cleitr denial of a:legal right through all1anifestabuse' of 'discretion. President v. Patchen, '8 Wend.4:7,64:\.. That is riot, the case His judgment in declining to postpone these proceedings ,after they had been pending 11 days,' for the purpose of obtaining tions from witnesses in England; w.stea.aJof remitting the to his trial thera,' where these witnesses ooilld' be produced inpersori arid their credibility examined, or in rebuttal oonvenieritly ob.. tained, was, in my opinion, proper and' just. To have allowed deposition!! and a postponement of, the proceedings ulitil they could be takeri and produced here, would, -it se'ems tome;, involve gard of the pIa-in meaning intention of the treaty. The writ of habeas corpus is therefore dismissed, alid the prisoner remanded.
Affirmed on appeal to the U nited cil'cuit court.
PAOIFIO EXPRESS CO.'
(Di8trictGolfrt, D. Kania"., A.pril Term, 1883.)
ExPRESS COMP...NY-FAILURE TO DELIVER MONEY.
In an action against an express company for the loss of money delivered to it, to be carried to redelivered at a c.ertain place, it is only necessary to prove the delivery of tIle mdney .to the company and its failure to redeliver the same.
SAME-BURDEN OF PROOF.
In such a case the burden of proof rests upon the plaintiff, and he has toestablish by a preponderance of evidence that the allegations in his petition are true.
JURY JUDGES OF CREDmILITY OF WITNESSES-TESTIMONY OF EMPLOYES.
The jury are the exclusive judges of thecredibiJity of witnesses, and in con-, sidering the weight to be attached to the testimony, of certain witnesses, they may take into consideration the fact that they are the employes of the party in whose behalf they are testifying.
4, SAME-CIRCUMSTANTIAL EVIDENCE,
If circumstantial evidence preponderates, or overthrows or overcomes, in the opinion of the jury and in' their judgment, the direct positive testimony of witnesses, they have the right to take that kind of evidence and give it all the weight it is entitled to.
J. R. Hallowell, U. S. Dist. Atty., for plaintiff. Everest <t Waggener, for defendant. FOSTER, J., (charging jury orally.) This as presented by the
evidence, is essentially one resting npon facts, and upon the facto as
established by the evidenoe you are to render your verdict. The United States alleges in its petition that on or about the ninth of January, 1880, .at theoity of Leavenworth,by its al1thorized agent, it placed, in the oustody of, .the defendant, the Pacifio Company, an iron sl1(e, containingrQ,()lleys of the United States to the amoullt of abou.t$26,000, fodhe purpose of having the, shipped to.Wellington, in the state of Kallsas, and there to-be delivered to Maj. :?roadhead, and that said express company receiYed s!tid safe, witllHs said purpose of cqnveying the same from. the place, of of shipment to its and that during said safe was in the custody of said express company there was taken from the safe the sum of $20,OQOI and" to recover that amount this suit is brought. The defendant oompany admits receiving said safe, but avers that it had no knowledge of its oontents except statements of plaintiff's agent, Maj. Broadhead,-(if I make any mistake about the pleadings I hope oounsel will oorreot me: I want to give the general purport,)-as appears from the bill of lading or reoeipt; that it had no knowledge of the contents of the safe, except from the statements of Maj. Broadhead; and avers that it delivered said safe and its contents at its destination, to Maj. Broadhead, the same as when it was by it at Leavenworth. This makes a plain issue between the parties. The plaintiff alleges that the defendi:tnt did not deliver the safe ;with aU its contents to Maj. Broadhead; the defendant claims that it did so deliver cit.. As a legliipropositi6li, it is not oontroverted that the law holds the express company responsible for. the safe delivery of the property at its destination, and there is nothing olaimed or shown in this case to reo lieve it of that responsibility. The e](press company fixes its charges for such services with this legallia.bility attached, lnd to compensate itself for the services reno dered and the risk incurred in and about the business, it is governed largely by the value of the articles intrusted to its care. The greater the value, the greater the risk and responsibility incurred in its safe carriage and delivery. So far as this case is concerned, and the liability of the express company extends if it received the $20,000 package and failed to deliver it, it is not material what became of it. It matters not who took it, or when or how it was taken or stolen,-whether stolen by an employe of the defendant or by a stranger. The plaintiff is merely required to show that the money was delivered to the express company, and that it was not redelivered by that company. To put it brief, was the money delivered to
UNITED STATES V. PACIFIC EXPRESS CO.
the express company? If SO, was it returned? The safe and con· tents were in the possession of the defendant company when it was turned over to its agent, Mr. Martien, at Maj. Broadhead's office; from that time its liability commenced. Your first inquiry would naturally be to determine the contents of the safe,-whethar the $20,000, package was in it when delivered to defendant's agent; and upon that point I will briefly refer to the prin. cipal :evidence; that is, as to the contents of that safe when delivered to the defendant company. Maj. Broadhead and his clerk, Mr. Bassett; testify that the $20,000 package, ,together with other packages of money, amounting in the whole to the sumof $25,900, was placed in the safe. Maj. Broadhead testifies that.he placed it in the safe with his own hands. Mr. Basse'tt Bays he was present and saw Maj. Broadhead put the $20,000 pack. age in the safe. Here are two parties swearing positively to the money being placed in the safe. Maj. Broadhead tells you when and how and a.t what time he drew this money from the First National Bank; that he drew at several t,imes on several different checks; that he first drew $15,000 from the bank and then $5,000, and put them together,making this $20,000 package. My memory is, ·he says he drew it on the seventh of J anultl':n that he took it back in the bank for after he had done- up that package and placed safe-keeping. Subsequently he drew the rest of it and did it up in packages; that on the day this safe was .turned over to the defendant company he says he went to the bank and got the $20,000 pack. age, and, as before stated, in the presence of Mr. Bassett;· placed it in the safe. In corroboration of his testimony as to the drawing of the money and the delivery of the $20,000 package into the charge of the First National Bank for safe-keeping, his testimony is corroborated by Mr. Graybill, cashier of that bank. He him' in ref· erence to these drafts, drawing the money and placing the $20,000 bundle or package in the bank again for safe-keeping, and that he took it out at the dates he has stated.. Now this is the evidence and proof as to the drawing of this money from the bank, the doing up of the package, and the placing of this money in the safe. Now, Maj. Br.oadhead and Mr. Bassett, his clerk, testify, after detailing to you how the money was placed in the safe,-the smaller packages first; etc., .and the $20,000 package on top-how the safe·' was closed and locked; how it was sealed; after putting bis escutcheon over the key-hole, he placed the screw in to hold it in its place; then taking red, sealing-wax, Maj. Broadhead says he held the
candle and Mr. Bassett used the wax, melting it and dropping it on the escutcheon, and then Maj.'Broadhead taking his. seal,with the initials, "J. A. B.," stamped it, thus making a seal upon the escutcheon. They testify the wax extended over and adhered to the safe, thus holding the escutcheon in its place ; that previous to the putting up of this money, or about that time,-at any,rate, the same day,-he mention.ed to the express agent that he would have a safe to ship,and the had agreed to send up for it at his office; that is testified to also by the express agent; that he delayed somewhat in sending the safe, and Mr. Bassett was sent down to the express office to hurry up the wagon, as they were tired waiting. Maj. Broadhead tells you, and in that he is corroborated by Mr. Bassett, that upon would not Mr. Bassett's returning to the office and saying the be there until 1 o'clock, he told him to go to his lunch, and he would stay there, and Mr. Bassett absented himself for a short time, returnabout 1 o'clock. Mr. Bassett and Maj. Broadhead testify that the agent, Mr. Martien, came up with the express wagon for the packages. Maj. Broadhead testifies that he had become somewhat impatient waiting; he says to the agent, Mr. Martien, taking hold of the end of the safe, "Here is my safe and there is my bedding," and started off to his dinner. Mr. Bassett substantially corroborates that. Then Mr. Bassett testifies, and Mr. Martien has testified to the same thing substantially, that he called in this colored boy, or rather, before he called in this colored boy, that he went out and looked for somebody to help him take this package out, and he went down to Maj. Gibbons' office, expecting to find the messenger there, or the porter he had in his service; he did not find him; he then came back upstairs; then raised the window in Maj. Broadhead's office, and called out to this colored boy, Davis, to. come up and help him carry the safe down stairs. As my memory serves me, Mr. Bassett's testimony and Mr'. Martien's are substantially the same on that point about the colored boy going up and helping down these goods. Passthat by, the safe was taken down and delivered to the express company and placed in their office, as the evidence would show. I think the evidence of Mr. Martien and Mr. Shepperd, corroborated to some extent by Mr. Lockwood, is that the safe was all right-this seal perfect; Mlllj·. Broadhead's seal was all right when it was delivered in the office, placed in the office about 1 o'clock in the afternoon, and Maj. Broadhead came in subsequently and got his bills of lading. Now, so much upon that question,-·and I have digressed a little upon that point,-but so much in main as to what was placed in that
UNITED STATES V. PACIFIC m:PRESS CO.
safe. It was upoA that point I desired to call attentioriinthis con· nection.. As to the $20,000 having 'been placed in the safe, I have briefly reviewed the evidence OIl thltt point; This information seems to rest, so far as positive proof is concerned, upon the statements of Maj. Broadhead and Mr. Bassett, his clerk. There is no evi· dence offered here to show that such were not the contents of the safe, or that their testimony is not correct. After passing from the question of what was in the safe,-the next inquiry would be, was the package in the safe;when delivered to Maj. Broadh'ead' Itt Wellington? If you should :find that thE.\ $20,000 was' placed in the safe, was it in the'safe :when delivered at its destination at Wellington? The s'afe to Maj. was not opened until it reached Fort Reno, and when opened the package of under the testimony of Maj. Btoadhead and Bassett, was not in the safe. They testify'that: when the safe was opened at Fort Reno the $20,000 was n6t in the safe. You have heard the testimony as to Maj. Broadhe.ad'teceiving this safe at Wellington and giVing his receipt for it; the manner in which it was transported to Fort Reno, by government transportll.tioll, in charge of an escort of troops. The ltsofferedin'this case and substantiated by both sides, at the time t'he sll.fe was delivered to Maj. Broadhead at Wellington, :there was a green seal put on, and placed all over hisiseal which he had placed' on the' safe: that his seal had combeen broken or mutilated, and that the agent of pany had placed the seal of the company overthis violated seal or brOken seal, with green wax, and stamped it with the seal of the company; that was done at Atchison; and the testimony of Maj. Broadhead and his clerk is that the safe remained in that condition,' with this green seal intact, from the time they took it from Wellington until they opened it at Fort Reno. This is testimony-I mean the positive direct testimony of those two gentlemen-..:.of the contents of the safe when it was delivered to the express company, and what the contents of the safe were when it was redelivered by the express company to Maj. Broadhead. This is the testimony that is offered by the government, in this case, to show howH was when it was delivered to the express company and when it. was: received; because they claim the green seal was intact from the time it was received by them at Wellington, and on that there is no evidence on the part of the defense at all, and there is no use of going where there is no evidence. That that green seal remained the same, from the 'time it was received by Maj . Broadhead, at Wellington,
until opened at Fort Reno, is uncontradicted.· Here, then, is the positive testimony of two .witnesses, unimpeached and uncontradicted on the main point, to the fact that the money was in the safe when turned over to the express company, and that it was not in the safe. when back by the company. If you believe, from the testimony, this to be true, there is no escape from liability for the express company, and you are bound to find for the plaintiff, if you find their testimony to be true. Had the safe been delivered back to Maj. Broadhead, with 'his seal intact. on the escutcheon, it would have been well-nigh conclusive that the contents of the safe were the same as when received by the company. But, unfortunately for the defendant, !'luch, as it seems from the evidence, was not the fact. The seal had been broken, a,nd the agent of the company at Atchison had placed the seal of the company over the broken mutilated seal of Maj. Broadhead. Whether it was so far broken as to releaRe the. escutcheon is not clear, and upon that point Mr. Lockwood, who was the a.gent of the company, en route from Leavenworth to Atchison, testified, in the first part of his deposition, that the escutcheon was in its place, and that he could not state whether it was still in its place or held there by the seal. In the latter part of his deposition he expresses the opinion or belief that the wax seal, or a par· tion of the seal, still adhered to the safe, and held the escutcheon in its place, after a critic'al examination at Atchison. I think that is the substance of his deposition. Now, gentlemen of the jury, passing by positive evidence as to the contents of this safe, etc., what was it when it was delivered back? And, looking at these other circumstances, it has a material bearing in the case as to whether that seal was so far broken and destroyed that it no longer held the escutcheon at all, or whether it answered as a seal to hold it in its place. You have heard the testimony as to how this escutcheon was placed on the safe; you have seen it placed on the safe with the screw screwed down. You have seen and heard from the testimony that this screw which was placed on the safe, to some extent, at least, held the escutcheon. It is for you to determir.e whether it held the escutcheon in its place without the aid of the seal. And yoq are to determine from the evidenctl offered in this case by Mr. Lockwood whether or not he made such an investigation or examination of that seal onthat escutcheon as to determine whether it was held in its place by reason of the screw, or whether he examined it sufficiently to be able to state that it was held there by the seal. It is proper for me to say in this connection that the testimony
UNITED STATES V. PACIFIC EXPRESS 00.
of Mr. Lockwood, tending to support, as it does, I}. theory in this case which, if true, contradicts or establishes a state of facts contrary and inconsistent with the facts claimed the plaintiff, and upon which they offered positive and direct testimony, situated as he was as an agent and employe of the company, having made, as he stated, but a slight or uncertain investigation as to the condition of that seal, his testimony should be taken with considerable caution upon that point. He was an employe of the company; he found the seal which covered this money, $26,000, or about $26,000, marked plainly upon the tag on this> safe, violated' and broken. He took the responsibility, instead of making an investigation as to whether that had been violated intentionally-or by accident, of covering it up with the seal of the company. He and Mr. Ivers together, still another employeof the company, placed the seal of the over this IDutilatedseal. -I simply recall these facts; I conceive it my duty to speak to you of the relative weight and importance of the testimony in this case. Hthe seal had been violated br broken iii" tentionally by some party seeking to reach the contents of the safe, it would not be 0. rash presumption to eoncludethat they effectually violated the seal-effectually broke that seal. _I say, if it should ap- . pear and you are satisfied from the evidence it was intentionally violated, it would not be rash from the evidence to conclude that the purpose was effected. If it was an accident, it might or might not have been effectually violated. And it may be that that question will come before you for your consideration; that is, the question as to how this seal became broken. The testimony all concurs on the part of the plaintiff and the defendant that at the time that safe wa's placed in the express company's office Maj. Broadhead's seal was intact. Mr. Shepperd, you will remember, who was agent, testified positively that when that safe was sitting in his office that the seal was intact. I think Mr. Lockwood says if there had been anything tne matter with the seal he would have noticed it. So I think we . may assume up to that point the seal was intact. Mr. Lockw,oocl testifies when that safe was placed on the car, as soon as he dtew it back where the light was thown on it he discovered the seal was broken. He testified that he made a careful search, and that no part of the sealing-wax could be found in the car anywhere about;Now, gentlemen of the jury, if the testimony of Mr. Shepperd is true, when that safe was in his office the seal was intact, and the testimony of Mr. Lockwood is true, that when that safe wa,s placed on the car that seal was broken,-I say, if these witnesses tell the truth,
the conclusion is almost .irresi13tible that that seal was br6ken from theex.press office to the train, or else broken in the express office after the time Mr. Shepperd says the seal was perfect. Or it might have been broken putting it into the car. I will reach that directly. You have heatd the testimony of Mr. Martien, and the testimony of Mr. th3<t express office to the ca):., They concUl:in theirtestimony,that that safe WlloS the last thing placed on the express safe and the safe of tho express company. They say it was plaged in the rear end of the wagon and was pushed in; that they drove down directly to the depot, and that they unloaded t];lesafe upon the truck, which was wheeled to the north wasthen approaching close by,-and that end of the depot,-the they two togetheJ; picked up that safe aud raised,it up into the car. Now, where was seal broken? ij:ow was it broken? You are to investigate that subject. It seems from the evideJ1,ce of :these drivers that nothing was placed on top of that safe going from the express office to the Wlpot. Nothing placed on top; no baggage or anything They of that kind; that nothing was piled on top of it on the threw it on the edge of the car witll some J(u;ce, it lifted the safe being heavy. It is for you to determine from the evidence, gentlemen, whether or. not tha.t seal was broken, and when &.nd where it was broken; whether it cQuld have been broken raising t4e safe into the car and striking it on the car, or whether i.f so broken a part of the sealing-wax wouid not have remained on the safe or be in the car. These are all matters for your cqnsideration'. Mr. Martien testifies (I will not say at'anyrate). the seal was allrjght when they putitinto the car. Now, gentlemen, this isin bnef ,and substantially what you have before you in, reference to the breaking of that, seal. .As I have said before, Mr. I vers testified substantially as Mr. Lockwood. He .was of theoompanyat Atchison. I make the same on that as to Mr.. You aN to ,that fur all it is entitled to; and determine. that question. ,The of proof in this case rests upon the plaintiff, as .in all civil cases the plait;ltiff that allehas to establish, by a preponderance 9f ,the gations in the petition are true; Ipayo' gone over the testimony in regard to the seal and i-Jircumstances to some extent. ,Should you believe the positive testimony of the witnesses who have testified as to the contents.pf the safe when delivered or when given to the express company. or when it was returned, :it is quite likely these fa·!ta may be immaterial. However, if you choose to pass
over that and make further investigation into .these matters, I have briefly attempted to call your attention to. the. testimony and the salient points in·the case. With that, gentlemen ·of the jury, you may take the case and decide it. It is a case of no little importance. I trust that you will feel the responsibility that is thrown upon you in reaching just and proper conclusions, from all the evidence in this case, fairly and without violence to the evidence, and without violence to your consciences, and render a verdict that you think the evidence fairly justifies in this case. . You are the exclusive judges of the credibility of the witnesses.. You have the right to consider all the circumstances in the case. If circumstantial evidence preponderates, or overthrows or overcomes, in your opinion and in your judgment, the direct positive testimony of the witnesses, you ha·ve the right to take that kind of evidence and give it all the weight it is entitled to.
FULLER V. CITIZENS' NAT. BANK OF GA!lION,
(Oi.rcuit Oourt, No D. Ohio, E. D. Ootober Term, 1882.)
Where an owner of property lets the whole 'work of' excavating and ftniabinga vault in front of his property to a party, as a contractor, to·finish and :completlj the whole as a job, withQl/.t reserVing any control ·or direction him in its construction, or over the construction of the. work or the place 'where it was being constructed, or the mode of its execution or the workmen be employed to do it, although such contractor is to be paid a reasonablecompensation .for the work when completed, or is to be paid by the day, and no fixed price is agreed on, and although the owner furnishes the material, he will not be liable for the negligence of such contractor in not providing fl)litabJe guards against danger to persona passing on tlie Sidewalk. Hut if such owner reserves the control of the place of the excavation; or the control of the contract, or the right to direct hi.min the constructIon of tIle work, or does control him or direct him in the doingof the work, such contractor is the mere servant of such owner, and the Owner will be liable for his negligence and carelessness.
2. NEGLIGENCE-REASONABLE AND PROPER CAllE.
Negligence is a failure. to do what a reasonably-prudent person would ordi. narily hav:e dQne under the of the situation, or doing what lijIch person under existing circumstances would not have dQne. Reasonable and proper care must have reference to surrounding circumstances. These may often demand ahigheF Or lower degree of care and diligence of a party.
B. SAME-MAT'lIE.R 011' LAW Alii>; FAC'l'-PnOVINCE
OF COURT ,AND JURY.
Negligence is a question of law and fact. The duty:of tJ,le p'l,lortyis of Jaw, and to be settled by the court. What was. done by the party is matter of 'fa-ct, and to be determined by jury. . " .'. "