Opinion
April 27, 1923.
July 12, 1923.
Carriers — Consignments — Delivery by mistake — Act of June 8, 1881, P.L. 86.
In an action of trespass, to recover the value of a certain shipment alleged to have been delivered by mistake, to the defendant by the plaintiff, a common carrier, the case is for the jury and judgment on a verdict for the plaintiff will be affirmed, where the evidence is conflicting as to the circumstances of the delivery.
Appeal, No. 124, April T., 1923, by defendant, from judgment of C.P. Allegheny Co., Oct. T., 1921, No. 137, on verdict for the plaintiff in the case of Pittsburgh, Cincinnati, Chicago St. Louis Railroad Company v. Baker, Smith Company.
Before PORTER, HENDERSON, TREXLER, KELLER, LINN and GAWTHROP, JJ. Affirmed.
Trespass to recover the value of a consignment delivered by mistake. Before REID, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $650 and judgment thereon. Defendant appealed.
Error assigned was refusal of defendant's motion for judgment non obstante veredicto.
James Balph, of R.A. James Balph, for appellant. — The defendant having received the shipment in good faith and believing itself entitled thereto, and having paid the freight thereon, and later paid the consignee, there can be no recovery: Long Island R. Company v. Structural Concrete Company, 110 N.Y.S. 379; Farmers Cotton Oil Company v. Railroad Company, 79 Southern 387; Waring v. Penna. R.R. Co., 76 Pa. 491.
W.B. McFall, Jr., and with him Dalzell, Fisher Dalzell, for appellee.
Argued April 27, 1923.
This is an appeal from judgment for plaintiff in trespass under the Act of June 8, 1881, P.L. 86, for damages caused by defendant's wrongfully obtaining from plaintiff and converting to defendant's own use a shipment of radiators in transit, consigned to a third party. The only complaint we need consider is the refusal to enter judgment n.o.v. The consignee was Garden City Fan Company at Pittsburgh. The shipment was delivered there to the Pennsylvania Transfer Company, a local deliverer, which paid the freight, and which, as the verdict establishes, acted for defendant. The court instructed the jury to determine from the evidence whether plaintiff parted with its possession by mistake to defendant, who was not entitled to receive them, or whether the delivery to defendant was authorized; no complaint is made of the charge; there was evidence both ways, which we need not discuss, as it was the duty of the jury and not ours to find the fact; its finding binds us.
Judgment affirmed.