Appeals from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1961, No. 1419, in case of Girard Trust Corn Exchange Bank v. Brink's, Incorporated.
James W. Tracey, III, with him Wollman, Tracey and Schlesinger, for plaintiff.
James B. Doak, with him Roy L. Cameron, Jr., and LaBrum and Doak, for defendant.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones.
On June 1, 1959, Girard Trust Corn Exchange Bank (Girard) and Brink's, Incorporated (Brink's) entered into a written contract*fn1 whereby Brink's agreed to furnish armored car service "for the purpose of handling mail, express and check shipments of [Girard] in Philadelphia, Pennsylvania." The third paragraph of the contract provided, inter alia: "It is expressly understood and agreed that the entire obligation of [Brink's] under this contract is to furnish an armored car, armed chauffeur and armed guard to [Girard] and [Brink's] is not to be liable for any loss occasioned in any manner whatsoever of any property carried by such car but that [Girard] expressly agree[s] to assume all liability for any such loss; except, however, that [Brink's] will be liable for any such loss arising from dishonesty or negligence of any such chauffeur or guard."
In the early morning of August 27, 1960, Girard placed in the vestibule of its main office at Broad and Chestnut Streets, along with other bags of checks for other Philadelphia banks, a bag of checks to be delivered to the Philadelphia National Bank by a Brink's armored car. This bag which had a Philadelphia National Bank tag on it contained checks with face amounts totaling $957,734.92.*fn2 A Brink's car came to
Girard that morning, picked up a number of bags and delivered them to their respective destinations. However, Philadelphia National Bank did not receive any bag from Girard. Despite the rapid discovery that the bag was missing, a search of the Girard premises proved fruitless. This bag of checks has never been recovered.
Girard undertook to determine which of its depositors had received credit for amounts represented by the approximately 6,000 checks which were in the missing bag. After ascertaining the identity of the depositors, Girard charged back all their accounts. Some of these depositors complained to Girard about the charge-back*fn3 and in response Girard re-credited their accounts in the total amount of $17,492.23. A breakdown of these re-credits and other items for which Girard is now suing Brink's reveals the following: Item (a) Girard files possessed written evidence that Girard depositors could not identify from the depositors' records the identity of the makers of the checks. The face amount of checks in this category was $7,374.29; Item (b) Girard files contained no records of any inquiry by Girard in regard to its depositors' identification of the makers of checks. The face amount of checks in this category was $10,117.94.*fn4 In addition to Items (a) and (b), Girard claims that Brink's should be liable for the loss of: Item (c) 64 checks drawn on Philadelphia
National Bank and cashed at Girard of which photostats had been made but 23 such photostats were illegible and the other 41 photostats were lost. The face amount of checks in this category was $4,514.28. Item (d) checks, where all the parties were known and photostats available, drawn on Philadelphia National Bank for which payment had been refused at the request of Philadelphia National Bank's depositors. The face amount of checks in this category was $3,765.87. Girard also demanded: Item (e) that Brink's pay for the overtime expenditures incurred by Girard to investigate the loss (986 hours of overtime pay which amounted to $3,051.30); Item (f) a right to 6% interest as part of the damages, based on the period between January 2, 1962 and January 6, 1965, the date of the verdict in the court below.
The trial court sitting without a jury in this assumpsit action returned a verdict in favor of Girard for the sum of $25,057.81 which included $17,492.23 for the re-credits (Items a, b), $4,514.28 for the checks whose photostats were illegible or lost (Item c), and $3,051.30 for the overtime expenditures of Girard (Item e). Brink's excepted to this verdict and denied any liability for any of Items a, b, c and e. Girard also filed exceptions to the court's failure to award interest on the verdict (Item f), and failure to include as damages the $3,765.87 representing the ...