The opinion
Mr. Justice Thompson,
dissenting:
I am unable to agree with the majority that no legal defense exists to the action as presented in this case. The case was tried on the theory, as recognized in the opinion, that the bank was not negligent in permitting plaintiff’s wife to have access to the box. The case was tried by a jury which found the bank was not negligent and that verdict was affirmed in the Appellate Court. The question presented here is whether there is any evidence which fairly tends to support the verdict.
A safety-deposit company is bound to use ordinary care in keeping a box, which is rented by a customer, although the customer has the key, as the duty of exercising such care arises from the nature of the business which the company carries on, and the obligation to discharge the duty is implied from the relation of the parties regardless of any stipulation. Ordinary diligence means that degree of care, attention or exertion, which, under the circumstances, a man of ordinary prudence would use in reference to the particular thing were it his own property or in doing the particular thing were it his own concern.
It is also a rule of law, where a bailee receives property and fails to return it, the presumption arises that the loss was due to his negligence and the law imposes on him the burden of showing that he exercised the degree of care required by the nature of the bailment. That he exercised said care the jury so found, and the trial court found that there was evidence to support the jury’s findings as shown by its overruling the motion for judgment non obstante veredicto.
On appeal from the lower court, this judgment was affirmed by the Appellate Court, and we must therefore look to the circumstances in ascertaining if there was any negligence or whether there was a failure to exercise that degree of care which, under the circumstances, a man of ordinary prudence would use in a similar situation. As to these circumstances the evidence discloses that plaintiff executed and took copies of two consecutive yearly contracts, which bore the inscription “Mr. or Mrs. William E. Sadler” in the consideration clause. The record further shows that when the latter of these expired neither plaintiff nor his deputy made any offer or inquiry regarding a renewal of the contract for a period of more than two years, although they and plaintiff’s wife continued to enter and use the box, and the wife continued to use the box and made two yearly payments of rent; that the keys to the box were placed in the wife’s custody. The record further discloses that plaintiff’s wife went with him to the bank and sat in the car while plaintiff put the valuables, allegedly lost, in the box. This occurred six months after plaintiff’s wife had paid the rent and made a new contract during which time plaintiff had continued to enter the box without in any way questioning the arrangements or any use of the box in question.
The issues here lay in bailment and the question of negligence is presented. I am of the opinion the jury could reasonably find from the evidence that plaintiff’s conduct lulled the bank into believing, reasonably, that the wife acted with authority, and that, under the circumstances, the bank acted with reasonable care. The jury having so found and having been affirmed by the Appellate Court, the question of fact as to the bank’s negligence has been settled and the judgment should be affirmed.
The contract said to have been breached expired long before the loss occurred and the events following its expiration are sufficient to support a verdict that the bank acted with due care, and the motion for judgment notwithstanding the verdict was properly overruled. The judgment of the Appellate Court should have been affirmed.
Wilson and Crampton, JJ., also dissenting.