
    No. 2944
    Second Circuit
    BURNAMAN v. WEIL BROS. & BAUER
    (June 28, 1927. Opinion and Decree.)
    
      (Syllabus by the Court)
    1. Louisiana Digest — Appeal—Par. 625. When .the question involved is, what is the ' reasonable price for hauling cotton seed from a cotton gin to a cotton seed oil mill; the finding of the trial court will not he disturbed unless manifestly erroneous.
    Jefferson Shipbuilding Co., Inc., vs. O. M. Gwin Const. Co., 1 La. App. 768.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by A. B. Burnaman against Weil Brothers & Bauer.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    G. P. Whittington, of Alexandria, attorney for plaintiff, appellee.
    R. C. Bauer, of Alexandria, attorney for defendant, appellant.
   STATEMENT OF THE CASE

REYNOLDS, J.

This is a suit to recover judgment for $112.87 as the reasonable value of hauling 112,870 pounds of cotton seed from defendant’s Clio plantation to the oil mill of the Red River Cotton Oil Mill Company in Alexandria, Louisiana, being at the rate of $2.00 per ton.

Defendant denied that $2.00 per ton was the reasonable value of the hauling and alleged that the hauling was not worth exceeding $1.00 per .ton.

On the issues the case was tried and there was judgment in favor of the plaintiff as prayed for and the defendant appealed.

OPINION

' The sole question for decision in this ease is whether five cents per hundredweight or ten cents per hundredweight should be fixed as the reasonable value of hauling 112,870 pounds of cotton seed from defendant’s Clio plantation to the oil mill of the Red River Cotton Oil Mill Company in Alexandria, Louisiana, in September, 1926.

The witnesses who testified on the question differ widely in their estimates of the value of the work.

The lower court, however, accepted the value put upon the hauling by plaintiff and his witnesses, and we have found no reason for disturbing its conclusion.

The plaintiff, A. B. Burnaman, testified, pages 3, 4, 5, 6, 15 16:

“Q. Mr. Burnaman you allege in your petition that that hauling of these seed is well worth ten cents (10c) a cwt. Is that correct?,
“A. Yes, sir.
“Q. On what do you base that?
“A. On the expense of operating the
truck, and the price that I had to pay at
my own gin, and paid others.
“Q. Have you hauled seed from gins in that vicinity?
“A. Yes, sir.
“Q. And your basis to Weil Bros. &
Bauer was the basis that you charged to others?
“A. Yes, sir; and the proportion of mileage; on the proportion of mileage.
“Q. You stated that you were hauling seed for others, and that upon that basis you made your price of 10c per cwt. Who else were you hauling for?
“A. For Mr. Ben Cooper and Mr. Belgard.
“Q. How much farther is it from Mr. Ben Cooper’s place to the Red River Oil Mill than it is from the Clio?
“A. It is three, miles and a half from the Clio to Mr. Ben Cooper’s place by the speedometer.
“Q. How much farther is it from Mr. Belgard’s to the Red River Oil Mill Company than from Clio?
“A. It is three miles from Mr. Cooper’s to Belgard’s. It is 7.2 (seven and two-tenths) miles from Clio to the Red River Oil Mill.
"Q. Did you get the same price for hauling Mr. Cooper’s seed that you did from Mr. Weil?
“A. No, sir; I got $2.25 per ton.
“Q. And you understood that you were to get $2.00 per ton from Mr. Weil, did you?
“A. No, sir; I did not have any understanding; but that is the lowest price that is paid, by any gin around there.
“Q. Could you haul Mr. Weil’s seed at the price mentioned without losing money on it?
“A. I could not. It costs $9.35, actual expense, to drive one of these trucks with the help that they put on at Mr. Melady’s suggestion, and charges me $1.50 for the help.
“Q. What rate did you charge Mr. Cooper for hauling?
“A. Well, Judge, it was $2.00 from Clio —Weil Bros.; $2.25, Cooper; $2.50 to Belgard. It is three and a half miles from Clio to Cooper, and three miles from Cooper to Belgard.
“Q. Were you able to make more trips from Clio than you were from Mr. Cooper’s or Mr. Belgard’s?
“A. You could if you would just go and come; but you have to stand at the oil mills about the same length of time; sometimes there are three, sometimes may be four trucks ahead of you.”

Ben Cooper testified, page 9:

"Q. During the fall of 1926 did you employ Mr. Alonzo B. Burnaman to haul seed from your gin?
“A. Yes, sir.
“Q. Can you state' what price per ton you paid him for hauling that seed?
“A. Yes, sir; I can.
“Q. What price was it?
“A. It was $2.25; in fact, I contracted with Mr. Burnaman. I had an understanding personally with him. I talked it over with him.
“Q. Did you consider that a fair price for handling those seed?
“A. Yes, sir, I did; I thought that he was making money at it. In fact, I was paying him more than I could have hauled it for myself; but I wanted my men at home.”
W. B. Belgard testified, pages 13, 15;
“Q. What did you pay for moving seed from your gin to the Red River Oil Mill at Alexandria to Mr. Burnaman?
“A. Two dollars and a half ($2.50) per ton.
“Q. Did you employ anyone else to move your seed?
“A. I have a truck, but at that time the Red River Oil Mill' would sometimes get overstocked and pushed for space, and they would not let us haul regularly.
•Jí ‡ •i'
“Q. What do you consider that it cost you to move seed from your gin to the Red River Oil Mill when you used your own truck?
“A. I could not say exactly, but I think it was about $1.75 per ton; something like that.
“Q. That was actual expense?
“A. Yes, sir.
“Q. Did that allow anything for your depreciation?
“A. No, sir; that was the actual cost of labor.
“Q. You are familiar with the distance between the Clio gin and the Red River Oil Mill, and the general conditions surrounding it; now would you consider $2.00 a ton a fair price for hauling seed from Clio to Alexandria to the Red River Oil Mill, you furnishing your truck, gasoline, oil, etc. ?
“A. I think that it would he fair.
“Q. Would you consider $2.00 a ton excessive?
“A. I don’t know as I would; I suppose that would be reasonably fair from Clio to Alexandria, $2.00.
“Q. Would you be willing to haul seed from Clio to Alexandria for $1.00 per ton?
“A. No, sir; I would not make anything at it at that price.
“Q. And you consider that it is fair to charge $2.00 to haul six (6) or seven (7) miles, and $2.50 to haul twelve (12) or thirteen (13) miles?
“A. Well, the most of the labor was in the loading and unloading of the seed and not in the distance.”
W. P. Hathorn testified, pages 31, 32:
“Q. You have cotton seed hauled from your gin to the Red River Oil Mill, do you?
“A. Yes, sir.
“<$. How far is it from your gin to the Red River Oil Mill?
“A. About fifteen miles.
“Q. During the year 1926, what did you pay for hauling cotton seed to the gin?
“A. $1.75 and $2.25; the $2.25 was the price that we made, the price made by me; and the $1.75 was the price made by some negroes.
“Q. And the $2.25 was the highest price paid by you during the year?
“A. Yes, sir.”

Mack Spikes testified, pages 25, 26, 27, 28:

“Q. Mr. Sikes, you hauled seed to the Clio gin?
“A. Yes, sir.
“Q. How long?
“A. About two months.
“Q. What were you paid?
“A. Mr. Melady paid me a dollar ($1.00) a ton.
* * * *
“Q. Did you have any other occupation at that time, or were you out of work?
“A. I was out of work.
“Q. Did you haul seed for anybody else around there?
“A. No, sir.”
Louis Thiels testified, pages 26, 27, 28:
“Q. Did you haul seed for the Clio plantation?
“A. Yes, sir.
“Q. What were you paid to haul seed from the Clio' gin to the Red River Oil Mill?
“A. A dollar (1.00) a ton.
“Q. By agreement between yourself and Mr. Melady?
“A. Yes, sir.
"Q. Was your truck being put to any other use at the time that you started to hauling that cotton seed?
“A. No, sir.
“Q. Did you have help?
“A. Yes, sir; Mr. Melady furnished me help.
“Q. And paid you a dollar ($1.00) a. ton for hauling the seed?
“A. Yes, sir.
* * * *
“Q. Did you have any other employment when you were hauling these cotton seed?
“A. No, sir.”

Alphonse Thiels testified, pages 28, 29, 30:

“Q. Mr. Thiels, were you hauling cotton seed for the Clio gin?
“A. Yes, sir.
“Q. What were you paid?
‘A. A dollar ($1.00) a ton.
“Q. Why did you quit hauling?
“A. I had other wprk to do.
“Q. What work?
“A. In the fields.
“Q. What did you get for working in. the fields?
“A. Nothing.”
A. G. Melady testified, pages 21 and 24:
“Q. Mr. Cooper’s place is about three miles from Clio, is it not?
“A. Yes, sir; I always called it three and a half miles from my place, a quarter of a mile.
“Q. And Mr. Belgard’s place is about six miles above Clio? •
“A. Well, I judge he is about six and a half miles, I judge.
“Q. You state that you are familiar with the hauling of cotton seed by truck; I will ask you, where is the principal expense connected with the handling of seed? Is it in the actual running from the gin to the cotton mill, or in the loading of the seed at the gin and the unloading at the oil mill and standing in line awaiting your turn?
“A. That depends upon how it is at the oil mill; sometimes you have to wait there, and may be there are times that you don’t have to wait at all; it depends on how you get your loads and if the seed house is convenient. They have what they call seed chutes- at the gin and they dump the seed into the truck.”

From all of this evidence it seems clear to us that the price of $1.00 per ton for hauling cotton seed from Clio plantation to the Red River Oil Mill at Alexandria charged by Spikes and Thiel is not a fair guide in. arriving at the value of such hauling. They were not shown to have had any experience in operating trucks in the hauling business as a business. They were out of work when they accepted the hauling at the price of $1.00 per ton. Neither, from their evidence, appears to have allowed for interest on the amount invested in the truck with which the hauling was done, nor for its upkeep or depreciation; and they only did hauling at times when their regular farm work did not require their .attention.

W. P. Hathorn, who ginned for the public in summer, called as a witness for defendant, fixed 2.25 as a reasonable price for hauling cotton seed from his gin to the Red River Oil Mill at Alexandria, in spite of the fact that there were persons who were willing to haul from time to time at 1.75 per ton. This, in our opinion, is proof that the price at which individuals, not regularly engaged in the hauling business, were willing to haul at, from time to time, is not evidence of the true value of such work.

Mr. Ben Cooper and Mr. W. B. Belgard, who operate cotton gins in that part of the state, gave it as their opinion that the hauling of cotton seed from Clio plantation to the Red River Oil Mill at Alexandria at that time of the year was worth $2.00 per ton. Mr. Cooper, practically three miles further from the oil mill, paid $2.25 per ton for hauling seed from his gin to the oil mill, and Mr. Belgard, about three miles further, paid $2.50 per ton for hauling cotton seed between his gin and the oil mill.- This evidence we think establishes that the difference of three miles in the haul is worth a difference of twenty-five cents in the hauling price per ton; that it was worth twenty-five cents per ton more for hauling Mr. Cooper’s cotton seed and therefore it would be forth twenty-five cents per ton less for hauling Mr. Burnaman’s Clio gin, which is only three miles shorter distance. The evidence establishes, we think, that the price for the hauling of cotton seed is fixed by a system of zoning. Under the evidence the railroad fixed a price for hauling in accordance with a zoning system, and the minimum charge it made for hauling cotton seed any distance was $1.20 per ton, and the railroad company’s price for hauling cptton seed from Clio plantation to the Red River Oil Mill at Alexandria was $1.50 per ton. And the gin at Clio received from the oil mill a credit of $1.50 per ton on all seed delivered by the gin to the mill. If it was worth $1.50 per ton to haul cotton seed in carload lots by railroad, we think the price of $2.00 per ton for hauling the same distance by truck is reasonable.

R. A. Dainwood testified, pages 6, 7, 8:
“Q. Mr. Dainwood, are you employed by the Red Riv'er Oil Company?'
“A. Yes, sir.
“Q. In what capacity?
“A. Assistant manager.
* :s * *
“Q. Mr. Dainwood, are you familiar with the prices allowed by the oil mill for the hauling of seed, to the owners of the seed?
“A. Yes, sir.
“Q. That price is paid from their gin to your mill?
“A. Yes, sir.
“Q. Mr. Dainwood, is it the policy of the Red River Oil Mill to allow certain amounts to ginners for moving the seed from their plants to the Red River Oil Mill?
“A. Yes, sir, it is, when they move them with trucks.
# * i?C
“Q. Please state to the court some prices that you allow ginners on Bayou Rapides for that class of service?
“A. Six cents (0.6c) per hundred is the lowest railroad rate; it is based upon the mileage.
“Q. What is the amount you allowed Mr. Ben Cooper for his hauling?
“A. Seven cents (0.7c), I think; I am not sure but I think that we allowed him that.
“Q. Have you such -a basis for the Clio gin?
“A. Yes, sir.
“Q. Will you state what that rate is?
“A. Seven and a half cents (0.07y¡c).”

After reading all the evidence we have reached the conclusion that the judgment of the trial court is correct and, accordingly, it is affirmed.  