Page:Harvard Law Review Volume 9.djvu/161

LAW OF SAFE-DEPOSIT COMPANIES. 133 ordinary care and prudence. The defendant contended that the relations between himself and the plaintiff were those of landlord and tenant, and that he was not responsible for property placed in the space leased. This contention was not sustained, on the ground that, when he agreed to guard the space leased, and assured the plaintiff that her property would be safe, he rendered himself liable as bailee. The court, in their opinion by Earl, J., said: — "It is a species of bailment like that existing in the case of the de- positor in a safe-deposit company, who hires a box for his valuables and keeps the key. . . . He may keep the key, but the company, [even] without special contract to that effect, would be held to at least ordinary care in keeping the deposit ; and the duty of such care would arise from the nature of the business it was carrying on, and the obligation to dis- charge it would be implied from the relation between the parties." II. The Nature and Extent of the Liability of the Company, It is in its character of bailee that the company meets its liabil- ity for negligence. In general, the extent of this is measured by the degree of deviation from the care required of the ordinary bailee or depositary for hire, which is the care that a " prudent and intel- ligent " man would exercise in regard to his own property under similar circumstances. There are two leading cases in which the liability of the company for neghgence is considered, and under- standing of the nature of the company's responsibility cannot better be had than through an abstract of them. The first is that of the Safe-Deposit Company of Pittsburgh v. Pollock (85 Penn. State, 391), where the company contracted with a depositor to "keep a constant and adequate guard and watch over and upon the safe " rented by him. A number of bonds de- posited therein were found to be missing. The jury found that the depositor put them in the safe, and did not remove them there- from. There was no evidence that the vault or the safe had been broken, or that the lock had been tampered with. These facts be- ing unquestioned, and the bonds having been taken from the safe, it necessarily followed that it had been opened with a key suited to the lock. The fact that the bonds were taken under these circum- stances was evidence that the company had not kept " a constant and adequate guard and watch over and upon the safe," as by its agreement it was bound to do. It was held from these facts that the manner in which the bonds were undoubtedly taken threw upon