Appeal, No. 232, Jan. T., 1955, from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1953, No. 906, in case of National Container Corporation of Pennsylvania v. Regal Corrugated Box Co., Inc. and Pennsylvania Railroad Co. Judgment reversed.
Charles M. Solomon, with him Nochem S. Winnet and Fox, Rothschild, O'brien & Frankel, for defendant, appellant.
William J. Fuchs, with him David F. Maxwell and Edmonds, Obermayer & Rebmann, for appellee.
William H. Lowery, with him Barnes, Dechert, Price, Myers & Rhoads, for appellee, Pennsylvania Railroad Company.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
In October, 1950, Plaintiff, National Container Corporation of Pennsylvania, sold to defendant, Regal Corrugated Box Company, Inc., 3,716 corrugated paper sheets invoiced at $3,222.91. The shipment was made in a freight car which was furnished and transported by the Pennsylvania Railroad Company from plaintiff's warehouse in the Frankford section of Philadelphia to the Regal Company at the Railroad's Vine Street Freight Station in Philadelphia. Under the contract between plaintiff and Regal Company delivery was to be made "f.o.b. del'd," the transportation, therefore, being at the risk of the shipper. Regal Company refused to pay for the sheets on the ground that a large portion of the sheets on the ground that a large the shipment arrived and unusable for the purpose for which they were intended, namely, the manufacture of corrugated paper boxes; it admitted liability only to the extent of $176.70, being the salvage value which it obtained from a resale of the paper and which amount it paid plaintiff. Taking advantage of Pa. R.C.P.
(b) and (c), and alleging that it was unable to determine which of the two defendants was liable for the wet condition of the paper as claimed by Regal Company, it brought suit against Regal Company to recover the balance of the contract price, $3,046.21 with interest, and, alternatively, against the Pennsylvania Railroad Company for the same amount plus freight charges it had paid of $223.20. Suit against Regal Company was, therefore, based upon the contract of sale, and suit against the Railroad Company in the contract of safe carriage. The jury returned a verdict in favor of plaintiff against Regal Company in the sum of $3,764.75, but in favor of the Pennsylvania Railroad Company as defendant. The court overruled Regal Company's motions for a new trial and for judgment n.o.v. and entered judgment on the verdict for plaintiff against Regal Company, from which judgment the latter now appeals.
The testimony at the trial centered around three subjects of inquiry: - (1) Were the paper sheets dry when loaded by plaintiff on the car of the Railroad Company; (2) Did they become wet during the course of transportation by reason of some defective condition of the car; (3) Were the sheets in fact dry when they arrived but became wet during the process of the unloading of the car by Regal Company's employes? As to the first question, there was testimony by plaintiff that the paper was dry and in good condition when loaded at the point of shipment. As to the second question, there was evidence pro and con, there being some testimony that the roof and sides of the car were possibly leaky, and other testimony that on a thorough inspection it was found that the car was free from any defects whatever. As to the third question, there was testimony on the part of Regal Company that when the door of the car was opened the sheets in view were wet,
that two truck loads were taken out and subsequently found to be thoroughly saturated with water, and that on further examination of the contents of the car it was ascertained that a large part of the remainder of the shipment was similarly damaged and unfit for use; on the other hand, there was evidence to the effect that the unloading of the car was carried on in the midst of a wind-blown driving rain and that the sheets were probably water-soaked while being transported from the car to the Regal Company's truck, and also that the door of the car was negligently allowed to remain open for a long time, thereby exposing the paper to the wind and rain. All of this testimony was presented to the jury, which evidently concluded (1) that the sheets were dry when shipped; (2) that they did not become wet during the ...