Am. Express Co. v. Des Moines Nat. Bank

• Decision Date: 17 May 1915
• Docket Number: No. 29697.,29697.
• Citation: 177 Iowa 478,152 N.W. 625
• Parties: AMERICAN EXPRESS CO. v. DES MOINES NAT. BANK.
• Court: Iowa Supreme Court

177 Iowa 478

152 N.W. 625

AMERICAN EXPRESS CO.

v.DES MOINES NAT. BANK.

No. 29697.

Supreme Court of Iowa.

May 17, 1915.

Appeal from District Court, Polk County; James P. Hewitt, Judge.

Opinion states the facts. Trial to a jury, verdict and judgment for the plaintiff. Defendant appeals. Reversed.

Salinger, J., dissenting.Clark, Byers & Hutchinson, of Des Moines, for appellant.

Lyon & Lyon and T. J. Fitzpatrick, all of Dubuque, and Parker, Parrish & Miller and A. G. Rippey, all of Des Moines, for appellee.

GAYNOR, J.

The following facts appear without dispute in this record: That on or about the 20th day of October, 1902, the defendant bank, through Robert Macartney, one of its agents, a receiving teller, delivered to one W. A. Merril, one of plaintiff's agents, at the office of the plaintiff, in the city of Des Moines, a sealed package for transmission, consigned to the Bank of Irwin, at Irwin, Iowa. That at the time the package was delivered by Macartney to Merril there was indorsed thereon, what the contents of the package purported to be, to wit, $2,000 in currency. The plaintiff accepted the package and undertook to transmit it to the consignee, believing, at the time, it contained $2,000, and issued its receipt therefor to the defendant bank. The plaintiff claims that it transmitted said package so sealed, in the condition in which it was received, and delivered it at its destination to the consignee at Irwin, Iowa, on October, 21, 1902 and plaintiff claims that within a few minutes after the delivery to the Bank of Irwin, it was opened by one A. McMullen, then in charge of said bank, and, upon being opened, it was found to contain pieces of paper, cut the size of national bank currency, and of no value whatever. The plaintiff's contention is that the package was in the same condition, at the time it was delivered by the defendant to it for transmission, as it was found to be in at the time it was delivered at its destination. The defendant's contention is that the package, at the time it was delivered to the plaintiff company, contained $2,000 in currency, and that if it was not received at the Bank of Irwin with the $2,000 inclosed in the package, the $2,000 had been extracted therefrom after it went into the hands of the plaintiff company for transmission. The cause was tried to a jury, a verdict returned for the plaintiff, judgment upon the verdict, and defendant appeals.

The evidence discloses that on the 20th day of October, 1902, defendant received from the Bank of Irwin, Iowa, an order by mail for $2,000 in currency, to be shipped to it by express; that immediately upon the opening of the bank that morning for business a package was prepared by the paying teller, Richard H. Collins, in one of the regular American Express Company's currency envelopes, and addressed to the Bank of Irwin at Irwin, Iowa, and the amount, which was supposed to be contained in the envelope, was written on the face, to wit, $2,000; that the envelope was sealed up by Collins, and delivered to Robert Macartney, the receiving teller; that it was the duty of Macartney to seal the envelope with wax seals bearing the stamp of the bank, three seals being placed on each envelope, one in the center, and one at either end. The envelope was sealed in the ordinary way of sealing letters. On the same morning, five or six other money packages were shipped, by express, by the bank all of which were put up by the paying teller, Collins, and delivered to Macartney. Macartney made up the only other package sent out that morning. One of the packages so made up was to go out over the United Express, and, in order to get the package to this express office in time to catch the first train, Macartney was unable to seal all the packages of currency which he had for shipment, before going to the United States Express Office. He went to the United Express Office, and was absent from the bank about 10 or 15 minutes, during which time the other money packages, sealed and unsealed, were left lying on the counter in his cage, next to the paying teller's cage. On his return, the remaining packages were sealed, including the one in controversy, after which he entered the record of the several packages in the book kept for that purpose, and then went to the plaintiff's office about 9:15 a. m. and delivered the package in controversy to Walter A. Merril, plaintiff's agent. At the time the package was delivered to Merril, it was sealed in the manner above described, and Macartney received from Merril the receipt of the express company for the package, purporting on its face to contain $2,000. Merril had no knowledge of the contents of the package other than was stated on its face. The package did not reach the office of the plaintiff company in time to go out on the morning train, and was held in Des Moines until evening of October 20th, and Merril claims that during that time the package was kept by him in a combination stationary safe, he being the only one having the combination; that about 6 o'clock that evening, Merril delivered the package, as he claimed, in the same condition in which he received it, to Stanley F. Howard, who at the time had charge of the depot for plaintiff company. Howard claims that he examined the seals on the package, found them intact, apparently in perfect condition, and receipted to Merril for the same; that about 8:30 Howard delivered it to E. W. Jacks, the express company's messenger running between Des Moines and Tama, taking Jacks' receipt therefor, and that it was in the same condition then in which he received it from Merril. Jacks claimed that he examined the seals when he received the package, and they were in perfect condition, but he says that while it appeared to be in perfect condition, he noticed that the edges seemed very sharp, and, in signing his name on the package, his signature looked like dotted marks; that the surface of the package was rough; that he carried the package to Ames in the same condition in which he received it, and delivered it to E. W. Rutherford, who was the night transfer man for the plaintiff company at that place. Rutherford receipted to Jacks for the package. He says that he then examined the package and found the seals intact, and found nothing to indicate that the package had been tampered with; that he received the package about 11:10 p. m., and held it until 4:10 the next morning, at which time he delivered it to Henry Marsh, express company's messenger running from Chicago to Omaha; that Marsh, when he received it, placed the package in a stationary safe and locked the safe. Marsh testifies that he carried the package as far as Carroll, where the agent Creed entered the car, placed the dial on the safe, and, after the padlock was removed by Marsh, the safe was opened and the package handed to Creed.

Creed testifies that he saw there were three seals on the package when it was handed to him; that when it was received by him, he took it in a portable safe across the platform to the train going south, and handed it to the express agent on that run, about five or ten minutes after he received it; that he received it from Marsh about 5:50 a. m. Creed testifies that he turned it over to one Slater, the express agent for the plaintiff running between Carroll and Audubon. This was the first run for Slater, the first day he worked for the company as messenger. In the car with Slater at the time was another express messenger by the name of T. J. Powell, whose run was from Manning to Harlan, but who lived at Carroll and deadheaded it from Carroll to Manning.

Slater testified that he placed the package in a portable safe; that it remained there, except that at one time he took it out for checking purposes, at which time he examined and found the seals in good condition, the seals unbroken, the glue on the envelope, and not open in any manner, and it seemed to be intact. When they reached Manning, Slater testifies he delivered the package to T. J. Powell, who had the run from Manning to Harlan. Powell receipted to Slater for it, and he testifies that he examined the seals; they were in good condition, and were not cracked or broken, and the package was not loose where the glue fastened.

Irwin is the second stop after leaving Manning. Upon reaching Irwin, Powell claims he delivered the package to one Peter Nelson, who was the agent for the express company at Irwin. Nelson receipted for the package. Nelson testifies that he examined the seals; looked to see if the messenger's signature was on the package; that the seals were all right, were good seals, and Powell's name was on the package; that, after attending to some duties, he took the package to the Bank of Irwin, where he found Alison McMullen, son of the cashier, in charge of the bank. That was about 20 or 25 minutes after he received the package. He delivered it to McMullen and took his receipt therefor, and returned to his duties at the depot; that a few minutes afterward, McMullen came to the depot and told him that when he opened the package, he found it contained only slips of paper. There was no currency in the package. Nelson then returned to the bank and was given the package and its contents.

McMullen testifies that at the time he received the package from Nelson, he examined it, looked at the seals; that they were intact, and apparently in perfect condition. Thereupon Nelson notified plaintiff company. It appears thereafter that the Bank of Irwin brought suit against the express company, and in that suit obtained judgment against the company, which was subsequently paid by the plaintiff.

Powell testified, in addition to what is hereinbefore stated, that at the time he turned the package over to Nelson, he noticed that the package had marks on it, that looked like dirt; that it had been handled with dirty hands. It looked bulky and out of proportion.

Mr. Collins, testifying for defendant bank, said:

“I put...