Page:Edward B. Marks Music v. Borst Music.pdf/1

 Austria and the other the portrait and crown of his queen. Each complemented the other in appearance, design, desirability and value. As a result, the broken urn is irreplaceable and the value and desirability of the remaining urn is damaged or reduced through the loss of its mate.

12. The pair of urns had a value of $5,000.00 at the time of the shipment here involved. The damage to the value of the pair of urns, and consequently the loss suffered by the plaintiff, through the damage or breakage to one, is $3,500.00.

13. The defendant has offered no real basis of defense to this claim, and, in its discretion, the Court finds that the defense was not in such good faith, and the amount of the plaintiff’s claim was not in such dispute, as to render the defendant free from an obligation to pay interest from the date of the plaintiff’s claim. The plaintiff is, therefore, entitled to interest at the rate of 6% per annum on the amount of his damage, $3,500.00, or from the filing date of his claim, August 9, 1950.

1. The Court has jurisdiction of this action under Sections 1331 and 1332 of Title 28 U.S.C.

2. The defendant is subject to the provisions of Section 20(11) of Title 49 U.S.C.A.

3. When proof is given by the plaintiff that property delivered to a common carrier in good condition was damaged while in the hands of the common carrier, a presumption arises that the damage was due to negligence and the burden of going forward with the evidence is upon the common carrier to show that it was free from negligence or that the damage occurred without its fault. This is true both under the statute above cited and the special contract between the parties.

4. Where it is shown that a common carrier accepts two crates containing similar articles similarly packed for transportation together and under similar conditions and delivers one of them damaged and the other undamaged, the Court is entitled to find that such facts constitute evidence of negligence as to the one damaged, and that such evidence lends strength to the presumption of negligence set out in the third conclusion.

5. Interest may be allowed as compensation for delay in paying the damages from damage or breakage in transportation under the Carmack Amendment, 49 U.S.C.A. § 20(11), whether the technical form of the action is in contract or tort, and, under Rule 54(c), Federal Rules of Civil Procedure, 28 U.S.C., the Court may allow such interest, even though no demand has been made therefor in the complaint.

6. The plaintiff is entitled to judgment against the defendant for the amount of $3,500.00, plus interest at 6% per annum from August 9, 1950, and his costs.

Judgment accordingly.