American Express Co. v. Baldwin

Caton, C. J. Upon the question of delivery, the evidence in this record differs from that in the same case reported 23 Ill. 197, in this, that in that case the proof showed that the package was not ready for delivery till it was duly entered in the delivery book, whereas on this trial, the witnesses testify that according to the course of business in express companies, a package may be ready for delivery before such entry is made; but upon the question of the actual delivery, or offer to deliver this package, the evidence upon this trial did not differ materially from what it was on the former trial, and there we held that there was no delivery or offer to deliver, so as to discharge the defendant from the liability of a common carrier, and this, too, independently of the want of an entry of the package on the delivery book. We are still of the same opinion, but think it would be superfluous to add anything on this subject to what was then said. But even admitting that the defendant was only liable as a common bailee, or warehouseman, it was bound to the exercise of ordinary care for the safe keeping of the package. This we think was manifestly wanting. The package was placed in the safe by Douglass, which he locked, and placed the key in his pantaloons pocket. Then he closed the office in which the safe was, and placed the office key in his coat pocket, and left the premises for the night. When he retired for the night, he hung his pantaloons on the bedpost and his coat behind an open door in an adjoining room. His bedroom was on the ground floor,with a window opening upon open ground, and not more than two feet from the ground. It was a warm night, and this window was left open. He was a sound sleeper, and was not easily awakened unless spoken to. During that night, the keys were taken from his pockets, the office and safe opened, and the money stolen. All this in the city of Madison, the capital of Wisconsin. Now, the bare statement of these facts shows gross negligence in the care of this money. The window was opened to the burglar and the thief, and he was, by the tempting prize always supposed to be in an express safe, invited to walk in. It is of little use to lock a safe or a door, unless the key is protected with reasonable care. We approve of the judgment, and it must be affirmed. Judgment affirmed.