United States v. Pacific Exp. Co.

• Citation: 15 F. 867
• Parties: UNITED STATES v. PACIFIC EXPRESS CO.
• Decision Date: 01 January 1883
• Court: U.S. District Court — District of Kansas

15 F. 867

UNITED STATES v. PACIFIC EXPRESS CO.

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 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 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 bank for safe-keeping. Subsequently he drew the rest of it and did it up in packages; that on the day this safe was turned over to the defendant company he says he went to the bank and got the $20,000 package, and, as before stated, in the presence of Mr. Bassett, placed it in the safe. In corroboration of his testimony as to the drawing of the money and the delivery of the $20,000 package into the charge of the First National Bank for safe-keeping, his testimony is corroborated by Mr. Graybill, cashier of that bank. He corroborates him in reference to these drafts, drawing the money and placing the $20,000 bundle or package in the bank again for safe-keeping, and that he took it out at the dates he has stated. Now this is the evidence and proof as the drawing of this money from the bank, the doing up of the package, and the placing of this money in the safe.

Now Maj. Broadhead and Mr. Bassett, his clerk, testify, after detailing to you how the money was placed in the safe,-- the smaller packages first, etc., and the $20,000 package on top-- how the safe was closed and locked; how it was sealed; after putting his escutcheon over the key-hold, he placed the screw in to hold it in its place; then taking red sealing-wax, Maj. Broadhead says he held the candle and Mr. Bassett used the wax, melting it and dropping it on the escutcheon, and then Maj. Broadhead taking his seal, with the initials, 'J. A. B.,' stamped it, thus making a seal upon the escutcheon. They testify the wax extended over and adhered to the safe, thus holding the escutcheon in its place; that previous to the putting up of this money, or about that time,-- at any rate, the same day,-- he mentioned to the express agent that he would have a safe to ship, and the agent had agreed to send up for it at his office; that is testified to also by the express agent; that he delayed somewhat in sending for the safe, and Mr. Bassett was sent down to the express office to hurry up the wagon, as they were tired waiting. Maj. Broadhead tells you, and in that he is corroborated by Mr. Bassett, that upon Mr. Bassett's returning to the office and saying the wagon would not be there until 1 o'clock, he told him to go to his lunch, and he would stay there, and Mr. Bassett absented himself for a short time, returning again about 1 o'clock. Mr. Bassett and Maj. Broadhead testify that the agent, Mr. Martien, came up with the express wagon for the packages. Maj. Broadhead testifies that he had become somewhat impatient waiting; he says to the agent, Mr. Martien, taking hold of the end of the safe, 'Here is my safe and there is my bedding,' and started off to his dinner. Mr. Bassett substantially corroborates that. Then Mr. Bassett testifies, and Mr. Martien has testified to the same thing substantially, that he called in this colored boy, or rather, before he called in this colored boy, that he went out and looked for somebody to help him take this package out, and he went down to Maj. Gibbons' office, expecting to...