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DICKMAN v. DANIELS MOTOR FREIGHT (01/21/58)

January 21, 1958

DICKMAN
v.
DANIELS MOTOR FREIGHT, INC., APPELLANT.



Appeal, No. 325, Oct. T., 1957, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1954, No. 9099, in case of Benjamin Dickman et al. v. Daniels Motor Freight, Inc. Judgment affirmed.

COUNSEL

John F. Naulty, for appellant.

Robert S. Hass, with him David M. Hass, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 185 Pa. Super. Page 375]

OPINION BY GUNTHER, J.

This is an action in assumpsit filed by Benjamin Dickman, Lewis Dickman, Joseph Dickman and Jacob Dickman, trading as Columbia Furniture Mfg. Company, appellees, against Daniels Motor Freight, Inc., appellant, common carrier, to recover damages for a loss sustained by reason of misdelivery of certain goods delivered to appellant for carriage and delivery. The case was first heard by Judge GUERIN without a jury who found in favor of appellees, but, upon exceptions, a new trial was granted. The case was then tried before Judge LEVINTHAL without a jury and the court found for the appellant carrier. Exceptions were filed and sustained and judgment was entered for appellees. From this judgment, appellant has filed this appeal challenging the finding and judgment as being inconsistent with the evidence.

The essential facts are not in dispute. Appellees, manufacturers of furniture in Philadelphia, received from their salesman an order from a new and supposedly bona fide customer in Cleveland, Ohio. On June 6, 1953 and on July 7, 1953, appellees shipped by appellant carrier two loads of furniture. Two bills of lading were made up by appellees consigning the goods to "Factory Furniture Co. (outlet store), 3719 Woodland Avenue, Cleveland, Ohio." When appellant's driver arrived in Cleveland he found that there was no such address as 3719 Woodland Avenue, but he did locate a furniture store at 3723 Woodland Avenue which had printed on the window in large letters, "Factory Furniture Outlet", underneath which was

[ 185 Pa. Super. Page 376]

    printed in smaller brown letters, "J. & F. Furniture Company". Without consulting appellees, both shipments were delivered to a John Zingale and Tony Maran, 3723 Woodland Avenue.

Before the shipments were consigned, appellees ascertained that there existed a reputable firm by the name of Factory Furniture Company, Inc., but the Dun and Bradstreet credit reference book did not list the address. Actually, this company was located some distance away at 4997 Broadway. The evidence also disclosed that appellees attempted to communicate with J. & F. Furniture Co. for payment of the goods but that their attempts were unsuccessful. In September, 1953, this suspicious company went into bankruptcy. Sometime in May or June, 1954, Columbia Furniture Mfg. Co. also went into bankruptcy and in the schedule of chooses in action a claim in the amount of $2467.00 was listed against J. & F. Factory Furniture, 3723 Woodland Avenue, Cleveland, Ohio. A claim against appellant was not filed in the bankruptcy schedule even though a claim was made upon the carrier before any action was commenced against the receiver of the goods.

The record raises a strong inference that the original order for the furniture was placed by a swindler who purposely misrepresented his identity in an effort to obtain the goods on the strength of a reputable name in the city of Cleveland. It is clear, however, that the bills of lading were directed to a definite company at a definite address and that the deliveries were made to an address not shown on the bills of lading and to ...


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