Simpson v. Denver & Rio Grande R. Co.

• Decision Date: 27 June 1913
• Docket Number: 2428
• Citation: 43 Utah 105,134 P. 883
• Parties: SIMPSON v. DENVER & RIO GRANDE R. CO
• Court: Utah Supreme Court

134 P. 883

43 Utah 105

SIMPSON v. DENVER & RIO GRANDE R. CO

No. 2428

Supreme Court of Utah

June 27, 1913

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by T. D. Simpson against the Denver & Rio Grande Railroad Company, upon two counts.

Judgment for plaintiff upon one count, and for the defendant upon the other. Both parties appeal.

Judgment for the defendant affirmed, and judgment for the plaintiff reversed and remanded, for a new trial.

Van Cott, Allison & Riter for appellant.

Zane &amp Stringfellow for respondent.

STRAUP J. McCARTY, C. J., and FRICK, J., concur.

OPINION

STRAUP, J.

The facts are undisputed. The case was presented on an agreed statement. The substance of it is:

The defendant operated a railroad and had in its employ several thousand employees, who were paid on the 10th of each month for services rendered the previous month. At the end of each month it prepared a pay roll containing the names of the employees, their occupation, places employed, number of days worked, and the amount due. Pay checks were then prepared in which the date, the name of the employee, and the amount due were stated. The paymaster with the pay car, the pay rolls, and checks traveled his district from place to place, and delivered the checks to the employees, who passed through the car to receive them. In October, 1911, the defendant had in its employ two firemen, E. C. Fields and C. B. Rings, who worked on its road between Salt Lake City and Helper, Utah. At the end of that month it owed Fields for services $ 93.49; Rings $ 109.75. Their names were on the pay roll and pay checks made out to each. The one to Fields is:

"The Denver & Rio Grande Railroad Co. Roll No. 1540. No. 4. Denver, Colo., November 10, 1911. The treasurer of the Denver & Rio Grande Railroad Co. will pay to the order of C. E. Fields $ 93.49, ninety-three and 49-100 dollars for services rendered during the month of October, 1911, when countersigned by Freeman Sumner. paymaster. J. W. Gilluly, Treasurer. F. Sumner, Paymaster. No. C368899." The other to Rings is the same, except the substitution of his name, the number and the amount due him, $ 109.75. On November 10, 1911, the pay car in charge of the paymaster was at Salt Lake City from 7 o'clock in the morning until 2 o'clock in the afternoon. From repeated deliveries of pay checks the paymaster became personally acquainted with a large number of the employees. Fields and Rings, however, had been in the defendant's employ only since August, 1911. While the paymaster had delivered them two pay checks before, in September and October, still, owing to the large number of employees paid off each month, between 3500 and 4000, he was unable to remember and identify all of them, and did not remember or know Fields or Rings. On November 10, 1911, between the hours stated, between 1700 and 1900 employees at Salt Lake City passed through the pay car for their checks, practically a continuous procession or line. As they approached the paymaster they announced their names, the pay roll was examined, the check selected and delivered to the employee and the date of delivery stamped on the pay roll opposite his name. Between the hours stated two unknown men, impostors, entered the pay car at different times. One of them, preceded and followed by employees, as he approached the paymaster called out the name of E. C. Fields. The paymaster looked at him, but did not in fact know whether he was or was not Fields, but believing that he was, and seeing the name of Fields on the pay roll, selected the check which had been made out for Fields, and delivered it to the impostor representing himself to be Fields. The other impostor, representing himself to be Rings, in like manner obtained the Rings check.

The plaintiff formerly was in the employ of the defendant at Salt Lake City, and had a general acquaintance with its employees at that place; but at and prior to the time in question he was engaged in the saloon business at Salt Lake City and had been in the habit of cashing at their face value a large number of the employees' checks. The impostors in the afternoon of the day they obtained the checks presented them to the plaintiff, and asked him to cash them. They were strangers to him. He asked them if they were the parties named in the checks, and was told by them that they were. They wholly unidentified indorsed them. The one holding Fields check indorsed it, "E. C. Fields," the other, "C. B. Rings." The plaintiff paid them the face value of the checks, in ignorance of the fraud practiced on the defendant and of the forgeries of the indorsements. That night the real E. C. Fields, and the next day the real C. B. Rings, presented themselves to the defendant for their pay checks. It, learning of the fraud practiced on it and of the mistake made in delivering the checks to the wrong persons, paid Fields and Rings the full amount of their wages. The plaintiff indorsed the checks the impostors had indorsed to him, and deposited them to his credit with his bank. In due course they were presented to the defendant's treasurer, who refused to honor and pay them. The bank canceled the credit, and the plaintiff brought this action against the defendant on two counts, one on the Fields check, the other on the Rings check. The court gave plaintiff judgment on the Rings check, the defendant on the Fields. This, because of the difference in the indorsements; the Fields check being indorsed by the impostor, "Fiels," not "Fields."

Both the plaintiff and the defendant appeal. There is no claim of bad faith on the part of either. The plaintiff has alleged no negligence nor any estoppel on the part of the defendant. He claims neither in his brief; he did, in a way, claim both in oral argument. His claim, however, can be no broader than his complaint. Nor does the agreed statement contain facts upon which an estoppel may be founded, or from which negligence may be inferred.

The case is thus presented within a very narrow compass. It is Can the plaintiff, a holder under the forged indorsements of the pay checks, treated by both parties as negotiable instruments, compel the defendant, who is both the drawer and the drawee, to pay him the checks, without allegations and proof of negligence or an estoppel on the part of the defendant? That the persons who presented the checks to the plaintiff were impostors, had no right or authority to receive, present, indorse, or transfer them, and that their indorsements...