303 N.Y. 526 | NY | 1952
Lead Opinion
The gist of the complaint herein can be stated in this single sentence: Ten thousand dollars in currency that had been placed by the plaintiff in a safe-deposit box which she had rented from the defendant company was stolen from that box in consequence of the company’s negli
Thus this action was one to recover a sum of money only and, that being so, the issues were properly tried before a jury and were properly submitted to them by the Trial Judge (see N. Y. Const., art. I, § 2; Civ. Prac. Act, § 425). But when the jurors failed to agree he discharged them and granted a motion by the defendant for dismissal of the complaint. The essence of the reason for that disposition of the controversy has been stated by the Trial Judge in this manner: “ The plaintiff, by her testimony that she placed the money in her safe deposit box and that when she later went to her box she found it had disappeared, has established a prima facie case and raised the presumption that the defendant company failed in its duty of exercising a high degree of care. * * *! The detailed and undisputed proof of each of the steps taken by the defendant in guarding the box and barring unauthorized access thereto is sufficient as a matter of law to meet the presumption of the breach of duty raised by plaintiff’s proof. The plaintiff having the burden of proof of showing the breach of duty or want of care on the part of the defendant safe deposit company and having failed to present any evidence on which a finding of want of due care can be based, the defendant is entitled to a dismissal of the complaint.” (198 Misc. 861, 871, 872.) The dismissal of the complaint has been affirmed by the Appellate Division (278 App. Div. 685). Plaintiff is the appellant here.
We agree to the first of the above rulings of the Trial Judge. Indeed the defendant in its brief concedes the correctness of that ruling. But we find ourselves unable to assent to the second ruling of the Trial Judge.
There were five witnesses for the defendant. Four were its own employees, to wit: its general manager, its head locksmith, a custodian of the safe-deposit vault in question, and an attendant who relieved that custodian at luncheon time. The fifth and last witness for the defendant was an employee, in the personnel department of Manufacturers Trust Company, an affiliate of the defendant. None of these witnesses for the defendant had anything to say in respect of a disappearance of currency from the plaintiff’s safe-deposit box.
The question of negligence is for a jury when there is a conflict in the evidence or when, though there is no such conflict, fair-minded men can draw more than one inference from the undisputed facts (Mead v. Parker, 111 N. Y. 259, 262; Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371, 384). In our judgment, fair-minded jurors could here reasonably have inferred from the undisputed facts a failure of the defendant to exercise in respect of its safe-deposit vault the due care and caution that were required during the period here in question. In that view, the issue of negligence was not for the Judge in this case but should have been left to the jury (see 9 Wigmore on Evidence, § 2487).
As we understand the words we have quoted from the opinion of the Trial Judge, he found that all who gave testimony herein were truthful witnesses. To our minds, that finding was an invasion of the right of the plaintiff to have the jury pass upon the credibility of the witnesses (cf. Loewinthan v. Le Vine, 299 N. Y. 372).
The judgments should be reversed and a new trial granted, with costs to abide the event.
Dissenting Opinion
(dissenting). Plaintiff’s testimony was only this: that when she came to look for her money theretofore placed in her safe-deposit box in defendant’s vaults, the money was missing therefrom. Her complaint had alleged that “ through the negligence of the defendant the same had been
Was it a bailment? Did defendant, leasing to plaintiff a box in defendant’s vaults, with the usual double-lock system whereby each party had to produce a separate key for a separate lock in order to open the box, make defendant a bailee of whatever plaintiff put into the box, even when, as here, defendant never saw or handled the property, or knew of its existence? A number of decisions, in other States, say that this is a true bailment, and that there is applicable thereto the traditional law of bailment, which sets up a presumption of negligence from mere proof of delivery, and, on that mere showing, puts a defendant bailee to its excuses, if it has any. But this court, in its only modern statement on the subject, has taken a different view, and, we think, correctly, logically and justly. In Carples v. Cumberland Coal & Iron Co. (240 N. Y. 187, 192), it is said: “ While the status of the Safe Deposit Company is, therefore, in some aspects that of a bailee, the customer’s control and possession of his box is not much different than would be the control and possession by a tenant of property in an office which he had rented from the owner of the building ” (cited in Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266, 269). That language was designed to point out that, as to property left
The reason for the rule which creates a presumption of negligence from a mere nondelivery of a bailed chattel, is stated plainly in our cases. “ This rule proceeds either from the assumed necessity of the case, it being presumed that the bailee has exclusive knowledge of the facts and that he is able to give the reason for his non-delivery, if any exist, other than his own act or fault, or from a presumption that he actually retains the goods and by his refusal converts them ” (Claflin v. Meyer, 75 N. Y. 260, 262, citing Schmidt v. Blood, 9 Wend. 268). Neither of those presumptions can have any reasonable relation to the loss of an article from a safe-deposit box, when the box can be
There is another reason why defendant, after all the proof was in, was entitled to judgment. “ If, either in the course of his [plaintiff’s] proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence ” of the alleged bailee (Claflin v. Meyer, supra, p. 264; Castorina v. Rosen, 290 N. Y. 445, 447). Even a bailee for hire,“ is only bound to take the same care of the goods as of his own, and if they be stolen or embezzled by his servant, without gross negligence on his part, he is not liable ” (Schmidt v. Blood, supra, p. 271). If, as the jury could have found on her testimony, this plaintiff did leave the currency in the box and did not herself take it out, then its removal therefrom must have been a theft. Indeed, the complaint alleges that it was “stolen ”. There is nothing in this testimony from which it could be found that any negligence of defendant had anything to do with that theft, so defendant was not liable, under the rule of the cases just above cited in this paragraph.
The judgment should be affirmed, with costs.
Lewis, Conway and Froessel, JJ., concur with Loughran, Ch. J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.
Judgments reversed, etc.