98 N.Y.S. 371 | N.Y. App. Div. | 1906
The complaint alleges that in the city of Mew York, on or about the 16th day of February, 1904, the defendant, for a good and valuable consideration, through its lawful and authorized representatives, •received from one Joseph S. Jantzen a package or envelope containing the sum of $500, lawful money of the United States, to be delivered by the defendant and deposited to the credit of the said Jantzen in the Rutherford Rational Bank at Rutherford, M. J.; that thereupon, . in consideration thereof, the defendant undertook, promised and agreed with the said Jantzen to transport and deliver the said package containing the said sum of money to the Rutherford Mational Bank at Rutherford, M. J.; that the defendant has
The defendant admitted its incorporation and that it refused to pay the snm of money to Jantzen, and denied each and every other allegation of the complaint.
The plaintiff’s cause of action is thus based upon the defendant’s receipt of this package containing $500, and an express contract to deliver it to the bank at Rutherford, a violation by the defendant of that contract and a refusal of the defendant to return the package of money to the plaintiff. The court charged the jury as follows: “ So that you will find whether or no there was $500 in the envelope; whether it is a fact that it contained a large amount of money as claimed by Jantzen. If you find that to be so, I charge you that was sufficient to put them on their inquiry, even though the exact amount was not stated. If it was stated it contained a large amount of money, .the amount not being fixed, they were put upon their inquiry, and there was knowledge to them of a valuable package, and'if they accepted it without knowing its exact contents that would be their own negligence; and if after that they gave it to their servant for delivery, they are responsible for its delivery. If, however, Mr. Jantzen handed it to one of the boys without notice of its valuable contents, then I charge yon, you find for the defendant.” At the request of counsel for the defendant the court subsequently charged the jury that unless the defendant’s manager was notified by Jantzen that the envelope tendered by him contained money and he expressly assented on behalf of the company to carry it to the bank at Rutherford, and unless the jury found from this evidence that Hegel, the defendant’s,manager, agreed on behalf of the defendant not only to carry a package of money, but to carry it to a specific place, namely, the Rutherford Rational Bank, at Rutherford, R. J., the plaintiff had not established a contract on the part of the defendant and their verdict should be for the defendant. The jury found a verdict for the plaintiff which has been affirmed by the Appellate Term. So that, considering the pleading and these instructions to the jury, the only question is whether _the evidence was sufficient to justify the jury in finding that a con.
The'plaintiff’s assignor testified that on the morning of February 16, 1904, he visited the branch office of the American District Telegraph Company at 845 Broadway; that he had $500 in bills with him -in an envelope addressed to “J, Jantzen, care of the Rutherford Rational Bank, Rutherford, R. J.; ” that there: was: also a-deposit slip in the.envelope; that at this branch office of the defendant corporation he saw a Mr. Hegel who had always been in charge when he had been there beforethat he told Hegél that lie wanted a-boy to' take a package to the bank at Rutherford, and Hegel called a boy from: the back of the office and said, “ Here, you have to go to Rutherford; ” that the witness looked at the boy, spoke a few words to him and said to Hegel, “ He won’t do ; ” that Hegel called another boy, to whom Jantzen also objected, and then said, “ Hegel, look here; you know there is a lot of money in this package and it is going to the bank, have you no other boys ? * to which Hegel, replied, “ Ro, I have no other boys ;” to which the witness replied, “ I will have to go to some other office and try to get a boy there; ” that as Jantzen turned from the counter, a tall boycarné in and then Hegel said, “ Here, here is the sergeant and he is all right.” Jantzen spoke to this boy and asked him whether he had ever been to Rutherford for him before, and the boy said he had, to the bank. Jantzen then handed the boy the envelope, saying, “Hurry up and catch that train 9:30 from-Chambers street,” and the boy took the package and started; that he delivered the package to the boy in the - presence of Hegel in the office. . Subsequently it-was ascertained that -the boy had never .arrived .at the bank,, and that neither Jantzen nor the defendant has since seen him or the $500. . .
Hegél, the manager of the defendant’s branch office,: was called for the plaintiff and testified that he was a- clerk in the employ of the defendant at the Morton House branch; that he sent out calls and kept a record of them; that Jantzen called there on February sixteenth ; that when ,he called the witness was in charge of the office in the line of the messenger service; that he remembered getting ■the boy fdr Jantzeri. Upon cross-examination, he testified that the charges of the defendant are based upon the service of the boy, by
On behalf of the defendant Hegel was recalled and testified that Jantzen never told him that there was.any money in the envelope; that he npver saw the envelope; that he had sent boys for Jantzen to" Rutherford before, and remembered Jantzen on that day telling the witness he wanted a boy to catch a train ; that Jantzen did not say that he wanted a boy to go to the bank. He testified that he had sent messengers for Jantzen to Rutherford four or five times, but not to the bank. The defendant having rested, the defendant renewed the motion to dismiss the complaint, which was again denied, and defendant excepted; ■ the court submitted the case to the jury, who found a verdict for the plaintiff.
The learned Appellate Term (48 Misc. Rep. 370), in affirming this judgment, said : “ It was competent for the jury to find from the proofs that a special contract had been made for the carnage and delivery of this package, and that the defendant’s agent, Hegel, was acting within the apparent scope of his authority when making this contract; ” that upon the conceded facts the plaintiff’s judgment was consistent simply with the defendant’s failure to perform a special contract for the transportation of this parcel.
I agree with the learned counsel for the defendant that the defendant is not a common carrier, and neither the learned Appellate Term nor counsel for the plaintiff seeks to sustain this judgment upon the liability imposed upon a common carrier. The defendant" was incorporated as a telegraph company, and by the certificate of incorporation certain of its shareholders associated themselves for the purpose of owning, constructing, using and maintaining lines of wires of electric telegraph in the State of Hew York. The route of its telegraph lines was through" and along the streets of the city of Hew York, connecting offices and dwelling houses, and any other buildings by means of said telegraph with the police stations, the qbject of establishing said line being to have an alarm telegraph from any
The jury were instructed by the trial judge that if Jantzen had failed to-inform the manager of the defendant as to the'valúe of the package that was intrusted to the boy, the defendant would not be liable; but I do not think that liability can be predicated upon a-knowledge by the defendant of the particular service that the boy was expected to perform. If the defendant is responsible, it would
It might be that as to third parties this messenger boy would be the servant of both or either-, but that could have no relation to the question whether as between the general employer who furnished the servant and the-person who engaged the messenger for a particular work, the general employer was responsible for the misfeasance or malfeasance of the messenger. ‘ Nor was the case submitted to the jury upon any such theory.■ The. questiqn that was- sub
It follows that the determination of the Appellate Term and the judgment and order of the City Court must be reversed, and a new trial ordered, with costs to the appellant to abide the event.
O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.
Determination and judgment reversed, and new trial ordered, costs to appellant to abide event.