Goldstein v. Adams Express Co.

Opinion by

Moréis on, J.,

The plaintiffs had conducted a general store at Portage for fourteen years, and it was their custom to send money to the banks in Altoona very frequently, sometimes once a week, by the defendant express company. To facilitate the transaction of the business the defendant furnished large manilla envelopes which were kept by the plaintiffs in their store, where they would count the money, place it in the envelope, and seal it with the mucilage lap and write the full address, with their consent to all the requirements of the contract as provided by the printed blanks. The plaintiffs would then bring the package to the office of the defendant company, where three wax seals would be placed thereon in the presence of the person delivering the package and a receipt given for the same. The form of the envelope used in the present controversy was: “Adams Express Company. Contents not counted by agent and envelope sealed with wax in my presence. Signed: H. S. Goldstein, Shipper. $1,100. From A. B. and H. S. Goldstein, Portage. For First National Bank, Altoona, Pa., November 9, 1903. To shipper: Agents of Adams Express Company are forbidden to count the contents or address this envelope and must stitch and seal with wax in presence of shipper.”

The testimony tended to show that on Saturday evening, November 7,1903, one of the plaintiffs counted $1,100, in paper money, putting the same in the envelope, the address of which is quoted above, and placed the envelope in the plaintiffs’ safe; that on Sunday both of the plaintiffs counted the money and found it to be $1,100, and it was then replaced in the safe. On Monday morning, November 9, H. S. Goldstein took the package to the express office where it was sealed, and he signed the following indorsement on the envelope: “ Contents not counted by agent and envelope sealed with wax in my presence.” The package was forwarded to the First National Bank, Altoona, Pa., and when opened it contained $996, there being a shortage of $104.

In this action of assumpsit to recover the $104, with interest, the above facts were in substance shown, without dispute, except that IT. S. Goldstein testified that he did not see the envelope sealed with wax. In this he is flatly contradicted by the written statement which he signed, and with which he had been familiar for many years, and by the testimony of the express agent, Hoover, who testifies that he did not count the money and that he sealed the package with three seals of wax in the presence of H. S. Goldstein.

The testimony of all the witnesses practically agrees that the . wax seals on the envelope, when received at Altoona, were intact, and that the money could not have been abstracted from the envelope in the condition in which it was found after the seals were placed thereon. Therefore, the pinch of the case was whether or not the money was in the package when H. S. Gold-stein delivered it at the express office on Monday morning. If the wax seals were placed upon it -in the presence of Goldstein, then it seems absolutely certain that the $104, was never in the envelope, or else it was abstracted before it was delivered to Hoover at the express office.

Under this condition of affairs, the only way the plaintiffs could get to the jury was on the testimony of PI. S. Goldstein to the effect that he did not see Ploover place the wax seals upon the envelope. This allowed the jury to infer that the money was abstracted after Hoover received the package and before he placed the seals thereon. Therefore, an important question in the case is the sufficiency of H. S. Goldstein’s testimony to carry this question to a jury over his own written certificate that it was “ sealed with wax in my presence,” and the positive.testimony of Hoover that he did seal it with wax in the presence of Goldstein.

This rule was evidently established by the express company to remove from its agents the temptation of counting and possibly of abstracting money from such packages. It is a reasonable rule and ought to be enforced in good faith. The plaintiffs had been shipping money by this company for many years and each time signed a certificate to this effect. Therefore, being familiar with the rule, a duty rested upon them to comply with it.

At the trial the defendant’s counsel presented five points and the five assignments of errror are based upon these points and their answers. The points are: “1. That inasmuch as the package of money did not go on the first train it is not evidence of the defendant’s negligence. 2. The defendant company cannot be held liable for the contents of the envelope if it was delivered in good order and the seals intact. 8. That the burden .is not on the defendant to show when or where the money was taken, if it was taken, if fhe envelope was delivered in the same condition as it was received from the consignor. 4. That the defendant company was, in this case, a bailee and as such was required to give it due care, with all the usual and reasonable diligence and attention for its safe delivery, and to deliver it as it was received from the consignor. 5. Under all of the evidence the verdict should be for the defendant company.”

In the opinion of the majority of the court the first assignment of error must be sustained. The first point giving rise to it was clear and concise and it should have been affirmed without qualification. The answer to this point covers nearly half of a printed page and we cannot say, with any degree of certainty, that it did not confuse and mislead the jury. To us this answer is not clear and we think it tends to confusion. When counsel presents a point so clear and concise as this one, he is entitled to a concise answer. The majority of the court is not in favor of sustaining the four remaining assignments and, therefore, we can only reverse the judgment with a new venire.

In the opinion of the writer there was error in the answers to the remaining four points, and I would sustain the assignments of error based thereon. But, inasmuch as the majority of the court is not with me in this, I refrain from discussing said assignments, and content myself with simply saying that the court is not unanimous in either dismissing or sustaining the second, third, fourth and fifth assignments. However, the concurring opinion filed herewith, shows that the majority of the court only sustains the first assignment of error.

The first assignment of error is sustained and the judgment is reversed with a .v. f. d. n.