15 F. 867 (D.Kan. 1883), United States v. Pacific Exp. Co.

Citation:15 F. 867
Court:United States District Courts, 10th Circuit, District of Kansas

Page 867

15 F. 867 (D.Kan. 1883)




United States District Court, D. Kansas.

April Term, 1883

J. R. Hallowell, U.S. Dist. Atty., for plaintiff.

Everest & Waggener, for defendant.

FOSTER, J., (charging jury orally.)

This case, as presented by the evidence, is essentially one resting upon facts, and upon the facts as

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established by the evidence you are to render your verdict. The United States alleges in its petition that on or about the ninth of January, 1880, at the city of Leavenworth, by its authorized agent, it placed in the custody of the defendant, the Pacific Express Company, an iron safe, containing moneys of the United States to the amount of about $26,000, for the purpose of having the same shipped to Wellington, in the state of Kansas, and there to be delivered to Maj. Broadhead, and that said express company received said safe, with its said contents, for the purpose of conveying the same from the place of shipment to its destination, and that during the time said safe was in the custody of said express company there was taken from the safe the sum of $20,000, and to recover that amount this suit is brought. The defendant company admits receiving said safe, but avers that it had no knowledge of its contents except statements of plaintiff's agent, Maj. Broadhead,-- (if I make any mistake about the pleadings I hope counsel will correct me: I want to give the general purport,)-- as appears from the bill of lading or receipt; that it had no knowledge of the contents of the safe, except from the statements of Maj. Broadhead; and avers that it delivered said safe and its contents at its destination, to Maj. Broadhead, the same as when it was received by it at Leavenworth. This makes a plain issue between the parties. The plaintiff alleges that the defendant did not deliver the safe with all its contents to Maj. Broadhead; the defendant claims that it did so deliver it. As a legal proposition, it is not controverted that the law holds the express company responsible for the safe delivery of the property at its destination, and there is nothing claimed or shown in this case to relieve it of that responsibility.

The express company fixes its charges for such services with this legal liability attached, and to compensate itself for the services rendered and the risk incurred in and about the business, it is governed largely by the value of the articles intrusted to its care. The greater the value, the greater the risk and responsibility incurred in its safe carriage and delivery. So far as this case is concerned, and the liability of the express company extends if it received the $20,000 package and failed to deliver it, it is not material what became of it. It matters not who took it, or when or how it was taken or stolen,-- whether stolen by an employe of the defendant or by a stranger. The plaintiff is merely required to show that the money was delivered to the express company, and that it was not redelivered by that company. To put it brief, was the money delivered to

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the express company? If so, was it returned? The safe and contents were in the possession of the defendant company when it was turned over to its agent, Mr. Martien, at Maj. Broadhead's office; from that time its liability commenced.

Your first inquiry would naturally be to determine the contents of the safe,--whether the $20,000 package was in it when delivered to defendant's agent; and upon that point I will briefly refer to the principal evidence; that is, as to the contents of that safe when delivered to the defendant company.

Maj. Broadhead and his clerk, Mr. Bassett, testify that the $20,000 package, together with other packages of money, amounting in the whole to the sum of $25,900, was placed in the safe. Maj. Broadhead testifies that he placed it in the safe with his own hands. Mr. Bassett says he was present and saw Maj. Broadhead put the $20,000 package in the safe. Here are two parties swearing positively to the money being placed in the safe. Maj. Broadhead tells you when and how and at what time he drew this money from the First National Bank; that he drew at several times on several different checks; that he first drew $15,000 from the bank and then $5,000, and put them together, making this $20,000 package. My memory is, he says he drew it on the seventh of January; that he took it back after he had done up that package and placed it in the...

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