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HUCK-GERHARDT COMPANY v. KENDALL (03/18/59)

March 18, 1959

HUCK-GERHARDT COMPANY, INC.
v.
KENDALL, APPELLANT.



Appeal, No. 153, Oct. T., 1958, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1954, No. 6195, in case of Huck-Gerhardt Company, Inc. v. Max D. Kendall, trading as The Hopple Company. Judgment reversed.

COUNSEL

W. Bradley Ward, with him Josephine H. Klein, William Kendall, and Schnader, Harrison, Segal & Lewis, for appellant.

Wesley H. Caldwell, with him Lloyd A. Good, Jr., and Roper & Caldwell, for appellee.

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

Author: Woodside

[ 189 Pa. Super. Page 128]

OPINION BY WOODSIDE, J.

This is an appeal from a judgment entered for the plaintiff on a jury verdict after the court below had refused defendant's motions for judgment n.o.v. and for a new trial. The action was brought in assumpsit by a corporate bailor to recover the value of its goods delivered to a bailee for hire and not returned to the plaintiff upon demand. The plaintiff's goods were destroyed by fire which the jury found was caused by the defendant-bailee's negligence.

The plaintiff alleged in its complaint, and proved at the trial, that it had delivered catalogues and folders to the defendant, who for a consideration agreed to imprint upon them according to the plaintiff's instruction, and that notwithstanding its demands the defendant failed to return a certain specified number of them. The plaintiff offered two witnesses whose testimony was directed toward showing the quantity of the goods not returned and the nature of the relationship between the parties as a bailment for hire, issues which are not involved in this appeal.

[ 189 Pa. Super. Page 129]

On cross-examination of these witnesses, counsel for the defendant asked them whether they knew there had been a fire where the plaintiff's goods were stored, and they stated that they did. Subsequently on cross-examination, one witness testified that the plaintiff wanted to be reimbursed for that which was lost in the fire, and the other witness, when asked on cross-examination, "Did you visit that place (the defendant's buildings which burned) and examine your stock?" replied, "Oh, after the fire - the day after the fire, and subsequently about ten days later."

On the basis of this cross-examination the defendant moved for a compulsory non-suit which the court properly refused.

In Moss v. Bailey Sales & Service, Inc., 385 Pa. 547, 550, 551, 553, 123 A.2d 425 (1956), Justice [now Chief Justice] JONES speaking for the Court said, "A bailor makes out a prima facie case against his bailee for hire for the recovery of the value of unreturned bailed property by showing his delivery of it to the bailee and the latter's failure to redeliver it upon the bailor's due demand therefor. It then becomes the bailee's duty, if he would escape responsibility for the loss of the bailed article, to show that his failure to redeliver it upon the termination of the bailment was because of its loss by fire, theft or other casualty free from fault on his own part. With that done, the burden of going forward with evidence to prove that the loss was due to the bailee's negligence is then upon the bailor...

"In Anderson v. Murdock Storage & Transfer Company, Inc., 371 Pa. 212, 216, 217, 88 A.2d 720, Mr. Justice BELL recognized for this court that 'Since the [bailor] proved not only the storage of his goods and his demand for and [the bailee's] failure to return them, but also that the goods were destroyed by a fire which occurred without any negligence on the

[ 189 Pa. Super. Page 130]

    part of the [bailee], he cannot recover.' See also Toole v. Miller, 375 ...


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