Ace-High Dresses, Inc. v. J. C. Trucking Co., Inc.

• Decision Date: 07 April 1937
• Citation: 122 Conn. 578,191 A. 536
• Court: Connecticut Supreme Court
• Parties: ACE-HIGH DRESSES, Inc., v. J. C. TRUCKING CO., Inc.

191 A. 536

122 Conn. 578

ACE-HIGH DRESSES, Inc., v. J. C. TRUCKING CO., Inc.

Supreme Court of Errors of Connecticut.

April 7, 1937

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action by AceCHigh Dresses, Inc., against the J. C. Trucking Company, Inc., to recover damages for failure of defendant an alleged common carrier, to deliver merchandise received by it from the plaintiff, which was tried to the court. From a judgment of nonsuit, the plaintiff appeals.

No error.

Isidor E. Finkelstein, of Hartford, for appellant.

Donald E. Cobey, and Samuel A. Persky, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

BANKS Judge.

The complaint alleges that the defendant is a common carrier of goods for hire between New Haven and New York, that the plaintiff delivered to it certain goods to be transported to New Haven to be processed, that after they were processed they were received by the defendant to be delivered to the plaintiff for hire, but that the defendant failed to deliver them. It was agreed that the goods were not delivered to the plaintiff, being lost through robbery, and that the only issue before the court was whether or not the defendant, in the transportation of the goods, was acting as a common carrier. At the conclusion of the plaintiff's evidence the court granted a motion for a nonsuit, and the appeal is from its denial of a motion to set aside the judgment of nonsuit.

In passing upon a motion for a nonsuit, the court is bound to regard the truth of such of the evidence introduced by the plaintiff as goes farthest in support of the complaint, as admitted, and to take into account every favorable inference that may legitimately be drawn from it. It is enough if he has thus made out a prima facie case, though it may in the opinion of the court be a weak one. Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 A. 1126; Anderson v. Colucci, 116 Conn. 67, 163 A. 610. The rules governing the court in granting it are the same whether the action be tried to the court or to the jury. Pentino v. Pappas, 96 Conn. 230, 113 A. 451. The test is whether plaintiff's evidence is sufficient, in point of law, to make out a prima facie case in his favor.

The plaintiff produced a single witness, the president of the defendant corporation. Assuming the truthfulness of his evidence and taking into account every inference favorable to the plaintiff that may legitimately be drawn therefrom, it fairly establishes the following facts: The defendant was incorporated in April, 1934, and one of the purposes set forth in its certificate of incorporation was " to do a general transfer and trucking business for the public generally." The business conducted by the defendant consisted in picking up certain dress material in New York City, transporting it to defendant's customers, dressmaking establishments in New Haven, Hartford and Bridgeport, to be processed, and then taking the finished dresses back to New York. It owned four trucks which were specially equipped with racks for the purpose of carrying dresses, and were used for that purpose exclusively. It had verbal contracts with these customers under which it was obliged to carry dresses every day except Sunday, however slight the volume might be. For these daily trips it was paid weekly by each customer, according to the number of dresses carried, at a rate fixed by a trucking association of which it was a member. Defendant had keys to the factories of its customers and entered the factories at night and picked up the dresses, which were delivered in New York the next morning. It did no trucking for any concern except these with which it had these contracts. In May, 1934, a month after defendant started business and a year before the date of the loss sued upon, defendant had contracts for carrying dresses with eight dressmaking establishments in New Haven, two in Hartford and two in Bridgeport. In May, 1935, defendant no longer had contracts with three of these concerns and had no new contracts which it did not have in May, 1934, and had solicited none. The question upon this appeal is whether these facts are sufficient to establish, prima facie, the status of the defendant as a common carrier in the transportation of plaintiff's goods.

Speaking very generally, the law, as a matter of public policy, imposes upon those who are engaged...