Appeal, No. 203, March T., 1963, from judgment of Court of Common Pleas of Beaver County, March T., 1962, No. 210, in case of Eliza W. Stevenson v. Economy Bank of Ambridge. Judgment reversed; reargument refused March 12, 1964.
Edmund K. Trent, with him John D. Ray, and Ray and Good, and Reed, Smith Shaw & McClay, for appellant.
William H. Eckert, with him Carl F. Barger, and Eckert, Seamans & Cherin, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
Appellant, Eliza W. Stevenson, instituted an action of trespass in the Court of Common Pleas of Beaver County against appellee, Economy Bank of Ambridge, for conversion of the contents of a safe deposit box, leased by appellee to Doctor W. B. Carson, appellant's brother-in-law, who died testate April 17, 1961, and to appellant as cotenants.
The complaint charged appellee-bank in the first count with conversion of $450,000, the value of the contents of the safe deposit box, to which appellant claimed she was entitled to possession under the terms of the safe deposit lease. This consisted of stock certificates
registered in the name of decedent alone, valued at $367,000, and cash in the amount of $82,300. Not in dispute was $4,825 in currency clearly identified as appellant's. The second count alleged conversion of the $82,300 in cash, which appellant claimed was her property and to which she had the right of possession under the terms of the lease. Prior to trial, appellant withdrew the claim alleged in the first count, and summary judgment was accordingly entered for appellee. From that judgment, no appeal was taken. Thus, appellant has limited her claim to the $82,300 as set forth in the second count of the complaint.
At the conclusion of all the evidence, both sides presented points for binding instructions. The trial court refused appellant's request, granted that of appellee, and directed a verdict in appellee's favor. This appeal followed from the refusal of the court en banc to grant appellant's motions for judgment non obstante veredicto*fn1 or, in the alternative, for a new trial and from the entry of judgment on the verdict.
The relevant facts from which this controversy arises and on which it must be determined are not in dispute. Decedent and his wife, for many years prior to her death (October 17, 1955), were colessees of the safe deposit box. On November 16, 1955, shortly after his wife's death, Doctor Carson substituted the name of appellant, his wife's sister, for that of his deceased wife as colessee.*fn2 The lease for the safe deposit box
was signed by both decedent and appellant and two keys were issued. Each lessee retained a key, but appellant never exercised her right of access to the box during Doctor Carson's lifetime. Appellant testified that at the time Doctor Carson had her sign the lease, he gave her one of the keys. He also told her that the purpose of having her sign the lease was to make her co-owner and that she could enter the box at any time she desired.
Decedent's will, dated September 4, 1959, was prepared by his attorney and, at decedent's death, was in possession of the scrivener. Testator bequeathed his residence and half of his approximately $490,000 estate (after $6000 of pecuniary legacies) to appellant and designated his attorney as executor. On the day following decedent's death, appellant and decedent's attorney together sought and obtained access to the safe deposit box for the sole purpose of learning whether it contained a will of later date. No other will was found, and the box, with its contents intact, was returned to the vault. Appellant, on this occasion, had provided her key for entry to the box. Testator's counsel read a part of decedent's will to appellant and informed her and the president of the bank that the safe deposit box could not be opened until the will had been probated and that nothing could be removed until a proper inventory of the contents had been completed. The record does not disclose that appellant voiced any objection, nor did she express a desire to remove anything from the box at that time.
On the next afternoon (April 19), following decedent's funeral, appellant, accompanied by the funeral director, went to the bank and requested access to the box for the purpose of removing the contents in order to take the cash for herself and to deliver the stock certificates and other papers to testator's executor. Appellant was advised by the bank employee in charge of the vault that she was not permitted into the box and was refused permission to sign an entry slip. Shortly thereafter, the named executor entered the bank and, upon being informed of appellant's purpose, again stated that access to the box was not to be permitted. He repeated his direction that the box should remain closed until after probate of decedent's will and the granting of letters testamentary. It was on the basis of these instructions that appellee-bank refused appellant entry that afternoon.
The executor advised appellant that he intended to probate he will the next day (April 20) and requested her to meet him at the bank on the succeeding day (April 21) to open the ...