Del Gaizo Distributing Corporation v. Gallagher

• Decision Date: 15 May 1937
• Docket Number: 125-1936
• Citation: 192 A. 144,127 Pa.Super. 53
• Parties: Del Gaizo Distributing Corporation, Appellant, v. Gallagher
• Court: Pennsylvania Superior Court

192 A. 144

127 Pa.Super. 53

Del Gaizo Distributing Corporation, Appellant, v. Gallagher

No. 125-1936

Superior Court of Pennsylvania

May 15, 1937

Argued October 12, 1936

Appeal from judgment of M. C. Phila. Co., Sept. T., 1934, No. 225 in case of Del Gaizo Distributing Corporation v. James Gallagher, trading as Gallagher Warehouse.

Assumpsit. Before Knowles, J.

The facts are stated in the opinion of the Superior Court.

Verdict directed for defendant and judgment entered thereon. Plaintiff appealed.

Error assigned, among others, was refusal of motion for new trial.

Judgment reversed with a venire facias de novo.

Joseph A. Keough, with him Levi, Mandel and Miller, for appellant.

Algernon R. Clapp, of White & Clapp, with him Harold Cooper Roberts for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ. Opinion by James, J.

OPINION

James, J., May 15, 1937:

This is an action of assumpsit to recover the value of 35 cases of tomato paste stored by plaintiff in defendant's warehouse, which defendant refused to deliver upon demand. At the trial the court gave binding instructions for defendant and later refused plaintiff's motion for judgment n. o. v., or a new trial.

The agreed statement of facts, in lieu of printing the record, is substantially as follows: On September 30, 1933, defendant issued and delivered to plaintiff two warehouse receipts for a total of 600 cases, and on October 2, 1933, four warehouse receipts for a total of 1330 cases, all alleged to contain tomato paste, the relevant portions of said receipts being as follows:

"Gallagher's Warehouses No. 18525,

50 South Third St., Philadelphia, Pa., Sept. 30th, 1933.

This is to certify that we have received in Storage Warehouse, 810-24 S. Swanson St., Bldg. 20-2 Floor for the account of Del Gaizo Dist. Co. ex in apparent good order, except as noted hereon (contents, condition and quality unknown) the following described property . . . . to be delivered to . . . . upon the payment of all storage, handling and other charges.

Number

Packages

Contents

Marks

500

cases

Tomato Paste

100 -- 6 1/2

Oz.

F

D

Del Gaizo

NON-NEGOTIABLE

G. Foti

* * * *

Gallagher's Warehouses

Claims a lien for all lawful charges for storage and preservation of the goods, also for all lawful claims for money advanced, interest, insurance, transportation, labor, weighing, coopering and other charges and expenses, in relation to such goods

Gallagher's Warehouses

By James Gallagher, Jr.

* * * *"

The warehouse receipts were identical except as to the number of cases, and a notation on one receipt for 500 cases, dated October 2, 1933, as follows: "1 case 2 cans short. 1 case 10 cans short, 16 cases stained."

Plaintiff imported all 1930 cases, alleged to contain tomato paste, from Italy. The cases were shipped in round wooden boxes containing sealed cans, so that it was impossible to ascertain the contents of the cases without opening them, or to ascertain the contents of the cans without opening them in turn; and neither plaintiff nor defendant had any actual knowledge of the contents of said cases or cans. Between October 27, 1933 and February 3, 1934, plaintiff withdrew from defendant's storage house, 1895 of said cases. On February 5, 1934, plaintiff issued to one of its customers, R. Scetto and Son, an order on defendant for the remaining 35 cases, which order was presented on February 13, 1934; defendant failed to deliver the 35 cases or any part thereof. In addition to the charges paid by plaintiff to defendant, storage charges accrued for the storage month commencing February 2, 1934, on 65 cases, of which 50 cases were withdrawn on February 3, and the remaining 15 cases on February 5, 1934. For said storage there was a charge of $ 1.30, which plaintiff has never satisfied or offered to satisfy.

At the trial the court sustained defendant's objection to plaintiff's offer to prove that the merchandise covered by the warehouse receipts was packed in cans in Italy and shipped to plaintiff in Philadelphia in the original closed packages, that plaintiff through its agent, Tofini, sold and distributed 1895 cases of the merchandise to plaintiff's customers and there were no complaints from any of the distributees that any of the packages contained any substance other than tomato paste; and to the offer to prove by the witness, Scetto, that he distributed 80 cases out of the lot covered by the warehouse receipts among his customers and there were no complaints from any of them that the contents of the cases contained any substance other than tomato paste.

Plaintiff relies upon the warehouse receipts as prima facie evidence of the receipt of the described merchandise. He concedes that where a warehouseman has redelivered a package to a consignee or owner, when it is found that the contents are different than described in the receipt, proof must be made that the contents of the package conform to the receipt; but contends that where a warehouseman fails in his duty to make redelivery of the package and contents, the receipt is prima facie evidence of the contents. The giving of a receipt by a carrier stating that goods were received "in apparent good order, except as noted, contents and condition of contents of packages unknown" is an admission as to conditions visible and open to inspection: Isdaner v. Phila. & Reading Ry. Co., 54 Pa.Super. 509; and the burden of going forward with the evidence and rebutting the presumption raised by such a receipt falls on the carrier: Beresin v. Penna. R. R. Co., 116 Pa.Super. 291, 176 A. 774. But where the goods are not visible and open to inspection, on a receipt for goods in apparent good order except as noted "(contents, condition and quality unknown)," the plaintiff must prove that the goods were in good condition when delivered to the carrier, and there is no presumption in the absence of evidence that they were in such condition: Castellucci v. Lehigh Valley R. R. Co., 40 Pa.Super. 24; Speare v. Phila. & Reading Ry. Co., 47 Pa.Super. 639; Isdaner v. Phila. & Reading Ry. Co., supra. The burden is upon the plaintiff to prove that the package delivered to the carrier contained the articles which the bill of lading called for: Isdaner v. Central R. R. of N. J., 65 Pa.Super. 156. In Speare v. Phila. & Reading Co., supra, a suit brought for a lot of second-hand household goods in apparent good order, contents and condition unknown, shipped from Portland, Oregon, this court said: "The burden was upon the plaintiff to prove, in order to recover of the defendant the value of the goods which she alleged had been lost, that the goods had come into possession of the defendant. She could not discharge this burden by merely proving that a certain number of packages had been delivered by the Trans-Continental Freight Co. to the Michigan Central Railroad Co. at Chicago, she was required to go further and show that the packages so delivered contained the goods which she asserts were lost." The designation that the cases contained "tomato paste" must be considered in connection with the other language of the receipt, to wit: "contents, condition and quality unknown." Similar receipts in which the designation was as specific as the present receipts were held not sufficient to bind the carrier in the absence of proof of the contents of the shipment: Shore v. N. Y., N. H. & H. R. Co., 99 Conn. 129, 121 A. 344, "1 box Shirts;" Dworkwitz v. N. Y. Cent. R. R., 230 N.Y. 188, 129 N.E. 650, "One case cl. (clothes);" Miller v. Hannibal & St. Joseph R. R. Co., 90 N.Y. 430, "30 bbls., eggs;" Josephy v. Panhandle & S. F. Ry., 235 N.Y. 306, 139 N.E. 277, "Dressed Poultry weight 20,000 lbs." We therefore conclude that the warehouse receipts were not sufficient to establish the contents of the cases, and plaintiff was required to produce additional proof. But in order to successfully carry this burden it was not necessary to show, by direct evidence, the contents of the cases at the time they were delivered to the warehouse. It would be impracticable if the rule of the law would be satisfied with nothing less than such direct positive proof: Kauffman v. Central R. R. Co. of N. J., 41 Pa.Super. 486.

With this rule in mind, did the trial court properly reject the offers made by plaintiff?

"(b) Existence of the Whole inferred from a Part, or of one Part from Another. To argue to the whole from a part, or to one part from another, is also, in the last analysis, an argument from one effect of a common cause to another effect. But for practical purposes it is sufficient to treat the inference as an immediate one. The condition of the inference's propriety is that in human experience the whole has been found probably to exist with certain related parts; it is then admissible to use the existence of one of the parts as evidence from which to infer the presence of the whole or of one of the associated parts, -- as where, observing a floating iceberg, it is inferred that beneath the water's surface is a larger mass of ice in the proportion usually found associated with such a mass above water; or where on observing, from one side of a locomotive, two driving-wheels, we infer that on the other side there are two similar ones. This sort of inference is common enough in trials, but does not seem to have raised any difficulties requiring rulings": Wigmore, Evidence, Vol. 1 (2nd) § 438, p. 776. "Same: Samples as Evidence of an Entire Lot. It is on the present principle that a sample is receivable in evidence to show the quality or condition of the entire lot or mass from which it is taken. The requirement is merely that the mass should be substantially uniform with reference to the quality in question, and that the...