Lubin Manufacturing Co. v. Swaab

Opinion By

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 .revolted by the Patents Company, - contrary to the conditions of the label contract, and that thereupon the plaintiff was entitled to immediate possession of such films without waiting for the expiration of the twenty days given for their return in the license contract. The defense rested upon several grounds, the principal of which was that the writ had issued prematurely. The assignments of error raise a number of questions which we shall dispose of in order.

The first assignment complains that the trial judge struck out certain testimony given by the defendant on cross examination, to. the effect that on January 24, 1911, he had in his possession “quite a number of films” in addition to those covered by the replevin, which films he had obtained from the plaintiff company and had not . returned. One of the contentions of the defendant was that he had been subjected to undue oppression in the manner in which the writ of replevin was executed, and the testimony in question was elicited by the plaintiff for the purpose of showing that there was “absolutely no oppression.” We are not convinced that the trial judge committed error in the ruling under consideration, for it is not at all clear that the testimony tended to support the purpose for which it was offered. The assignment is overruled.

The second assignment calls attention to a question ' propounded to the defendant upon cross-examination, in relation to an alleged default on his part in not complying with certain terms of his license agreement; this particular default was not pleaded and hence .there was no error in declining to permit an inquiry in relation thereto. The assignment is overruled.

The third and fourth assignments cover, the admission in evidence of nine writs of replevin issued in other cases by other plaintiffs but served simultaneously with . the writ in this case, and the trial judge’s subsequent refusal to strike this evidence out. Among the defenses - averred were undue oppression at the time of the replevin and a conspiracy between the plaintiff, the Patents Company and others to harm the defendant; the latter was allowed considerable latitude to show the alleged conspiracy and. oppression, and in this connection he was permitted to refer to these nine other writs; but he failed to produce evidence from which an unlawful combination between the plaintiff and others could be found or to show that he was subjected to any unusual oppression. Under these circumstances the other writs of replevin had no place in the case, and since exemplary damages were claimed their admission must have been prejudicial to the plaintiff. The rulings in question constitute material error and these assignments are sustained.

The fifth, sixth and seventh assignments complain of the refusal to give binding instructions or to enter judgment non obstante veredicto for the plaintiff. It is argued that the testimony of certain witnesses called by the defendant shows that he did in fact sub-let films which were the property of the plaintiff after the cancellation of his license by the Patents Company, and it is contended that this breach of the conditions printed upon the labels entitled the plaintiff to immediate possession of the films sought to be recovered by the replevin. But the appellant apparently overlooks the fact that the conditions printed upon the respective labels did not constitute a contract affecting generally all licensed motion pictures possessed by the defendant, as did the license agreement with the Patents Company; on the contrary, the label contract was restricted in each instance to the contents of the particular box to which it was attached. Unless it was made to appear that the very films covered by the writ had been sub-let after the date of the cancellation, in violation of the contracts printed on their various box labels, the terms of those contracts could not be depended upon to support the plaintiff’s action. It is not clear beyond controversy that the defendant had sub-let any licensed films after the annulment of his authority so to do, and more particularly it is not clear that the films referred to by the witnesses who testified that they had received service from the defendant subsequently to the revocation of his license, were among those covered by the plaintiff’s writ; hence, so far as the films replevied were concerned, since it did not plainly appear that they had been thus sublet, it could not be held as a matter of law that the plaintiff was entitled to their immediate possession. These assignments are overruled.

The eighth, ninth and tenth assignments cover the re-. fusal of the trial judge to charge that the defendant would not in any event be entitled to more than nominal damages. If there was no violation of the label contracts connected with the particular films replevied, the replevin was premature, for at the time the writ issued, the twenty days given in the license contract for the return of the films had not expired by one day. If the writ was prematurely issued it was bad, and the defendant was entitled to whatever actual damages the jury might find he had proved. So far as the value of the defendant’s right of possession entered into the assessment of damages, by reason of the terms of the general contract under which he held all licensed films, his recovery would pf necessity be limited to the value of such use as he would be entitled to make of the films under the conditions and restrictions of that contract after the date of the cancellation of his license. (See Cobbey on Replevin, 2nd Ed., Section 897.) But the damages could not be restricted to one day’s loss, as urged by the appellant, on the theory that the writ would have been good had it issued on the following day. No authority is cited for any such doctrine, and so to hold might lead to dangerous results in the future; for under such a general rule of law claimants of property could well afford to risk merely nominal damages and take out writs before their right of possession had actually vested. Owing to the position in which the defendant is placed by the terms of the license contract under which he operated his business, the damages which it is possible for him to recover may be inconsiderable, but we cannot say as a matter of law that they would be merely nominal. These assignments are overruled.

The eleventh assignment calls attention to the refusal of a point for charge, submitted by the plaintiff, which was tantamount to a request for binding instructions. Much that we have already said in disposing of the fifth, sixth and seventh assignments is applicable to the present one and need not be repeated here. The assignment is overruled.

The twelfth assignment complains of the affirmance of a, point to the effect that, if the jury finds for the defendant and further finds “that the taking was attended by circumstances of aggravation, vexation and hardship,. exemplary damages are allowable.” We have already said, under the third and fourth assignments, that the evidence failed to show any unusual oppression at the time the goods were taken under the writ. In the nature of things, when the sheriff’s officers came to the defendant’s place of business the proceeding was bound to cause him inconvenience; but they did not remain an unusual time, and the fact that a watchman was left in charge for some days afterwards, pending the determination of certain legal steps taken by the defendant, was in nowise out of the ordinary; furthermore, the fjve men who helped the sheriff’s officers find the goods covered by the writ were representatives of the Patents Company and not of the plaintiff. The carrying away of some boxes, etc., belonging to the defendant, in connection with the replevied films, could not be termed an act of outrage under the circumstances; the articles were returned the next day, and if the taking caused any special damage the defendant was entitled to prove and recover his loss as such. When upon the stand, in answer to the question, “I. am asking you how, as a physical fact, at your place, you were in any way interfered with in the transaction of your business, except as to these reels which were the subject of this replevin?” the defendant replied, “There was no other interference.” In Cummings v. Gann, 52 Pa. 484, an action of replevin, at page 491, we said, “It must be a rare case of misconduct,..... in an action like this to authorize them (exemplary damages) at all,” and in McCabe v. Morehead, 1 W. & S. 513, 516, we said, “The defendant is not entitled to any special damages he has sustained by being interrupted in his business in consequence of the property being taken from him under the replevin.” Again, in Carey v. Bright, 58 Pa. 70, 85, we said that where the evidence fails to show special vexation or oppression the court should call this fact to the attention of the jury and not permit exemplary damages. The request for charge covered by this assignment ought not to have been affirmed; the assignment is sustained.

By the thirteenth and fourteenth assignments the appellant submits that error, was committed in leaving the issue of the plaintiff’s ownership of the replevied films to the jury. It is true that the ownership of this property was duly proved by the plaintiff and admitted by the defendant; but these assignments will not be sustained, for the error, if any, was subsequently effectually cured by the trial judge in his answer to one of the plaintiff’s points.

The fifteenth assignment complains of a part of the charge wherein the trial judge made reference to, and submitted an issue growing out of certain testimony which had been stricken from the record; this was error and the assignment is sustained.

Under the sixteenth and seventeenth assignments the appellant contends that the trial judge committed error in instructing the jury that, after the date of the annulment of the defendant’s license by the Patents Company, he had the right to deliver to a licensed exhibitor films leased to him by the plaintiff, if in so doing he was merely carrying out an arrangement with the ex-. hibitor which antedated the cancellation. According to the general licensing arrangement controlling the business in which the parties to this controversy were engaged, a licensed exchange was under no obligation and had no right to deliver a film after the date of the cancellation of its authority so to do> and all licensed exhibitors must have known that they could not insist upon service from an exchange after the annulment of the latter’s license. In addition to this, we find nothing in the evidence which would sustain a finding that the defendant was merely “carrying out an arrangement which antedated the cancellation” when he made the delivery referred to by the trial judge in this part of his charge. These assignments are sustained.

. What we have already written amply covers the matters called to our attention in the remaining assignments of error, and we trust it will prove a sufficient guide should this case be again tried.

The judgment is reversed with a venire facias de novo.