American Express Co. v. Des Moines National Bank , 177 Iowa 478 ( 1915 )

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. Mefril,” one of defendant’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 endorsed 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 that 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 th§ 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 enclosed in the package, the $2,000 had been extracted therefrom after it went into the hands of the plain-' tiff 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 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 States Express, and, in order to get the páckage 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 States 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 5 or 10 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 rup 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 that 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; that 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 that he delivered the package to one Peter Nelson, wlm 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 Allison 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 appéars that thereafter 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 herein.

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; that it looked bulky and out of proportion.

Mr. Collins, testifying for defendant bank, said:

“I put up the money in the envelope, $2,000, and sealed it with gum or glue and turned it over to Mr. Macartney. Handed it to him through a little gate between our cages. He was standing in his cage facing me, waiting for these orders. After Macartney received the package, he sealed it with sealing wax and put on the impression of the bank seal. This sealing place was about 8 or 10 feet from my cage and in full view of my cage. I directed the envelope and wrote on it, ‘Bank of Irwin, Irwin, Iowa.’ I delivered the package to Macartney before he took it to the express office. He made one trip to the United States Express office before he took the Irwin package. While he was gone to the United States Express office, the Irwin package was lying on his desk, was in plain view of my cage from the time he went until he returned. No one entered his cage during his absence. The package was made up probably of 5’s, 10’s and some 20’s. From the time I went into the bank that morning until the package was taken by Macartney to the office, there was no one entered my cage or Macartney’s cage. In putting the money in, I simply took an envelope, wet the mucilage on the flap with my tongue and folded it over that way, and stuck it together and handed it to Macartney. The package, after I put it up, was not handled by any ..other person but Macartney and myself, until he took it from the Des Moines National Bank to the express office.”

Macartney testified substantially the same as Collins,-and further testified that he did not take any money out of the package that was addressed to Irwin, nor did anyone else, to his knowledge, after it was delivered to him; that he delivered it to plaintiff express company in the same condition in which he took it from the bank.

Allison McMullen testified that, when Peter Nelson delivered to him the package in question, it contained no money; that, in opening the envelope that was supposed to contain the money, he tore off the upper left-hand corner first, just a small corner, and then ripped down the edge with his finger; that he then reached in to pull,out the money, and pulled out paper instead; that, as he tore the envelope down the edge, the mucilage stuck to his finger, and as he pulled out the, paper the mucilage stuck to the top of the thumb, — it was soft enough to stick to his thumb; that he immediately went and informed Nelson; that no part of the seals was broken; that the slips of paper in the envelope were about the size of bills of currency.

This is practically the substance of all the testimony relating directly to the matter in controversy, and we are asked to say upon this record that a new trial should have been granted on the ground that the testimony still fails to establish plaintiff’s contention.

Defendant alleges and urges 18 separate assignments of error, but all 'are included in three divisions: (1) Error in admission and rejection of testimony; (2) error in the conduct of the trial and in the submission of the ease to the jury; (3) error in overruling defendant’s motion for a new trial, and permitting the. verdict of the jury to stand. We will take up the assignments in the reverse order. -

l. appeal and er-supported theticm ovtactes_ Did the court err in refusing to set aside the verdict and grant the plaintiff a new trial ? The burden of proof in this casé rested on the plaintiff, and, to entitle the plaintiff to recover, it was necessary that it establish its claims and contention by a preponderance of the evidence. The court, in its instructions to the jury, said that they are the judges of the credibility of the witnesses and the weight to be given to their testimony; that, in weighing the testimony of each witness, they should take into consideration his age, intelligence, strength of memory, means of knowledge, his relation or feeling towards the parties, his interest, if any, in the result of the suit, his demeanor while testifying, the reasonableness or unreasonableness of the matters testified to, whether corroborated or contradicted by other witnesses. The jury was told that the phrase “preponderance of the evidence” means in law simply the greater weight of the evidence, and the weight of the testimony was for the jury in determining where the preponderance of the evidence lies. If the jury believed that the plaintiff’s contention was true; that the package delivered by Macartney to Merril was transmitted over the plaintiff’s lines through the hands of its different agents; and that the package was not tampered with or money-extracted from it during its transmission; and that, when it reached Irwin and came into the hands of McMullen, it was in the same condition in which it was at the time it was delivered by Macartney to Merril, and that it then contained no money, the jury would be justified in believing that there was no money in the package at the time it was delivered by Macartney to Merril. On the other hand, if the jury believed that, at the time Macartney delivered the package to Merril, it did, in fact, contain the money claimed to have been placed in it by Macartney, and that, thereafter, it was found not to contain the money, the jury would be justified in concluding that the money had heen removed from the package sometime after it had reached the hands of Merril on its way to Irwin.

The witnesses for the parties were before the jury and the court. They heard them testify; had an opportunity to observe their demeanor upon the stand; the manner of their testifying; the apparent fairness or candor exhibited in giving the testimony; the consistency or inconsistency of their entire evidence. They had a right to give to the evidence of any witness testifying before them greater weight than to another, who, upon this record as it is before us, would seem to have equal weight. The jury was the judge of the credibility of a witness and the weight to be be given to his testimony. It was the duty of the jury to weigh the evidence, balance and adjust it to the cause,' and to- sit in judgment upon the credibility of the witnesses, and to give to their testimony such probative force on the issue tendered as, under all the facts and circumstances disclosed, the jury believed it entitled to receive. This case presents a conflict of evidence upon the ultimate issue, which the jury was required to settle. There were facts and circumstances disclosed in the examination of the witnesses which, thrown into the balance, might justly tip the scales of justice in favor of one party or the other. These facts and circumstances we have not set out in this record, for the reason that, in view of a new trial (which we find must be granted for reasons hereinafter stated), we do not care to enter into the discussion of the evidence, or express any opinion as to the weight of the evidence or the credibility of the witnesses.

The defendant’s contention that a theory cannot be established by circumstantial evidence, even in a civil case, unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can be reasonably drawn from them, and that it is not sufficient that they be consistent merely with the theory, does not apply in this case. The evidence is not wholly circumstantial. The evidence is direct and to the point as to the existence of facts which, if believed to be true, are sufficient to maintain either theory of the case; but the weight of the testimony that establishes these facts and the credibility of the witnesses who testified to these facts, are for the jury.

The cases relied upon by defendant are cases in which a party on whom rests the burden of proof has adopted a theory upon which he predicates his right to recover, and introduces circumstantial evidence to establish the theory that if, in establishing his theory, the evidence which he offers is just as consistent with some other theory upon which liability does not rest as it is upon the theory contended for, he has not proven the theory upon, which he rests his right to recover. If the evidence offered by him to support his theory, when fairly and honestly considered, is just as consistent with the theory upon which no liability rests, it cannot be said that he has proven his theory upon which he predicates liability. This is the doctrine of Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248, and kindred cases.

In this case, plaintiff predicates upon a theory its right to recover. If plaintiff’s evidence is true, it establishes its theory and affirms liability. If the defendant’s testimony is believed to be true, it negatives plaintiff’s theory and denies liability. It is here simply a conflict in the evidence — a case in which the jury is required to weigh and balance the evidence and sit in • judgment upon the credibility of the witnesses. Where there is evidence to support the plaintiff’s theory, more than a scintilla, we cannot interfere, even though in our judgment we should conclude that the preponderance of the evidence -was on the other side. We think the court did not err in overruling the motion for a new trial.

2‘ yanoyfmaieriai"tency fnecessity for foundation: theftbyemIt is next contended that there was error in the conduct of the trial, and in the submission of the case to the jury. This error is predicated upon the thought that it was the contention of the plaintiff that the money supposed to have been contained in the package had been removed by one Carl M. Spencer, , _ , or that the package, as prepared by Collins and delivered to Macartney, had been surreptitiously removed by Spencer, and the package which was afterwards delivered to the plaintiff, substituted in lieu thereof. To this end, the plaintiff sought to establish a relationship between the package and Spencer, and sought to show that Spencer had been subsequently convicted of embezzling money belonging to the bank, from which an argument was to be adduced that Spencer was the wrongdoer in- the transaction, and, at the time, was in the employ and under the control of the defendant. Inasmuch as the plaintiff failed to show that Spencer had anything to do with the handling of the package, or was in a position to have substituted one package for another, the court excluded as immaterial all testimony tending to show that Spencer was a defaulter, or that he was dismissed from the service of the bank. After several efforts on the part of the plaintiff had been made to get this testimony before the jury, and after the court had ruled adversely to the plaintiff, the jury was excused, and, in the absence of the jury, the plaintiff offered to prove as a fact that Spencer was a defaulter, and that settlement had been made between him and the president of the bank; that. Spencer was convicted of being a defaulter. The only offer that it made to connect Spencer with the transaction in question was that he was employed in the bank at the time the packages were made up, and that it was possible for him to enter the cage of Macartney and substitute a bogus package for the one that was put up by Collins. The court, in the absence of the jury, said:

“It seems to the court that, unless the plaintiff expects to show by some proper competent testimony that Mr. Spencer was in the same way connected with this transaction, or at least to show something more than the mere fact that he was employed in the bank and would have been or might have been a physical possibility for him to have substituted one package for another, that we could not permit the jury to base a finding upon testimony of so uncertain a character, problematical, pure conjecture, without any real tangible testimony to support it. Of course, if it was in any way connected with this transaction, or it appeared that Mr. Spencer handled this fund, or put it up or had anything to do with it, or there was direct testimony from which the jury might infer that fact, it would be a circumstance to go to the jury with other testimony bearing upon the question; but in the absence of that, it seems to me that the jury should not be allowed to base a finding upon a mere possibility, without some tangible evidence. The objection will be sustained.”

This ended the controversy between the parties on this subject. We think the plaintiff was within its right in seeking to make the proof offered. We think, however, that the court was right in excluding it for want of proper foundation to rest it upon. All the offer that might have been prejudicial to the defendant was made in the absence of the jury.

3. Evidence: reieteney ^condition package.money Defendants further contend that the court erred in excluding testimony offered by the defendant in the following respect. It was material to show to the jury what condition the package was in at the time it was delivered at the Bank of Irwin. It appears from testimony of Nelson that, after he received the package from McMullen, he notified the plaintiff company, and that one Mr. Finch, representing the company, arrived at Irwin the next morning, and that Nelson turned the package over to him in the same condition in which he received it from McMullen. Finch testified that, when he received the package, he removed the contents, examined the package carefully and found the paper under the seal in perfect condition; that it was smooth and clean and had no appearance whatever of having been tampered with in any way; that he afterwards interviewed all the agents through whose hands the package passed, and then went to Des Moines, took the package with him and interviewed the plaintiff’s clerks at Des Moines and showed them the package; that, while in Des Moines, he visited Mr. Arthur Reynolds, the president of the bank • that Mr. Reynolds, Mr. Hartshorn and Mr. Zwart examined the package very carefully, using a small magnifying glass; that they went from there to the bonding company, and from there Mr. Hartshorn took the package to Chicago. Ten days or two weeks later, he saw the same package again in the Des Moines National Bank in the possession of Mr. Reynolds. Mr. Reynolds testified:

“I first saw the package in controversy at my residence when Mr. Finch brought it back. I examined it later at the bank. The package was afterwards received by our bank by express and I examined it at that time. Mr. Zwart and Mr. Macartney were with me. The package was in the same condition when I saw it the second time as it was when I saw it the first.”

Finch further testified:

“I got the package at Irwin. First received it from Peter Nelson, and I kept the package in my possession until I came to Des Moines and had it here in Des Moines, and there was no material change in the package during that time. I gave it to Mr. Hartshorn.”

Allison McMullen testified:

“I gave the envelope and its contents to Mr. Nelson. I do not remember of seeing it again until the trial at Harlan in 1903. I examined the package at the trial of the Bank of Irwin against the American Express Company, so that I could say it was the same package and in about the same condition in which I turned it over to Mr. Nelson. ’ ’

George T. Lyon, attorney for the plaintiff in the case, testified on this trial:

“It was our firm that had charge of the defense in the case of the Bank of Irwin against American Express Company. We have made search for the envelope and package that was used in the trial at Harlan, and were unable to find it. I wrote to the clerk of the court at Harlan and received a letter from him in which he said that he was unable to find the exhibits used at Harlan; that he had made search in his office at home carefully; that the exhibits were not now in the possession of the attorneys for the plaintiff company. ’ ’

It seems to be conceded that this package was not produced on the trial in this case; that it was lost or mislaid and could not be produced.

H. W. Byers was called in behalf of the defendant, and testified as follows:

“I live in Des Moines; formerly lived and practiced law at Harlan. I was one of the attorneys for the plaintiff in the case of the Irwin Bank against the American Express Company, tried at Harlan in March, 1903. I saw and exaihined a package or an envelope that was said to have contained $2,000 in currency; the package was there used in that case. The envelope I examined was in general character such an envelope, as Exhibit 3, handed me. I made a careful examination of the envelope said to have contained $2,000 in curreney, addressed to the Irwin Bank at Irwin, Iowa, in that trial.”

•He was thereupon asked this question: “Will you now describe to the jury the condition of the envelope as it appeared or when you examined it?” which was objected to by the plaintiff as incompetent, irrelevant and immaterial, and the objection sustained on the ground that it was not shown that the package was in ther same condition at the trial at Harlan that it was when it arrived at Irwin. On this action of the court, the defendant predicates error.

L ^cy.^aierlartency1;^condition of rifled money package: foundation. When we see that the record discloses that this package was in substantially the same condition at the time it was produced at the trial at Harlan as it was at the time McMullen delivered it to Nelson; that it continued in the same condition in all the hands through which it passed up to the time of that trial; . . .. . , that it was examined by this witness minutely and carefully at that trial; that, at the time, he represented the Irwin Bank as its attorney, it becomes apparent that his testimony was not only relevant and material to the issue, but that a foundation was laid for its introduction. The condition that package was in, at the time it was delivered by the plaintiff company to the Irwin Bank, was very material on the issue as to whether it was delivered to the bank in the same condition-in which it was received by the plaintiff company. McMullen described to the jury what was done with the envelope after he received it, and the condition in which it was when he delivered it to Nelson. The material fact was not what the condition was at the time of the trial at Harlan, but what was the condition at the time it was delivered by McMullen to Nelson? If it was in the same condition at the time of the trial that it was at the time it was delivered to Nelson, a showing of the condition at this time had probative force in showing what the condition was at the time it arrived at Irwin. The question was a proper one; the foundation had been laid for the question; it called for testimony relevant and material to the issue; therefore, the witness should have been permitted to answer the question. As said in Mitchell v. Harcourt, 62 Iowa 349:

‘1 The true rule, we think, is that, when it is apparent on the face of the question asked the witness what the evidence sought to be introduced is, and that it is material, this is sufficient. ’ ’

5. appeal and er-Son-suácieñt evidence sought. The cases which hold that the party seeking to introduce the evidence is required to state what he expects to prove, and thus make its materiality appear, are not inconsistent with this rule. This rule announces the proposition that where, upon the whole record, ^ is apparent that the evidence sought 1° be elicited is competent, relevant and material to the issue, and is offered under such circumstances that the court can plainly see that the admission of it would be helpful to the cause of the party offering it, it is not necessary that it be stated in the record what it is expected the answer should be; and therein lies the distinction between the rule laid down in Emerick v. Sloan, 18 Iowa 139; Jenks v. Knott’s M. S. M. Co., 58 Iowa 549; Shellito v. Sampson, 61 Iowa 40; State v. Row, 81 Iowa 138; Porter v. Moles, 151 Iowa 279, and Arnold v. Livingstone, 155 Iowa 601.

For the error in excluding this testimony, the cause must be reversed and is — Beversed.

Evans, C. J., Deembr, Ladd, Weaver and Preston, JJ., concur.