German American Bank v. Auth

Mr. Justice Gordon delivered the opinion of the court, John O. Auth, the principal in the bond in suit, was messenger for the German American Bank, and as such was, from time to time, trusted to handle the moneys of that institution. On the 28th day of May 1875, according to the statement of Charles Seibert, the cashier, some three thousand and sixty-six dollars were placed in a tin box or till, used for such purpose, and, as he thinks, was delivered to Auth to be put into the safe. This was on Friday evening; the bank-vault and. safe were not opened until the next Monday morning, but when opened, it was found that the above-mentioned sum of money was missing. In the meantime, Auth had eloped. There is not much doubt, if the testimony is to be credited, but that he stole this money; certainly the evidence is sufficient to justify a jury in so finding, especially since, in addition to what has been above stated, it was in proof that he had in his possession duplicate keys of the bank and vault, and had also knowledge of the combination necessary to open the safe-lock. The court, however, on motion of the defendants, sureties of Auth, nonsuited the plaintiff, for the reasons following, viz.: because the evidence of the plaintiff showed that if the money was taken by John C. Auth at all, it was taken from the safe, and in consequence of his having the combination of the safe-lock, and not in his capacity as messenger; that there was no evidence “ that it was within the scope of the duties of a messenger to have the combination of the safe and access thereto.” From this action of the court we feel obliged to dissent, and as a reason for so doing, it might be sufficient to call attention to the fact, that whether Auth’s duties as a messenger required that he should or should not be intrusted with the bank-keys, it certainly was his duty, as a bank employee, to act honestly. Granting, therefore, that the cashier acted negligently in committing to him the combination, he did not the less violate his duty in stealing the money of the bank. It is not necessary, however, to look beyond the face of the bond itself, in order to discover the incorrectness of the court’s ruling. The bond recites that it shall be the duty of John C. Auth to account for and pay over all moneys “that may come into or pass through his hands as such messenger, and that he shall in all things conduct himself honestly and faithfully as such messenger.” Here are two things made obvious: (1) he is to be intrusted with the funds of the bank; (2] he is to be honest and faithful in the exe [422] cution of the trust thus confided to him. Thus it is, that without a discussion of the peculiar duties of a messenger, as defined by dictionaries, the bond itself clearly indicates what the duties of John C. Auth were, and how those duties were to be performed. And if, now, John C. Auth did act honestly and faithfully with reference to the funds of this bank, which passed through his hands, then is the thief an honest man, and then, also, is it true that the condition of the bond remains unbroken. But .what, after all, was the great impropriety of intrusting to Auth the combination of the safe-lock ? It must needs, in order to avoid accident, be committed to some one or more persons, and who more proper than one who had the handling of the bank funds, and who was held in a heavy bond to act honestly? Besides, if he was to be intrusted with the moneys of the bank, why not with the place in which those moneys were to be kept ? Be this, however, as it may, the whole matter is summed up in this: Auth availed himself of his position in the bank to rob it, and but for that position he could not have accomplished his purpose. The loss to the plaintiff resulted from the abuse of powers which he, Auth, had acquired as its messenger; and so, .whether he got at this money by fraud and craft, by picking or breaking the locks, or through the confidence placed in him by the cashier, is óf no moment, since, in either case, he- violated his duty as a subordinate officer or servant; he was not an honest and faithful messenger, and therefore the condition of his bond wras broken. The judgment is reversed, and a venire facias de novo is awarded.