240 Pa. 182 | Pa. | 1913
Opinion By
The Lubin Manufacturing Co., a Pennsylvania corporation, brought an action of replevin to recover nine moving picture films; the jury found for the defendant, with $1,800 damages; judgment was entered upon the verdict and the plaintiff has appealed.
The plaintiff corporation was licensed by the Moving
The first assignment complains that the trial judge struck out certain testimony given by the defendant on cross examination, to. the effect that on January 24, 1911, he had in his possession “quite a number of films” in addition to those covered by the replevin, which films he had obtained from the plaintiff company and had not . returned. One of the contentions of the defendant was that he had been subjected to undue oppression in the manner in which the writ of replevin was executed, and the testimony in question was elicited by the plaintiff for the purpose of showing that there was “absolutely no oppression.” We are not convinced that the trial judge committed error in the ruling under consideration, for it is not at all clear that the testimony tended to support the purpose for which it was offered. The assignment is overruled.
The second assignment calls attention to a question ' propounded to the defendant upon cross-examination, in relation to an alleged default on his part in not complying with certain terms of his license agreement; this particular default was not pleaded and hence .there was no error in declining to permit an inquiry in relation thereto. The assignment is overruled.
The third and fourth assignments cover, the admission in evidence of nine writs of replevin issued in other cases by other plaintiffs but served simultaneously with . the writ in this case, and the trial judge’s subsequent refusal to strike this evidence out. Among the defenses - averred were undue oppression at the time of the re
The fifth, sixth and seventh assignments complain of the refusal to give binding instructions or to enter judgment non obstante veredicto for the plaintiff. It is argued that the testimony of certain witnesses called by the defendant shows that he did in fact sub-let films which were the property of the plaintiff after the cancellation of his license by the Patents Company, and it is contended that this breach of the conditions printed upon the labels entitled the plaintiff to immediate possession of the films sought to be recovered by the replevin. But the appellant apparently overlooks the fact that the conditions printed upon the respective labels did not constitute a contract affecting generally all licensed motion pictures possessed by the defendant, as did the license agreement with the Patents Company; on the contrary, the label contract was restricted in each instance to the contents of the particular box to which it was attached. Unless it was made to appear that the very films covered by the writ had been sub-let after the date of the cancellation, in violation of the contracts printed on their various box labels, the terms of those contracts could not be depended upon to support the plaintiff’s action. It is not clear beyond controversy that the defendant had sub-let any licensed films after
The eighth, ninth and tenth assignments cover the re-. fusal of the trial judge to charge that the defendant would not in any event be entitled to more than nominal damages. If there was no violation of the label contracts connected with the particular films replevied, the replevin was premature, for at the time the writ issued, the twenty days given in the license contract for the return of the films had not expired by one day. If the writ was prematurely issued it was bad, and the defendant was entitled to whatever actual damages the jury might find he had proved. So far as the value of the defendant’s right of possession entered into the assessment of damages, by reason of the terms of the general contract under which he held all licensed films, his recovery would pf necessity be limited to the value of such use as he would be entitled to make of the films under the conditions and restrictions of that contract after the date of the cancellation of his license. (See Cobbey on Replevin, 2nd Ed., Section 897.) But the damages could not be restricted to one day’s loss, as urged by the appellant, on the theory that the writ would have been good had it issued on the following day. No authority is cited for any such doctrine, and so to hold might lead to dangerous results in the future; for under such a general rule of law claimants of property could well afford to risk merely nominal damages and take out writs before their right of possession had actually vested. Owing to the position in which the defendant is placed by the terms
The eleventh assignment calls attention to the refusal of a point for charge, submitted by the plaintiff, which was tantamount to a request for binding instructions. Much that we have already said in disposing of the fifth, sixth and seventh assignments is applicable to the present one and need not be repeated here. The assignment is overruled.
The twelfth assignment complains of the affirmance of a, point to the effect that, if the jury finds for the defendant and further finds “that the taking was attended by circumstances of aggravation, vexation and hardship,. exemplary damages are allowable.” We have already said, under the third and fourth assignments, that the evidence failed to show any unusual oppression at the time the goods were taken under the writ. In the nature of things, when the sheriff’s officers came to the defendant’s place of business the proceeding was bound to cause him inconvenience; but they did not remain an unusual time, and the fact that a watchman was left in charge for some days afterwards, pending the determination of certain legal steps taken by the defendant, was in nowise out of the ordinary; furthermore, the fjve men who helped the sheriff’s officers find the goods covered by the writ were representatives of the Patents Company and not of the plaintiff. The carrying away of some boxes, etc., belonging to the defendant, in connection with the replevied films, could not be termed an act of outrage under the circumstances; the articles were returned the next day, and if the taking caused any special damage the defendant was entitled to prove and recover his loss as such. When upon the stand, in answer to the question, “I. am asking you how, as a physical fact, at your place, you were in any way interfered with in the
By the thirteenth and fourteenth assignments the appellant submits that error, was committed in leaving the issue of the plaintiff’s ownership of the replevied films to the jury. It is true that the ownership of this property was duly proved by the plaintiff and admitted by the defendant; but these assignments will not be sustained, for the error, if any, was subsequently effectually cured by the trial judge in his answer to one of the plaintiff’s points.
The fifteenth assignment complains of a part of the charge wherein the trial judge made reference to, and submitted an issue growing out of certain testimony which had been stricken from the record; this was error and the assignment is sustained.
Under the sixteenth and seventeenth assignments the appellant contends that the trial judge committed error in instructing the jury that, after the date of the annulment of the defendant’s license by the Patents Company, he had the right to deliver to a licensed exhibitor films leased to him by the plaintiff, if in so doing he was merely carrying out an arrangement with the ex-.
. What we have already written amply covers the matters called to our attention in the remaining assignments of error, and we trust it will prove a sufficient guide should this case be again tried.
The judgment is reversed with a venire facias de novo.