Appeal from the Circuit Court of Cook county; the Hon. MATTHEW
D. HARTIGAN, Judge, presiding. Judgment reversed and cause
remanded with directions.
PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 22, 1959.
Plaintiff, who had rented a safe deposit box in the vault of defendant, Uptown Safe Deposit Company, a corporation, brought suit to recover damages for the alleged failure of defendant to keep safe $37,750 in cash alleged to have been placed in the box and to have disappeared. Trial by the court and jury resulted in a verdict for the amount claimed, and after the denial of post-trial motions, judgment was entered on the verdict, from which defendant appeals.
The complaint, as amended, alleges that the funds were not lost or misplaced by plaintiff but, through the carelessness and negligence of defendant in the maintenance and protection of her property, disappeared from the box leased for her use. Defendant's answer denied carelessness and negligence and, by way of affirmative defense, averred that it exercised the ordinary care and diligence required of a bailee in the preservation of any and all deposited property by plaintiff when the box was in the exclusive control of defendant and not in the use of plaintiff or the corenters.
[1-4] It is agreed that the relation between the parties was that of bailor and bailee. Within this relation, the depositary for hire was bound to exercise ordinary care and diligence in the preservation of plaintiff's property. Ordinary care in such cases has been defined to be such care as prudent men take of their own property; and ordinary diligence, as men of common prudence usually exercise about their own affairs. Bauman v. National Safe Deposit Co., 124 Ill. App. 419; Mayer v. Brensinger, 180 Ill. 110; National Safe Deposit Co. v. Stead, 250 Ill. 584. The duty of exercising such care arises from the nature of the business which the safe deposit company carries on. The obligation to discharge such duty is implied from the relation between the parties. National Safe Deposit Co. v. Stead, 250 Ill. 584. However, defendant was not an insurer of the safety of the contents of plaintiff's deposit box. Hauck v. First Nat. Bank of Highland Park, 323 Ill. App. 300. It is fundamental that in an action based on negligence the plaintiff must not only allege but also prove actionable negligence; and while plaintiff is entitled to the most favorable inferences that can be drawn from the evidence, nevertheless, in a case of this kind, there must be some competent evidence that the money had been taken from the box without the knowledge or consent of plaintiff and the corenters, by reason of defendant's failure to exercise ordinary care in safeguarding her property.
From evidence adduced upon the hearing, as set out in a record of almost 500 pages, it appears that plaintiff was about eighty years old at the time of trial and had been a resident of Chicago since 1893. For about thirty years she and her husband Edemond had been engaged in the business of renting furnished apartments and sleeping rooms. In November 1951 they rented jointly box No. C786 in defendant's vault, in which they deposited, from time to time, cash proceeds from the income of their business enterprise. In August 1953 plaintiff was advised that her husband was incurably ill, and for that reason she wished to have his name taken off their box. Accordingly, on the fifteenth of that month she communicated her wishes to the officers of the safe deposit company, and, because her husband was too ill to accompany her to the vault and sign a surrender card, she was advised, in order to effectuate the change immediately, to surrender the jointly-held box and take out another box in her own name. In accordance with that advice, box No. 13 414 was assigned to her as the sole renter. She took both boxes to a booth in the vault, removed all the contents from the jointly-held box and transferred them to the newly assigned box held in her name only. She testified that at the time of this transfer she had cash accumulations in the safe deposit box of something over $89,000. Her husband died September 23, 1953, and shortly thereafter, on October fourteenth, her son Joseph Henderick and her daughter Helen Gehrke went to the office of the safe deposit company to sign a contract making them cotenants of box No. 13 414. A week later on October 21, 1953, plaintiff and her daughter took the box to a booth and found in it $51,650, an amount which represented a loss, so they contended, of $37,750. In testifying as to the amount of $51,650 plaintiff consulted a memorandum on which her daughter had written that amount and which plaintiff took to the witness stand with her because, as she explained, she couldn't "remember so good any more."
Plaintiff had savings accounts totaling in excess of $40,000 and placed in five banks. Her business was conducted on a cash basis, and whenever she had more cash at home than she thought prudent, she deposited it in her safe deposit box. Evidently it was her practice to put cash in her box and then take it out from time to time to purchase bonds, generally at the Uptown National Bank. She once testified that she and Mr. Henderick counted the money in August 1953; later she stated that she could not remember when they counted it. From the record it appears that on October 21, 1953 she purchased at Uptown National Bank government bonds in the amount of $5250, $5250, and $20,000 (cost price), in which she, or she and her son or daughter, were named as owners. In the aggregate they represent a cost value of $30,500, a sum not a great deal less than the $37,750 for which plaintiff is suing. Previously, on December 24, 1952 she had purchased a government bond in the amount of $3000 in her husband's name; on March 11, 1953 she had purchased a $525 government bond in her own name; on March 12, 1953 she had purchased a $3000 government bond, and on April 23, 1953 a $6000 government bond, both bonds in the name of herself and her husband. All these bonds were purchased at the Uptown National Bank; from the first purchase recorded here, on December 24, 1952, to the last, on October 21, 1953, her cost price investment in government bonds totaled $43,025, a total, one may note, not greatly in excess of the $37,750 for which plaintiff is suing. In February of 1954 she purchased a government bond in the amount of $11,625 at the First National Bank in Chicago.
Plaintiff and her daughter testified that there was but $51,650 in the box on Wednesday, October 21, 1953, when plaintiff opened it at 11:00 a.m. Plaintiff estimated, as she testified, that $37,750 was missing, and immediately reported the alleged loss to the vault authorities.
The quarters of the Uptown Safe Deposit Company, which is a wholly owned subsidiary of the Uptown National Bank of Chicago, are in the building located at the southeast corner of Lawrence and Broadway. The safe deposit vault is in the basement and does not touch the outside wall of the building. At the front entrance to the vault, on the south side, there is a lobby, accessible by stairway or elevator, from the street level lobby. The banking quarters, located on the second floor of the building, have private passages from the tellers' cages on the south side which connect with a private elevator or stairway providing direct access to the vault; on the basement level, the stairway and elevator open into a service lobby which connects, on the east, with the vault lobby. The business office of the safe deposit company, in which are kept the card indices containing the names and box numbers of the renters, is located to the south of the vault lobby and is separated by a customers' counter where a device is kept which stamps on each box holders' admission ticket the year, month, day, hour and minute of every entry to the box; the renter is required to affix his signature to the admission ticket whenever entering the vault.
The safe deposit vault is made of reinforced concrete, sixteen to eighteen inches thick. There are two vault doors, one leading from the vault proper to the vault lobby, the other leading out the west side of the vault to the customers' booth lobby, which has a line of customers' booths on either side. The front door is about eighteen inches thick, made of steel, and has twenty-four locking bolts. The side door is also steel, twelve to fourteen inches thick, and likewise has twenty-four locking bolts. Each door has two combination locks. The front door has a four-movement time clock, while the side door has a three-movement time clock. Both doors are of approved standard and grade. The customers' booth lobby "dead-ends" at the north and during business hours is barred at the south by a locked gate made of metal grillwork. During business hours both vault doors remain open; the one at the south end of the vault leading to the lobby is barred by a locked day gate made of metal grillwork. A buzzer controlled by an employee in the business office admits a renter into the vault after he has signed an admission ticket and been properly identified.
The vault contains some 14,000 safe deposit boxes. The section containing plaintiff's box was acquired as a new unit from Diebold, Inc., and installed in November 1947. Plaintiff's box had been rented only once before to Herbert P. Bennet, a pharmacist, and Edna, his wife. Two keys are issued to each holder of a renter's box. None of the boxes can be opened without the use of one of these keys, together with the guard key; the box holder's key cannot be inserted to become operative until the guard key is inserted and turned. The guard keys are in the personal possession of the vault custodians on duty at all times, except while the vault is closed between the end of one business day and beginning of another; at such times they are locked inside the vault. The keys to the unrented boxes are kept locked in one of the boxes under the control of Mr. McCabe and Mr. Kradwell, employees of defendant. The lock and key of any box surrendered by a box holder are thereupon changed. When the lock is taken off the box, the numbers on the keys are eradicated. The lock, with the keys, is put into stock; then a lock which has been in stock is taken out, put on the door, and the number corresponding with the box number is put on the keys with a die and hammer. This would not be done for some weeks, or possibly some months, after the lock had been taken off another door; in the interim, the keys would have no number. Since no record was kept of the door from which the lock was taken, no one would know where the lock was before it was put on the new number, and the keys numbered accordingly. The care and installation of the locks on the cubicle doors was in charge of Adolph Hodel, a locksmith who worked for Herring-Hall-Marvin Safe Company, York Safe Company, and Diebold, Inc., and who is now doing independent contracting work of the same nature for the First National Bank, City National Bank, and Continental Illinois National Bank, all of Chicago. He was the only locksmith who worked at the Uptown Safe Deposit Company during the year 1953. The two keys furnished plaintiff by defendant are Diebold keys supplied with the boxes by the manufacturer and marked with the name Diebold to indicate the manufacturer. In the event a renter loses one of his two keys, a new key, in duplicate form, is made on a lathe or grinder, and the blank keys are counted out and accounted for by the locksmith.
There is a guard on duty at the vault from the time it is closed until it is opened on the next business day. Two American District Telegraph pull boxes or checks are on the outside of the vault, one on the east wall, the other on the north wall. The guard is required to pull or turn the check at least once every hour; if he misses a call the American District Telegraph Company, which has offices in the same building, immediately investigates to determine why the call was not made. The time lock on the front vault door is set at the close of each business day 1:00 p.m. on Wednesdays, 4:00 p.m. on the other business days of the week; it is then checked by one of the officers of the safe deposit company, after which the door is closed and locked. Either Mr. McCabe or Mr. Kradwell remains inside the vault until the bank tellers have all their trucks in; then the time locks on the side door are set, and the door closed and locked in the same manner as the front door. These doors cannot be opened until the morning of the next business day, and then only by designated officers having the combinations. Two officers of the safe deposit company and four officers of the bank know one of the combinations of each of the two doors to the vault; the other combination on each door is known to the other officers of the bank, but no one individual knows the two combinations on one door or the other.
All the funds and securities of the Uptown National Bank are kept in defendant's vault, except that such amounts as are needed for the day's banking transactions are taken upstairs in the morning and not returned to the vault until the close of the business day. The reserve cash, averaging over $300,000, is kept in a large safe deposit box, while some of the securities are placed in boxes similar to plaintiff's. The vault also contains fourteen or more tellers' safes, in the rear of the vault area and apart from the renters' boxes, into which the tellers' trucks are wheeled after the close of business, and in which funds used during the business day are kept outside of banking hours. The vault area used by the bank is separated from the renters' boxes by an ordinary door. The tellers balance daily. The signatures of two bank officers are required to gain access to any of the deposit boxes used by the bank.
Whenever a box holder desires entry to his box, he is required to sign an entrance ticket pertaining to his box. This he presents to the counterman at the business office who checks the signature, and if it is found to be that of the renter, the ticket is initialed and time-stamped. The counterman then admits the renter to the vault by releasing the lock on the day gate at the front vault door by means of a buzzer. He is met by a custodian who examines the ticket; if it is found in ...