John A. Shrader, Guckes, Shrader & Burtt, Philadelphia, for appellant.
Ned Stein, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 396]
This is an appeal from the refusal of the Municipal Court of Philadelphia to remove a compulsory non-suit entered during the trial of plaintiff's action in assumpsit to collect freight charges on a carload of grapes.
It is admitted by the complaint and answer that this shipment originated in California and terminated at Philadelphia, and that in the course of this shipment the carload was consigned to defendants at Philadelphia by Economy Produce Company of Cleveland, Ohio. It is also admitted by the pleadings that the proper freight charges for this shipment from California to Philadelphia, under tariffs filed with the Interstate Commerce Commission were $865.90. The main issue arises from plaintiff's averment and defendants' denial that on the aforementioned date, plaintiff delivered the carload in question to defendants, that defendants accepted it from plaintiff, and that defendants exercised control over it.
At the trial before Judge Bonniwell the delivery receipt prepared by the plaintiff's delivery clerk was introduced into evidence. It showed that the car was 'broken' at 8:15 a. m., November 11, 1949. There was testimony that it was initialed by Max Feldbaum, one of the defendants, when the car was broken and some of the goods taken out. This receipt was properly admitted into evidence. See Uniform Business Records as Evidence Act of May 4, 1939, P.L. 42, § 2, 28 P.S. § 91b.
[ 176 Pa. Super. Page 397]
Plaintiff's produce terminal agent testified that he observed the car in question on the day after it was opened and noticed that approximately 200 boxes (of the 910 shipped in the car) had been removed; that November 12th defendant Max Feldbaum, in the witness' presence, put 200 boxes back into the car from a truck driven by a local trucker, not employed by the railroad; that after the 200 boxes were put back the car was shipped to Economy Produce Company, Cleveland, Ohio, at Mr. Feldbaum's request and on Mr. Feldbaum's assurance that Economy Produce Company in Cleveland would pay all charges, both inbound to Philadelphia and outbound to Cleveland; that he told Mr. Feldbaum at that time he would remain liable for all charges.
At the close of testimony on behalf of plaintiff, counsel for defendants offered into evidence a series of six telegrams between Max Feldbaum, Economy Produce of Cleveland, and their broker, A. N. Altmayer. These telegrams, transmitted over the course of November 11 and November 12, 1949, indicate that after defendants had broken the doorway and removed a substantial portion of the goods they complained to their broker Altmayer that the grapes delivered were not the variety ordered from Economy; that the following day it was arranged between defendants, Altmayer, and Economy Produce Company that defendants should make the car solid again and ship it back to Economy Produce Company on local rate, and that defendants did refill the car with 200 boxes of grapes before it was shipped from Philadelphia to Cleveland. The telegram suggested refilling the car 'with any variety' and it does not appear whether the car was refilled with the same grapes which were taken from it or with others.
At the close of plaintiff's testimony the court granted defendants' motion ...