#### C. D. MORGAN v. THE CITIZENS BANK OF SPRING HOPE.

(Filed 7 October, 1925.)

1. Bailment — Banks and Banking — Safety Deposit Boxes.

Where a bank rents safety deposit boxes in its vault to its customers, giving each a key thereto, retaining the master key necessary for the customer to get at the contents of his box, the latter retains title to the contents of the box, and the relation of bailor and bailee is established, in the absence of a special contract to that effect.

2. Same — Negligence—Damages.

The responsibility of bailee rests upon the exercise of his ordinary care to keep the goods in his possession, upon the terms of the bailment, and the liability of insurer does not therein exist.

3. Same — Special Contract.

Where a bank takes out burglar insurance on the contents of safety deposit boxes in its vault, it is not alone evidence of a special contract that will make the bank liable as an insurer of the contents of the safety deposit box rented by it to its customer.

*2104. Same — Evidence—Burden of Proof — Nonsuit—Pleadings.

In order to recover from a bank for' the loss by burglary of 'the contents of a safety deposit bos rented in its vault, etc., it is' required of the renter of the box to allege and prove negligence therein on the part of the bank, and where the evidence tends only to show that the bank had used due care in maintaining a vault as generally was considered sufficient in the locality, and the fact of loss by burglary, a motion for judgment as of nonsuit is properly granted.

5. Evidence — Prima Facie Case — Issues—Burden of Proof — Questions for Jury.

Where the evidence is sufficient to make out a prima facie case of negligence on the part of the defendant bailee of goods, the burden of proof of the issue remains with the plaintiff, the prima facie case being only sufficient to sustain a verdict in his favor if the jury should render such a verdict upon competent evidence.

Appeal by plaintiff from judgment of Sinclair, J., February Term, 1925, of Nash.

Action to recover of defendant tbe value of certain unregistered Liberty Loan Bonds, owned by plaintiff, and placed by him in a safety deposit box, rented from defendant, for the safe-keeping of valuable papers and securities; said safety deposit box was one of many similar boxes, placed and kept in the vault, in defendant’s bank building, and rented to its customers. On 6 November, 1920, plaintiff called at defendant’s bank, and then and there demanded the delivery to him of said bonds; defendant failed to deliver same to plaintiff in accordance with said demand, and has since failed to deliver said bonds to plaintiff; in his complaint, plaintiff alleges that said bonds were lost, destroyed or taken from defendant’s bank, on 5 November, 1920, as “the result of defendant’s carelessness, negligence, imprudence and incautiousness in protecting, keeping and preserving said bonds.”

The vault in defendant’s banking house, in which said safety deposit box was placed and kept, was entered during the night of 5 November, 1920, by burglars; said burglars, by means of high explosives, blew open the steel door of said vault, and violently and forcibly broke open various of the safety deposit boxes therein, and took and removed therefrom the contents of said safety deposit boxes; each of said safety deposit boxes was provided with a lock, the key to which was delivered to the customer at time the said box was rented to him; the locks of all said safety deposit boxes, however, were controlled by a master-key which was retained by defendant; the key to each box was retained by the individual customer to whom same was rented; no safety deposit box could be unlocked and opened without the use of both the individual key, which was in the possession of the customer, and the master key, which was in possession of defendant; defendant did not know and had *211no means of knowing tbe contents of tbe several safety deposit boxes in tbe said vault; as a result of tbe burglary, many valuable papers and securities were stolen from said safety deposit boxes by tbe burglars, none of wbicb bave been recovered by defendant; defendant, in its answer, expressly denied that it was negligent with respect to said safety deposit boxes or witb respect to tbe contents of tbe same; it denied tbat tbe said burglary was tbe result of any negligence on its part, and expressly alleged tbat its bank building was equipped witb “standard modern steel and concrete vaults and witb all other reasonable, approved and accepted devices and equipment to assure safety from fire and to protect, as far as might be, from theft and burglary”; tbat tbe safety deposit boxes provided for its customers were placed inside “its steel-doored, concrete, safety-locked vault”; and tbat “on tbe night of 5 November, 1920, tbe defendant’s bank vault, safes and doors, having all been theretofore securely locked and bolted witb combination safety locks, burglars, apparently professionals and highly skilled in tbe use of high explosives, witb dynamite, nitro-glycerine, T.N.T., or some other powerful explosive, blew out tbe heavy steel door of tbe bank’s vault and effected an entrance thereto; tbat they then violently and forcibly broke open various of tbe safety deposit boxes” and stole tbe contents of same.

At close of evidence offered by plaintiff, defendant moved for judgment as of nonsuit. This motion was denied, and defendant excepted. Defendant then offered evidence. At tbe close of all tbe evidence, defendant renewed its motion for judgment as of nonsuit. Motion allowed. From judgment in accordance witb said motion, plaintiff appealed. Tbe only assignment of error is based upon tbe judgment as of nonsuit.

I. T. Valentine and, E. B. Grantham for plaintiff.

Spruill & Spruill, Finch, & Vaughan, and O. B. Moss for defendant.

CONNOR, J.

Plaintiff insists tbat there was error in allowing defendant’s motion for judgment as of nonsuit, and in rendering judgment in accordance witb said motion, for tbe reason:

First, tbat there was evidence of a special contract between plaintiff and defendant, by virtue of wbicb defendant became responsible as an insurer for tbe safe-keeping and return of said bonds;

Second, tbat tbe relationship, of plaintiff and defendant, witb respect to said bonds was tbat of bailor and bailee, and tbat, as tbe evidence tended to show tbat tbe bonds, tbe property of plaintiff, were delivered by him into tbe possession of defendant, under a contract of bailment, and tbat defendant bad failed to return them to plaintiff, upon bis demand, tbe burden was upon defendant to establish, by evidence, facts *212which, Tinder tbe law, relieved him of liability for the return of the bonds or for damages for failure to return same.

The decided weight of authority is to the effect that the relationship between a bank and its customer, resulting from the rental by the former to the latter of a safety deposit box, with respect to the contents of said box, placed therein for safe-keeping, is that of bailor and bailee, the bailment being for hire or mutual benefit. Trustees v. Banking Company, 182 N. C., 298, 17 A. L. R., 1205; the fact that the safety deposit box can be unlocked and opened, and access had to its contents, only by the joint action of the customer, who has possession of the individual key, and of the bank,-which has possession of the master key, does not affect the character of the relationship. The ownership of the property deposited in the safety deposit box remains in the customer; under the contract it must be-kept in the place designated and agreed upon by the parties, to which access can be had only by their joint action; the place in which the property shall be kept is not to be determined solely ■ by the bank. This is the only element of the contract which seems to differentiate it from a pure bailment as defined by the text-writers and approved by judicial decisions. Hail on Bailments; Dobie on Bailments; 3 R. C. L., 72; 6 C. J., 1084. This element is not sufficient to affect the relationship between the parties, and it must be held, both upon authority and upon principle, that the relationship between the parties to this action, with respect to the bonds, was that of bailor and bailee, for mutual benefit.

Cussen v. Southern California Savings Bank, 133 Cal., 534, 65 Pac., 1099, 85 Am. St. Rep., 221; Reading Trust Co. v. Thompson, 254 Pa., 333; Safe Deposit Co. v. Pollock, 85 Pa., 391; The National Safe Deposit Co. v. Stead, 250 Ill., 584; Young v. Bank, 265 S. W., 681; Trainer v. Saunders, 270 Pa., 451, 113 Atl., 681, 19 A. L. R., 861.

The interesting suggestion is made by counsel for defendant, in their brief, that the relationship between a lessor bank and a lessee customer, with respect to a safety deposit box, on principle, is that of landlord and tenant, and that the bank’s possession of the contents of the box is analogous to the possession which a landlord has of the contents of the house which he has rented to his tenant. It is conceded that the greater weight of authority sustains the proposition that the relationship is that of bailor and bailee. Under a contract by which the relationship of landlord and tenant is established, both title to and possession of the subject-matter of the contract is transferred to the tenant, during the term of the lease. During said term, the landlord has no rights or duties as between himself and his tenant with respect to the property- leased. The contract between the bank and its customers does not affect the title to the property, which remains in the customer, but *213does result in tbe transfer of possession to tbe bank. Tbe suggestion is interesting but not persuasive. See, bowever, Dobie on Bailments, page 166.

It was tbe duty of defendant as bailee of tbe bonds delivered to it by plaintiff, under a contract of bailment, for tbe mutual benefit of tbe parties, to use ordinary care and diligence in safeguarding tbe bonds, tbe property of plaintiff, bailor, and to return same to plaintiff, upon bis demand. If it failed to return tbe bonds, and sucb failure was tbe result of a breach of duty imposed by law by reason of tbe relationship growing out of tbe contract of bailment, it is answerable to plaintiff in damages. If its failure to return tbe bonds, bowever, was not due to breach of sucb duty, i.e., negligence, it is not liable to plaintiff for tbe loss of said bonds, for tbe law does not bold defendant, as a bailee, liable as an insurer; 3 E. C. L., 96. It is liable only for loss resulting from its failure to exercise tbe care required by law of a bailee with respect to tbe property bailed.

In Beck v. Wilkins, 179 N. C., 231, Clark, C. J., says: “Tbe defendant, as bailee, assumed liability of ordinary care for tbe safe-keeping and tbe return of tbe machine to tbe bailor in good condition. Tbe bailee did not assume liability as insurer, and therefore did not become liable for tbe nonreturn of tbe property in good condition, if be observed tbe ordinary care devolved upon him by reason of tbe bailment.” In Hanes v. Shapiro, 168 N. C., 24, Justice Walker says: “The parties may enlarge or diminish their liability by special contract, provided, first, that tbe contract is not in violation of law or against public policy; second, that tbe liability of tbe bailee is not to be enlarged or restricted by words of doubtful import; and third, that tbe bailee must exercise perfect good faith at all times.” If tbe bailor seeks to bold bailee liable as an insurer, under a special contract, be must both allege and prove tbe special contract.

In bis complaint, plaintiff alleges that be was “induced to rent tbe said safety deposit box and to deposit or place therein tbe said Liberty-Loan Bonds by tbe advertisement and representations of defendant bank that it carried burglary insurance and that any valuables deposited in said safety deposit box would be" protected by said burglary insurance.” This is tbe only reference in tbe complaint to insurance against burglary; it is not an allegation of a special contract by which defendant assumed liability as an insurer of tbe contents of tbe safety deposit' box or became responsible for their return. In Sams v. Cochran, 188 N. C., 731, there was both allegation and proof of a special contract.

Even if it be conceded that under tbe rule “uniformly enforced by this Court for tbe consideration of evidence upon a motion to nonsuit, there was evidence of a special contract made with plaintiff by tbe cashier *214of defendant, and that defendant was bound by said contract, there was no error in allowing* the motion, for nonsuit, upon the ground first insisted upon by plaintiff, for it is elementary that there must be allegation as well as proof to sustain a cause of action. Green v. Biggs, 167 N. C., 417; Tally v. Granite Quarries Co., 174 N. C., 445.

Plaintiff’s assignment of error must, therefore, be considered upon the basis of defendant’s liability to plaintiff for the bonds, as a bailee for him, without any additional liability because of a special contract. When the plaintiff rested, there was evidence from which the jury could find (1) that there was a contract of bailment between plaintiff and defendant, with respect to the bonds; (2) that the bonds had been delivered to defendant by plaintiff, under this contract; (3) that defendant had failed to return the bonds to plaintiff upon his demand for such return. This evidence made a prima facie case for plaintiff, for although plaintiff could not recover of defendant the value of the bonds, without a finding by the jury that defendant’s failure to return the bonds was the result of negligence on the part of defendant, as alleged by plaintiff, the facts which the evidence tended to establish, with the permissible inferences which the jury might make from these facts, were sufficient to establish negligence. There was no error therefore in refusing defendant’s motion at the close of the plaintiff’s evidence for judgment of nonsuit.

The burden of proof, however, did not shift to defendant. This remained with the plaintiff. The evidence, making a prima facie case for plaintiff, was sufficient to take the case to the jury with the burden of the issue still upon plaintiff. Defendant had the option to take the risk of an adverse verdict, or to. offer evidence to rebut the prima facie ease for the plaintiff; Hunt v. Eure, 189 N. C., 482, and cases there cited and reviewed by Justice Varser. Defendant exercised the option by offering evidence. At the close of all the evidence, it renewed its motion for judgment of nonsuit (C. S., 567), contending that the prima facie case for plaintiff had been rebutted by evidence which was uncon-tradicted.

Upon all the evidence it appears that the bonds were stolen by burglars from the safety deposit box in which they had been deposited, during the night of 5 November, 1920; that the said box at the time •the bonds were stolen was inside the vault, in defendant’s bank building; that the steel door to the vault had been blown open by the use of high explosives; that the safety deposit boxes had been opened by the use of a sledge hammer and punch and a cold chisel; that the jacket or envelope in which the bonds had been placed was found, but the bonds were missing.

*215There was also evidence that tbe equipment used by defendant was of recognized, standard make, and reasonably safe, in tbe opinion of expert bankers; tbat said equipment was tbe same used by banks in towns of like population as Spring Hope; tbat tbe safety deposit boxes of defendant were of standard make and similar to those used in banks located in larger towns.

There was no evidence to tbe contrary. Tbe facts established by all tbe evidence are undisputed. Tbe inference of negligence arising from tbe failure to return tbe bonds upon plaintiff’s demand is rebutted. Tbe only inference to be drawn from all tbe undisputed evidence is tbat tbe failure to return tbe bonds was due to tbe burglary, and tbat said burglary was not tbe result of tbe negligence of defendant; Hinnant v. Power Co., 187 N. C., 288; Justice Clarkson, writing tbe opinion for tbe Court in tbat case, approves tbe principle tbat where tbe facts are undisputed and but a single inference can be drawn from them it is tbe exclusive duty of tbe Court to determine whether a loss or injury is tbe result of negligence.

No facts can be found from tbe evidence in tbe record, and no inference can be drawn from tbe facts established by tbe undisputed evidence, upon which tbe Court could bold as a matter of law tbat defendant’s failure to return tbe bonds, deposited with it as bailee, was due to its failure to exercise ordinary care for tbe safe-keeping of tbe contents of tbe safety deposit box, in which, under tbe evidence, plaintiff’s bonds were on deposit on tbe night of 5 November, 1920, when same were stolen by burglars, who entered said vault after blowing tbe. steel door open by high explosives, and who then broke into tbe safety deposit box by tbe use of a sledge hammer and cold chisel. Tbe judgment based upon motion for nonsuit, which was allowed at tbe close of all tbe evidence, is

Affirmed.