Safe Deposit Co. v. Pollock

Mr. Justice Mercur,

delivered the opinion of the court, January 7th 1878.

This action was brought against the plaintiff in error to recover for the loss of some government bonds. Its general business is indicated by its name. It took two classes of risks; in one class it became the absolute guarantor of the safety of the deposit; in the other its liability was qualified. and restricted. The present case arose under the latter class. The defendant in error rented a safe in the burglar-proof vault of the company, subject, inter alia, to the following rules and regulations:

“ Whenever a party rents a safe, and deposits therein at pleasure, contents not being made known to the company, its liability is limited.

*393 “1. To the keeping of a constant and adequate guard and watch over and upon the burglar-proof safe.

“ 2. To the prevention of access by any renter to the safe of any other renter.

“ 3. To the protection of safes and contents from any dishonesty on the part of any of the company’s employees.”

He renewed the lease annually several times and paid the required rent. The safe is closed by an iron door, to which a lock is attached. The valuables are placed in a tin box, made to fit into the safe like a drawer. In this box and safe he placed several thousand dollars in government bonds, and had the exclusive possession of the keys to the safe.

As the interest fell due on the bonds, he took them out, cut the coupons therefrom, and replaced them in the safe and locked it again. Finally, on taking out the envelope containing the bonds, for the same purpose, he discovered that four bonds, two of $1000 each, and two of $500 each, had disappeared therefrom. The jury have found that ho put them in the safe and did not remove them therefrom.

There was no evidence that the vault or the safe had been broken nor that the lock had been tampered with. These facts being unquestioned, and the bonds having been taken from the sáfe, it necessarily follows that it had been opened with a key suited to the lock. In order to get access to the safe a person would be obliged to step into the vault. If he entered during business hours one key would enable him to procure the bonds. If at other hours it would require two keys to reach them from the office. The fact that the bonds were taken under these circumstances, was certainly some evidence that the company had not kept “ a constant and adequate guard and watch over and upon the safe,” as by its agreement it was bound to do. It further agreed to prevent the access of any other renter to the safe of the defendant in error, and to protect his safe, and its contents from any dishonesty of the company’s employees. If any third persons were given access to the vault under circumstances that would have enabled them to unlock the safe and remove the bonds, and they had so done, although a contingency not provided for in the agreement, yet it cannot be pretended that it would not be evidence of a want of ordinary care. So if the bonds were purloined by either renter or employee it was certainly evidence to go to the jury of an omission on the part of the company to exercise that ordinary care and vigilance which men ordinarily exercise and ought to exercise under such circumstances in the protection of their own property. The vault and the safe were in the possession and under the protection of the company. The manner in which the bonds were most probably taken, shifted the burden of proof. It threw upon the company the necessity of making some explanation to rebut its prima facie negligence. The case is not like Finucane *394 v. Small, 1 Espinasse’s Rep. 315, in which there was no express agreement as to the care to he exercised. Nor is it like Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith 53, where it was held that proof merely of loss was not sufficient to put the bailee on his defence. The evidence in the present case of the defendant in error did not stop with merely showing the loss. It showed the bonds had been abstracted by some one entering the vault, and' opening the safe by means of a key. The presumption of want of ordinary care was thereby created. All the evidence calculated to rebut that presumption was fairly left to the jury by the learned judge.

The other assignments have no merit, and were not urged in the argument. • Judgment affirmed.