E. C. Fuller Co. v. Pennsylvania Railroad — 61 Misc. 599

Majority

p. 599

E. C. Fuller Company, Respondent, v. The Pennsylvania Railroad Company, Appellant.

(Supreme Court, Appellate Term,

January, 1909.)

Headnote

Carriers — Carriage of goods —Actions against carrier.—Admissibility of evidence — Opinion of expert as to packing of goods injured; Declarations of alleged agent without proof of agency.

Evidence — Opinion evidence — Expert evidence — Subject of expert evidence— Manner of packing goods.

Principal and agent—Actions by and against third persons — Evidence — Declarations of alleged agent without proof of agency.

To justify a recovery against a carrier for breakage of goods while in transit, the plaintiff must prove that the goods when delivered were in good condition and properly packed for transportation.

In such case, a witness, who testified that he had been engaged for forty-two years in the machinery business, for ten or fifteen years in the packing of machinery in railroad ears for transportation, and that during that time he had packed and shipped hundreds of car-loads of machinery, is competent to give an opinion ■ as an expert as to whether the bookbinding machinery in suit was

p. 600

properly packed for transportation, although he was not familiar with sueh machinery except in a general way.

The declarations and admissions made by alleged agents of the defendant, without competent proof as to their authority to make such statements, are inadmissible.

Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Yew York, first district, borough of Manhattan.

Robinson, Biddle & Ward (Norman B. Beecher and Don A. Adams, of counsel), for appellant.

James S. Lehmaier (William W. Pellet, of counsel), for respondent.

This is an appeal by the defendant from a judgment on a verdict rendered by a jury in favor of plaintiff in an action brought for breach of an express contract, resulting in damage to machinery, which was part of a car-load delivered by plaintiff to defendant’s agent in Chicago, 111., for shipment to Brooklyn, Y. Y. The evidence shows that the goods were packed by plaintiff’s employees in a car furnished by defendant and then delivered to defendant’s agent, who sealed the car, hut took no part in the packing of the goods. Upon the arrival of the car at its destination in Yew York the piece of machinery in question was found to he damaged, requiring an expenditure by plaintiff of $183.33 for which action was brought.

It was essential to plaintiff’s recovery to prove that the goods when delivered by plaintiff were in good condition and properly packed for transportation and the court charged the jury that if they found “ that the goods were not properly packed and this contributed in any way to the damages suffered there can be no recovery.”

Plaintiff called witnesses who testified to the manner in which the goods were packed and that they were in good condition at the time of delivery to the defendant’s agent.

The defendant called as an expert witness one Mcllgrib, who testified that he had been engaged for forty-two years in

p. 601

the machinery business, for ten or fifteen years in the packing of machinery in railroad cars for transportation; that during that time he had packed and shipped hundreds of car-loads of machinery; but that he was not familiar with bookbinding machinery, except in a general way.

Objection was then made by plaintiff’s counsel that the witness was not an expert, the objection sustained and exception noted by the defendant.

“ The witness had been qualified as an expert upon the subject-matter under investigation * * "x" and he was therefore competent to give an opinion * * * no such rule of limitation as that enforced by the court has ever, so far as we are aware, been applied in the case of a person who is qualified to testify as an expert upon the subject under investigation.” Scandell v. Columbia Construction Co., 50 App. Div. 512 . See also Scheider v. Amer. Bridge Co., 78 id. 163.

The exclusion of such testimony was prejudicial to defendant and constituted reversible error.

■ The trial justice also erred in admitting testimony as to declarations and admissions made by alleged agents of the defendant, without competent proof as to their authority to make such admissions or declarations.

Gildersleeve and Bischoff, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Scandell v. Columbia Const. Co. 50 App. Div. 512 N.Y. App. Div. 1900-04-14 p. 601