Lubin Mfg. Co. v. Swaab

• Decision Date: 31 March 1913
• Docket Number: 342
• Citation: 87 A. 597,240 Pa. 182
• Parties: The Lubin Manufacturing Company, Appellant, v. Swaab
• Court: Pennsylvania Supreme Court

87 A. 597

240 Pa. 182

The Lubin Manufacturing Company, Appellant, v. Swaab

No. 342

Supreme Court of Pennsylvania

March 31, 1913

Argued January 21, 1913

Appeal, No. 342, Jan. T., 1912, by plaintiff, from judgment of C.P. No. 2, Philadelphia Co., Dec. T., 1910, No. 3662, on verdict for defendant in case of The Lubin Manufacturing Company v. Lewis M. Swaab. Reversed.

Replevin to recover moving picture films leased under a license agreement. Before WILTBANK, J.

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

The record disclosed the following rulings on evidence: Upon cross-examination the defendant was asked, relative to other films obtained from the plaintiff beyond those covered by the action of replevin:

"Q. Did you ever return any of those?

"A. No, sir.

"(Objected to as immaterial, and counsel for defendant moves to strike out the answer.)

"Mr Simpson: I propose to show by the dealing between the parties and by the actions of this man that there is absolutely no oppression at all.

"(Motion to strike out allowed. Exception noted for plaintiff.)" (1) "Q. The condition, Section 14, of the Exchange License Agreement between the Motion Picture Patents Company and yourself, provides as follows: 'The licensee shall on each Monday during the continuance of this agreement make or mail payment to each licensed manufacturer or importer for all invoices for licensed motion pictures which have been received by the licensee during the preceding week.' Will you kindly tell us when, preceding January 4, 1911, you last mailed to the Lubin Manufacturing Company, from whom, as a licensed manufacturer, you had received certain of these films, any payment in accordance with that section of the agreement?

"A. (Objected to, first, because it is not cross-examination; secondly, it does not come within the amended pleadings in this case. Objection sustained. Exception noted for plaintiff.)" (2)

In the presentation of defendant's case:

"(Counsel for defendant offers in evidence the nine writs of replevin issued in the nine other cases out of this court at the same time the one being tried was issued, and to which the witnesses have referred. They all arose in C.P. No. 2, of December Term, 1910, and were numbered as follows, respectively: 3660, 3661, 3663, 3665, 3666, 3667, 3668, 3669.)

"Mr. Rawle: I think, under the circumstances, I would ask what counsel proposes to prove by this offer.

"The Court: He proposes to corroborate what he has already shown by the witnesses, to wit, that there were nine replevins.

"(Objected to by plaintiff as irrelevant. Objection overruled. Exception to plaintiff.)" (3)

"(Plaintiff moves to strike out from the evidence the record in the other nine replevin suits, because that evidence was admitted also as part of the attempting to show a combination together to do a wrongful act and there was no combination shown, but there was a legal process and each party is entitled to pay, if he has done wrong, for his own wrong.)

"(Motion overruled. Exception to plaintiff.)" (4)

The judge charged the jury in part as follows:

"That is the testimony as recorded, of Mr. Steifel. You will observe that it is not clear from that evidence (though I leave it to you to say -- I leave it to you to determine the effect of that evidence stating it as it stands), that Swaab violated his contract in supplying those films up to Saturday, the 7th of January. The cancellation having been made on the 4th of January, if he did entirely disregard that cancellation, then he was answerable, he committed an offense, and the replevin was right; but if he merely carried out an arrangement with Mr. Steifel that antedated the cancellation, and merely delivered to him goods that he had stipulated for, by the week for instance, then there is not a violation of the terms of the contract." (16)

"With regard to the claim of damages on the part of the defendant should you reach that inquiry, that is to say, should you find a verdict for him and then reach that stage of the inquiry you will be entitled to consider, and he will be entitled to have you consider whether or not there was caused by the replevin, the action of the plaintiff and his agent there, any damage to his interest or to his property which did not reasonably follow upon the execution of the writ. If he was subjected to a loss which was unreasonably imposed upon him, that is to say, which did not follow upon the regular, proper, lawful execution of the writ of replevin, he would be entitled to have you consider the extent of that damage and estimate it in money, and report that in your verdict. Your verdict under the circumstances would be for the defendant, the value of the goods, and if you find there were any damages, the extent of the damage." (17)

The jury found a verdict for defendant, with $1,800 damages, upon which judgment was entered. Plaintiff appealed.

Errors assigned were, inter alia, (1, 3) above rulings on evidence (16, 17) instructions to jury; and refusal of binding instructions and judgment n.o.v. for plaintiff. Other assignments are sufficiently explained in the opinion of the Supreme Court.

The judgment is reversed with a venire facias de novo.

Alex. Simpson, Jr., with him Joseph L. McAleer, for appellant. -- It was error to leave to the jury the question of punitive damages: Wright v. Philadelphia Rapid Transit Co., 236 Pa. 132; Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Palmer v. Philadelphia, Balto. & Wash. R.R. Co., 218 Pa. 114; Lynch v. Troxell, 207 Pa. 162; Pure Oil Co. v. Terry, 209 Pa. 403; Cox v. Burdett, 23 Pa.Super. 346; Wiley v. McGrath, 194 Pa. 498; Cummings v. Gann, 52 Pa. 484; McCabe v. Morehead, 1 W. & S. 513; Funk v. Kerbaugh, 222 Pa. 18; Carey v. Bright, 58 Pa. 70; Wells on Replevin, (2d Ed.) Sec. 622, p. 512.

Binding instructions should have been given or a judgment n.o.v. entered for plaintiff or for defendant for nominal damages only: Continental Title & Trust Co. v. Devlin, 209 Pa. 380; Houghton, Mifflin & Co. v. Du Bell, 15 Pa. D.R. 833; Hart v. Evans, 8 Pa. 13; Agnew v. Johnson, 22 Pa. 471.

Henry N. Wessel, with him Alfred Aarons, for appellee. -- The plaintiff could not recover upon the weakness of the defendant's case, but the burden was upon it to prove its title to the films in question. This substantive question of fact the court was bound to leave to the jury: Zerger v. Sailer, 6 Binney 24; White v. Kyle, 1 S. & R. 515; Hamilton v. Menor, 2 S. & R. 70; Philadelphia & Trenton R.R. Co. v. Hagan, 47 Pa. 244; Cullum v. Wagstaff, 48 Pa. 300; Loeb v. Mellinger, 12 Pa.Super. 592; Troxell v. Malin, 9 Pa. Superior Ct. 483; Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Com. v. Jongrass, 181 Pa. 172; Lautner v. Kann, 184 Pa. 334; Penna. Railroad Co. v. Fortney, 90 Pa. 323; Kohler v. Railroad Co., 135 Pa. 346.

The instruction on the measure of damages was correct: M'Donald v. Scaife, 11 Pa. 381; Cox v. Burdett, 23 Pa.Super. 346; McCabe v. Morehead, 1 W. & S. 513; Grim v. Reinbold, 12 Pa. C.C.R. 223; Wiley v. McGrath, 194 Pa. 498; Herdic v. Young, 55 Pa. 177; Williams v. Phelps, 16 Wis. 80; Boston Loan Co. v. Myers, 143 Mass. 446 (9 N.E. Repr. 805); Smith v. Machine Co., 50 Pa.Super. 92; Lord v. Water Co., 135 Pa. 122.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The Lubin Manufacturing Co., a Pennsylvania corporation, brought an action of replevin to recover nine moving picture films; the jury found for the defendant, with $1,800 damages; judgment was entered upon the verdict and the plaintiff has appealed.

The plaintiff corporation was licensed by the Moving Picture Patents Co., the owner of certain patents relating to moving pictures, to manufacture and lease films to licensed exchanges; the defendant operated one of these exchanges, which was licensed by the Patents Company to sub-let films to licensed exhibitors; the contract between the Patents Company and the defendant provided that, should the agreement be terminated by the licensor for any breach of condition, the right to possession of all licensed motion pictures would twenty days after notice of such termination revert to the licensed manufacturers from whom they had been obtained, and, that the pictures should be returned to such manufacturers "at once after the expiration of that period." Each motion picture sought to be recovered contained the plaintiff's trade-mark and was delivered to the defendant in a box containing a label with certain contract conditions printed thereon, inter alia, that the licensee only had the right to sub-let the motion picture contained in the box while his license agreement with the Patents Company remained in full force and effect, and that violation of any of the conditions printed on the label would entitle the lessor "to immediate possession of this motion picture." A written notice of cancellation of the license of the defendant was given by the Patents Company on January 3, 1911, but did not reach him until the following day. The notice specifically stated that the annulment was for violation of the terms and conditions of defendant's license agreement, and that all licensed motion pictures in his possession should be returned to the "manufacturers thereof upon expiration of twenty days from date." On January 24, 1911, the writ of replevin issued. In the original statement of claim the plaintiff depended upon its right to possession of the films at the end of the twenty days stipulated in the license contract and mentioned in the notice; but at trial it was allowed to amend and to furnish a bill of particulars, wherein it averred that the defendant had sublet the motion picture films sought to be replevied after his license had been...