McDonald v. Wm. D. Perkins & Co.

• Decision Date: 02 April 1925
• Docket Number: 18790.
• Citation: 133 Wash. 622,234 P. 456
• Court: Washington Supreme Court
• Parties: McDONALD v. WM. D. PERKINS & CO.

234 P. 456

133 Wash. 622

McDONALD v. WM. D. PERKINS & CO.

No. 18790.

Supreme Court of Washington

April 2, 1925

Department 2.

Appeal from Superior Court, King County; Smith, Judge.

Action by Alexander McDonald against William D. Perkins & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

Carroll Hendron, of Seattle, and Groff & Davis, of Spokane, for appellant.

J. L Corrigan, of Seattle, for respondent.

FULLERTON J.

The appellant, Wm. D. Perkins & Co., a corporation, is engaged in the business of conducting and letting for hire safe deposit boxes. The record discloses that its business is conducted after approved methods. The boxes are situated in a vault which can only be entered through the office of the appellant, and then only with the knowledge and consent of the appellant. The boxes are of steel construction, are arranged in tiers within the vault, and are consecutively numbered. Each box has a separate lock which can be opened only by the use of one each of two different sets of keys. When a box is leased, one set of these keys, usually two in number, is delivered to the lessee and the other is retained by the appellant. In the box is a loose receptacle for the use of the lessee, and into which he deposits the things which he desires to keep in the box.

A lessee desiring to enter his box first appears at the office mentioned. He is there met by an attendant, to whom he gives the number of his box. The attendant then procures one of the keys to the box kept by the appellant, and enters the vault with the lessee. On reaching the box the attendant inserts his key into the lock, whereupon the lessee may open the box by the use of one of the keys he has in his possession. The lessee is then at liberty to withdraw the receptacle from the box, and may at the box place within it or remove from it such things as he desires, or he may take the receptacle to a booth in the vault prepared for that purpose and return the receptacle to the box after he is through with it. The receptacles in use in the appellant's boxes were covered, so that the attendant could not know its contents, unless the lessee of his own volition disclosed them to him. The booths mentioned had upon them doors which would lock against entrance from the outside when closed. They were also so arranged as to close and lock automatically when a lessee left the booth. This was an additional precaution taken for the safety of the parties concerned. It was found that lessees would remove valuables from the receptacle which they did not replace therein before returning it to the lock box, and it enabled the attendant to examine each booth before its use by another lessee. As a further precaution the appellant kept a record, showing the day and the time of the day each of its lessees made a visit to his box, and, if more than one person had access to a single box, the name of the person making the visit.

The respondent first leased a box of the appellant to which he had sole access on October 1, 1910. The term of the lease was for one year. At that time he signed a written contract, which, after reciting the term of the lease and the rental paid therefor, contained the following:

'And it is agreed: That the sum above mentioned is for the rental of said safe deposit box alone, with right of ingress and egress at such reasonable times as may be fixed by the party of the first part; that the first party has no possession, custody or control over the contents of said box; that the second party assumes all risk in connection with the deposit of such contents, except that said bank is not exempt from responsibility for its own willful or direct injury to the same; that there shall be no liability upon the part of the bank for loss or injury to the contents of said box from any cause, unless the parties hereto shall enter into a special written agreement to that effect, in which case such additional charge shall be made by the bank as the value of the contents of the box and its liability on account thereof may justify, but in no event shall the bank be liable for any loss or injury to such contents in excess of the sum of one hundred dollars ($100.00). The party of the second part further agrees to make a deposit of one dollar for the keys furnished as herein stated and at all times to keep on hand a deposit of one dollar for this purpose, and in case of failure to return the keys, the same shall be retained by the bank; in case both keys shall be lost by the renter and the box shall be opened by the party of the first part, then the renter agrees to pay all sums expended for opening the same and all damages to the box and cost of repairing the same, not to exceed, however, the sum of $5.00 for the repairs in any instance; for any unpaid rental or for any such expense for repairs the party of the first part may take possession of and hold the contents of said box as security therefor and may foreclose such security for rental in any manner provided by law.'

The respondent continued to rent the same box year by year until October 1, 1923. The nature of the contract of rental between the years 1911 and 1922 is not shown. When, however, the rental was paid for the year following October 1, 1922, the appellant issued to him the following receipt:

'No. 48227.

Safe Department.

'Wm. D. Perkins & Co., Bankers, Alaska Building, 211 Cherry Street,

'Seattle, Wash., Oct. 7, 1922.

'Received from Alex. McDonald four no/100 dollars ($4.00) for rent of safe No. 1825 (contents unknown) in the vaults of this corporation from Oct. 1, 1922, to Oct. 1, 1923, subject to the rules and regulations of the corporation indorsed hereon, all of which have been duly accepted and agreed to by the renter.

'Wm. D. Perkins & Co., Bankers,

'Per O. N. Galer.'

On the back of the receipt was printed the following:

'It is agreed between Wm. D. Perkins & Co., bankers, of Seattle, Wash., lessor, and the several persons, firms and corporations subscribing this memorandum, lessees,

that the safes rented by said several subscribers in the deposit vaults of the corporation are so rented upon the following terms and conditions, that is to say:

'(1) The several subscribers, each for himself, or itself, has leased of the said lessor the safe in the said Wm. D. Perkins & Co., bankers, deposit vault designated by the number for the term and at the rent set after the signature of said subscriber hereto, said term commencing at 12 o'clock noon on the day prefixed to such signature. This agreement shall apply to all subsequent renewals of the lease.

'(2) Deputies when duly registered are authorized as agents to have access to the safe rented, until notice to the contrary in writing.

'(3) Each party leasing a safe is to have access to the same for himself or his duly authorized and identified agents at any time during the office hours of the deposit vaults on all days except Sundays and legal holidays.

'(4) No party leasing one or more of said safes shall have the right to assign his lease or sublet any such safe or safes, or to mark or deface it in any way.

'(5) Each party leasing a safe agrees to surrender the same at the expiration of the term in as good order as when rented, reasonable use thereof only excepted, and to pay on demand to the lessor the expense of making all such repairs as may be rendered necessary by the lessee's own or his agent's act or neglect, including changes and alterations in locks and supply of new keys.

'(6) Each party leasing a safe agrees to abide by all such rules and regulations concerning the means of access to his safe, and of identification, of himself or his agents, and generally concerning the means and methods of carrying out the agreement as the lessor may from time to time adopt.

'(7) The lessor shall use due diligence that no unauthorized person shall be admitted to any rented safe, and beyond this the lessor will not be responsible for the contents of any safe rented from it.

'(8) The bank reserves the right to terminate a rental at any time, on written notice to the renter or his deputy, and on refunding a proportionate part of the rent paid. The renter will thereupon withdraw the contents of the box and surrender the keys.'

After leasing the box, the respondent from time to time made deposits of money and other valuables therein, so that on the morning of August 22, 1923, he had on deposit in the box gold coin of the value of $3,400, currency of the value of $1,170 and a Liberty bond of the value of $100. Early in the morning of the day named he was informed that a relative had been arrested for a misdemeanor and desired him to become bail for him. The amount of bail required was $250, and the respondent went to the box to get that sum to deposit in lieu of a recognizance. He entered the vault in the usual manner. He handed his keys, two in number, which were on an ordinary key ring, to an attendant who went to the box, unlocked it in the respondent's presence, took therefrom and handed to him the receptacle with its contents. The respondent took the receptacle to a booth, took therefrom the amount of money he required in currency, replaced the remainder, $920, in the receptacle and handed it to the attendant. The attendant in his presence placed the receptacle in the box, locked the box, and handed him the keys. The respondent then left the building, but before he had gone far he discovered that he had left a pencil which he had used in making tallies when counting the currency. He returned to the vault and called the attention of the attendant to the fact that he had left the pencil in the booth. The attendant went to the booth, procured the pencil and handed it to him. He again left the building, went to the court and attended to the...