Robb v. American R. Express Co.

• Decision Date: 21 November 1921
• Docket Number: 83-1921
• Citation: 78 Pa.Super. 1
• Parties: Robb v. American Railway Express Company, Appellant
• Court: Pennsylvania Superior Court

78 Pa.Super. 1

Robb v. American Railway Express Company, Appellant

No. 83-1921

Superior Court of Pennsylvania

November 21, 1921

Argued October 10, 1921

Appeal by defendant, from judgment of C.P. No. 3, Phila. Co., Sept T., 1919, No. 4054, on verdict for plaintiff in the case of George W. Robb v. American Railway Express Company.

Trespass to recover damages for value of shipment not delivered by carrier. Before McMichael, P. J.

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

Verdict for plaintiff in the sum of $ 194.08. Subsequently by direction of the court, the plaintiff filed a remittitur for all over $ 106.58 and judgment was entered thereon. Defendant appealed.

Error assigned was refusal to enter judgment for defendant non obstante veredicto.

Affirmed.

William A. Schnader, and with him Thomas DeWitt Cuyler, for appellant. -- There was not sufficient evidence to enable a jury to find that " Vincent" was defendant's agent: Reel v. Adams Express Co., 27 Pa.Super. 77; Buck v. Quaker City Cab Co., 75 Pa.Super. 440; Abram v. Platt, 52 N.Y.S. 152.

If " Vincent" was the agent of the defendant the plaintiff has no right of action for he was not the owner of the goods: Dooley v. N.Y. C. & H. R. R., 62 Pa.Super. 237; P. & R. Ry. Co. v. Parry, 66 Pa.Super. 49; Pittsburgh Provision & Packing Co. v Cudahy Packing Co., 260 Pa. 135.

Edmund W. Kirby, of Morris & Kirby, for appellee. -- There was sufficient evidence as to agency for the consideration of the jury: Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; Reel v. Adams Express Co., 27 Pa.Super. 77; Corpies v. Sand Co., 31 Pa.Super. 107; Holzheimer v. Lit Bros., 262 Pa. 150.

The transaction was one of interstate commerce: Dooley v. Ry. Co., 62 Pa.Super. 237; Berman v. Adams Express Co., 73 Pa.Super. 314.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller and Linn, JJ.

OPINION

KELLER, J.

The only assignment of error filed is to the refusal of the court below to enter judgment for the defendant non obstante veredicto, but the appellant urges a reversal of the judgment on two grounds: (1) That there was no evidence of delivery of the goods to the carrier; (2) That the plaintiff, the consignor, could not maintain the action. We will discuss them in that order.

(1) The evidence in support of a delivery to the carrier was that a man wearing the cap and badge of the defendant company called at plaintiff's place of business, receipted for the shipments in question in the plaintiff's express receipt book furnished him for the purpose by defendant company, and took them away; that such cap and badge were the only uniform or indicia of employment worn by defendant's employees and were of the same kind as worn by one Henry, admittedly the driver and regular employee of the defendant company, who usually collected plaintiff's express shipments; that other men and some girls and women, wearing such caps and badges had been employed to assist Henry as helpers in the collection of express shipments and had receipted for and taken away such shipments from the plaintiff on behalf of defendant and the same had been shipped and delivered by it. The defendant produced no evidence that the packages thus receipted for and taken away and forming the basis of this action, or the goods contained in them, had not been received by it or entered on its records, but contented itself with calling one of its time clerks who testified that his records showed that on the date of the shipment by the plaintiff no one of the name of Vincent, (which was the name signed by the express collector to the receipt of plaintiff's goods) had been employed by the defendant company, but he did not state whether his examination had reference to Vincent as a surname or Christian name. It must be admitted that the plaintiff's proof was not strong or conclusive, but we are not prepared to hold that it furnished no evidence from which the jury might find a delivery of the goods to the defendant. The trial judge left the question of fact to the jury, charging them that the express company would not be liable unless it got the goods, and their finding in favor of the plaintiff shows that they deemed it sufficient to establish a delivery. The facts in the case are very similar to those in Reel v. Adams Express Co., 27 Pa.Super. 77, in fact identical, except that in that case the collector was also shown to have driven a wagon bearing the express company's name, and there was affirmative proof that the goods were not taken to the express company's depot nor entered on its records. This court after referring to the fact that the " defendant employed no other method of showing the authority of its drivers than these uniforms and names," said: " As in this case a jury might have inferred the defendant's ownership of the wagon and employment of the driver from its name on wagon and cap, it was open to the referee to draw the same inference, with the same effect. We have carefully examined the evidence and regard it as sufficient to justify the referee's finding. By its business methods, and its uniform course of dealing, the defendant held out the persons who drove wagons marked with its name and were uniformed with caps bearing its name, as authorized to receive goods for transportation by its express lines. The possibility of a fraudulent use of its name was as apparent to the defendant as to the shipper. By not employing some more certain indicia or evidence of the authority of its drivers, to be brought to the notice of shippers, the defendant led the public to believe that goods might properly be delivered for transportation over its lines to persons whose employment was to be inferred from their uniforms and its name on wagons and caps. Since a jury may draw this inference, it may well be drawn by a shipper." The same language applies here.

The case of Abrams v. Platt, 23 Misc. 637, 52 N.Y.S 153, chiefly relied upon by the appellant, is in conflict with our decision in Reel v. Adams Express Co., supra, and its force is somewhat weakened by the later case of Lewis v. Van Horn, 24 Misc. 765, 53 N.Y.S. 546. We prefer to adhere to our former ruling. The case of Buck v. Quaker City Cab Co., 75 Pa.Super. 440, also cited by appellant is not opposed to our present decision. In that case, which was an action...