Lancaster Transp. Co. v. New York & New Brunswick Auto Exp. Co.
| Decision Date | 14 November 1958 |
| Citation | 187 Pa.Super. 621,146 A.2d 150 |
| Parties | LANCASTER TRANSPORTATION COMPANY v. NEW YORK & NEW BRUNSWICK AUTO EXPRESS COMPANY, Inc., Appellant. |
| Court | Pennsylvania Superior Court |
Brown & Zimmerman, W. Hensel Brown, Lancaster, for appellant.
Alfred C. Alspach, Lancaster, for appellee.
Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.
The plaintiff is a common carrier, engaged in the transportation of freight by motor vehicle, with its principal place of business in Lancaster, Pennsylvania. Its certificated territory is extensive throughout Pennsylvania, and in Maryland, New Jersey and Delaware. It employs 450 men, and operates 7 terminals; it has about 350 units of various transportation equipment. The defendant, operating out of New Brunswick, New Jersey, also is a common carrier. On February 27, 1957, the plaintiff received a truckload shipment of coils and bales of twine at its Lancaster terminal for delivery to a consignee in Brooklyn, N. Y. It did not have interstate commerce rights to transport freight into Brooklyn and for that reason plaintiff, at its terminal in Philadelphia, delivered its loaded trailer to the defendant, and received on 'interchange' from the defendant company a like trailer owned by it, for use by the plaintiff until its trailer was returned by the defendant. The shipment was hauled by the defendant to destination, and was delivered to the consignee in Brooklyn the day following receipt of the truck on interchange. Plaintiff received its freight charges for carriage of the cargo to Philadelphia, and the defendant was compensated for the portion of the haul from Philadelphia to Brooklyn. On March 6, 1957, plaintiff's trailer was destroyed by fire on the Pennsylvania Turnpike. At that time it was still in the possession of the defendant, and was then in use in defendant's transportation service. Plaintiff, in due course, had returned defendant's trailer to it and when the defendant refused to pay plaintiff for the loss of its trailer, this action was brought to recover its value. The jury, upon sufficient competent evidence, found that the value of plaintiff's trailer, a 1952 Strick, was $3,250 at the time of the loss, and the verdict was for the plaintiff in that amount. This appeal is from the refusal of the court to enter judgment for the defendant n. o. v. and, in the alternative, to grant a new trial.
Plaintiff's action was based upon 'a custom of the trade' which imposes liability on the carrier having physical possession of the trailer, for damage to it, up to the time of its return to the other carrierparty to the interchange. The applicable legal principles must be regarded as settled law. A usage 'may be denominated a custom' when proven to "be certain, continuous, uniform and notorious * * * so certain and uniform as to be not only valid and enforceable in a court of law, but the parties must be presumed to have known it and acted in reference to it". Electric Reduction Co. v. Colonial Steel Co., 276 Pa. 181, 191, 120 A. 116, 120. And in an action 'Where it is so alleged and proved, it is a fair presumption that the parties, on entering into their engagement, do it with reference to the custom, and agree that their rights and responsibilities shall be determined by it'. Shipley v. Pittsburgh & L. E. R. Co., D.C., 83 F.Supp. 722, 749. Cf. Goodman v. Whiting Lumber Co., 62 Pa.Super. 230; Brown Penna.Ev. 231. It has been said that to establish a custom 'the evidence by which it is proposed to prove it, must be clear, uncontradictory and distinct * * * so * * * as to leave no doubt upon the mind with reference to its nature and character'. Adams v. Pittsburg Insurance Co., 76 Pa. 411, 414. A custom proven to be certain, continuous, uniform, notorious and reasonable must be presumed to have...
To continue reading
Request your trial
-
46 South 52nd St. Corp. v. Manlin
... ... Winters v. People of State of New York, 333 U.S ... 507, 68 S.Ct. 665, 92 L.Ed. 840; ... § 935 Customary Rights. Cf. also: Lancaster ... Transportation Company v. New York & N. B ... ...
-
46 South 52nd St. Corp. v. Manlin
...by newsboys.12 3 Tiffany, Real Property, 3rd Edition § 935 Customary Rights. Cf. also: Lancaster Transportation Company v. New York & N. B. A. Express Co., 187 Pa.Super. 621, 623, 146 A.2d 150, Adams v. Pittsburg Insurance Co., 76 Pa. 411, 414.13 In Restatement of the Law of Property, the A......
-
McKinney v. Armco Steel Corporation
...thereof other than his own testimony. Cf. Albus v. Toomey, 273 Pa. 303, 116 A. 917 (1922); Lancaster Transp. Co. v. New York & N. B. Auto Exp. Co., 187 Pa.Super. 621, 146 A.2d 150 (1958). We think the record demonstrates conclusively that the plaintiff has no witnesses to prove the existenc......
-
Bank of New York Mellon Trust Co. v. Santander Holdings USA, Inc.
...la Republica, S.A., 342 F.3d 78, 84 (2d Cir. 2003), with Lustig, 188 A.2d at 743, and Lancaster Transp. Co. v. New York & New Brunswick Auto Express Co., 146 A.2d 150, 151 (Pa. Super. Ct. 1958); California Fruit Exchange v. Henry, 89 F. Supp. 580, 586-87 (W.D. Pa. 1950). And, even if, argue......