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GASTWIRTH v. P. MASHBITZ & SONS (05/11/64)

May 11, 1964

GASTWIRTH
v.
P. MASHBITZ & SONS, INC., APPELLANT.



Appeal, No. 314, Jan. T., 1963, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1961, No. 1684, in case of Morris Gastwirth and George Efron, trading as Gastwirth Bros., v. P. Mashbitz & Sons, Inc. Judgment affirmed; reargument refused June 12, 1964.

COUNSEL

James L. Price, with him Steinberg, Richman, Price & Steinbrook, for appellant.

Peter C. Paul, with him George M. Brodhead, and Rawle & Henderson, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: O'brien

[ 414 Pa. Page 446]

OPINION BY MR. JUSTICE O'BRIEN

Gastwirth Bros. delivered to the defendant-appellant, P. Mashbitz & Sons, Inc., cartons containing children's coats with a wholesale value of $10,687.50. The defendant-appellant is a common carrier authorized to make local deliveries in the Philadelphia County area and to deliver to other carriers for transport to other parts of the Commonwealth and elsewhere. At some point prior to delivery at the intended destinations, the goods delivered to Mashbitz disappeared.

Gastwirth sued Mashbitz in assumpsit seeking damages for the loss of the shipped merchandise. A non-jury trial resulted in a verdict for Gastwirth in the amount of $10,687.50, with interest. Mashbitz' exceptions were dismissed and judgment was entered on the verdict; this appeal followed.

The appellees contend that the common law rule as to carriers applies in this case, and that the carrier is liable for any loss in transit not occasioned by an act of God or by war or public enemy.*fn1 The appellant, on the other hand, contends that under the Pennsylvania Public Utility Law, a carrier can limit its liability by (1) establishing and charging a lower rate for shipping

[ 414 Pa. Page 447]

    goods with a maximum valuation; and (2) requiring the shipper to stipulate in writing the value of the merchandise shipped.

The problems for us then to consider are: (1) did the carrier impose a lower rate on the merchandise shipped by Gastwirth; and (2) did the shipper, Gastwirth, indicate in writing the value of the merchandise. If we do not find both conditions present, the common law rule, as incorporated in the Public Utility Law, must prevail. These guidelines are very specifically set out in the Pennsylvania Public Utility Law, § 407, 66 P.S. § 1177, and by the Superior Court in Paramount Dress Co. v. Kirby & Kirby, Inc., 167 Pa. Superior Ct. 524, 76 A.2d 432 (1950), a case which deals with a problem similar to the one before this court, arising under the Interstate Commerce Act.

We have examined the evidence in this case and we must agree with the finding of the court below that the lower rates which are charged to permit limited liability were not charged in this case. The plaintiff was charged ...


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