Dooley v. New York Central & Hudson River Railroad Co.

• Decision Date: 01 March 1916
• Docket Number: 76-1915
• Citation: 62 Pa.Super. 237
• Parties: Dooley v. New York Central & Hudson River Railroad Company, Appellant
• Court: Pennsylvania Superior Court

62 Pa.Super. 237

Dooley v. New York Central & Hudson River Railroad Company, Appellant

No. 76-1915

Superior Court of Pennsylvania

March 1, 1916

Argued October 25, 1915

Appeal by defendant, from judgment of C.P. Clearfield Co.-1914, No 493, on verdict for plaintiff in case of C. W. Dooley, Leslie Stewart and Wade I. Stewart, trading as Dooley & Stewart, v New York Central & Hudson River Railroad Company.

Appeal from judgment of justice of the peace. Before Bell, P. J.

At the trial it appeared that on April 9, 1914, plaintiffs delivered to the defendant, a railroad company, at its station in Clearfield, Pennsylvania, a soda water fountain for shipment to M. Barron, Madera, __ Pa. __, naming themselves as shippers and M. Barron, consignee. Upon arrival of the fountain at Madera it was found to be injured. M. Barron took it to his store, installed it and kept it. Barron testified that he bought the fountain under an agreement that he was not actually to purchase it until after it had been put up in his store in good running order and ready for use. He also stated that it was entirely the property of the plaintiffs and still was their property.

The court refused binding instructions for defendant.

Verdict and judgment for plaintiff for $ 203.25. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Hazard A. Murray, with him Thomas H. Murray and James P O'Laughlin, for appellant. -- When goods are delivered to the carrier and consigned generally to a purchaser at the city of his business and without any particular place of delivery designated, the title of the consignor passes upon delivery of goods to the carrier: Bacharach v. Freight Line, 133 Pa. 414; Pittsburgh Glass Co. v. Doubleday, 2 Pa.Super. 170; Trenton Rubber Co. v. Small, 3 Pa.Super. 8; Blakeslee Mfg. Co. v. Hilton, 5 Pa.Super. 184; Shumaker v. Eby, 24 Pa. 521; Philadelphia & Reading Ry. Co. v. Wireman, 88 Pa. 264.

W. C. Miller, for appellee. -- The most that the defendant could ask was to have the question as to the ownership of the fountain submitted to the jury. This was done by the court. Their verdict is a finding in favor of the plaintiffs: Sloss Sheffield, S. & I. Co. v. Tacony Iron Company, 54 Pa.Super. 11; Miller v. Seaman, 176 Pa. 291; Dannemiller v. Kirkpatrick, 201 Pa. 218.

Before Rice, P. J., Orlady, Head, Henderson, Kephart and Trexler, JJ.

OPINION

TREXLER, J.

In view of the verdict of the jury in favor of the plaintiff, we must accept his version of the transaction. A soda fountain was delivered to the defendant, a common carrier, to be transported by it, and turned over to the consignee at destination. It was to be bought by the consignee after it was put up in his store in good condition and ready for use. No title passed and no liability was imposed upon the intending purchasers, until the soda fountain was delivered " put up in good running order." It was damaged in transit and the consignor brought suit for his loss. Did he have the right to maintain the action? " In the absence of an agreement to the contrary when a vendor sells goods to a vendee residing at a distance, a delivery of the goods to a carrier for transportation is a delivery to the purchaser. And especially is this true when a bill of lading naming the purchaser as consignee is transmitted to and received by the purchaser. The delivery to the carrier vests the title to the property in the purchaser, and the risks of transportation must be assumed by him. This rule, however,...