GREENBURG v. NORFOLK & WESTERN RY. CO.

GREENBURG v. NORFOLK & WESTERN RY. CO. Circuit Court of Appeals, Fourth Circuit. November 8, 1928. No. 2787. Harry J. Capehart, of Welch, W. Va. (Leon P. Miller, of Welch, W. Va., on the brief), for appellant. J. Randolph Tucker, of Welch, W. Va. (F. M. Rivinus, of Philadelphia, Pa., and Graham Sale, of Welch, W. Va., on the brief), for appellee. Before PARKER and NORTHCOTT, Circuit Judges, and BAKER, District Judge. [MAJORITY — PER CURIAM.] PER CURIAM. This was an action of assumpsit for the value of 1,000 tons of coke, which plaintiff alleged was wrongfully converted by the defendant Norfolk & Western Railway Company. We agree with the learned judge below that there was no substantial evidence that the coke which plaintiff claims to have lost was taken by defendant. Assuming that the evidence is sufficient to establish that employes of the defendant from time to time took away a total of 16 sacks (considerably less than a ton) of coke from the pile of plaintiff and that defendant received the benefit thereof, which is by no means clear, it does not follow that defendant is chargeable with the entire loss of 863 or 1,000 tons, which plaintiff claims to have sustained. The coke was lying exposed and unprotected for a period of approximately 17 years. During this period persons living in the neighborhood seem to have helped themselves to it pretty freely. We know of no principle upon which a presumption can arise that defendant converted the entire amount lost because an insignificant portion thereof was seen to be taken away by its employes. Counsel for plaintiff do not insist upon their right to go to the jury as to the sixteen sacks if the court is of opinion that this would be the limit of their recovery on the evidence adduced; and we certainly do not think that the evidence would justify recovery for any larger amount. Affirmed.