Whisten v. Brengal

The defendant, an employee of one William Whisten, the plaintiff’s intestate, was sued for the loss of $150,. which sum came into the defendant’s possession while acting as the manager of Whisten’s business during the- latter’s illness, which resulted fatally.

• The sum in suit' was discovered by the defendant lying in the safe, in which his employer ordinarily kept articles of value: to his business, the safe having been habitually maintained unlocked at all times by the latter, who had asserted that he had “ honest people around here,” alluding to the premises in which the business was conducted. . •

The defendant notified his employer of the discovery of this money, which he had replaced in the portion of the safe where it had lain. Some days subsequently it was missing from the safe, and, upon the defendant’s failure to>pay the equivalent over to the plaintiff upon a demand made after Whisten’s death, this action was brought to charge the defendant- either upon an admission of liability or for negligence as a bailee.

With regard to' the admission of liability, there was a. direct conflict of evidence resolved, and not, as we may say, improperly, ,in the defendant’s favor, but the plaintiff contends that there was ■negligence upon the defendant’s part in that he did not bank the fund rather than leave it, as it was found, in a receptacle which -had neither an available combination lock nor a key.

We are quite satisfied, however, with the manner in which the case was determined bélow.

The defendant’s duties, of course, called for ordinary care in preserving the fund in question, but that “ ordinary care ” Was the. degree of caution which a reasonably prudent person would exercise under the existing circumstances, and no more. The presumption in favor of the performance of duty cast the burden of proof, with regard to the defendant’s negligence, his omission to exercise ordinary care, upon the plaintiff (Claflin v. Meyer, *3975 N. Y. 260; Bailey Onus Probandi, 31); and the record before us is destitute of all support in that respect. Here the defendant but followed in the footsteps of his employer, whom naturally he would imitate, in the temporary conduct of the business devolving upon.him. His employment would not ordinarily call for greater circumspection than the employer applied to the security of his possessions. We cannot infer from the record that the employer’s sense of security was of a Utopian or eccentric character, because the evidence fails to apprise ús that the premises in which the employer’s business was conducted, and the safe contained, were more than ordinarily exposed to the successful efforts of persons affected with marauding proclivity. The deposit of the money in bank was but one of many means of securing the fund against theft, and it does not follow that the defendant was guilty of negligence because he did not resort to the particular means of security preferred by the plaintiff, but instead followed the -example of his employer. Without knowing more of the premises where the safe was contained than the plaintiff cared to show upon the trial, we cannot say that the defendant omitted the caution of an ordinarily prudent person, and so that, as matter of law, he was negligent.

No exceptions were urged upon this'appeal, and upon the evidence the judgment is affirmed, with costs.

McAdam, J., concurs.

Judgment affirmed, with costs.