lost nothing by reason of damage | to the panels except the out of pocket cost of replacing” them. .Its ‘‘overhead’’ expense was. not increased one 7 penny by the damage. to the shipment. No-evidence of any " . increase in general or overhead expense was offered. We pital: that there must be a uniforny rule with re- spect to the measure of recovery under the Interstate Com- merce Act when goods are damaged in transit while in, the custody of a. motor carrier, or any other common car- rier. The prior decisions of this Court have laid down: the rules which govern under the statute. The Iowa court has added almost one-half to respondent's. recovery by inclusion of unwarranted items of damage, therein. (i) There is . appended, hereto, as Appendix I, a copy of | the opinion of the’ Supreme. Court of Iowa; which affirmed pe on the judgment of the. trial court, together with a. copy: of the judgment rendered in the district court of = state . x of Iowa in and for Polk County, ©. ay ' In Appendix 2, we, set. forth the following: 1. The: petition or complaint of respondent in the trial . court, | 2, Petitioner’ 's answer, 3. Respondent’s ainendment to petition, | 4. Pefjtioner’ 's amendment to its answer, -5. Portions of the record with page references thereto showing that petitioner objected to the receipt of evidence with respect to the item. 6f $1,250 discount, allowed by — respondent to its purchaser of .the panels, and the objec-’ tions lodged ‘to the offer of Respondent’s Exhibit fi gel 6. The request for findings of fact and conclusions of law made by respondent’ at the close of evidence, . The findings of fact and. conclusions of law of the ae court, and . 8. The proceedings in the Supreme Court of Iowa sub- sequent to the filing of the opinion on April 3, 1962. . Petitioner respectfully prays that this court grant the writ of certiorari to review the judgment of the Supreme Court of the state of Iowa in this cause, and that upon final submission, judgment of the Supreme Court of Iowa be reversed in accordance with the controlling rules of the federal law hereinbefore set forth. ' ALDEN B. HOWLAND, | 500 Bankers Trust Building, Des Moines 9, Iowa, Attorney for Petitioner. ee, Soe APPENDIX 1. The opinion of the Iowa Supreme Court reported at 114 . N.“W. 2d 305-311, inclusive, is copied as follows: * , Garfield, Chief J ustice. This appeal involves the measure of recov ery. from de- fendant Rock Island Motor Transit Co. for damage to a shipment of aluminum panels. Trial .was to the court ‘without a jury. Defendant has appealed from judgment allowing most, but not all, of plaintiff’s claim. Errors are assigned ‘in receiving evidence of, and allowipg for, two items of damage ‘defendant ontends are improper. Plaintiff’s place of business ‘is in Des Moines. It -had a contract with Bowers Construction Co., herein ealled Bowers, to furnish .206 anodized aluminum panels, about - 10 feet- long and 28 inches wide, for use in constructing ‘a new school building at’ Montezuma for which Bowers was principal contractor. Plaintiff formed and: bent the panels and shipped them by defendant’s truck and semi- trailer to Colors, Ine. in Indianapolis to: be anodized, _i. e., to have a thin protective coating of pure aluminum ap- -plied to. prolong their life. After the anodizing was done, the return shipment was damaged in transit. The trial court found 153 panels were damaged so they were unfit for use on the. job. ‘ As soon as the damaged panels were inagected and - eounted plaintiff ordered new material to replace them, formed and bent 153 new panels and shipped ‘them .to Colors, Inc. to be anodized. ° When these new panels were received back by. plaintiff they did not match in color the panels not damaged in the first shipment. The trial court found it was impossible to match the color of the - first panels. Substantial evidence supports this finding. ~ | = ae The first panels were anodized in March, the second ship- ment in July. A different ‘‘batech’’ of aluminum was used in Anodizing the replacement panels. There is ‘undisputed testimony that the only wa¥ in which identical color could have been obtained on all the panels was to replace all - 206 and that would be more expensive. ‘The Montezuma school board and Bowers were unwilling to accept the 153 new panels, because the color did not match those in the first shipment. However, negotiations between. plaintiff, Bowers and. the’ school board resulted " . * in their acceptance “at a reduction in cost to the school district of ‘$1250 which was charged ‘o plaintiff. Bowers also charged plaintiff $500 for its extra work in sorting and placing the panels. The ‘trial court allowed plaintiff ’ the cost of replacing. the damaged panels, ineluding cost ~ of ‘material, labor, anodizing: and freight to and from Indianapolis, and also the $1250 ‘it was compelled to de- duct from the contract price. The $500 deduction in favor of Bowers was disallowed. Defendant took and retained possession of the 153 damaged panels from the first ship- ' ment. They have a salvage yalue to defendant of about 13 cents a pound. Defendant’ s first two ‘assigned errors complain of the * admission of evidence, over its objections, of the reduction in cost to the school district. of the $1250 and allowance of this amount to_plaintiff. "TER. -The court also received evidence, over defendant’s ob- jections, of plaintiff’s overhead and operating expenses” for 1959, the year the panels were furnished. They totaled about 221% per cent of Jits direct expense for labor and material. The court-allowed plaintiff $928.56, 17 per cent of its direct expense for labor and material in furnishing the replacement panels. Defendarit’s third and fourth as- signed errors are directed to the receipt of this evidence * PS bet — e : a om Te and allowance to plaintiff of this item., Defendant con- cedes it is liable for the actual cost of replacing the dam- . aged panels. : I. As the parties agree, defendant's liability for damage ‘to this interstate shipment is governed by subparagraph * (11), section 20, 49 U. S. C. A. Defendant is liable, ac-" cording to the statute, ‘‘for the full sai ep loss, damage, _ or injury to such property caused by it.’’ See Adams Express Co. v. Croninger, 296 U. S. 491, 506; 33 S. Ct. ‘148, 57°L. Ed. 314, 320, 44 L. R. A., N.S. 257; 13 ©. J. &., Carriers, §§ 263-264; 9 Am.” Jur., Carriers, section 778. [1] The most commonly. applied measure of a ‘shipper’s . loss for injury to the shipment is the difference between its market value at destination if it had not been injured and such value in its. injured condition. Gulf, C. & 8S. F. R. Co. v. Texas Packing Co., 244 U. S. 31, 37, 37S. Ct. 487, 1 L. Ed. 970, 973;.13 C. J.'S., Carriers, § 264a; 9 Am. Jur., Carriers, section 780. See also Parsons v. a States oxpress Co., 144 Iowa 745, Lis 123 N. W. 776, : LR. A..N. 8. 842. “The test of market value is at best’ but a convenient means of getting at the loss-suffered, It may be discarded and other more accurate means resorted to, if, for special reasons, it is not exact or otherwise not applicable.’’ Tli- nois Cent. R. Co. v. Crail, 281. U. S. 57, 64-65, 50 S. Ct. 180, 181, 74 L. Ed. 699, 703, 67 A. L. R. 1423, 1426; 9 Am. Jur.,. Carriers, section 780. It is fiot unusual to allow recovery for the reasonable — cost of repairing or restoring injured property, especially where the expense of so doing is less than the diminution in value’ because of the injury. And if the value of the. repaired or restored property is less than the value of the property before the injury, such, difference in value is ‘also allowed, in addition to the reasonable cost of repair . ~~ Year ended. December 31, 1959 with Comparative figures for 1958 Increase 1959 1958 (Decreuse) Officer's compensation ....... ..$ 24,000.00 17,200.00 6,800.00 © Salaries and wages —other than . "* ee SE en 85,875.02 . 69,714.77 26,160.25 ” Warehousing expense ........ ky tue a » , 932.68 (932.68) Rent ‘expehse ..:......... ‘o... 7,840.00 7,920:00 (80.00) Outside engineering services . 1,000.00 10;127.06 (9,127.00) - ‘Traveling expenses ...... “14... 10,840.85 ° 11,436.33 - ” (595.48) Depreciation '............ Fite es -» 17,854.85 13,226.94 ° 4,627.91 Payroll taxes. ........ eee 9,462.68 9,159.72 - 302.96 Auto, truck, and plane expense... 11,526.43 7,041.96 4,484.47 Local and county taxes ......... 754.72 614.88 139.84 Operating supplies—sheet metal $ 6,043.42 ‘+ 3,995.71 2,047.71. ’ Advertising ............. eae 710.59, 752.16. (41.57) Insurance ..... TE CR Te \ aah _ 10,216.67 * 6,178.75 4,037 92 Operating supplies—general \ . * 3,867.80 8,950.48 | (5,082.68) ‘Interest expense ........°. \ 2164.89 1,550.88 614.01 Telephone and telegraph ..... \. 5,002.89 3,749.73 1,253.16 Employer's welfare fund .....) 4,885.21 7,103.44 (2,218.23) Employees’ -education trust ...\. 392.89 * 871.46 (478.57) Heat, light and water .......:..., 2,959.69 1,944.28 = 1,015.41 Office supplies and expense .... 1,280.65 1,177.73 - .102.92 - Professional fees ......... ... 1,984.66 — , 1,¥80.77.-- 803.89. , General expense ..... seseeeees 2,660:38 1,876.44 - 783.94 Service expense ............... 1,992.84 271.70- 1,721.14 . gk eee ee vrre 128.53 | 319.64 . (191.11) inouranoe—life ... 2.0 cecceee 1882 (10.78). 21.60 Dues and subscriptions .....-.. 771.92 242.25 529.67 . Postage ....... Siceniauestetacce. - cee 293.58 . 63.99 Contributions ........ eaeueivones . 242.87 —.. 117.50 125.37" Operating expense—scrap metal.. 3,503.77 1,809.75 1,694.02 Moving expense seesssiverecees » 6,509.23 ee 6.59.23 _-- — $224,841.84 179,749.75. °45,092. 09 —_ = —_—— --— The findings of fact and conclusions of law of the trial court were as follows: . “*The above entitled cause camé on for trial before ‘the Court without the intervention of a jury, the adage appearing by its Attorney, Harris Cogge- . 2 ee shall, and the defendant appearing by its Attorney, A. B: Howland; and the Court having héard the evi- _ dence introduced and stipulations made, examined the _ exhibits and the autherities cited, and being now. fully advised in the premises makes the following: - Finpinas or Fact. 1. That. on or slid November 17, 1958, the sitiahi | tiff’s proposal on the sheet metal and insulated panel - _ work for’the Montezuma; Iowa high school addition was accepted by the Bowers Construction Company, - the primary contractor, for the agreed sum of $15,870. 2. That the plaintiff fabrivated a number ,of alu- °° minum panels and shipped them to Indianapolis, In- diana, to ‘be anodized: ; 3. That on or sions the 19th day of March, 19: 59, the shiyffrent of panels was returned to the plaintiff by the. defendant, but the shipment was in bad order. 4. That 153 of the panels were damaged by crack- ing, denting, scraping and rubbing off of the anodiz- ing so that they were unfit for use on said high school addition; and the plaintiff to comply with his contract. had to refabriecate-153 new panels and have them — anodized. ' 5. That said 153 damaged panels were returned by | the plaintiff to the defendant, who still has possession of the same. 6. That in ariodizing aluminum panels as in this case, it is impossible to secure identical coloration; — © _ and because of the variation in color in the two proc- esses of anodizing - the sum of $12 a0 was deducted ; from the contract price. . . AI 7. That the materials for the replacenient panels were purchased from Robinson Brothers at a cost of $2840.31; that there was paid to Jewett Lumber Com- pany for crating miatesials for shipping, $90.46; that the freight charges paid on said pane ‘Is from Des ‘Moines to Indianapolis amounted to $221.33, and freight charges paid’ from Indianapolis to Des Moinés, 153 panels, $143.20: that there was paid +o Colors —Ine., as: an. anodizing charge on 153 pane's, $830.17 plus c. o. d. fee! of $5.01; transportation charges to Ww atson Bros., $1.84 8. That plaints actual labor cost in processing re- placement panel& was: paid | to employeés, FITIS.90; paid unemployment tax, social security tax, workmen’s compensation, union welfare, efe., a total of 10% of. the ahove wages, or $129.89. . ey ie 9. That the fair and. reasonable overhead charges for the use of the: machinery, renf, management sal- aries, ete., were in the reasonable sum of 17% of the above items, or a total sum of $9298.56. 10. That the piaintiff has failed to sustain by a preponderance of the evidence its allegation that it used materials from its own stock in replacing anid panels in the sum. of. $18. 79. 11. That the plaintiff has failed to sustain by a@ pre- ponderanee of the evidence that the additional de- duction of $500 made by the Bowers Construction Com- pany for extra work performed by its personnel in ‘sorting and placing the panels was related to or had any connection with the 152 replacement panels. 12. That the plaintiff is entitled to interest on the _ sums due it at legal rafe from July 15, 1959. 7) « — J. — 13. That the plan followed by the plaintiff in re- © placing the 153 damaged panels by new panels was the only practical and economic method it could have followed. S ONCLUSIONS OF: Law, - “1. The federal law provides that the carrier in such _- a situation as this is liable to the plaintiff for any loss, _ damage or injury to the property covered by the bill of lading, and in that respect conforms te the basic principle of the law of damages which contemplates - ; that the remedy provided in a given case shall only | afford compensation for whatever injury is actually sustained. 2. In this case the actual loss is to be ascertained from. the special circumstances of ‘the case rather than: by rigid adherence to some fixed rule or formula, such as value of the property at. the point of destina- tion af the time delivery should have been made. _ 3. The important factor in this case is, that the plaintiff upon the happening of the loss had to replace the damaged panels, and even then was compelled to — take ‘a $1250 discount off its contract price because of the differences in color; consequently, the plaintiff , is entitled to recover its actual loss, which was ob- viously the cost of replacing the damaged panels plus the incidental expenses, including: cost of materials, - $2,840.31, and crating, $99.46; transportation charges to Indianapolis and Sag $368.37; anodizing charges” and c.-o. d. fee, $835.18; labor costs and overkead, $2247.35; loss on Eig of changes in color, $1 250.00, for a total of $7,640.67, with interest at 5% trom July, 1959. a tae 4. That as the.defendant has saan and retained the damaged 153 panels, itis entitled to dispose of eae - q — 53 — them and to retain any sums received as salvage therefor. ‘*The plaintiff may prepare a judgment in aecord- anee with the Findings and Conelusions, submit it to the defendant for approval as to form, and to the Court. for signature: ‘‘Both parties except. ‘Signed this 8th day of March, 1961. s/ Ray C. Fountain, Judge.”’ (R. 88, lines 19-34; R. 89, lines 1-34; R. 90, lines ~ 1-34; R. 91, lines 1-34; R- 92, lines 1-: 21.) ’ This cause was submitted on abstract ee arguinent with oral arguments. of counsel for both sides to the Supreme Court of lowa on February &, 1962. Thereafter there was filed on April 3, 1962 , the. opinion of the court printed herein as Appendix 1, and the follow- -ing journal entry was made in the official Journal of the court. a April 3, 1962. “In this cause, the Court being fully adv. ised j in the prenrises, filed their written opinion affirming the judg- ment of the District Court. It is therefore considered by the Court that the judgment of the Court below he amd if is her: hy . " Affirmed. : Thereafter and within the time allowed by the statutes and rules of the Towa Supreme Conf, there was filed appellant’s ‘ ° , Petitiox ror Reneanine. - " Said petition for rehearing was predicated on the fact that the $1,250 disecount,. referred to in the-opinion of the court, ¢ ore was ‘special’? or ‘teonsequential’ damages, not recover. - : able in the absence of notice to the carrier that such dam- - ‘ages would: result in loss or damages or injury to the panels in transit, and that the Federal statute (Section 20, paragraph 1b, Interstate Commerce Act), which provides that a carrier **shall be liable for any loss, damage, or’ injury to sueh property, does not-impose liability for ven eral overherd expenses of a business enterprise of a “ship- per, in no way connected with replacement of articles: lost or damaged in transit.” : Thereafter, ard on May's, 1962, the following order was entered hy the-Supreme Court of lows: . ’ - ; ‘< Sidetladene Denten.’ ° There is filed herewith a certified copy of the record on appeal, order and proceedings on submission, opinion, and Judgment affirming jhe Polk County, lowa, District Court,. uppellant’s petition for re hearing and order overruling petition for rehearing, dated May S, 1052, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0444%3A2. Public record. Not legal advice.