United States ex rel. Matthews v. Massachusetts Bonding & Ins. Co.

• Citation: 144 N.E. 631,238 N.Y. 334
• Court: New York Court of Appeals Court of Appeals
• Decision Date: 03 June 1924
• Parties: UNITED STATES ex rel. MATTHEWS v. MASSACHUSETTS BONDING & INS. CO. et al.

238 N.Y. 334

144 N.E. 631

UNITED STATES ex rel. MATTHEWS

v.MASSACHUSETTS BONDING & INS. CO. et al.

Court of Appeals of New York.

June 3, 1924.

Action by the United States of America, on the relation of Lemuel S. Matthews, against the Massachusetts Bonding & Insurance Company and others. From a judgment of the Second Department of the Appellate Division of the Supreme Court (207 App. Div. 619, 205 N. Y. Supp. 867), unanimously affirming a judgment in favor of plaintiff entered upon a verdict, defendants by permission appeal.

Reversed, and new trial ordered.Appeal from Supreme Court, Appellate Division, Second Department.

Wilson B. Brice, Nathan Frankel, and Maurice Sutta, all of New York City, for appellants.

Neil P. Cullom, James E. Freehill, and William E. Collins, all of New York City, for respondent.

CRANE, J.

P. H. Keahon, Inc., was a domestic corporation engaged as a public truckman in transporting merchandise in the city of New York. On June 10, 1919, it entered into a contract with the United States whereby it agreed to transport such merchandise arriving from foreign ports at the port of New York as should be sent for examination to the appraisers' stores. The company agreed in its contract to be responsible to the government for all loss, injury, or damage to merchandise, whether by theft, accident, or otherwise, while under its care or custody, and further agreed to furnish a good and sufficient bond in the penal sum of $50,000 for the faithful performance of its agreements. The bond was furnished by the Massachusetts Bonding & Insurance Company, condefendant in this action.

On the 22d day of June, 1920, the defendant P. H. Keahon, Inc., received from the French line of steamers at the foot of Thirty-First street in Brooklyn, N. Y., a certain package marked M-123, supposed to contain watches and watch parts which had arrived on the steamship Leopoldina, consigned by the European Watch & Clock Co., Inc., of Paris, to the European Watch & Clock Co., Inc., of New York. When this package had been unloaded on the pier on the 16th day of June, 1920, it was placed in a locker, bin or crib, made of wire, about 20 feet square and 10 feet or 15 feet high, open at the top. The package consisted of cardboard boxes put into a square tin box about 6 inches in dimension. This box was soldered and hermetically sealed, and then placed in a wooden case. This wooden case was made of white pine, about one-half inch thick. The case bore upon each lateral face, diagonally placed, two seals of red wax, making in all eight seals. This box of watches was left in this crib from June 16th to June 22d, guarded by watchmen and detectives employed by the Vachris Detective Agency and the Mallon Detective Agency.

On June 22, 1920, Coffey with his truck took from the dock or pier 50 packages, including that marked M-123, the box supposed to contain the watches. He signed a receipt which had at the top in printing the words, ‘Received in good order from on board the S. S. Leopoldina * * * the following goods.’ Then appears the number of the package M-123. He took his load to the appraisers' stores situated at Washington, Greenwich, and Christopher streets, borough of Manhattan, where it was kept over night and unloaded and examined the next morning. It was then discovered by the inspectors that this package was in bad condition, that one of the seals had been broken and when opened was found to contain stones. The watches had been taken.

Thereafter 8 of the watches were found in the pawnshop. On July 27, 1920, while Detective Connolly of the New York police force was in the pawnshop of Joseph Rogers at 510 Lenox avenue a man named Harrison came in to pawn a watch which turned out to be one of the stolen watches. He claimed and swore upon this trial that he received this watch from a friend of his named Roy Lewis who had been with him in the army in France. Later another watch was procured from Anna Harrison, the wife of Charles Harrison. She swore that she had received it from Roy Lewis in order to help get her husband out of jail, for he had been arrested at the time he tried to pawn the watch. Who was Roy Lewis? Roy Lewis was one of the guards upon the pier or wharf employed by the Vachris Detective Agency to watch the discharged cargo of packages. He was on guard from June 15th to June 23d between midnight and 8 o'clock in the morning.

These facts appear in this action which was brought against the truckmen and the bonding company to recover by the assignee of the owner for the loss of the stolen watches. The verdict in the plaintiff's favor was unanimously affirmed, the appeal to this court being allowed, however, by an order of the Appellate Division. The case presents a rather narrow issue. The box with the watches had come to this country from France by steamer, and was unloaded on a pier in the harbor of New York on the Brooklyn shore. For nearly 6 days the package had been in a wire cage on the pier where Roy Lewis was a watcher during the midnight hours. About a month thereafter Roy Lewis had possession of two of these watches and gave them to the Harrisons, the witnesses upon this trial. The defendants' driver had taken the package supposed to contain the watches from the crib or cage and carried it on his truck to the appraisers' stores. He signed a receipt which said the package had been received in good conditions. The exterior box or wooden container was not produced upon the trial. It had one of the seals apparently broken when Coffey, the driver, delivered it at the appraisers' stores. If Lewis, the watchman, stole the goods before they were delivered to Coffey, the defendants are not liable. If the goods were stolen after Coffey had received them, and before he delivered them to the appraisers' stores, the truckmen and the bonding company would be liable at least upon the record in this case. It, therefore, was a narrow and simple question for the jury to determine whether the plaintiff had proved by a fair preponderance of evidence that the box was delivered to Coffey in good condition and that its contents had been rifled while in his custody.

[1] Many of the questions which counsel has attempted to argue on this appeal cannot be considered, as there are no exceptions which present them as questions of law. There are, however, one or two exceptions which merit examination. Coffey, the defendants' driver, had testified that he had not opened the box and had not taken the watches. Charles Harrison, called by the defendants, testified that the watch which he tried to pawn in the Lenox avenue pawnshop had been received on the same day, July 27, from Roy Lewis. This watch was identified and admitted to be one of the stolen watches. On cross-examination he was asked these questions:

‘Q. Where is Roy Lewis now? A. That I do not know, sir.

‘Q. Have you ever heard that Roy Lewis was convicted of any crime in this connection?

‘Mr. Frankel: That is objected to, if your honor please.

‘The Court: Overruled.

‘Mr. Frankel: Exception.

‘A. Yes, sir, I have heard so.

‘Q. Where? A. My wife told me.’

[2][3][4] This ruling was erroneous, but the answer did not prejudice these defendants. It was brought out by the plaintiff's counsel on a cross-examination, and should have rested there. He, however, improperly pursued the same course with the next witness, and this time to the defendants' injury. Clarence D. Connolly, the police officer, was recalled by the defendants, and, after being questioned regarding the watches that were returned, he was cross-examined by the plaintiff's counsel as follows:

‘Q. Officer, you know that Roy Lewis was never convicted of a crime in connection with this transaction, don't you? A. Yes, sir.

‘Mr. Frankel: That is objected to as incompetent, irrelevant, and immaterial-the form of the question.

‘The Court: Overruled.

‘Mr. Frankel: Exception.

‘Q. Your answer is, ‘Yes,’ that you do know that? A. That he was never convicted in this case.'

Whether or not Roy Lewis was convicted of the crime of stealing the watches was entirely incompetent, irrelevant, and immaterial to the issue in this case. Miller v. Southern Pacific Co., 20 Or. 285, 306, 26 Pac. 70. The defendants were not called upon in order to escape liability to prove that Roy Lewis had been convicted of stealing the watches. Neither was it competent to prove that Roy Lewis was not convicted. The prosecution by the people had nothing to do with the case. The parties here are different-the evidence may not be the same-the rules of procedure are unlike. In the criminal action the people were obliged to prove Lewis guilty beyond a reasonable doubt. The defendants have no such burden here-Keahon Company, as a bailee failing to deliver goods, was only obliged to show with reasonable certainty that the goods were stolen before the package was received by it. Claflin v. Meyer, 75 N. Y. 260, 263,31 Am. Rep. 467. In fact the plaintiff was bound to prove by a fair preponderance of evidence that the watches were in the package when Coffey, the driver, received it. The plaintiff made out a prima...