1. The relationship of the bank to its customer, under the evidence in this case, in furnishing for a fee a safe deposit box for the use of the customer, in which he placed valuables, including cash which mysteriously disappeared, is that of a depositary for hire to which the law of bailment applies.
2. The pleadings and evidence do not eliminate, as a material and genuine issue of fact for jury determination, whether the bank fulfilled its duty of ordinary care under the law of bailment to safeguard the contents of the safe deposit box.
3. The trial court properly refused to grant a summary judgment for the defendant.
This action is based on the alleged mysterious disappearance of $9,400 in case from a safe deposit box which the plaintiff customer had rented from the defendant bank. The bank appeals from the denial of a summary judgment.
The evidence considered by the court on the motion for summary judgment consists of answers to interrogatories, depositions, and affidavits. Nothing in this evidence discloses any written agreement between the customer and the bank setting forth the terms and conditions under which the customer rented and used the safe deposit box.
The plaintiff's deposition shows that he rented the box about 1958 and received one key to the box. It was difficult to open the box with this key and he exchanged it at the bank for another key. He did not know what the bank did with the returned key. On November 10, 1967, he borrowed $5,000 from the Bank of Commerce in Clayton, Alabama, and on November 14, 1967, he borrowed an additional $5,000 from the same bank. In each instance he received cash in the form of $100 bills. On November 13, 1967, he placed $4,400 in $100 bills in a blue envelope and put it in the safe deposit box. On November 15, 1967, he put the additional $5,000 in the box, in another blue envelope. When he examined the contents of the box on June 20, 1965, the money had been removed from the envelopes, but otherwise the contents of the box were undisturbed. After ascertaining from an employee of the bank that the president was out of town he did not report the matter, but did tell his wife about it. On the following day he reported the matter to the president of the bank.
The plaintiff's deposition shows further that when he desired to gain access to the box he would give his key to a bank employee, who would use the key and a guard key retained by the bank to get the box and bring it to him. He would sign a card either before or after he used the box. Whether he could see the employee during this time depended on the where he is standing. Usually the employee would be out of sight. The majority of the time an employee would return the box, but he might have done it himself two or three times in ten years. If an employee returned the box, this employee would be out of sight while locking the box unless he stood at the door of the vault, but because of the close quarters he did not do this. The key could be pulled out of the door to the box without the box being locked.
There is no system of dual control over the guard keys. A customer is not invited to go to the box to assist in opening it. He is requested to stand, if he desires, so as to witness getting the box and returning it. Generally, the customer receives his box in a position very close to the front of the vault door. Customers are kept out of the vault. While a customer is examining his box both the guard key and the customer key are left in the locks. On occasion a different employee from the one getting a customer's box will return it. On an unusual occasion within the past five years a customer may have returned a box. The keys returned by a former customer are furnished to a new customer when the box is rented again. By a memorandum dated September 27, 1967, which he signed, customers were notified of some chagas in procedure. This memorandum requested that the customer sign and date a card outside the vault and remain outside the vault while an employee got the box in his view, that he use a booth in the new part of the bank to work with his box, and return the box to a bank employee to place in the vault. These changes were made because of changes in the physical plan of the bank, and as a diplomatic way of asking people to stay out of the vault. An earlier memorandum, dated September 15, 1967, which he signed, instructed bank employees to allow no one to enter the vault unless accompanied by an officer or employee, and outlined virtually the same procedure as the later memorandum to customers, noting that this would change the habit of a good many customers and that the employees should tactfully ask them to follow this procedure. The president knew of the loss as reported by the customer, and knew of nothing to explain the loss. Questioning of the employees had produced negative replies concerning the loss. All keys were tested and none of the keys kept in the vault would open the plaintiff's box. The depositions of two bank employees are in substantial accord with the testimony of the president as to the procedure followed.
The affidavit of an officer of a bank in an adjoining county in Georgia discloses that it is contrary to accepted practice in the banking industry to allow all employees to assist boxholders, to fail to maintain a rigorous indoctrination and training program for employees who assist boxholders, to fail to obtain a receipt for keys issued to a boxholder, or to allow the return of a customer key for indefinite retention and further availability.
In his opinion the accepted practice if a boxholder loses a key is to have the lock changed, and to assign a new box to the renter as soon as possible, and the practice of merely having new keys cut and issued to the holder is disapproved. The guard key should not be left available to employees generally, but should be retained in the possession of a specially trained vault attendant, and under a system of dual control when locked in the vault so that the co-operation of two individuals is required to gain access to it. Keys to unrented boxes held guard keys not in actual use should also be under strict control. The bank should keep access records to show who assisted a boxholder. The procedure should insure that the key or box is never out of sight of the customary, and the attendant should never become acquainted with the contents or handle the contents. The customer should accompany the attendant and the keys should not be left in the locks. The lock on a box should be changed when the box changes hands. If there is any doubt as to the proper method of handling a returned customer key it should be destroyed in the presence of witnesses. The affidavit of the president of another bank in Alabama is substantially to the same effect.
The plaintiff bases his claim primarily on the breach of a bailor-bailee relationship with the bank in respect to the alleged missing contents of the box, or, in the alternative, if the relationship is not that of a bailor-bailee, at least a duty on the part of the bank to exercise ordinary care to safeguard the contents of the box, contending that the evidence of negligence in this respect is sufficient to create a jury question.
The defendant relies on the decision in Tow v. Evans, 194 Ga. 160 (20 SE2d 922) defining the relationship between the bank and a customer to whom it leases a safe deposit box in its vault as that of lessor and lessee giving the bank no dominion over certificates of stock placed therein by the lessee so as to enable a third party to reach such contents by statutory garnishment, and, viewing this relationship as merely one of landlord and tenant, contends that the bank incurs no liability by reason of the mysterious disappearance of the money. The bank argues further that even if the defendant was under a duty in some familiar to protect the contents of the box, the evidence fails to disclose any breach that could be regarded as the proximate cause of the loss.
In commenting on numerous actions involving a claim by a depositor against a bank or safe deposit company for the loss of the contents of a container in other jurisdictions, the writer of the annotation in 133 ALR 279 states, at p. 280, that "the decisions in the cases subsequent to those cited [in 40 ALR 874 and 42 ALR 1304] are practically unanimous that the relation between a bank and the renter of a safe deposit box therein, where a rental is charged therefor, with respect to liability for theft or other loss of the contents of the box, is that of bailment for hire, and that the rules and principles governing the rights and duties of a bailee for hire generally are appealable thereto."
Whatever the label attached to the conflict here involved the facts demand a determination that the bank was involved in an undertaking for a consideration to safeguard the personal property of another in respect to whatever was placed in the safe deposit box, without acquiring any knowledge of the contents of the box, and that it exercised complete dominion at all times over this box, regardless of its contents, except when the customer requested access thereto. Had the customer merely delivered to the bank a locked container, which the bank undertook to safeguard for a fee, this court would have no difficulty in determining that a bailment existed, and that the bank was a depositary for hire. Code 12-301. Had he delivered a sealed package of money, or property or securities, for the purpose of having the same safely kept, and the identical thing returned, it would be a special deposit, which is treated as a forum of bailment. Code 12-303; see Williams v. Bennett, 158 Ga. 488, 494 (123 SE 683).
The parties do not cite, and research fails to disclose any Georgia decision directly in point. The early case of Merchants Nat. Bank of Savannah v. Guilmartin, 58 Ga. 797 (15 SE 831, 17 LRA 322) recognizes a special deposit of securities for the recommendation of the customer, for which the received a receipt, as creating a gratuitous bailment, obligating the bank to exercise slight diligence, which could be met, in respect to a loss caused by the felonious appropriation by a cashier, "when it does its full duty in selecting a proper parson, and in not disregarding indications of dishonesty which ought to arouse suspicion and investigation." P. 799. When the same case was before the court gain, 93 Ga. 503 (21 SE 55, 44 ASR 182), the court stated, at p. 506, that nothing less than actual proof of the standard of diligence imposed on the bank would satisfy the requirement of the law. To the same effect, see Merchants Nat. Bank of Savannah v. Carhart, 95 Ga. 394 (22 51, 628, 32 LRA 775, 51 ASR 95).
Summarized, these cases impose upon the bank, once the fact of loss of a special deposit is shown the duty of affirmatively showing the exercise of the required degree of care, and this is in accord with the law of bailment as it now exists in this State. Sea Code 12-103, 12-104. In Dougherty v. Central Bank &c. Corp., 28 Ga. App. 642 (112 SE 737) In which the customer alleged that it was the duty of the bank to use ordinary care to prevent the removal of bonds from a safe deposit box by persons unauthorized by the customer, this court ruled only on the sufficiency of the evidence as creating a jury question to preclude the trial court from directing a verdict for the bank, without defining the legal relationship between the bank and its customer. This opinion does recognize, however, that if the bank were negligent in permitting a third person to gain access to the contents of the box, and this negligence proximately caused the loss, if so determined by a jury, the customer was entitled to recover the loss from the bank.
We view the relationship here created, as between the customer and the bank, as one of bailor and bailee, making the bank a depository for hire under a duty to exercise ordinary care, the proof of which is cast upon the bank after proof of the fact of loss by the customer. Code 12-104, 12-301, 12-404. This burden on the bailee is regarded as a presumption of negligence, i.e., a rebuttable inference, thus placing on the bailee the affirmative duty of producing evidence of its diligence. See Hall & Ham v. Stone, 11 Ga. App. 269, 272 (75 SE 140); Red Cross Laundry v. Tuten, 31 Ga. App. 689 (2) (121 SE 865); Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 142 (200 SE 462). Where some evidence of this nature is adduced in the trial of a case, whether the bailee has overcome the rebuttable inference would ordinarily be a matter for jury determination. But this is a duty imposed by the law of bailment on the bank which it must meet to preserve an issue for jury determination. But this is a duty imposed by the law of bailment on the bank which it must meet to preserve an issue for jury determination and the bank, as the movant for summary judgment, in order to prevail, has the greater burden of showing the absence of any genuine issue of fact as to a material matter and that as a matter of law it is entitled to judgment. In short, in the posture of the present case, it must appear from a consideration of the pleadings and evidence that as a matter of law the bank did all that was required of it, in the exercise of ordinary care under the circumstances, to protect the contents of the safe deposit box. What constitutes the exercise of ordinary care, of the lack of it, is ordinarily a jury question, and the evidence here, which discloses, among other things, practice which fall below acceptable standards in the industry, does not eliminate, as a permissible jury determination, that the failure to meet acceptable standards in the industry is a failure to exercise ordinary care which constitutes the proximate cause of the mysterious disappearance.
In view of the foregoing the trial court properly refused to grant a summary judgment for the bank.
Judgment affirmed. Hall and Whitman, JJ., concur.