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Herman v. Railway Express Agency

Decided: December 19, 1951.

ABRAHAM M. HERMAN AND FANNIE D. HERMAN, PLAINTIFFS-RESPONDENTS,
v.
RAILWAY EXPRESS AGENCY, INCORPORATED, A DELAWARE CORPORATION, DEFENDANT-APPELLANT



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.

Eastwood

The Essex County District Court, sitting with a jury, directed a verdict for the plaintiffs for damages to merchandise allegedly sustained in transitu. The defendant appeals from the ensuing judgment.

On February 19, 1950, the plaintiff, Fannie D. Herman, arrived at New York City from Europe. After inspection

by customs officials, two trunks and a wooden box were delivered to Steamship Trucking, Inc. (hereinafter referred to as "the trucking company"), to be hauled to the defendant Railway Express Agency, Inc. (hereinafter referred to as "the agency"), for shipment to plaintiff's home in West Orange, New Jersey.

The pertinent facts are: Mrs. Herman stated that the contents of the trunks and box were in good condition when inspected by the customs officials, which was corroborated by her husband; that she wanted the trunks and box shipped to her home via the agency, but was informed that that company could not operate from the piers and that the articles must be handled through another shipper for that purpose. Accordingly, the Hermans turned the three pieces over to the trucking company, with instructions that the articles be insured and shipped via the agency. A receipt was given them by the trucking company and, in turn, a receipt was given to the trucking company by the agency. About a week after delivery, the box and trunks were opened and some of the merchandise was found to be damaged.

Plaintiffs' action for damages was instituted and tried on the theory that the trucking company was the initial carrier; that the agency was a connecting and the last carrier; that evidence having been given of their good condition at the time of delivery to the trucking company, a presumption arises that the injury resulted from the negligence of the last carrier. Defendant, at the end of the plaintiffs' case, moved for a judgment of dismissal on the ground that it was not a connecting carrier and there was no evidence of the condition of the merchandise when delivered to the defendant. The trial court denied defendant's motion for dismissal and granted plaintiffs' motion for a directed verdict in their favor on the ground that evidence of delivery to the trucking company, in good condition, was evidence of delivery of the merchandise in good condition to the defendant, and the merchandise having been delivered to plaintiffs' home in

damaged condition, a presumption of negligence militates against the defendant as terminal carrier.

The defendant grounds its appeal on the contentions that (1) there was error in the trial court's refusal to grant its motion for dismissal inasmuch as the evidence failed to establish the condition of the merchandise when it was delivered to defendant and that it was a connecting carrier; and that (2) the evidence did not justify a verdict by the court, but should have been submitted to the jury.

It is clear that there was testimony that the merchandise was not damaged when inspected by the customs officials. But, defendant says, there is no evidence as to the condition of the articles between that point and the delivery by the trucking company to the defendant, nor its condition on delivery to plaintiffs' home, except that one week thereafter, some of the contents thereof was found to be in a damaged condition. Defendant argues that the absence of such proofs preclude recovery by the plaintiffs.

The generally accepted rule respecting the presumption of liability of connecting carriers is that expressed in Gude v. Pennsylvania R.R. Co. , 77 N.J.L. 391 (Sup. Ct. 1909), wherein it is stated:

"The rule undoubtedly is that the last of a line of connecting carriers is presumed, in the absence of proof to the contrary, to have received freight in the same condition in which it was delivered to the initial carrier, and if it appears to have been shipped in good order, and is in a damaged condition when the last carrier offers to deliver it, a presumption arises that the injury resulted from the negligence of the last carrier; but if there be no proof that the freight was in any other condition when it was delivered to either of the ...


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