Cedar Rapids National Bank v. American Surety Co. of New York , 197 Iowa 878 ( 1923 )

Evans, J.

The plaintiff carried a policy of insurance issued by the defendant, whereby the plaintiff was insured against losses from various causes. The only provision of the policy necessary to be set forth for the purpose of this case is the following :

“(B) Through robbery, burglary, theft, holdup, destruction, or misplacement, while the property is within any of the insured’s offices covered hereunder, whether effected with or without violence, or with or without negligence on the part of any of the employees.”

Also:

“(E) This bond does not cover any loss caused from an overpayment by a teller to a customer.”

For the purpose of our consideration of the questions presented, we adopt the statement of facts contained in the brief of appellee, as follows:

“The appellee, Cedar Rapids National Bank, is a national banking corporation, with its principal place of business in the city of Cedar Rapids, Linn County, Iowa, engaged in the banking business in that city. The appellant, American Surety Com-. pqny of New York, is a corporation organized under the laws of the state of New York. On the 10th day of December, 1912, the appellant issued to the appellee a certain bond, known as a banker’s blanket bond, whereby it undertook to indemnify the said appellee against certain losses occurring in its banking house in said city of Cedar Rapids, Iowa, to wit: ‘robbery, burglary, theft, holdup, destruction, or misplacement.’ On the 20th day of January, 1921, a person calling himself Chas. E. Boyer called at the plaintiff’s bank, stating that he desired to open an account. He conferred with the vice president, Martin Newcomer, and stated that he was a traveling salesman, who had just moved to' the city, and that he had taken an apartment in the Brown Apartments. He deposited, on this occasion, the sum of $6,875 in currency. There were three paying tellers and four teller’s cages along the northerly end of the bank, the bank room being about'120 feet long. On the following day, January 21st, Boyer persSnally cashed two checks, one for $300, in the morning, and later on said date, one for $375. The cage occupied by Julius Richter was the westerly cage. On Saturday, the 22d day of January', 1921, about 11:30 A. M., a rush hour, while the .bank was crowded with customers, said Boyer came to the cage of the teller Julius Richter, and presented a check payable ‘to cash,’ in the amount of $6,200. Richter, not knowing the state of Boyer’s account, went to the bookkeeper and ascertained that he had sufficient funds in the bank to cover said check, and therefore paid to Boyer the sum of $6,200 in currency. While he was paying out the money to him a telephone message came to the bank, stating that Richter was wanted at once at St. Luke's hospital, on account of a serious accident which had happened to his family. The telephone operator receiving the message, failing to get Richter by telephone, sent one of the bookkeepers to' notify him. Richter, having paid Boyer the money, receiving this urgent, terrifying message, immediately locked his cage, leaving the paid~check therein, and left hastily for the hospital, without notifying anyone that he had cashed the check. The bank closed at 12:30 on Saturdays. Immediately after Richter left, Boyer presented a second check for $6,200 to the teller Leinbaugh, in the easterly cage, who took it .to the vice president, Newcomer, to verify the signature. Newcomer knew nothing of the previous check cashed by Richter, so inquired of the bookkeeper, Mrs. Grace M. Collingwaod, the same one previously consulted by Richter, as to whether or not the deposit was in currency or checks. She informed him that the deposit was in currency, and he told the teller Leinbaugh the check was all right. Thereupon, the teller Leinbaugh paid the second check for $6,200 to Boyer, who immediately decamped with the money thus secured. The bookkeeper, Mrs. Colling-wood, testified that she saw Richter hastily leave the bank, and heard one of the girls say, in the bank, that some of his family had been hurt, and that he had been called to the hospital. When Newcomer made inquiry in reference to the check, which was within a minute or two after Richter had spoken to her about it, she assumed that it was in reference to the first check for the same amount, and that the departed teller had turned it over to the other teller, Leinbaugh, to take care of for him, on account of the supposed accident. The bank did not discover, until Richter returned to the bank, that both checks had been paid. They immediately informed the police, and every effort was made to apprehend Boyer, but he made good his escape. They learned, upon inquiry, that he had never had an apartment in the Brown Apartment, and no trace of him was found. The telephone operator who received the message at the bank testified she was familiar with the voice of the customers of the bank, and that the voice of the -person calling in with the message for Richter was strange to her; that the person appeared greatly excited, and fairly shrieked into the phone, and conveyed the impression of great urgency, and then immediately rung off. The whole transaction was a trick, to secure possession of the $6,200, for the purpose of stealing the same. The plaintiff, as a part of his main case, offered to show that Boyer, under the name of E. L. Norris, attempted this same trick upon the Fourth National Bank at Atlanta, Georgia; that he was apprehended in the act of doing the same; but that he made his escape from the officers by jumping out of a lawyer’s window, whom he had been permitted to consult, and has never been heard of since. The testimony concerning the Atlanta attempt was excluded by the court, upon objection by the defendant. The whole transaction took place in about two minutes, when the bank was crowded with customers, at a rush hour; and all the facts unmistakably show that it was a scheme boldly planned and skillfully executed to secure possession of the bank’s money with the intention of stealing it and carrying it away. It was the well known crime of larceny by trick, which has been the subject of many decisions. ’ ’

"We deem the evidence quite conclusive, and appellant does not contend otherwise, that Boyer acted with fraudulent intent, and with criminal purpose to possess himself of the money of the plaintiff to which he was not entitled. In order to recover, it was incumbent upon the plaintiff to show that Boyer, the wrongdoer, was guilty of theft by reason of the means adopted by him to obtain the money. The contention for the defendant is that he was guilty of obtaining money by false pretenses, and that he was not guilty of theft.' This is the disputed question presented.

Theft is the equivalent of larceny. It is denominated by the latter term in our criminal statutes. Our statutes also define the crime of obtaining property by false pretenses. These are separate and distinct offenses. When the larceny is accomplished by a trick, they approach each other in close similarity. Even then a well defined distinction is maintained. The latter offense is defined by Section 5041 of the Code, which is a part of the chapter on “Cheating by False Pretenses.”

Under our previous holdings, if the wrongdoer by false pretense or trick induce the injured party to surrender to him the possession of the property, without any intent on the part of the. injured party to pass the title of such property to the wrongdoer, and if the wrongdoer so obtain possession of the property with intent do appropriate the same to his own use, then the crime thus committed is a larceny by trick. In such a case, the, fraudulent inducement is deemed the equivalent of a trespass and of a felonious taking, which is an essential element of the crime of larceny. On the other hand, if the wrongdoer fraudulently induce the injured party to surrender to him, not simply the temporary possession of the property, but the absolute title to and possession of the property, then his offense is that of obtaining property by false pretense, and not that of larceny. To put it in another way, if the owner of the property be induced by a fraudulent trick to loan it to the wrongdoer Tor temporary use and return, and if the wrongdoer so borrow the same with intent to appropriate to his own use, and does so appropriate, the offense is larceny. On the other hand, if the owner be thus fraudulently induced to sell or trade his property and to part with it absolutely to the wrongdoer, the offense is that o| obtaining property by false pretense. In State v. Loser, 132 Iowa 419, 427, we said:

“But in view of the allegations of the indictment and the charge as given by the court, it was important that the crimes of larceny and of cheating by false pretenses be clearly distinguished. That there is a distinction between the two is apparent, although they are in some respects similar in character. The distinction is this: If the false pretenses induce the owner to part with his property, intending to transfer both title and possession, the crime is cheating by false pretenses. If, on the other hand, one by fraud, trick, or false pretense induces the owner to part merely with the possession of his property, there being no intent to pass the title, and the party who receives it took it with intent fraudulently to convert it to his own use, the crime is larceny. State v. Edwards, 51 W. Va. 220 (41 S. E. 429, 59 L. R. A. 465); State v. Hall, 76 Iowa 85; People v. Morse, 99 N. Y. 662 (2 N. E. 45). The distinction depends largely, if not wholly, upon the intent of the prosecutor. State v. Anderson, 47 Iowa 142; State v. Hall, supra; People v. Rae, 66 Cal. 423 (6 Pac. 1, 56 Am. Rep. 102); 1 Wharton, Criminal Law, Section 1179; Loomis v. People, 67 N. Y. 329 (23 Am. Rep. 123).”

At page 429, we said:

‘ ‘ If the prosecutors did not intend to part with the title, but delivered the possession for a temporary purpose, and defendants took and fraudulently converted it, they were guilty of larceny, and not of the crime of cheating by false pretenses. State v. Anderson, supra.”

In State v. Dobbins, 152 Iowa 632, 638, we said:

‘! That a felonious tailing is necessary to constitute larceny, and that, generally speaking, a taking which is accomplished with the consent or acquiescence of the owner of the property is not felonious, will be readily conceded; but where such consent is obtained by fraud or trick, with promise to return the property after it has served some temporary use or purpose, but with the secret intention on the part of the receiver to convert, it, then, as has already been said, the fraud supplies the place of trespass in the taking, and the offense committed is larceny. Says the California court: ‘Consent to deliver the temporary possession is not consent to deliver the property in a thing; and if a person, animo furandi, avail himself of a temporary possession for a specific purpose, obtained by consent, to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. He is acting against the will of the owner, and is a trespasser.’ People v. Rae, 66 Cal. 423 (6 Pac. 1, 56 Am. Rep. 102). The rule as thus stated has been frequently recognized in cases substantially like the one we are now considering, and is too manifestly just and wholesome to require further discussion at our hands.”

To the same effect, see State v. Anderson, 47 Iowa 142; State v. Hall, 76 Iowa 85.

Recognizing this distinction between the two offenses, was the offense of Boyer that of larceny, or that of obtaining property by false pretense ? Boyer received the money at the hands of Leinbaugh, the bank teller. He had fraudulently induced Leinbaugh to believe that he had that amount of money still to his credit in the bank. Leinbaugh honored his check, with the intent to pay him what was due him from the bank, as Leinbaugh was induced to believe. Boyer in fact had no right to the money which he received. Knowing that, he received it, fraudulently intending to appropriate it to his own use. What was it that he induced Leinbaugh to do? Did he induce him to part temporarily with the possession of the money, or did he induce him to part with the money absolutely ? The nature of that inducement must be found in the mind of Leinbaugh. What was in his mind in that regard? Did he intend simply to loan the money or to part with it temporarily for some temporary use? Did he intend that the money should be returned to him? If he did, then the offense was that of larceny by trick. We see no possible ground for saying upon this record that Leinbaugh intended any qualified delivery of the possession of the money, or that he intended that it should be returned to him for any reason, or that he intended to part with the possession and to retain the title. Indeed, it appears quite clear that Boyer’s fraudulent trick so operated upon the mind of Leinbaugh that he recognized the absolute right of Boyer to the money, and in that recognition he paid the money, without any necessary expectation of ever seeing Boyer again. He did not intend a temporary possession of the money by Boyer, nor did he intend the creation of a debt by Boyer. If-Boyer were under prosecution for obtaining the money by false pretenses, it is inconceivable that he should be deemed not guilty thereof. We see no escape from holding herein that such was his offense, and that it was not larceny, within the meaning of our criminal statutes.

It may be added that this conclusion is quite consistent with the general character of the insurance provided by the policy. Losses resulting through the mistakes of employees or officers, even though induced by fraud, are not, in terms, within the scope of the insurance. The quality of mistake on the part of the employees strongly characterizes the circumstances of this loss. If the bookkeeper had not been mistaken in her own inference that Boyer was presenting to Leinbaugh the same check which he had presented to Richter a moment before, the loss could not have Occurred.

It is conceded that the policy does not cover losses resulting from the mere fraud of third parties, or from the offense of obtaining property by false pretenses, and that, unless Boyer’s offense can be classified as larceny, there is no liability thereunder for this loss. Tbe judgment below must, therefore, be reversed.- — Reversed.

Arthur and De Grape, JJ., concur. Stevens, J., concurs in result. PrestoN, C. J., and Weaver, J., dissent. Faville, J., takes no part.