From time to time, the appellant bank shipped currency to its New *Page 135 York correspondent. The appellee, express company, was the carrier and agency used; each shipment moved under a uniform express receipt. Upon arrival in New York the shipments in question were short. The express company deposited some money with the bank; the bank issued cashier's check for the deposits. In that way the bank became indebted to the express company in the sum of several hundred dollars represented by the checks on the bank itself. The bank declined to pay some of these checks on presentation on the ground that the company owed it for the shortage in shipments of money to its New York correspondent. The express company sued to recover the amount of the checks. The bank pleaded set-off for the amount of the shortages and asked for a judgment over. The trial court allowed some of the shortage for which a written claim had been filed, and disallowed any shortage for which a written claim had not been filed.
Boiled down, the difference between the parties is: The bank claims that it was not required to file a written claim, and the express company insists that it was. The express company further maintains that there is a distinction between "loss in transit," and "damage in transit," and that section 7 of the express receipt and U.S. Comp. St. § 8604a, contemplate a case in which a shipment is accepted in good condition and delivered in damaged condition, and that when this money was taken from the package it was "lost," not "damaged." The contention is 'made that if the abstraction of the money is held to be a "loss in transit," then the filing of a written claim is a condition precedent to a right of recovery for it; while if it be held "damage in transit" the filing of a claim is rendered unnecessary by the exception in the seventh section of the receipt above referred to.
The opinion here prevails that the phrase "damaged in transit," as same appears in the receipt and the federal statute above referred to, refers to anything that occurs in transit resulting in a diminution in the value of the shipment. If a shipment of money be reasonably worth a given amount at the point of origin, and by reason of carelessness or negligence in transit the same shipment is worth materially less at destination, then in the eyes of the law that shipment was "damaged in transit"; the means by which the diminution in value was brought about, whether by fire or theft or other agencies, we regard as immaterial. Had the package of currency been negligently exposed to excessive heat in transit, so that the outside bills were scorched and rendered worthless, we apprehend that what occurred, resulting in loss to the owner, would properly be denominated as "damage in transit" even though the interior bills were unharmed. If the diminution in value of the same shipment results from careless bandling which enables a thief to make away with or destroy a part of the currency, we can see no reason why that occurrence, producing as it does the same result, should not be so classified.
It results from what has been said that the appellant may recover for the part of the shipment abstracted in transit without filing a written claim therefor.
We have consulted Kahn v. American Ry. Express Co., 88 W. Va. 17, 106 S.E. 127, and the other authorities cited by counsel for appellee, and we think the conclusion of the learned court in these cases is erroneous in assuming that a theft of a part of a package is a loss as distinguished from damage to the shipment itself.
We are of the opinion that the shipment whose value is diminished in transit by carelessness is "damaged in transit" regardless of the form of carelessness. While the theft of a part of the package of currency doubtless results in loss tothe owner or custodian of the package, the act of abstraction and its immediate consequence is a damage to the shipmentitself. Our view is that Congress in the passage of the statute under which this express receipt was drawn, and the contracting parties here, had the shipment itself in mind, and intended and so expressly provided that if the shipment itself was "damaged in transit by carelessness," then the filing of a written claim was dispensed with because, as suggested by counsel for the appellee, the carrier's servants know, or at least are presumed to know, as to the fact which brought about the damage to the shipment while in their hands.
If the entire package had disappeared, the shipment would be a loss. The owner would be damaged, but the shipment itself would not.
If part of the shipment is abstracted, we may concede that the part abstracted is lost so far as the owner or custodian is concerned, but the shipment itself is not lost, but damaged to the extent of its diminished value as a shipment; the fact that the remainder of the shipment was unharmed does not convince us that the shipment considered as a whole was not damaged.
The ruling of the court below is not in harmony with the view here entertained, and the judgment there entered is reversed, and a judgment here rendered for the appellee, less the amount of shortages disallowed by the trial court. The appellee is taxed with the costs of this appeal in accordance with the provisions of section 3666 of the Code 1907, and the costs of establishing the plea of set-off in the court below.
Reversed and rendered.
On Hearing after Opinion of Supreme Court on Certiorari.