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PATRICK F. DALTON COMPANY v. TRANS-AMERICAN FREIGHT LINES (06/22/71)

decided: June 22, 1971.

PATRICK F. DALTON COMPANY
v.
TRANS-AMERICAN FREIGHT LINES, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Philadelphia, May T., 1968, No. 4033-C, in case of Patrick F. Dalton Company v. Trans-American Freight Lines, Inc.

COUNSEL

William F. Zinger, with him Alexander Brodsky, and Brodsky, Brodsky and Brodsky, for appellant.

Gerald P. Ginley, with him O'Halloran, Stack & Smith, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Cercone, J.

Author: Cercone

[ 219 Pa. Super. Page 224]

The plaintiff-appellee, the Patrick F. Dalton Company, (hereinafter referred to as Dalton) a Philadelphia printing company, brought suit in assumpsit in the Court of Common Pleas of Philadelphia County, against the defendant-appellant, Trans-American Freight Lines, Inc. (hereinafter referred to as Trans-American), an interstate carrier with general offices in Detroit and a local office in Philadelphia. Dalton sought recovery for damages to a secondhand "one-eight station Maceymatic collator", a complex piece of machinery sold to Dalton by the J. Farley Company (hereinafter referred to as Farley), of Detroit, and shipped aboard one of Trans-American's vehicles to Philadelphia.*fn1 When Dalton uncrated the machine, it was found to be in a mangled and useless shape.

[ 219 Pa. Super. Page 225]

Thereafter, Dalton sought recovery from Trans-American, since the carrier had agreed by contract to safely transport the machine between Detroit and Philadelphia. Liability was denied by Trans-American and suit was commenced in Philadelphia. Under the federal law which governs this area of interstate shipping, Dalton had to show, as part of its proof at trial, that the machine was delivered to the carrier in good condition. Missouri P.R. Co. v. Elmore and Stahl, 377 U.S. 134, 84 S. Ct. 1142, 12 L. Ed. 2d 194 (1964), rehearing denied 377 U.S. 984, 84 S. Ct. 1880 12 L. Ed. 2d 752 (1964).

In order to prove that the machine was delivered to the carrier in good condition, Dalton sought to have a representative of Farley, in Detroit, answer interrogatories concerning the condition of the collator when shipped. The deposition of any witness may be admitted into evidence if, at the time of trial, such witness is outside of the Commonwealth. See Pennsylvania Rule of Civil Procedure 4020(a)(3)(b). The plaintiff presented a motion to the Court of Common Pleas of Philadelphia County for the issuance of a commission to a court in Michigan to have interrogatories answered. George Crain, an executive of the Farley Company was named as the party to whom the interrogatories were to be directed. In this motion Dalton stated that, it had engaged Detroit counsel to assist in obtaining the desired testimony. Defendant, Trans-American, was served with a copy of the motion, the Philadelphia court's order issuing the commission, and a list of the interrogatories.

On September 11, 1969, in Detroit, Mr. George Crain was called before the Wayne County Circuit

[ 219 Pa. Super. Page 226]

Court to testify pursuant to the commission directed by the Pennsylvania Court. Mr. Crain was sworn and a court reporter was present. For some reason, the Michigan judge had the plaintiff's attorney direct the questions to Mr. Crain, instead of doing so himself.

At trial back in Pennsylvania, Dalton sought to introduce the transcript of the Michigan proceeding. Trans-American unsuccessfully objected to the introduction of this evidence. At the end of all of the evidence, the trial judge, sitting without a jury, rendered judgment for Dalton for the full market value of the collator, $1,295.00, plus interest. From this verdict ...


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