Appeal, No. 181, Jan. T., 1949, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1947, No. 604, in case of Se-Ling Hosiery, Inc. v. David Margulies, trading as De-Mar Hosiery Mending. Order reversed.
David S. Malis, with him Robert H. Malis and Malis, Malis & Malis, for appellant.
Robert L. Trescher, with him Herman Steerman and Montgomery, McCracken, Walker & Rhoads, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE MAXEY
This is an appeal by the plaintiff from an order awarding a new trial in an action of assumpsit.
On November 25, 1946, the plaintiff corporation engaged in the manufacture of hosiery in Nashville, Tennessee, sent to the defendant, in Philadelphia, a total of 1100 dozen pairs of nylon hosiery for the purpose of having them seamed, looped and examined. This quantity of hosiery was received. The defendant asserted that it did the required work and shipped the entire 1100 dozen pairs to the plaintiff by the same common carrier which had brought the stockings to them. The plaintiff contended that it received only 805 dozen pairs and that the defendant retained the balance of 295 dozen pairs. Suit was instituted to recover the loss, and the defendant counterclaimed for work done for plaintiff in the sum of $936.49. The jury found for the plaintiff in the sum of $3,208.73.
If the testimony of behalf of the plaintiff's claim is credited it proved a shortage of 295 dozen pairs of hosiery by actual count, and further demonstrated that the total weight of the shipments sent by plaintiff to defendant totaled 924 pounds, while the total weight of the shipments returned by defendant to plaintiff aggregated only 605 pounds.
There was testimony offered by the plaintiff to the effect that all the goods received arrived in good condition, and that the cartons showed no evidence of having been opened or tampered with, being securely bound by steel straps which defendant testified were affixed in his shop by one of his own employees. All of the receipts produced and all of the testimony given, indicated that the shipments in both directions were received without damage or interference, so that no blame was placed upon the common carrier, Super Service Motor Freight Company, by either litigant. The defendant asserted that it did the required looping, seaming and examining, and then shipped the entire 1100 dozen pair hosiery back to the plaintiff via common carrier.
In his charge the trial judge said only this as to the burden of proof resting on the plaintiff: "The plaintiff, of course, in this case as in all other cases, has what we call the burden of proof. He is the one complaining and asking relief at your hands. In this case he is asking that he be awarded money for goods which he says he lost because of the conduct of the defendant..." In his opinion in support of his order granting a new trial, the court said: "We have carefully considered the instruction by the trial judge to the jury, which was emphatic that the plaintiff had the burden of proving the facts to be relied upon in order to recover. Through inadvertence an amplification of these words was left out. It is usual, and indeed necessary, to add the following words, or words of the same significance: 'The burden of proof must be by a preponderance of the evidence, which means when it is weighed there will be a perceptibly greater weight ...