Shatz v. American Railway Express Co., 80 Pa. Super. 335

Shatz v. American Railway Express Co.

80 Pa. Super. 335 | Pa. Super. Ct. | 1923

Opinion by

Keller, J.,

This was an action by a shipper of goods, against an express company for the value of an interstate shipment which the carrier failed to deliver to the consignee.

It was tried by a judge of the municipal court without a jury, who found for the plaintiff in the sum of $121.65.

The court in banc subsequently entered judgment for the defendant notwithstanding the verdict, or finding of the judge, on the ground that the action had not been brought witbin two years and one day after a reasonable time for delivery bad elapsed.

Unfortunately for tbe defendant no evidence was produced which would support this action of the court in banc.

The shipment was made on July 3,1918. The original express receipt could not be produced or offered in evidence because the plaintiff had forwarded it to the defendant company at its request, in connection with his claim for reimbursement, and the company had lost or mislaid it. The defendant offered in evidence a certificate from the Interstate Commerce Commission showing the uniform express receipt, schedules, and express classifications filed by the defendant company and in *337force between August 22, 1918, and September 11,1919, wbicb contained tbe limitation of two years and one day invoked by tbe defendant and enforced by tbe court in banc; but tbe shipment in suit was made July 3,1918, a month and nineteen days before tbe date tbe above schedules and receipt went into effect, and there was no evidence in tbe case that tbe express receipt in force at tbe time of plaintiff’s shipment contained any such limitation. We cannot go outside tbe record and infer proof wbicb tbe defendant did not produce. Tbe Interstate Commerce Act (Act of Congress, Feb. 4, 1887, c. 104, s. 20, 24 Stat. 386, amended June 29,1906, c. 3591, s. 7, 34 Stat. 595, March 4, 1915, c. 176, s. 1, 38 Stat. 1196, .and. Aug. 4, 1916, c. 301, 39 Stat. 441, Barnes Fed. Code, section 7976, U. S. Comp. Stat. section 8604a,) does not fix any limitation upon tbe institution of suits, except that tbe transportation company may not prescribe a shorter period than two years. If tbe defendant! company, between tbe date of its incorporation, July 1,1918, and tbe receipt of this shipment, July 3,1918, filed with tbe commission a schedule and form of express receipt providing that suit must be instituted within two years and a day after a reasonable time for delivery bad elapsed, it was its duty to produce evidence to that effect at tbe trial, and not having done so its existence cannot1 be supplied by inference. Tbe court in banc was confined in its action to tbe evidence produced at tbe trial and unless that warranted a direction for tbe defendant judgment1 n. o. v. could not be entered. There being no evidence in tbe case to warrant a finding that tbe express receipt given tbe plaintiff, or in force July 3, 1918, contained tbe limitation of two years and one day, relied upon by tbe defendant, judgment could not be entered in its favor contrary to tbe finding of tbe trial judge.

Tbe assignment of error is sustained. Tbe judgment is reversed and tbe record is remitted to tbe court below with directions to enter judgment in favor of tbe plaintiff in accordance with tbe finding of tbe trial judge.