212 A.D. 51 | N.Y. App. Div. | 1924
The action was brought by the plaintiffs, as assignees of the American Relief Administration, to recover for the loss of six cases of narcotics shipped by the American Relief Administration on February 15, 1922, from New York city to Hamburg on one of the defendant’s ships. It appears that these narcotics had been purchased from the Laboratory of the United States Treasury Department and had been packed by Dr. Philips, the purchasing officer of the American Red Cross. The narcotics were to be used in relief work in Russia. They were packed in wooden boxes and shipped from Washington in the American Relief Administration, 70 West street, New York city, which was the business house of
Appellant raises a number of questions upon this appeal. It insists that the action was brought for conversion and that no conversion was shown. It is true that the complaint does allege that the defendant converted the missing merchandise to its own use, but, in my opinion, the action was clearly brought for damages for the breach of the contract of carriage. The case was tried upon this theory and although the trial justice stated in his charge that the action was for conversion, I do not think the record sustains this assertion. It is probably true that, technically, the
Appellant also contends that plaintiffs failed to show that the contents of the cases were intact at the time the shipment was delivered to the defendant. I think it is' clear, however, that the evidence was ample to justify the jury in so holding, and a review of the case presents nothing to my mind calling for interference with the judgment, except as to one point in the charge of the learned trial justice.
The court stated as follows: “ So, the question that you have to decide in this case comes down to the simple proposition as to when the change in the condition, if a change took place, actually occurred. I am going to charge you in this wise, at the request of the plaintiff, that if the jury finds that this merchandise was in good order when packed and shipped from Washington until the contrary is shown it must be presumed to have continued in that condition. The general rule is that things once proved to have existed in a certain state are presumed to have continued in that state until the contrary is established by evidence, either direct or presumptive.”
To this instruction defendant’s counsel excepted as follows: “ Mr. Clement: I except to so much of your Honor’s charge wherein in words or substance your' Honor stated that ‘ if the jury finds that this merchandise was in good order when packed and shipped from Washington until the contrary is shown it must be presumed to have continued in that condition. The general rule is that things once proved to have existed in a certain state are presumed to have continued in that state until the contrary is established by evidence either direct or presumptive.’ I respectfully except to that portion of your Honor’s charge to the jury.”
In my opinion this charge is erroneous and necessitates a reversal of the judgment. There can be no doubt that the general rule that things once proved to have existed in a particular state are to be presumed to have continued in that state until the contrary is established by evidence, either direct or presumptive, applies to goods delivered to be transported over several connecting railroads or lines. This doctrine was laid down in Smith v. New York Central R. R. Co. (43 Barb. 225; affd., 41 N. Y. 620), and has been reiterated in many subsequent cases. The reason for the rule seems to be that the goods so shipped' are not in the possession of the consignor and so it is difficult or impossible for the shipper to ascertain where the loss occurs.
This rule, however, so far as I can find, applies only where the property shipped is, during the shipment, in the custody of a carrier or a series of connecting carriers; and has never been held
I, therefore, recommend that the judgment be reversed, upon the law, and a new trial granted, with costs to abide the event.
Kelly, P. J., Rich, Jay cox and Manning, JJ., concur.
, Judgment reversed upon the law, and a new trial granted, with costs to abide the event.