Bonded Armored Carrier, Inc. v. Korvettes Division of Arlen Realty & Development Corp.
Bonded Armored Carrier, Inc. v. Korvettes Division of Arlen Realty & Development Corp.
Opinion of the Court
delivered the opinion of the Court.
Contrary to the old rule of thumb that money in motion seems always to leave tracks, the $7,567.09 with which we shall here be concerned appears to have disappeared without a trace. The trial judge, Harris, J., sitting without a jury, thought it “clear from the evidence that efforts by all parties to locate . . . [the $7,567.09] have shed no light on the mystery.” Counsel, at our invitation, volunteered conflicting theories in respect of its disappearance which, to be sure, they readily conceded lacked evidentiary support. Although we have been left neither wiser nor better informed, we think the judgment of the court below must nevertheless be reversed. The parties seem not to be in significant disagreement in respect of the facts, at least as they are set forth in the record.
In November 1968 the appellee (Korvette) and the appellant (carrier) agreed in writing that, for a period of two years, the carrier would “call for sealed shipments containing moneys, checks, and/or securities, to receipt therefor, and to deliver same in like condition to” The Equitable Trust Company (the bank).
Korvette’s money room, significantly perhaps, is where it all began. This was, and perhaps still is, the domain of Eva Kegan and Pauline Thrasher who were responsible for the counting of the money, for certain accounting functions pertinent thereto, and whose testimony is the source of much of what follows. They were responsible also for the preparation of the “sealed shipments” to be “call[ed] for” by the carrier. In the afternoon of 10 March 1970 one or the other of them, perhaps both, prepared the $7,567.09 for shipment. The deposit slip
“. . . It is agreed that all these sealed packages are to be distinctively and securely sealed by the consignor and that Bonded Armored Carrier, Inc., shall in no event be liable for any shortage claimed in any such sealed package delivered to it not so distinctively and securely sealed. Each package to have marked thereon the amount said to be contained therein, and in case of the loss of any sealed package Bonded Armored Carrier, Inc., shall in no event be liable for more than the value so marked thereon and stated herein.” (Emphasis added.)
Finally the bag was placed in the money room vault where it remained overnight.
During the morning of 11 March $10,500 in currency was prepared for shipment. The money together with
Later in the same day another deposit, $4,972.95 ($1,360.00 in currency and $3,612.78 in checks), was prepared for shipment. Since the carrier’s agents had not yet arrived the #12 bag containing the $10,500 deposit prepared earlier was cut open. The twine, the crimped slug and the tag were discarded. The new deposit, $4,972.95, was put into the same bag with the $10,500 and the bag was retied with twine, the slug was crimped, and a new tag indicating that the bag was supposed to contain an aggregate amount of $15,472.95 was attached. The $10,500 figure in the book was erased and in lieu thereof $15,472.95 was inserted. The next column is headed “No. of Items.” Most of the figure “2” was written so as to appear to apply to the “3-10” entry. The upper loop could be said to apply to the “3-9” entry. Who put the figure “2” there or when is not clear. The bank, as shown in the next column, is the indicated consignee. The two bags (the #5 and the #12) were then tied together and placed in the vault.
The carrier’s armored truck, manned by a driver and two guards, arrived shortly before 3:25 p.m. on 11 March. Guard Bennett and his “back-up man” presented themselves at the “counter of the money room.” They did not enter the money room nor did either of them have any access to the locked drawer where the crimper was kept. Bennett was handed the two bags still tied together. He wrote 3:25 in the column headed “Time rec’d” in a
Bennett, to be sure, was not the best of witnesses and his testimony, given 26 months after the incident, while clear enough in significant respects is, in other respects, not so clear as it might be. At the time of trial he had been employed by the carrier for about three years. He did not “inspect” the lead slugs when the bags were handed to him but he was sure they were securely sealed. Had this not been so, he said, he would immediately have been aware of it. Asked if he checked the figures on the tags against the figures in the book he said he didn’t remember. Asked if he “normally check [ed] those figures” he said, “You’re supposed to.” Although counsel did not press the point we think one would very nearly be obliged to infer that normally he did not check the tags against the book. Without doubt his testimony suggests his confusion in respect of the source of the $15,472.95 figure he wrote on the register after he returned to the truck. In one place he said he got this figure “off one of the tags.” He could not recall whether he checked the second tag. Asked if he added “the two tags together” he replied, “Now you got me on that. I really don’t remember to tell you the truth.” Recalled at the court’s request he thought he might have added the
After they left Korvette’s store Bennett and his assistant returned to the carrier’s garage where the contents of the truck, including Korvette’s two bags, were unloaded and placed in the carrier’s vault. Thereafter Bennett had nothing to do with the bags. In the morning the two bags were taken from the vault and placed in the truck for delivery to the bank. For this trip the driver was A, Jones and the guard was Anton Talking-ton. Talkington testified that before he left the garage he had inspected the bags and found them to be properly sealed. At 11:04 a.m. he delivered the two bags, still sealed, to the bank. In the last column of the register, headed “Rec’d by,” there appears the signature of L. Carson.
Talkington said he delivered the two bags to Mrs. Lorraine Carson but that she did not open them in his presence and that he had no way of knowing what, if anything, was in the bags. Mrs. Carson testified that before she signed the register she satisfied herself that the amounts shown on the tags agreed with the amount shown on the register and, she added, the aggregate amount of the two tags was $15,472.95. She cut the twine, opened the bags and counted the contents. In the #5 bag there was a deposit slip in the amount of $4,-972.15 and currency and checks to match. In the #12 bag there was $10,500 in currency and a deposit slip to match. There were credited to Korvette’s account on 12 March two amounts, one for $4,972.15 and one for $10,500. Validated copies of the deposit slips were sent to the Korvette store and to the New York accounting office. At no time during the month of March 1970, she said, did the bank receive a deposit of $7,567.09 from Korvette.
In March 1971 Korvette sued the carrier and the bank. In the first count of its declaration it alleged the agreement of November 1968, the preparation on 10 March of the $7,567.09 deposit for shipment, the preparation on 11 March of the $10,500 and the $4,972.95 deposits for shipment, the delivery of two bags to the carrier, the receipt of the carrier and the loss of the $7,567.09 deposit. It should be noted that negligence was not mentioned. In the second count (against the bank) it alleged the forwarding of the three deposits to the bank, the receipt thereof by the bank, and the bank’s failure or refusal to credit to its account the sum of $7,567.09.
The case came on for trial before Judge Harris, sitting without a jury, in May 1972. At the conclusion of the entire case he granted the bank’s motion to dismiss and he denied a like motion by the carrier. On 8 June judgment absolute for $7,567.09 in favor of Korvette and against the carrier was entered and from that judgment the carrier has appealed.
Judge Harris thought it appeared reasonably certain, from the evidence, that the carrier was negligent in handling the shipments and that this negligence was the proximate cause of the disappearance of the $7,567.09. “In any event [he continued], assuming arguendo that Korvette’s employees made a mistake in the preparation of the deposits, Bonded had the last clear chance to avoid the loss.”
It will be recalled that in the contract between the carrier and Korvette the carrier agreed “to call for sealed shipments containing moneys, checks, and/or securities, to receipt . . . [for sealed shipments], and to deliver same in like condition to a designated consignee.” (Emphasis added.) We do not see in this record, nor have we been shown, any basis for a presumption, much less a finding, that the carrier’s employees were “obligated” to compare the tags with the book. There is no such provision in the contract. There is no evidence that the carrier ever promised, either orally or in writing, to do so; there is no evidence that Korvette ever suggested or demanded any such procedure, nor does it appear that it ever relied upon the carrier to discover any discrepancies between the tags and the book. Indeed the only evidence that the carrier may have required its employees to make such a comparison is Bennett’s testimony that the guards were “supposed to” do it. If there was such a requirement it seems to have been as much honored in the breach as in the observance and without any objection from Korvette. We think the dollar figures in the book were intended to serve only as Korvette’s identification of the shipment. The carrier, by the signature of Bennett, acknowledged no more than that he had taken in hand two bags which Korvette identified as “said to contain” certain sums. There was no way for Bennett to know what was in the bags. They might be “said to contain” a million dollars but, in fact, they might contain nothing but old newspapers.
“Date 3-5 3-5 Said to Contain 6,319.52 )' 6,500.00 ) No. of items Consignee Equitable Trust Co. Time Ree’d 2:35 Rec’d by Steven Walton
12,819.52) 2:35 Steven Walton
3-5 12,630.47 3:45 Francis Roach
3-6 18,500.00 3:45 Francis Roach”
Except for the fact that $12,819.52 is the sum of the two figures above it one could very well argue that Stephen Walton, on “3-5,” receipted for two bags, one containing $6,319.62 (or $6,500) and the other containing $12,819.-52. The deposits, $6,319.52 and $6,500.00, were actually made by the bank on Monday, 9 March. The next two items, one dated 3-5, and the second dated 3-6, made up a two bag shipment which Francis Roach receipted for at 3:45, probably on Saturday, 7 March. The deposits were made on Monday but the truly extraordinary and astonishing circumstance is that the “18,500” item of “3-6” had shrunk to “14,000” on Monday when the deposit was made. One wonders whether the bag contained $18,500 or $14,000. What was on the tag we can never be sure but the testimony in the case at bar suggests it almost certainly was $14,000. In the light of Korvette’s position here it would seem that someone had made off with $4,500 which, perhaps, it should also be trying to collect from the carrier. At any rate this circumstance denigrates the accuracy of the book. And, one might add, the erasure of the figure first entered on 11 March (supposed to have been $10,500) and the substitution of $15,472.95 violates one of the primary rules of bookkeeping, i.e., “erase nothing.”
Judge Harris, without actually saying so, seems to have accorded Mrs. Kegan and Mrs. Thrasher full credibility. If their testimony is to be taken at its face value then it must be accepted as a fact that the tag on
Despite the fact that Bennett was a poor witness his testimony does make a certain amount of sense. He very well may have thought he was acknowledging the receipt
We find less than persuasive the subsidiary theory advanced at argument by Korvette that even though its employees may somehow have been at fault the negligence, assuming there was negligence, of the carrier’s employees made the loss possible. It seems to us that before such a theory can be accorded merit it is incumbent upon Korvette to show how the loss was made possible. Otherwise it is nothing more than an empty insinuation.
Both briefs discuss the law of bailments but we do not think it is applicable here. The carrier has done what it contracted to do. It received two sealed bags, identified by Korvette in one place as “said to contain” $7,567.09 and $15,472.95 and further identified by tags upon which were marked the “amount [s] said to be contained therein.” If Judge Harris found as a fact, and this is not so clear as it might be, that the tags were marked with the amounts $7,567.09 and $15,472.95 we think his finding was clearly erroneous. Maryland Rule 886. We think this record permits no finding other than that they were marked with the amounts $4,972.95 and $10,500. The carrier delivered these same bags, intact, to the bank, which entered the proper credit to Korvette’s account.
As we said early on, we invited counsel for Korvette to venture his own personal theory in respect of what happened to the $7,567.09. He assumed of course that, when the bags were delivered to the bank, the tags still conformed to the figures in the book. He thought that when Mrs. Carson became aware, upon signing the register, that the amount involved was only $15,472.95, she found herself with a surplus of $7,567.09. His im
Judgment reversed.
Costs to be paid by the appellee.
. Korvette’s copy.
. There was no showing that a duplicate crimping tool existed.
. Richard Schuler, Korvette’s store manager, testified in respect of a curious practice. He was asked if the vault was closed or left open after the money room personnel left at 5:30 p.m. He said it would be left open “[b]ecause we have an occasion to make change out of it [loose cash in a tray] for refunds for the cashiers, purchases, or cashed checks for customers, and et cetera, and we use the money in the vault.”
. Both parties agree, and we concur, that the doctrine of last clear chance is not applicable here.
Reference
- Full Case Name
- BONDED ARMORED CARRIER, INC. v. KORVETTES DIVISION OF ARLEN REALTY & DEVELOPMENT CORP.
- Status
- Published