Wright v. Central Rail-Road

By the Court. Lumpkin, J. delivering the opinion. [1.] Did the Court err in rejecting the testimony of Plant? It was proposed to prove two facts by this witness — First, That he was the agent of the Marine Insurance Bank, and that it was the custom of that Bank to furnish its agents with a suitable place and iron-safes for keeping, securely, the funds in their hands; and Secondly, that banks and other custodions of money, do not look to doors and windows for protection, but to their vaults and strong boxes. We see no error in the Court, in refusing to admit that portion of the testimony, which went to establish the usage of the particular Bank for which the witness was employed. It does not appear, however, that Mr. Wright ever applied to his principal, to be provided with additional means of security for keeping their cash, or complained that they had not been furnished. On the contrary, the proof is, that he undertook, for the consideration paid him, and the collateral benefits resulting from his agency, to keep the money and effects of the Central Railroad & Banking Co. by such means as he, himself, could command. [2.] As to so much of Plant’s evidence as seeks to show the opinion entertained, by banks, as to the relative value or strength of outside fastenings, and vaults, and safes, wo do not see why it should have been- ruled out as incompetent. The proof was certainly pertinent to the issue : as to its weight, we ■express no opinion. [3.] We see no error in the refusal, by the Court, to give ■the special instructions asked, namely: that if the Jury believed that Wright was a man of ordinary diligence, and kept the plaintiff’s money with the same care that he did his own, they could not find against the defendants. [44] This is not the law of this case; for, as was very properly remarked by the presiding Judge, a man, even of extraordinary prudence, might be guilty of gross negligence, in a particular instance, both as it respects his own money and that of other people. The rule to be deduced from a careful examination of all the authorities upon this subject, seems to be this: that an agent for hire, and without specific instructions, is bound to observe all the precautions ordinarily pursued, in relation to the particular business in which he is employed; and according to the usage of the placo, and the circumstances of the times within which the business is transacted. What might be extraordinary care at one place and under one set of circumstances, might amount only to ordinary diligence, at other places and under a different state of facts. While burglaries were nightly perpetrated, or attempted, in Augusta, on a recent occasion, surely ordinary diligence would demand a degree of watchfulness and care, which would not be thought of under other circumstances. So, when Roberts and his gang were at large and hovering around a place, what man of common prudence would not guard his own treasure, as well as that of others, with more care and caution? We use these illustrations, to make the rule which we have here prescribed, intelligible. For the sake of convenience, we propose to transpose the third and fourth assignments, and consider the latter first. [4.] Was the Court justified in charging the Jury, that if they should find that Wright himself was the robber, he and his securities were unquestionably liable? It is objected.that there was nothing, either in the pleadings or proof, to authorize this charge. What is this case ? Wright was appointed by the Central Rail-road and Banking Company, their agent at Atlanta. He gave bond, with security, conditioned that he would well and truly execute, and faithfully discharge the duties required of him in said office; and all other duties required of him, in the business of his employers. The proof was, the principal business required of Wright, was to discount [45] bills on Savannah, drawn on shipments of cotton and other produce; to collect papers; circulate bills, &c. as Bank Agent. Now, the breach of the bond is not the robbery resulting from the carelessness or misconduct of the agent, but his failure or neglect to pay over some sixteen or eighteen thousand dollars of the plaintiff’s money in his hands. Wright’s defence is, and he files a special plea to that effect, that on the night of the 16th of March, 1852, his room, where he kept plaintiff’s money, was feloniously entered, and the money was stolen from the iron chest in which it was'locked up. Now, if the defendant failed to show that the money was burglariously taken, and that, too, under circumstances, which, in law, would •afford him protection, he, of course, was liable for failing to account for this fund; and consequently, this charge was wholly unnecessary, so far as -the rights of the plaintiff were concerned, though certainly true as an abstract proposition. But it is insisted, that the charge was erroneous, because hypothetical — there being no proof to establish the guilt of Wright. But it was incumbent on him to make it satisfactorily appear that some one else was guilty, even if he cannot identify the particular person: otherwise, his plea falls to the ground, and he remains liable for the acknowledged defalcation. Conceding that the window of the room was forced, and the safe entered at the time alleged, does the proof indicate the felon ? Has any one been prosecuted and convicted, or even suspected of this crime ? The guilty party has hitherto escaped detection. Does the evidence show that any one but Mr. Wright knew that this room would be vacated during the short interval which intervened, between the time of the delivery of the key to the clerks, and the breaking of the pane of glass in the unshuttered window, which was heard in the neighborhood? Does Mr. Wright prove an alibi, or any other fact which is inconsistent with his own guilt? These remarks are elicited, not for the purpose of criminating Mr. Wright, or even insinuating that he, himself, was the author of a feigned robbery: but to show that the. Court was not wholly [46] unwarranted by the proof, in the charge which it gave. The only doubt is, whether, if the plaintiffs put their recovery upon this ground, and not merely on the failure to account, the defendant should not have been notified by the declaration of such intention ; so that he might offer rebutting testimony as to his good character, and every thing else which would establish his innocence. [5.] One question more remains to be considered. In conclusion, his Honor, the Circuit Judge, undertook to sum up the evidence. In doing so, he grouped together a few of the most prominent facts against the defendant, and charged the Jury, that if they believed them, under all the circumstances, as detailed, then they should find for the plaintiff. It is not, necessarily, the duty of the Court to sum up in conclusion. It is the privilege of the Court to do so. Under our Statute, forbidding the Judge to intimate as to what is or is not proven, it is extremely difficult to avoid the inhibition contained in the Act. -Still, it may be done, and must be done, or a new trial is the consequence. We do not say, that in summing up, every material fact must be -stated. But we do say, that it is not just to present the proof prominently on one side, and omit the countervailing evidence, entirely, on the other. And this is the defect in the charge. His Honor, in commenting on the nature of the diligence observed by the defendant, told the Jury that they might consider that a shutter had been allowed to remain from the window, the window-sash was left in a condition that the nail, if any, which fastened it down, could have been drawn from the outside with an instrument, or with the thumb and finger; that the young men who slept in ■the room where the chest was kept, were out at a party the night of the alleged robbery, with the knowledge of the defendant, Wright; and that the place and chest were not suitable for so large an amount of money. But he omitted to remind them, at the same time, that Wright 'had provided a means of -equal, or greater security, than was found, ordinarily, in the City of Atlanta; that he provided himself with an iron chest; that it was kept in a room where [47] two young gentlemen usually slept; that the sash of the window was secured by nails inside; that Wright was careful of the money entrusted to his keeping; that he deposited his own money in the same place; that for several months after the alleged robbery, plaintiffs retained Wright in their employment, and that the President of the Company, Mr. Cuyler, had been in the room and saw Wright’s mode of keeping money, and made no complaint. Upon the whole, we think it best that the cause be sent back for a re-hearing. To the plaintiffs, it is a matter of delay only, should they finally recover. To the defendant, it is a question of character, and both to him and his securities, one of pressing pecuniary importance. It should be fairly and fully heard.