179 A. 924 | Pa. Super. Ct. | 1935
Argued April 24, 1935. This is an action of assumpsit for damages for alleged breach of contract by a common carrier engaged in interstate commerce for loss or theft of a scarf pin of the value of $400.
On June 1, 1929, plaintiff, A.J. Kirwan, delivered to the defendant, Railway Express Agency, Inc., at the city of Miami, State of Florida, one trunk, containing certain goods and chattels of the value of $1,500, for shipment and transportation to No. 416 Neville Street, in the city of Pittsburgh, State of Pennsylvania, plaintiff paying to defendant at the time of shipment $10.37 *433 made up of $8.87 express charges, and $1.50 insurance charges on the value of $1,500 declared by plaintiff.
At the time of shipment, defendant delivered to plaintiff, a uniform express receipt therefor, containing, inter alia, the following clause: "3. Unless caused by its own negligence or that of its agents, the company shall not be liable for — . . . . . . c. Loss of money, bullion, bonds, coupons, jewelry, precious stones, valuable papers, or other matter of extraordinary value, unless such articles are enumerated in the receipt."
Plaintiff's statement of claim averred that the trunk was delivered at 416 Neville Street, Pittsburgh, on June 4, 1929, but the trunk was not opened until on or about June 15, 1929, when plaintiff discovered that the diamond scarf pin was not in said trunk.
The affidavit of defense averred, inter alia, that the trunk when delivered to plaintiff was in exactly the same condition with respect to the contents thereof as it was when it was received by the defendant at Miami, Florida, and denied that any diamond scarf pin was lost or stolen from the said trunk while in the custody, possession or control of the defendant. It further set forth the clause in the receipt issued by it, and quoted supra, and averred that the scarf pin alleged to have been lost is an article of jewelry and its presence in the trunk was not enumerated in the receipt and therefore defendant had no notice if the scarf pin was actually in the said trunk, of its presence therein, and had its presence been enumerated in the receipt before the same was executed by the defendant, it would not have accepted the said trunk with said scarf pin contained therein, because the transportation of an article of jewelry must move through the money department of the defendant in accordance with tariff regulations approved by the Interstate Commerce Commission and cannot be transported in a trunk. *434
The case came on for trial before the court and a jury, where the foregoing facts were established.
Plaintiff testified that at the time of shipment he told the clerk of defendant company, "On this trunk I want $1,500 of insurance placed" and told him that in the trunk, "There is clothing, valuable papers and jewelry." When the trunk arrived and was delivered at Pittsburgh, the lock was locked and the seal was there in perfect order.
At the conclusion of the testimony ex parte plaintiff the court granted a compulsory non-suit which it subsequently refused to take off in an opinion by MARSHALL, (T.M.), J. From that order this appeal was taken.
The sole question in this case is whether the failure to enumerate the scarf pin on the receipt or bill of lading relieved the defendant of its liability as a common carrier, engaged in interstate commerce.
No question of negligence is involved in the case.
This case is ruled by Yaeck v. Adams Express Co.,
Nothing that occurred prior to the actual issuing of the receipt has any bearing on the subject. The defendant was entirely within its rights under its receipt and the tariff regulations applicable to the case in requiring that the receipt should indicate that an article of jewelry was in the trunk, for the method of handling was different and through a different department of the Express Agency.
The assignments of error are overruled and judgment affirmed.