Trunick v. Smith , 1870 Pa. LEXIS 25 ( 1870 )

The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

This is a close case, and its solution depends upon the nature of the property, and the character of the possession at the time of the sale by the sheriff. The leading points are, that McCormick, in a division of property between him and his partner, became the owner of a railroad truck, which they had been running on the Pennsylvania Railroad. McCormick took it to Homer Station, and left it, in October 1857, in the care of Mr. Wilson, an agent of the railroad company. It was placed on the siding, and remained there for several months. In January 1858, McCormick sold it to Trunick, the plaintiff, in exchange for certain personal property. On or about the first day of April, Trunick’s son communicated the fact of sale to Wilson, the agent. On the 5th of April 1858, McCormick wrote from Pittsburg, to Wilson, informing him of the sale to Trunick, and on the same day Trunick wrote from Temperanceville, to Wilson, stating his purchase of the truck, and constituting him his agent, to hold the possession. During all this time the truck remained on the siding, where it had been left in October, and was still there when Smith, as sheriff, made his levy on the truck, at the suit of McCormick’s creditor. The court below charged that Wilson was a mere agent, not a bailee, and that, under the circumstances, the sale by McCormick to Trunick was a legal fraud.

Under the charter of the Pennsylvania Railroad Company, Pamph. L. 1846, p. 323, the railroad is made a public highway, which may be used by persons owning their own cars, the company furnishing the motive power. It is stated by the plaintiff in error, that the motive power had been furnished to McCormick and his partner, by special contract with the railroad company. Now, it is very clear, that the railroad, being a public highway, every owner of cars is necessarily in the possession of his own car, no matter on what part of the track it may happen to be. It cannot be deemed to be in possession of the railroad company, which only furnishes the motive power to haul the car over the track. Nor can the right of the truck or car to remain on the railroad be denied, subject to the regulations of the company as to the place it shall occupy when not in use. It was, therefore, the undoubted right of McCormick to leave the truck onLthe siding at Homer, in charge of the agent of the company, if not objected to by the company. The possession was clearly in McCormick, as the owner of the truck, when he ran it upon the siding at Homer, and it continued in him, unless it was changed by some notorious act, placing it under the control of some one else. The creditors of McCormick, finding that he had left it on the siding, in October 1857, had a right to believe the possession was still in him. Such was the nature of the property, and the right of its owner to the use of the railroad track, no other inference could be legally drawn; unless by removal and passing into the control of another, by some notorious act, the creditors were put on their guard that the possession was no longer in McCormick.

This brings us to consider the attitude of Wilson towards the property. Was he a bailee, in any proper sense ? 'We think not. He was the employee or agent of the railroad company. The company must keep servants along the route of the road to enforce its rules and regulations, and see that cars at rest occupy proper places. Now, when McCormick left this truck-car on the siding, in care of Wilson, this was no delivery of possession to him. It was hut an oversight or charge, to see that it remained in its proper place. He could not have maintained trespass or replevin for an injury or removal. The truck was left for no special purpose in Wilson’s hands, but it remained on the track as it had formerly done, in the proper possession of McCormick. Had a creditor gone to Wilson, after January, and before April, and asked him whose truck it was, he must have replied McCormick’s. Had he been asked if it were in his possession, or whether he had any special property in it, by delivery to him, he must have answered, he had not. He would have said, that McCormick had left the car standing on the siding. Blackstone, in his Commentaries, vol. 2, 451, defines a bailment to be a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee. This definition is adopted by Mr. Story, Bailments, s. 3, with the addition, that it must be for some special object or purpose. Chancellor Kent, in his Commentaries, vol. 2, sect. 40, gives the definition of Blackstone, with the addition: “ and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.”

Now, can it be said, with any propriety, that such a peculiar property as a railroad car, having a qualified right of possession of the railroad track, and incapable of being taken elsewhere, unless it might be to a private siding, is the subject of a bailment, in any just-sense, by its being merely left on the siding of the railroad company, in charge of one of its servants ? It is not possible for it to be a bailment of any species, unless it should be a deposit without reward. But, certainly, there was no intention to make a deposit with Wilson, in leaving the truck on the siding. Deposit, as a species of bailment, implies an' actual delivery of possession, for a special purpose, as where the owner delivers for safe-keeping or for carriage to some person or place. It is evident, that to leave a railroad car on the siding, is not in itself a delivery. Delivery, in such a case, caft only be constructive, and this requires something more to be done. It must appear that there was an intention to transfer the possession, but of this there is no evidence in the case, unless we hold that a mere oversight of the truck by the agent of the railroad company is to produce this effect. But, clearly, this was not the intention of McCormick. He was in possession, and he left the truck on the siding, just as an owner ordinarily would. He made no delivery to Wilson, formal or otherwise. The possession continued in him, after the sale to Trunick, in January. Nothing was done to evidence a change of possession until April, and then no removal took place, no notorious act of dominion was exercised by Trunick, but the truck remained just as it had been, on the siding, and so far as the world knew, the possession still continued in McCormick. Under these circumstances, we perceive no error in the charge of the judge.

Judgment affirmed.

Thompson, C. J., and Sharswood, J., dissented.