United States v. Freedman & Slater, Inc.

*593DISSENTING OPINION

Rao, Judge:

I regret that I cannot concur with the views expressed by the majority of this court in sustaining the judgment of the-trial court in favor of plaintiff below.

At the outset, I wish to state that my disagreement with the majority is based, not upon any final conclusions with respect to the merits,, but rather upon the fact that, in my opinion, the appellant did not have a full and complete day in court. In order, however, to point out the respects in which I feel the trial court erred, it will be necessary for me to make a brief statement of the issues in the case.

The merchandise in each of these cases consists of wet, salted frigor-ífico sound bull hides, exported from Argentina. In both instances,, entry was made at 78 Argentine pesos per kilo, plus certain dutiable charges, as invoiced. In reappraisement No. 171098-A, the hides-were appraised at 78 Argentine pesos per 100 kilos, plus 6.46 per centum, net packed, plus certain items marked X on the invoice, and in reappraisement No. 171699-A, appraisement was at 78 Argentine pesos per 100 kilos, plus 6.7778 per centum, net packed, plus the items marked X.

The parties hereto are at variance solely over the item added by the appraiser on each of these entries to compensate for the shrinkage in weight of the hides during the voyage from Argentina, to wit, 6.46-per centum and 6.7778 per centum, respectively. Counsel for appellant contends here as it did before the trial court, that—

* * * the importer has failed to meet its burden of proof by evidence-showing the prices at which hides such or similar to those imported herein were-freely offered for sale or sold for home consumption or for export to the United States at the time of exportation thereof in the condition in which such hides were imported and that the provisions of section 14.3 (e) of the Customs Regulations of 1943 applies thereto and the percentage additions thereunder have not been controverted.

It is apparent from the record, however, that counsel for appellant was not content to rely solely upon the alleged omissions of proof on the part of appellee in this case. Instead he attempted to show affirmatively that the hides in their condition as imported differed from the hides in their condition as exported,' the difference being-attributable to shrinkage by evaporation of water, and that since merchandise must be appraised in its condition as imported, the appraiser had not erred in making additions for shrinkage. In this-endeavor, which was manifest by persistent and determined efforts to introduce evidence to establish these ultimate facts, counsel for appellant was not permitted to proceed. The court did not allow questions tending to establish this line of proof to be put to witnesses-called by the defendant nor asked on cross-examination of those; testifying on behalf of plaintiff.-

*594Accordingly, appellant claims here that the trial court erred in the following manner:

, 1. In failing to admit and receive evidence material to the issue.
2. In refusing a continuance of the case and in denying the Government’s motion to transfer the case to Chicago for further testimony.

In its opinion, the court below expressly affirms the principle that merchandise is duitable in its condition as imported by the following statement:

Now, of course, it must be remembered that the value statute refers to the value in the principal markets of the country of exportation of merchandise such as or similar to that imported, and it might not be amiss to point out that it is not the value of the merchandise which was exported which is in question, but the value of the merchandise which was imported. [Italics quoted.]

In view thereof, I believe that the court should not have rejected evidence which was offered by appellant tending to show what that imported condition was. Clearly, proof that the hides which were imported were different from the hides which were exported, that they were in fact different commodities, to wit, wet hides and evaporated or shrunken hides, was pertinent to the issue in this case. If such proof existed and was available, and appellant contends that this was so, the opportunity to offer it should not have been denied. That it was so denied is apparent from a review of the record, with particular reference to those pages cited in assignment of error numbered 33 of the assignments filed by appellant together with its application for review.

Throughout the trial, 'the court sustained objections to questions tending to elicit proof as to whether loss of weight during transportation of frigorífico hides was usual or was customarily anticipated; whether shrinkage or evaporation of the water content results in loss of material; whether the desired element in the purchase of hides was the hide fiber, or what the desired element in fact was; what was the effect of shrinkage on the leather content; whether shrinkage affects the quantity of product to be obtained from the hide either adversely or beneficially; whether hidés such as or similar to those in issue, in their imported condition were offered for sale in Argentina, and at what price.

In my opinion the answers to these questions had a very important bearing upon the issue of whether the hides in their imported condition differed from the hides as exported, and whether the imported merchandise increased in value by virtue of shrinkage or evaporation. Appellant should therefore have been permitted to pose them, to the end that all of the relevant facts could become matters of record and be passed upon by the trial court. We would then have been afforded an opportunity to determine what effect, if any, the answers to those questions had upon the merits of the case.

*595Moreover, I believe that the trial court erred in denying appellant’s' application for a continuance of the trial, made to afford appellant an opportunity to produce a witness, who, it was explained, was “both a technical witness and a trade witness in connection with Argentine hides.” The request for the continuance was neither facetiously nor frivolously made. The good faith of the defendant, below, was manifested by its apprising the court at the time of certain pretrial arrangements, as well as at various times during the trial, that a continuance would be requested. While it is true that such negotiations occurred in November 1948, whereas the trial itself did not start until February 14, 1949, the fact is that it was not until January 15, 1949, that the parties finally decided upon which of the many pending cases on this issue would be pressed for trial.

When it is considered that the trial court permitted the plaintiff, below, to rest its case, subject to the submission in evidence of an affidavit which had not at that time been received from Argentina, the court’s action in denying similar consideration to appellant seems especially unwarranted.

In addition, I believe the trial court should have granted appellant’s motion to transfer the trial to Chicago, especially in view of the fact that counsel for the appellant, at the very opening of the trial, apprised the court that he would apply for a transfer. Aware as I am that New York, and not Chicago, was the port of entry for the merchandise before the court, I nevertheless believe that under the circumstances of this case appellant should have been permitted to ' produce its witnesses at the port at which they were available. The reasons why these witnesses could not appear and testify in New York, and the general substance of the testimony they were expected to give, were fully and fairly presented to the court. As one of the witnesses whom the appellant expected to call in Chicago was a member of the firm which had ordered the instant merchandise, it is fair to assume that he could have given testimony with respect to whether or not shrinkage and/or evaporation of moisture of frigorífico bull hides resulted in a corresponding increase in value of the unit of quantity in which the merchandise at issue was purchased.

I believe that the trial court has erred in the respects to which 1 have hereinbefore alluded, and that such action constitutes reversible error. Moreover, the record shows too much colloquy and argument between counsel and the court. Approximately 300 pages of the 412 in the record in this case consist of objections, colloquy, and argument. In my opinion the trial court permitted the same to affect the exercise .of its sound judicial discretion.

For the foregoing reasons, the judgment of the trial court should be reversed and the cause remanded for such other and further proceedings as are consistent with the views herein expressed.