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Medlock v. Admiral Safe Co.9/9/2005
Mandate Issued: 10/20/2005
__ P.3d __
AFFIRMED IN PART AND REVERSED IN PART
Part I
On November 5, 1999, about 8 p.m., Defendant Rex Herd, proprietor of Defendant Admiral Safe Company, answered a telephone request to open a safe at Sanders Realty. Herd called back twice to verify the request and to get directions. A young man greeted him and said his father needed some papers from the safe which had been working earlier that day, but no longer was. Herd opened the safe. The young man paid him with a company check. Later, Herd saw a Crimestoppers article about a theft from a safe at that address. He went directly to the police and was instrumental in having charges brought against the thief who was in fact Ralph Sanders' grandson and the nephew or cousin of the other Plaintiffs. The Plaintiffs sued Herd and his company for negligence and sought punitive damages. The matter was tried to a jury which found Plaintiffs 51% negligent. We affirm, but we reverse the award of attorney fees in favor of Defendants.
Herd testified that when he arrived at Sanders Realty, someone called out to him, "are you the locksmith?" Herd did not ask for identity because he felt that the two call-backs were sufficient. He remembered "Ralph Sanders" from the phone calls. After the criminal action, Herd knew that the younger man's name was Easley. Herd mentioned to Easley that his voice was different from the one he spoke with on the phone and Easley stated that the man Herd spoke with was his father who had to go to a meeting. Easley then stated that he had a company check with which to pay Herd and asked if that was okay.
Easley gave Herd three numbers which he said were the safe's combination. When Herd could not unlock it using his diagnostics, he drilled the safe open. At that time, Easley discovered two inner lock boxes. Easley asked Herd to open them as well when Easley was unable to reach his father by phone. As Herd was walking away, one of the doors of an inner lock box opened and he observed cash. The next morning, Easley called Herd and stated that the check was drawn on the wrong account. The following Monday, Easley came to Herd's business, retrieved the check and paid Herd in cash for his services.
Herd no longer worked as a locksmith, but testified that he still belonged to the professional organization and was familiar with the Code of Ethics of the Associated Locksmiths of America. There was no similar code for people who worked with safes and vaults, but he agreed that the same principles were good for that profession as well. The Code states that for service orders involving physical security, the following information will be obtained before providing service: (1) positive identification of the ordering party; (2) establish and record a client's basis of authorization for ordering such work; (3) obtain a signature on an authorization/work order whereby a signatory assumes full responsibility and liability for ordering the work specified; and (4) retain records for three years.
Herd testified that he felt he made identification by the two call-backs, which was normal operation for him and that he had at that point established the basis of authorization. He had recorded it in his call book where he took service calls. He did not obtain any signature by the person for the work order where that person would assume full responsibility and liability and the only record he retained for three years was the receipt he wrote for the job which had an incorrect date on it. He did not suspect anything untoward that evening. "It comes down to taking in all the available information that you have and making a judgment ca
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