Rosendahl v. Lemhi Valley Bank

• Decision Date: 27 November 1926
• Citation: 251 P. 293,43 Idaho 273
• Parties: ALFRED ROSENDAHL, Appellant, v. LEMHI VALLEY BANK, a Corporation, Respondent
• Court: Idaho Supreme Court

251 P. 293

43 Idaho 273

ALFRED ROSENDAHL, Appellant, v. LEMHI VALLEY BANK, a Corporation, Respondent

Supreme Court of Idaho

November 27, 1926

TRIAL - DIRECTED VERDICT - BAILMENT - BANK'S LIABILITY FOR PROPERTY IN SAFETY DEPOSIT BOX-CASHIER'S PROMISE OF RESTITUTION.

1. Motion to instruct return of verdict for defendant is properly granted when, at close of all the evidence plaintiff has failed to establish facts necessary for his cause of action.

2. Relationship between bank and renter of safety deposit box in its vault is that of bailment.

3. Bank, being bailee for hire of property in safety deposit box hired of it, is required to exercise over it the care which an ordinarily prudent person would take of his own property and is not insurer against theft.

4. After depositor in safety deposit box rented of bank has shown the bailment, and bank has shown its inability to return the property because of robbery, depositor has burden of showing bank did not exercise the required degree of care.

5. Statement by bank's cashier to depositor in hired safety deposit box in bank's vault, by way of promise to pay for property stolen therefrom, was mere expression of opinion and would not affect bank's liability.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action to recover certain Liberty bonds, or their value. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

L. E. Glennon, for Appellant.

Gratuitous bailees of another's property are not responsible for its loss unless guilty of gross negligence in its keeping. ( Preston v. Prather, 137 U.S. 604, 11 S.Ct. 162, 34 L.Ed. 788; Gray v. Merriam, 148 Ill. 179, 39 Am. St. 172, 35 N.E. 810, 32 L. R. A. 769.)

The question of whether or not the bonds were stolen, and also the question of whether or not the defendant exercised such care as the court might determine necessary to relieve it from liability, were questions of fact to be submitted to the jury. (Gray v. Merriam, supra; Preston v. Prather, supra; The New World v. King, 57 U.S. (16 How.) 469, 14 L.Ed. 1019; Milwaukee & St. Paul Ry. Co. v. Arms, 91 U.S. 489, 23 L.Ed. 374.)

Whitcomb, Cowen & Clark, for Respondent.

The only contract was that of hire; the defendant bank, as bailee, was not an insurer against burglary and theft, and having exercised every reasonable precaution to safeguard the safe and its contents, cannot be held liable for the loss of the bonds resulting from burglary and theft. (Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 P. 55, 26 A. L. R. 217, and note, 223.)

The final burden is on the bailor to prove negligence, not on the bailee to prove due care. (Sanford v. Kimball, 106 Me. 355, 138 Am. St. 345, and note, 76 A. 890; 4 Cal. Jur. 142, sec. 24; 27 R. C. L. 1002, sec. 64; Kohlsaat v. Parkersburg & Marietta Sand Co., 266 F. 283, 11 A. L. R. 686, and note, 690.)

Any testimony from which it could be inferred that there was a promise to pay on the part of the respondent would have no weight or bearing. (Knights v. Piella, 111 Mich. 9, 68 Am. St. 375, 69 N.W. 92; Schermer v. Neurath, 54 Md. 491, 39 Am. Rep. 397.)

A directed verdict for the respondent was the proper procedure. (4 Cal. Jur. 43; Wylie v. Northampton Nat. Bank, 119 U.S. 361, 7 S.Ct. 268, 30 L.Ed. 455; Perera v. Panama-Pacific Inter. Exposition Co., 179 Cal. 63, 175 P. 454; Wilson v. Southern P. R. Co., 62 Cal. 164.)

BUDGE, J. Wm. E. Lee, C. J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

OPINION

BUDGE, J.

This action was brought by appellant to recover from respondent bank certain Liberty bonds, or the value thereof, alleged to have been deposited with the bank for safekeeping and as a special deposit. The cause was tried to the court and a jury, and after evidence had been introduced by both sides the court directed the jury to return a verdict for respondent. From the judgment entered on the verdict so returned an appeal has been prosecuted.

The main question for determination is whether the court erred in not submitting the case to the jury. In limine, a motion to instruct the jury to return a verdict for defendant ought to be granted when, at the close of all the evidence, plaintiff has failed to establish facts necessary to maintain his cause of action. (Crabill v. Oregon Short Line R. R. Co., 34 Idaho 251, 200 P. 121; Bowman v. Bohney, 36 Idaho 162, 210 P. 135; In re Casper's Estate, 172 Cal. 147, 155 P. 631.) And while appellant has denominated his cause of action as one in claim and delivery, wherein the right to the possession of property is the main issue, whatever name or designation might be given to the action is immaterial in the light of the facts shown.

Appellant testified in substance that in the month of September, 1920, he delivered certain Liberty bonds, to the amount of $ 1,700, to respondent bank for safekeeping, and that they were placed in a safety deposit box rented by him and to which he was given a key; that he was told by the officer with whom he left the bonds that the bank had a new steel vault and that the bonds would be safe therein, with which statement appellant was satisfied; that the bonds remained in the safety deposit box in the vault up until the time of a robbery of the bank, with the exception of an occasion about a month prior thereto, when the box was taken out of the vault and coupons clipped from certain of the bonds which were thereafter missing; that, hearing of the robbery, appellant went to the bank, finding the door broken and papers strewn about the floor, and in the afternoon of the same day he talked with the cashier, who told him that two of his bonds had been located, and about a month after this was told by the cashier that the bank would make good for the missing bonds. Appellant was the only witness who testified in his behalf.

The evidence on behalf of respondent was to the effect that the bank had a large safe, with swinging doors of steel construction, controlled by a combination lock, wherein a number of safety deposit boxes were kept for the use of customers, together with books and papers of the bank; that appellant had arranged for...