99 Mass. 605 | Mass. | 1868
This was a gratuitous bailment. The defend* ants are liable only for want of ordinary care. Upon the facts which appear, mere failure to return the bonds upon demand would not constitute a conversion. The loss of the bonds is sufficient reason for not returning them, unless the loss occurred by the fault of the defendants. The action is in tort, and the burden is upon the plaintiff throughout. In order to charge the defendants with the loss, he must show gross carelessness on the part of the bank in some respect affecting the safe custody of the bonds, or which occasioned their loss.
As the case stands, the evidence furnishes no proof of negligence, except that which results by inference from the fact of loss. But theft, by either of the several persons who had access to the vault and to the packages, is equally open to inference from the same facts. For a loss in that mode, it is settled that the bank would not be responsible. Foster v. Essex Bank, 17 Mass. 479. The evidence went far to show that the bank did use due care in all its arrangements for the safety of the securities deposited. They were kept in the same vault and safe with the securities of the bank, and the same persons had access to both. There was no evidence of negligence in the selection of cashier or his clerks, or in permitting them to be retained after notice of unfitness. On the other hand, the plaintiff’s evidence entirely failed to exclude the possibility of loss by other means than negligence of the defendants. It left the case, therefore, to be decided by mere inference, without any facts to determine which of several inferences was correct. The presumption of
There being several inferences deducible from the facts which appear, and equally consistent with all those facts, the plaintiff has not maintained the proposition upon which alone he would be entitled to recover. There is strictly no evidence to warrant a jury in finding that the loss was occasioned by negligence and not by theft. When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof. A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong.
We can see no objection to the instructions which were given' to the jury ; or to the rulings in the trial of the case. The court could not be required to take the case from the jury at the close of the testimony for the plaintiff. Wetherbee v. Potter, ante, 359, 360, and cases there cited. The letters offered and excluded were not competent as affirmative proof upon the question of the mode of loss of the bonds; and they did not tend to contradict the plaintiff in either of the particulars stated in the offer. We do not think the court was bound to give instructions in regard to the waste-paper basket, with the minute particularity of the defendants’ prayer. The instructions given were sufficient.
But the court are of opinion that the whole testimony did not furnish such evidence as would warrant a jury in finding that there was gross negligence on the part of the bank, and that the loss of the bonds resulted from .such negligence. Giblin v. McMullen, Law Rep. 2 P. C. 317. The exceptions must therefore be sustained upon that ground, and a
New trial granted.
