Isdaner v. Central Railroad Co. of New Jersey , 1916 Pa. Super. LEXIS 34 ( 1916 )

Opinion by

Williams, J.,

Plaintiffs sue to recover the value of three pieces of silk said to have been lost in transit by the defendant under the following circumstances. Twelve pieces were packed in a box for shipment by plaintiff’s consignor in the City of New York and delivered to their drayman between 11 and 12 o’clock in the morning of May 16, 1913. The box was delivered at defendant’s wharf between 1 and 2 o’clock in the afternoon of the same day. When delivered to the drayman it contained twelve pieces of silk and weighed about, 344 pounds. When weighed by defendant’s agent shortly after it was received its weight was found to be 280 pounds and a notation of this was made by the weigher. The shipping receipt, made out by the consignor’s shipping clerk for 344 pounds, was signed by the defendant’s clerk before the box was weighed. The receipt contained the statement “Weight, subject to correction.” The box, when finally delivered to the plaintiffs in Philadelphia contained only nine pieces of silk and weighed but a scant 280 pounds. There was nothing about the box to indicate that it had been opened. The drayman was not called as a witness, his absence being accounted for by the plaintiffs by stating that he had left the employ of the consignor and conld not be found.

The court below entered judgment n. o. v. for the defendant and the only question raised is whether the plaintiffs made out a case for the jury. In a similar case, Isdaner v. Philadelphia & Reading Ry. Co., 54 Pa. Superior Ct. 509, Henderson, J., says (512) : “No presumption arises under the circumstances of the case that the package was delivered at the wharf in the same condition in which it was when received by the drayman, and the burden of proof was on the plaintiffs to show that the lost silk was actually delivered to the railroad company.”

The general law on the subject is in accord with the case just cited: Almon v. Chicago & N. W. Ry. Co., 144 N. W. 997; Thyll v. R. R., 92 App. Div. (N. Y.) 513; Hirsch v. Hudson River Line, 26 Misc. (N. T.) 823; St. Louis, Etc., Ry. v. Dreifus, 42 Okla. 401; Adams Express Co. v. Tucker, 161 Ky. 741. In Fitzgerald v. Adams Express Co., 24 Ind. 447, it was held that where a receipt was given for a sealed package reciting that it was “said to contain” a certain sum of money, that the receipt was not even prima facie evidence of a delivery of that amount. Likewise it is always competent to show that as between the parties, the quantities of goods actually delivered were less than those named in the receipt: Higley v. Burlington, Etc., Ry. Co., 99 Iowa 503; Dean v. King, 22 Ohio 118.

The cases cited by the appellants are those in which goods were being carried in bulk, such as coal or building material, or cases in which the rights of third persons had intervened to change the status of the parties.

The appellants contend that this case differs from Isdaner v. P. & R. Ry. Co., supra, as defendant had receipted for 344 pounds, and as some time had elapsed between the receipt and the weighing of the box, it might have been opened and the silk abstracted therefrom while it was in the possession of the defendant. It is enough to say that proof of the possibility of the goods having been removed in that interval is not sufficient to satisfy the burden of proof laid on the plaintiffs. They must introduce evidence to show that this did happen, and not that it might have happened. The absence of the teamster’s testimony is as fatal to this case as it was in Isdaner v. P. & R. Ry. Co., supra.

The judgment is affirmed.