Hamilton v. Stillwell Van and Storage Co.
| Decision Date | 16 March 1965 |
| Docket Number | 14955.,No. 14954,14954 |
| Citation | 343 F.2d 453 |
| Parties | Harold HAMILTON v. STILLWELL VAN AND STORAGE CO., Appellant in No. 14954, and Dean Van Lines, Inc., Appellant in No. 14955. |
| Court | U.S. Court of Appeals — Third Circuit |
Alan Kahn, Philadelphia, Pa. (Winokur & Kahn, Philadelphia, Pa., on the brief), for Stillwell Van & Storage Co.
Ned Stein, Comanor & Stein, Philadelphia, Pa., for Dean Van Lines, Inc.
Arthur E. Newbold, III, Philadelphia, Pa. (John P. Mason, Philadelphia, Pa., Dechert, Price & Rhoads, Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN, FORMAN and GANEY, Circuit Judges.
These appeals are from the order of the district court of April 24, 1964, denying defendants' motions for judgment notwithstanding the verdict or for a new trial.
The case was tried to the court. We agree with the district court that plaintiff established the condition, quality and value of his goods (which were destroyed by fire while in the possession of the defendants) by the best evidence available to him. We are satisfied that these proofs fairly support the verdict rendered with two exceptions, later noted. We agree with the district court that the proofs establish that defendant Stillwell, acting as Dean Van Lines' undisclosed agent, contracted to obtain insurance for plaintiff on his property in the sum of $10,000 and failed to do so. We agree with the district court that the limitation of liability agreement was of no effect here because the defendant's conduct in obtaining that agreement was not "fair, open, just and reasonable". Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S.Ct. 148, 57 L.Ed. 314 (1913).
To save time it was agreed by the parties through their attorneys that if plaintiff testified to the value of his various destroyed articles his total valuation for same would amount to $11,948. It was further agreed that, included in that total, would be a valuation of $1,000 for additional miscellaneous articles. The valuation list which was marked P-3 in evidence was not actually totalized. Two items on P-3, 950 photo color slides and 1 album of family pictures were not given separate evaluations. That omission was not noticed until after the appeals had been taken. The total of the stated value of the items on P-3 is $8,948 which, plus the agreed figure of $1,000, plaintiff's valuation of additional miscellaneous articles, comes to $9,948. Under the circumstances, there is a failure of proof in the sum of $2,000. The amount of plaintiff's estimate of the value of the additional miscellaneous articles is challenged by appellants. We consider that plaintiff's proof with reference to this was properly accepted by the court.
The transcript shows that on January 21, 1964, after the judge had announced...
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