55 Vt. 154 | Vt. | 1882
The opinion of the court was delivered by
This is an action on the case, charging the defendant with negligence and want of care in keeping $4000 of U. S. bonds as a special deposit, a’nd by which negligence said bonds were lost. The defendant executed and delivered to the plaintiff, on delivery of the bonds, the following contract or receipt:
“ The National Bank of Brattleboro, Brattleboro, Yt., July 23d, 1866. Received of J. D. Whitney, four thousand dollars for safe keeping, as a special deposit. S. M. Waite, C.”
The written contract states the understanding of the parties, and by that the obligation and duties of the defendant must be determined. The words in the contract “ for safe keeping,” merely express the purpose of the deposit; and it would be implied if it had not been expressed. It was, as we think, a naked deposit, without reward. The possible conjectural benefit that might accrue to thé defendant by purchasing the coupons, if the depositors should offer to sell them'to the bank, when there was no obligation to do so, is too remote. The bank would be supposed to have provision for greater security for the safe keeping, of money and valuable papers than dwelling-houses and other ordinary buildings ; and it would be implied that these bonds were to be kept in the vault of the bank, and with the same security as the bank afforded to valuables and papers of like character of its own ; and a less degree of care and diligence would be required than if the bonds had been received by the defendant for hire and reward, or for some temporary use of its own.
The exact measure of responsibility of a naked bailee, without reward, is-stated in somewhat different language by text writers, and in the adjudged cases. Sir Wm. Jones states: “That a bailee of this sort is answerable only for fraud or for gross neg
The court further charged that there was evidence in the case tending to show that “ the bank received benefit from the special deposit by the purchase and sale of the gold coupons; and perhaps in some other way; perhaps in the purchase and sale of the bonds themselves.”
It is to be noticed that the contract gave the defendant a naked custody of the bonds, without any right to sell or use the bonds or coupons. If plaintiff should thereafter'elect to sell the coupons to the defendant, it was a matter of choice, and we see nothing in the case evidencing that in the sale of coupons to the defendant there was other benefit than an accommodation to the plaintiff.
We think the court erred in allowing the jury to go into speculation and conjecture to conceive a possible benefit to the defendant from the deposit in order to find a different rule of liability than that imposed by the contract. It was error to instruct the jury that there might be benefit to the defendant “ perhaps in the sale of the bonds,” when by the contract it had no right to do so ; and “perhaps in some other way,” a way not disclosed' by the evidence or known to the court. This being a naked bailment, without reward, the legal rights and duties of the parties arise from the character of the property and relation of the parties. And when “ the winds are let loose,” and the imagination has no rein, arising from the loss of property, by the alleged robbery of a public money institution, affecting the rights of many persons, it is the more incumbent upon courts to keep the case “ well anchored” in the law, and keep out of the case all evidence, especially combustible matter, that does not legally affect the rights and duties of the parties. The rule of law affecting this class of bailments (unless there be special facts which qualify the duties which this case does not disclose) would require this defendant, considering the nature of-the property, to have kept the bonds, in good faith, within its safe, under all the safeguards afforded to like property of its own. This is the concurrent rule of the civil and common law. Jones on Bail., pp.122-123, p. 46, note 18 ; Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 915 ; Chancellor
The plaintiff claims that there, was evidence of negligence of the defendant, in this, that there was a passage way from the rear of the. banking room, behind the counter, not protected by a gate ; that the safe was left open, during business hours, for convenient access of the bank officers in the transaction of business ; that a short time, about noon, each day, the bank was left in charge of one person, while his associate was absent to dinner. Negligence was a fact to be proved by the plaintiff to the jury. But there would seem nothing so unusual in these facts, if proved, that they could be accounted negligence, much less gross negligence, such as would charge the defendant. ■ A gate was proved to be in use in some banks, and would be in a measure, doubtless, a barrier against intrusion, but slight in its character. New appliances for the safety of property are suggested by experience, and applied from time to time if found useful, but none have been found that subtle villainy cannot surmount or evade. All banks have not the same protection against fire, robbery and violence ; and none are absolutely safe. Men have been gagged and robbed in the banks and on the street. Yet men continue to travel the street with money and valuable papers in their pockets, and cashiers continue during business hours to manage banks alone in the country villages of this state; and it is deemed safe. Robbery at midday in a country village, like lightning or the whirlwind, is not kept in mind as a present danger. When a loss occurs, the mind becomes quickened, and conceives that this or that precaution would have averted it. There are manifold inventions for the security of property, fire-proof and burglar-proof locks and safes, and more appliances in the cities where the amount and exposure is greater, but all are not the same. But where a deposit is made in a country bank or country store for safe keeping, the law implies a duty to employ the means of security, and keep it as he does his own.
II. To prove the loss of the bonds by the defendant’s negligence, the plaintiff introduced the depositors of bonds, of different
Judgment is reversed and cause remanded.