7:00 A.M. on the 6th morning after receipt by the originating
carrier. On an overall basis, particularly before December 31,
1952, the pattern of deliveries on the 6th morning was not
regular or consistent. All but four of plaintiffs' 63 shipments
were carried before December 31, 1952. The term "6th morning
delivery" refers to plaintiffs' experience in receiving shipments
in accordance with the faster experimental schedules.
12. Failure to deliver on the 6th morning sometimes worked to
plaintiffs' advantage where there was an incline in the market
between the 6th and 7th mornings.
13. The failure of defendant and its connecting carriers to
carry and deliver plaintiffs' 63 shipments on a 6th morning basis
did not constitute a failure to deliver with "reasonable
14. The failure of defendant and its connecting carriers to
carry and deliver Cars WFEX 73995 and PFE 75097 prior to 7:00
A.M. on a 7th morning basis did not constitute an unreasonable
delay in the delivery of said shipments.
15. The failure of defendant and its connecting carriers to
carry and deliver Car PFE 63058 prior to 7:00 A.M. on a 7th
morning basis resulted in no market decline loss to plaintiffs
between the 7th and 8th mornings.
16. Plaintiffs proved that the Chicago wholesale market
declined in an aggregate amount of $4,501.59 between the 6th and
7th mornings for perishables of the kinds that were carried in
the 63 shipments. Plaintiffs did not prove that the perishables
in the 63 shipments were comparable in quality and condition to
those sold on the Chicago wholesale market, did not prove that
they sold the perishables in the 63 shipments upon the declining
markets between the 6th and 7th mornings, and did not prove that
they suffered actual losses equivalent to the declines that the
Conclusions of Law.
1. This suit is one at law arising under the provisions of the
Interstate Commerce Act, Title 49 of the United States Code
Annotated. The Court has jurisdiction of the parties and the
2. Under the terms of its transportation contracts, defendant
and its connecting carriers were obligated to carry plaintiffs'
63 shipments with reasonable dispatch, but not by any particular
train, nor in time for any particular market.
3. During the period in which plaintiffs' 63 shipments moved,
the pattern of deliveries on an expedited experimental basis had
not become uniform nor so well established over a period of time
that it had become a custom upon which plaintiffs could rely.
4. Delay in the delivery of three of plaintiffs' shipments for
periods ranging from 19 to 24 hours was not an unreasonable delay
where the goods were transported distances ranging from 2100 to
2400 miles by connecting carriers in the circumstances described.
5. Plaintiffs' proof of loss because of market declines on
goods allegedly delayed was insufficient to carry their burden of
proof on the issue of damages where they relied exclusively on
market quotations to establish the fact of decline, but failed to
link the market quotation declines to their own experience in
selling on the declining market, and failed to correlate the
quality and condition of their own goods to the quality and
condition of the goods in the market quotations.
6. Defendant is entitled to judgment and dismissal of
plaintiffs' claims herein.
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