32 Pa. Super. 190 | Pa. Super. Ct. | 1906
Lead Opinion
Opinion by
The plaintiffs had conducted a general store at Portage for fourteen years, and it was their custom to send money to the banks in Altoona very frequently, sometimes once a week, by the defendant express company. To facilitate the transaction of the business the defendant furnished large manilla envelopes
The testimony tended to show that on Saturday evening, November 7,1903, one of the plaintiffs counted $1,100, in paper money, putting the same in the envelope, the address of which is quoted above, and placed the envelope in the plaintiffs’ safe; that on Sunday both of the plaintiffs counted the money and found it to be $1,100, and it was then replaced in the safe. On Monday morning, November 9, H. S. Goldstein took the package to the express office where it was sealed, and he signed the following indorsement on the envelope: “ Contents not counted by agent and envelope sealed with wax in my presence.” The package was forwarded to the First National Bank, Altoona, Pa., and when opened it contained $996, there being a shortage of $104.
In this action of assumpsit to recover the $104, with interest, the above facts were in substance shown, without dispute, except that IT. S. Goldstein testified that he did not see the envelope sealed with wax. In this he is flatly contradicted by the written statement which he signed, and with which he had been familiar for many years, and by the testimony of the express agent, Hoover, who testifies that he did not count the money and that he sealed the package with three seals of wax in the presence of H. S. Goldstein.
The testimony of all the witnesses practically agrees that the . wax seals on the envelope, when received at Altoona, were in
Under this condition of affairs, the only way the plaintiffs could get to the jury was on the testimony of PI. S. Goldstein to the effect that he did not see Ploover place the wax seals upon the envelope. This allowed the jury to infer that the money was abstracted after Hoover received the package and before he placed the seals thereon. Therefore, an important question in the case is the sufficiency of H. S. Goldstein’s testimony to carry this question to a jury over his own written certificate that it was “ sealed with wax in my presence,” and the positive.testimony of Hoover that he did seal it with wax in the presence of Goldstein.
This rule was evidently established by the express company to remove from its agents the temptation of counting and possibly of abstracting money from such packages. It is a reasonable rule and ought to be enforced in good faith. The plaintiffs had been shipping money by this company for many years and each time signed a certificate to this effect. Therefore, being familiar with the rule, a duty rested upon them to comply with it.
At the trial the defendant’s counsel presented five points and the five assignments of errror are based upon these points and their answers. The points are: “1. That inasmuch as the package of money did not go on the first train it is not evidence of the defendant’s negligence. 2. The defendant company cannot be held liable for the contents of the envelope if it was delivered in good order and the seals intact. 8. That the burden .is not on the defendant to show when or where the money was taken, if it was taken, if fhe envelope was delivered in the same condition as it was received from the consignor. 4. That the defendant company was, in this case, a bailee and as such was required to give it due care, with all the usual and reasonable
In the opinion of the majority of the court the first assignment of error must be sustained. The first point giving rise to it was clear and concise and it should have been affirmed without qualification. The answer to this point covers nearly half of a printed page and we cannot say, with any degree of certainty, that it did not confuse and mislead the jury. To us this answer is not clear and we think it tends to confusion. When counsel presents a point so clear and concise as this one, he is entitled to a concise answer. The majority of the court is not in favor of sustaining the four remaining assignments and, therefore, we can only reverse the judgment with a new venire.
In the opinion of the writer there was error in the answers to the remaining four points, and I would sustain the assignments of error based thereon. But, inasmuch as the majority of the court is not with me in this, I refrain from discussing said assignments, and content myself with simply saying that the court is not unanimous in either dismissing or sustaining the second, third, fourth and fifth assignments. However, the concurring opinion filed herewith, shows that the majority of the court only sustains the first assignment of error.
The first assignment of error is sustained and the judgment is reversed with a .v. f. d. n.
Concurrence Opinion
concurring :
There was ample testimony of a positive nature that there were $1,100 in the envelope when the plaintiffs delivered it to the defendant’s agent at Portage for transmission to Altoona, and that there were only $996 in it when it was delivered to the consignee. Notwithstanding this testimony it is contended that the court ought to have given binding instructions for the defendant. This conclusion is based on the premises, first, that it is an admitted fact that no part of the money could have been taken out of the envelope in the course of transmission after it was sealed with sealing wax; secondly, that the plaintiffs are estopped to deny that the envelope was sealed in the presence of the member of the firm who delivered it to the defendant’s agent. If either one of these premises be unsound
Grant that the wax seals, which were upon the package when it reached the consignee, appeared to be intact, it is not beyond the range of possibility that the package had been opened in the course of transmission, and resealed in such manner as to prevent detection upon such examination as these witnesses gave. It would have been more satisfactory if the defendant had produced the envelope which was shown to have been delivered to its agent or employee after it had been opened by the consignee at Altoona. But apart from this consideration, the oral testimony was such that the court could not declare it to be an admitted or undisputed fact that the contents were in the same condition when it was received at Altoona as when the seals were placed upon it at the place of shipment.
Nor would the court have been justified in charging the jury that there could be no recovery unless they found that the money was abstracted from the envelope after the wax seals were placed upon it. True, the plaintiff signed the printed statement indorsed on the envelope that it was sealed with wax in his presence, and his oral testimony in opposition to this ought to be closely scrutinized by the jury. Perhaps the court would have been warranted in saying to the jury that it ought not to be accepted unless they were clearly convinced that it should prevail over his written declaration. But it is to be borne in mind that the terms and conditions on which the company agreed to carry the package, and to which the plaintiffs agreed by acceptance of the bill of lading, are set forth in the latter paper, which was at once a receipt and a contract. The correctness of the statement indorsed on the envelope which was signed by the plaintiff was not included in these terms and conditions. I am warranted in saying, therefore, that it was not a term or condition of the contract on which the package was shipped. Further, it is to be noticed that according to the testimony of the defendant’s own witness the wax seals had not been placed on the envelope at the time the statement was signed and the envelope was delivered to the defendant’s