Continental Distributing Co. v. Reading Co.

On Petition for Rehearing.

PER CURIAM.

Plaintiff, in this petition, advises for the first time that the- figures listed in the “Gallons Shipped” column, reproduced in part in the opinion we filed in this case on May 6, 1948, (168 F.2d 970) were obtained by multiplying the figures in the “Net Weight Kilograms” column by .25878; and not by dividing the alleged number of liters in each pipe by 3.785.¹

We wish to make clear that the basis of our holding as to the proof of gallonage lost was not, and is not, the fact that the computations of plaintiff arrived at a result slightly different from the documentary and other evidence. We were concerned that the jury was handed computations for which not only the jury, but this court as well, could find no adequate explanation in the testimony adduced. Furthermore, the absence of proper guidance by the court below, in failing to instruct the jury that it was unnecessary to accept either computation, compounded the error to the point that sets of figures without foundation in the evidence were permitted to submerge the testimony and documents elicited. We do< not bar the submission of computations; but rather we hold that, when such are offered, they must comport with and be supported by proper evidence; and that it is the duty of the court to apprise the jury clearly that, in cases such as this, there is no peculiar sanctity attendant upon such computations which requires their acceptance or rejection in toto.

All other matters of which we may take cognizance being fully considered in the opinion previously rendered in this case, the petition for rehearing will be denied.

1 Parenthetically we might add that this petition likewise does not disclose the source for the figures ia the “Litres” column.