Lowenstein v. Greenbaum

• Decision Date: 09 October 1916
• Docket Number: 364-1915
• Citation: 65 Pa.Super. 19
• Parties: Lowenstein, Appellant, v. Greenbaum
• Court: Pennsylvania Superior Court

65 Pa.Super. 19

Lowenstein, Appellant, v. Greenbaum

No. 364-1915

Superior Court of Pennsylvania

October 9, 1916

Argued December 16, 1915

Appeal by plaintiffs, from judgment of Municipal Court-1915, No 381, for defendant n. o. v. in case of M. Lowenstein & Sons v. Harry Greenbaum.

Assumpsit for goods sold and delivered.

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

Error assigned was in entering judgment for defendant n. o. v.

Reversed.

Walter C. Longstreth, with him John M. Dredger, Jr., for appellants. -- Business records constitute one of the exceptions to the rule against hearsay: Wells Whip Co. v. Tanners Mut. Fire Ins. Co., 209 Pa. 488; Canfield v. Johnson, 144 Pa. 61.

A business record is admissible in evidence where the information entered upon the record has been furnished by an employee now outside the State: Riche v. Broadfield 1 Dallas 16.

Alfred Aarons, with him Henry N. Wessel, for appellees. -- In the recent case of Harkness v. Swissdale Boro., 238 Pa 544, the Supreme Court decided that entries made in hospital records in the usual course of business were mere hearsay and that the facts must be proven by the best evidence, to wit, the testimony of the person cognizant of the facts entered.

In Ramble v. Penna. Coal Co., 53 Pa.Super. 438, entries on check stubs were rejected because they were mere self-serving declarations.

There was neither testimony nor entry to show what had become of the goods after the case had been packed: Speare v. P. & R. R. Co., 47 Pa.Super. 639; Castellucci v. Lehigh Val. R. R. Co., 40 Pa.Super. 24; Wright v. Adams Express Co., 54 Pa.Super. 485; Isdaner v. Philadelphia & Reading R. R. Co., 54 Pa.Super. 509.

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

OPINION

HEAD, J.

The plaintiffs sue to recover the price of a case of merchandise said to contain 4,133 yards of sateen at eight and one-fourth cents per yard alleged to have been sold and delivered to defendant. The averments of the amended statement, not specifically denied, and the uncontradicted evidence offered in support of them, leave no doubt the goods were ordered and the price thereof agreed upon. These questions are thus removed from the controversy. The real and practically the only issue to be determined at the trial was whether or not the packing case containing the goods had been delivered to the defendant. Its receipt having been denied in the answer, the burden of proof was on the plaintiffs. The cause was tried before a judge without a jury. He found generally for the plaintiffs subject to a reservation of the question of the admissibility of the line of evidence offered by them. Upon consideration of the point reserved, the court in banc held the evidence should have been rejected and entered judgment for the defendant. The plaintiffs appeal.

In discharge of the burden cast upon them by the pleadings, the plaintiffs started their line of proof by showing they had ordered the goods required by the defendant from the Dempsey Bleachery & Dye Works at Pawtucket, R.I. They first called J. J. O'Leary who testified he was the chief clerk of the firm or company named, had general supervision of the work pertaining to the office and packing room and charge of the records of all cases of goods packed and shipped, such records having been made under his own supervision by his immediate subordinates. He described the regular routine which was gone through with every case of goods packed and shipped by his department. There were four employees known as folders or measures. When an order was to be filled, one of these four employees folded and measured the pieces of goods required and made out, in his own handwriting, a memorandum of the yardage which was inserted in a fold of the goods. The yardage was then given by him to one of four other employees known as tag clerks. This clerk stamped on a tag the amount of the yardage and the tag was fastened to the goods so that it could be seen and read without unfolding the piece. The several pieces were then turned over to a packer whose duty it was to pack them in a proper case and call to the invoice clerk the number of yards in each piece. The invoice clerk entered in a book the number of yards in each piece and the total number in all of the pieces packed in the case. From this book he made up the bill or invoice which was to go to the purchaser. When the goods had been properly packed in the case, it was turned over to the shipping clerk who gave a memorandum receipt. It passed from him to a drayman or expressman who also receipted for it, and he delivered it to the railroad company for shipment and obtained a receipt or bill of lading from the carrier. Although, as we have said, the witness produced these various records, with the exception of those attached to the goods themselves, identified the handwriting of the various employees through whose hands the case had passed, and declared they were all made in the regular and ordinary course of business and under his immediate supervision, these records were rejected by the learned court below because, legally speaking, they had no probative value. By lines of proof of substantially the same character the plaintiffs sought to trace the case of merchandise to their own place of business in New York and its subsequent delivery to another railroad company by which it was carried to Philadelphia and delivered to the drayman of the defendant.

We are urged to say that all of these records were but hearsay, and as all of the employees through whose hands the case of merchandise passed were not called as witnesses, the plaintiffs' case failed for want of proof. We do not understand the law to be so. The chief clerk could identify the written memorandum made by each employee from a knowledge of his handwriting just as well as could the employee himself were he placed upon the stand. It is unreasonable to suppose that upon the trial of the case, one or two years after the transaction had occurred, any one of these employees would have any personal recollection of any single one of the multitude of similar transactions where their shares in that transaction were routine, administrative and practically automatic. If records so made up have no probative value, it is impossible to see how any manufacturing establishment, department store, or other like enterprise conducted on a large scale, could establish the liability of a purchaser who had bought small articles of their respective products or wares.

The principles...