Veihelmann v. Manufacturers Safe Deposit Co.

Loughran, Ch. J.

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 negligence. The relief demanded by the plaintiff is a judgment for the asserted $10,000 money loss, with interest and costs.

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 following facts were undisputed: The door and lock to that box were well made and were of a type used by numerous safe deposit companies; access to the box could be had only by means of a customer’s key or a duplicate thereof, and then only after the lock had been prepared through the use of a master key held by the defendant; there was no sign of a forcible entry of the box when it was examined following the assertion by the plaintiff of a loss of her currency; the defendant had dominion over its safe-deposit vault and a surrounding area; persons had on occasion gained admission to the vault without identification; no record was kept of the people who came in or went out; ordinarily only one employee of the defendant was in charge of the vault and of the more than nineteen hundred safe-deposit boxes that were enclosed therein.

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.