On appeal from Superior Court, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D. (retired and temporarily assigned on recall).
[169 NJSuper Page 282] Plaintiff, a depositor in defendant bank, sued the bank for loss of a large sum of cash just withdrawn by him, as the result of his being robbed as he left the bank. The culprits were tipped off as to the robbery opportunity by a friendly teller at the bank who was aware of plaintiff's daily morning habit of withdrawing substantial cash for use in his check-cashing business. The trial judge, sitting without a jury, found for defendant as of the end of the plaintiff's case as well as at the end of the entire case,*fn1 on the ground
that the teller's action was not in the course of her employment. The judge also rejected an alternative contention by plaintiff that defendant breached a voluntarily undertaken duty of escorting plaintiff from the bank door to his car.
The parties do not disagree as to the facts, set forth hereinafter, which are consistent with the findings of operative fact made by the trial judge.
Plaintiff Jacob Roth had a check cashing business in South Kearney. At the end of each day he took all of the checks which had been brought to him for cashing and wrote out a check of his own for the amount of money he wanted to cash the next morning for use in his business. The following morning he would go to the bank at about 8:45 to deposit the checks he had taken in and to cash the check he had written on his own account.
Plaintiff followed his usual practice on the morning of July 24, 1974. He arrived at the bank at about 8:45, and a guard at the door, as usual, accepted the checks and gave them to a teller. The check he had written that morning was for $72,000. Plaintiff then went to a luncheonette to wait until the bank opened. He returned to the bank at 9 A.M., went to the head teller, and received a brown paper package from her. He proceeded to the door, and someone grabbed him from behind and held a knife to his throat. Another man grabbed the package and the two men escaped.
The police eventually arrested certain people and recovered a little over $15,000 in cash. Thus plaintiff lost $56,908, for the recovery of which this action was instituted.
Plaintiff had been cashing his checks at this branch of the bank for about 14 years and he went there at least once every weekday. For some time the regular bank guard, Willie, had always escorted plaintiff to his car with his gun drawn. But he had been out sick for several weeks. There was another guard, but he never walked plaintiff to the car. Plaintiff acknowledged that he never asked that guard to do that and never complained to the bank about the unavailability of a guard.
Long before the robbery, plaintiff had arranged to have a police escort. A police officer would meet him either at the bank or at a designated point about a mile away from the bank and would follow him to his place of business with a radio car. That arrangement had gone on for a number of years, and an officer had met Roth practically every day. On the day of the robbery, however, Roth did not wait for the officer.
An individual named Morse had a "girlfriend," one Connie Walker, who worked at the bank as a teller. She told him about plaintiff's custom of withdrawing large sums of cash from the bank on a regular basis. She described plaintiff and his car to Morse, and Morse subsequently made a confirmatory observation of plaintiff leaving the bank. Morse and Walker "jokingly" discussed how "it would be nice to have that sort of money." In June or July 1974 Morse transmitted the information about plaintiff to one Lambert who, along with two confederates, committed the robbery on July 24, 1974.
There is no evidence that Walker as teller handled plaintiff's withdrawal transactions, either generally or ...