Bonded Armored Carrier, Inc. v. Korvettes Division of Arlen Realty & Development Corp.

McWilliams, J., 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 1 indicated it consisted of currency, coin and checks, all of which were placed in a #5 cloth bag. The bag was tied with strong twine the ends of which were ³³⁴ run through holes in a lead slug.

When the ends of the twine were pulled tight the lead slug was run up against the neck of the bag and crimped with a tool which made impossible any movement of the twine and consequently any access to the inside of the bag; at the same time the crimper imprinted on the slug the words “EJK. 35 Towson.” Then there was tied to the neck of the bag a cardboard tag upon which was stamped or printed, “For Deposit Only Pay to the order of The Equitable Trust Co., Baltimore, Md. Korvettes #35. Division of Arlen Realty & Development Corp. 611-0120-1.” The identity of the carrier was written on the tag and, according to Mrs. Kegan, a figure supposed to indicate the aggregate amount of the currency, coin and checks inside the bag. Sometimes, she added, they would “throw in” an extra deposit but they “don’t put that on the outside of the bag.” In fact, she admitted the possibility that the bag might have contained another deposit. Then there was entered upon a printed receipt form (the book) the date “3-9” and under the column entitled “Said to contain” was entered the figure $7,567.09.

At the top of each page of the book there is printed: “. . . 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 ³³⁵ the deposit slip was placed in a larger #12 bag and tied, crimped and tagged in like manner. The entry in the book was made as before except that the date entered was “3-10.” The bag was then placed in the vault and the crimping tool 2 was returned to the locked drawer where it was kept. 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. 3 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 ³³⁶ manner suggesting it might apply to both the “3-9” item and the “3-10” item but a perpendicular line above the time 3:25 suggests the “3-9” item might have been excluded. In the column headed “Rec’d by” he signed his name along an angular extension of the “3-10” line.

They returned to the truck and locked the two bags in the rear. Bennett then made some notations on another form (the register) provided by the carrier. After inserting the date “3-11-70,” in the column headed “Received From” he wrote Korvette-Towson; in the column headed “Delivered to” he wrote ET-Parkville; in the column headed “Bag” he wrote CB (for cloth bag) ; in the column headed “No.” he put the number 2; in the column headed “Coin” he put a check mark. The remaining columns headed respectively “Pennies, Nickels, Dimes, Quarters, Halves, Standards” were left blank.

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 ³³⁷ amounts on the two tags. In another place he seemed to be saying that he got the figure from the book in the money room. The court and counsel made much of Bennett’s confusion in this regard but, as we shall point out later on, we think it has very little significance.

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. ³³⁸ All was quiet until late in May when someone in Korvette’s New York accounting office telephoned the store manager and suggested an investigation; it seems they could not find the reported $7,567.09 deposit on the bank’s statement. After discussing the matter with the bank manager, the store manager questioned his own subordinates.

He succeeded only in lurching into a quandary. For all we know he is still there. 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