
    Cherry, Appellant, v. The North Fairfield Savings Bank Co., Appellee.
    (Decided November 9, 1936.)
    
      Mr. Martin J. Monahen and Mr. Gmlbert W. Martin, for appellant.
    
      Messrs. Carpenter & Freeman, for appellee.
   Washburn, J.

The appellee, the North Fairfield Savings Bank Company, operated a small bank in a very small town, which bank was equipped with a safe, but had no vault and no safety deposit boxes for rent to customers. It rented a safety deposit box in a bank in a nearby city, in which it kept some of its' valuable papers and securities, and it maintained robbery and burglary insurance for its own benefit upon its bank in North Fairfield.

From the evidence in the record the jury was justified in finding that the appellant, Jessamine Cherry, called at the bank with an envelope containing a United States Treasury certificate, belonging to her, but payable to bearer; that without informing the bank of the contents of such envelope she handed the envelope to the cashier of the bank, who is a woman, and “asked her if she would put it in the bank for safe keeping”; that the cashier, in response to that request, said “she was willing to do it, to keep it for me”; that the bank received the envelope and placed it in the most secure part of the safe in the bank, that being where it kept its own valuable papers and securities while in the bank; and that the envelope so remained in the safe until a gang of highwaymen took possession of the town and terrorized the inhabitants thereof for a period of several hours, in the night season, and broke into the safe and stole the certificate and other property therein.

After the certificate was so left in the bank, and after appellant had moved from North Fairfield to the city of Cleveland, she wrote to the bank and asked that it clip the coupons from the bond, that it collect the same, and that it deposit the amount received in the bank account which appellant had in the bank at the time the certificate was delivered to the bank, at the time such request was made, and also at the time of the robbery of the bank; which request was complied with by the bank.

After the robbery the appellant demanded the return of the certificate, and, the bank being unable to comply with such request, the appellant started this suit, her claim as stated in the petition being that at the time of the delivery of the envelope to the bank appellant “had an account in the defendant bank, and, in consideration of plaintiff’s giving the bond to the defendant for safe-keeping, the defendant was to clip the coupons on said bond, and, after cashing the same, place this amount to the account of plaintiff in the defendant bank. Defendant then and there received the said bond for the purposes aforesaid.”

The answer of the appellee bank admitted the receipt of the envelope in which was contained the bond with other papers, but averred that at the time of such receipt the appellee was not advised of the contents of the envelope and was simply requested to place that envelope in its safe.

Appellee also admitted that it accepted the envelope, and alleged that it placed and kept the same in its safe and in the most secure and inaccessible portion thereof, which place was where it kept its own money and valuable papers; and that, thereafter, at the request of the plaintiff, it clipped the coupons from the bond and placed’the same to appellant’s credit in an account which the appellant then had in the bank.

The answer of appellee also set forth the circumstances of the robbery as an excuse for not complying with the request of appellant for the return of the bond.

The trial court charged the jury that “while it is admitted that the bond was stolen from the safe or vault of the defendant bank, while in the custody and control of the defendant bank, if you are further satisfied by a preponderance of the evidence that the North Fairfield Bank exercised such care as an ordinarily prudent person would have exercised in like or similar circumstances, in the care of a thing of like character deposited with the defendant, then your verdict must be for the defendant banking company. It is only in case you find from the preponderance of the evidence that the defendant company failed to exercise' such diligence and care in the custody and control of plaintiff’s bond as a person of ordinary care, placed in similar circumstances, would have exercised in the care of a thing of like character, can you render a verdict for the plaintiff.”

The jury returned a verdict in favor of the appellee bank, and, as a part of its verdict, answered in the affirmative the following question: “Was the United States Treasury certificate of the plaintiff, described in the petition, in the most secure part of the safe in said bank at the time of tbe burglary of said bank on the 15th day of December, 1934?”

The errors complained of are as follows:

1. That the verdict is not sustained by sufficient evidence, is against the weight of the evidence, and is contrary to law.

2. That the court committed error in its charge to the jury.

3. That the court erred in overruling the motion for a new trial.

The trial court did not submit the case on the theory that the appellee was a gratuitous bailee, and did not charge that appellee was liable for the loss of the certificate only in the event that such loss was caused by the gross negligence of appellee bank. On the contrary, the court treated the transaction as a bailment for the mutual benefit of the bailor and the bailee, and charged the bailee bank with liability for a failure to exercise ordinary care in the safe-keeping of the certificate.

One of the claimed errors in the charge is that the court, instead of charging that the appellee was required to exercise ordinary care in the safe-keeping of the certificate, should have charged that, if the bank failed to exercise the same care as to the safety and protection of appellant’s certificate as it exercised towards its own property of similar kind and character it was liable, and that the failure of the court to so charge constituted prejudicial error, for which the judgment should be reversed. Such claim is made although no request was made of the court to so charge.

We do not think that the test of liability now suggested is the test which should have been applied in this case. While the failure of a bailee to take as good care of the property bailed as he takes of his own property has a bearing upon his good faith, and while it may be proper to consider the same upon the question of whether he was guilty of a failure to use ordinary care or was guilty of gross negligence, it is really merely an item of evidence bearing upon the question, and is not a yardstick by which to test his liability; and that is especially so under the circumstances that are shown by the record in this case.

The appellee bank did exercise the same care in reference to the certificate that it exercised over its own property that it kept in the bank. The circumstances were such that it is clearly apparent that it was in the contemplation of all the parties that the certificate should be kept at the bank, and, under such circumstances, the application of the test contended for would be understood by an ordinary juror to mean that if the bank kept some of its property in another place it would be liable because it did not keep the certificate in such other place; and the application of such test in this case would render the appellee liable if it insured its own property against robbery and failed to so insure appellant’s certificate.

The bank would not be excused simply because it took, the same care of the certificate as it took of' similar securities of its own, and it would not be liable simply because it failed to take the same care of the certificate as it took of like property owned by it. Kubli v. First Natl. Bank, 199 Iowa, 194, 200 N. W., 434. Merchants’ National Bank v. Carhart, 95 Ga., 394, 22 S. E., 628.

It is also urged that the trial court, although not requested so to do, should have at least charged that appellee was obligated to observe the “degree of care that a person of ordinary prudence would have used in the care of property of a similar character belonging to himself.”

This contention makes liability depend upon the care usually exercised by prudent owners of property, and entirely ignores the care usually exercised by prudent persons over property entrusted to their care; it excludes consideration of tlie facts and circumstances under which the property was entrusted to the bailee.

To exclude consideration of the circumstances under which appellant was entrusted with the care of the property in this case would have been especially improper and unjust, for there is grave doubt in our minds whether, under the undisputed facts as shown by this record, it can be said that the bailment herein was anything more than a gratuitous bailment (Kegan v. Park Bank [Mo.], 8 S. W. [2d], 858; Merchants’ National Bank v. Guilmartin, 88 Ga., 797, 15 S. E., 831; Gerrish v. Muskegon Savings Bank, 138 Mich., 46, 100 N. W., 1000), and there is nothing in the record in this case to justify a finding that the bank was guilty of gross negligence.

But assuming that the transaction in question constituted a mutual bailment instead of a gratuitous bailment, we think that the weight of authority supports the charge of the court as given, rather than the charge as contended for by appellant. See cases cited supra, and Bank v. Zent, 39 Ohio St., 105.

From what has been said it is evident also that we hold that the verdict of the jury is sustained by sufficient evidence and is not against the weight of the evidence, that it is not contrary to law, and that the trial court did not err in overruling the motion for a new trial.

Complaint is made as to that which the court said to the jury on the subject of burglary insurance. While the language used is not as clear as it should have been, we find no prejudicial error with reference thereto.

Considering the undisputed evidence as to the circumstances under which the certificate was delivered to the bank, we think that the trial court would have been justified in determining, as a matter of law, that the bank was not required to pay for insurance against loss of such certificate by the burglary or robbery of the bank, in order to discharge its duty to exercise ordinary cafe for the safety of the same.

Judgment affirmed.

Funk, P. J., and Stevens, J., concur.

Judges of the Ninth Appellate District sitting by designation in the Sixth Appellate District.  