Appeals, Nos. 79 and 81, March T., 1950, from orders of Court of Common Pleas of Allegheny County, April T., 1947, No. 2371, in case of Roy Z. Hershey v. The Pittsburgh & West Virginia Railway Company. Orders affirmed.
T. Robert Brennan, with him Ross W. Thompson and Brennan & Brennan, for plaintiff.
T. W. Pomeroy, Jr., with him J. N. Poffinberger, Jr., and Kirkpatrick, Pomeroy, Lockhart & Johnson, for defendant.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff sued in assumpsit to recover from the defendant the value of approximately twenty tons of peanuts which the plaintiff had stored in bags in the defendant company's warehouse in Pittsburgh. On March 21, 1946, while the bailment endured, there was a fire of considerable magnitude in the warehouse. Thereafter, the plaintiff made demand for delivery of
the peanuts, but the defendant failed to deliver them. Upon trial of the case, the jury returned a verdict for the plaintiff in an amount representing the full value of the peanuts and some interest. The defendant filed motions for a new trial and for judgment n.o.v. The court below in separate orders refused the motion for judgment but granted a new trial. Both parties have appealed, the plaintiff from the order granting a new trial and the defendant from the order refusing judgment n.o.v.
We shall consider first the motion for judgment. That the plaintiff made out a prima facie case in chief is not open to question. He proved delivery of the peanuts to the defendant, his demand for them and the defendant's failure to return them. In Farnham v. The Camdem and Amboy Railroad Company, 55 Pa. 53, 61, which was a suit for damages for the unreturned subject matter of a bailment for hire, this court observed that "... the plaintiff in the first instance... must have shown... that he delivered the goods to the defendants... [and] that their agent called for them and could not get them. There he might have rested to hear the reply...." As was said in Schell v. Miller North Broad Storage Company, Inc., 142 Pa. Superior Ct. 293, 296, 16 A.2d 680, citing Logan v. Mathews, 6 Pa. 417, 418, -- "When the bailee... fails to return [the goods] at all the law requires him 'to give an account of the matter' or assume responsibility for the loss." In order to cast upon the bailor the duty of proving that the loss of his goods was due to negligence of the bailee, it is incumbent on the latter to show by clear and satisfactory proof that the goods were lost and the manner in which they were lost: Clark & Co. v. Spence, 10 Watts 335, 337. On the other hand, "When the bailee has furnished such proofs satisfactory to the court and jury and if such proofs do not disclose lack of due care on his part, then the bailor, if he would
recover, must prove negligence on the part of the bailee and the bailee's negligence becomes the vital issue": Schell v. Miller North Broad Storage Company, Inc., supra, at p. 301.
It is the defendant's contention that, upon its proving the destruction of the plaintiff's goods by fire and the water incident to fighting the fire, the burden of persuasion shifted to the plaintiff to establish that the loss was due to negligence of the defendant. That, of course, presupposes that the defendant's exculpatory evidence is credible and will, perforce, be so accepted by the jury. But, of course, no such assumption is permissible. The defendant's proofs in material regard being oral, binding instructions in its favor on the basis thereof could not be given: Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, ...