Wiser v. Chesley

Decision Date31 October 1873
Citation53 Mo. 547
PartiesANGELO WISER Respondent, v. JONATHAN CHESLEY, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

Melville Smith, for Appellant.

I. The burden of proof concerning negligence is not on defendant but on plaintiff. (McCarty vs. Wolf, 40 Mo., 520; 1 Smith's Lead. Cases, 421-422 (notes to 6th Ed., 1866); Harrington vs. Snyder, 3 Barb., 380; Foot vs. Storrs, 2 Barb., 327; Runyan vs. Caldwell, 7 Humph., 134; Mims vs. Michell, 1 Texas, 440; Schmidt vs. Blood, 9 Wend., 268; Story on Bailments, 225-226.)

II. Being a bailee without reward, and without any special contract, he was liable only for gross negligence, and bound only to exercise reasonable care in keeping the money. (McLean vs. Rutherford, 8 Mo., 109; Ducker vs. Barnett, 5 Mo., 97; Russell vs. Lynch, 28 Mo., 312; Tracy vs. Wood, 3 Mas., 132; Sto. on Bail., 62-80; Jones on Bail., 82-83; Roueston vs. McClelland, 2 E. D. Smith, 61; Shiels vs. Blackburne, 1 H. Bl., 158; Foster vs. Essex Bank, 17 Mass., 479; Stanton vs. Bell, 2 Hawks, 145; Tompkins vs. Saltmarsh, 14 S. & R., 275; Monteath vs. Bissell's Admr., Wright's (Ohio), 411.)

Garesche & Mead, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

This was an action instituted before a justice of the peace by Wiser against Chesley for money alleged to have been deposited with the latter by the former. The cause was tried anew in the Circuit Court.

The defendant at the time of the deposit was the proprietor of the St. Clair Hotel and the plaintiff a boarder there, and the evidence tended to show, that plaintiff had deposited with the clerk of the defendant the amount of money for which suit was brought; that the money had been put in the safe of the hotel, and a check as evidence of such deposit returned to plaintiff, who frequently came and obtained from one of the clerks his package of money and sometimes added thereto, and at one time took $10 therefrom, and that finally the package of money was missing and could not be found, nor was it returned to plaintiff on his demand. The evidence also tended to show, that the safe was secure, kept locked, and in the office where one of the clerks or the proprietor remained day and night; that plaintiff often obtained the package of money from one of the clerks without the presentation of his check, but that when receiving it from the other he always presented his check; that the package never could have “got out of the safe” without the knowledge of the proprietor or clerks; that in that safe were kept the money and valuables of the guests and of the proprietor, who, however, usually kept the most of his money in the bank; that no charge was made for keeping plaintiff's money; that plaintiff knew the way in which the money packages, &c., deposited in the safe, were kept; that no money package had ever been lost from the safe, and, although there was some conflict of testimony on the point, yet the evidence certainly tended very strongly to show, that the check presented by plaintiff as the token of his deposit had never been received by him from either the proprietor or his clerks, and that no check of that description had ever been kept in the house. But no objection was made, it seems, to the check when the package was demanded.

The defendant asked the court to instruct the jury as follows:

The jury are instructed, that the mere fact that the money was lost, if they so find, in the absence of evidence of gross negligence or fraud, does not make the defendant liable therefor.”

“The jury are instructed, that the defendant was only bound to exercise reasonable care in keeping the money of the plaintiff. That he is responsible only for gross negligence or for a violation of good faith.”

These instructions the court refused to give; to which ruling the defendant excepted, as well as to the action of the court in giving the following instructions in behalf of the plaintiff: “If the jury believe from the evidence, that the defendant took from the plaintiff for safe keeping the sum of...

To continue reading

Request your trial
77 cases
  • Meredith v. Wilkinson
    • United States
    • Missouri Court of Appeals
    • 8 Mayo 1888
    ... ... inadequate" to the value of the property transferred ... Mueller v. Ins. Co., 45 Mo. 84; Wiser v ... Chesley, 53 Mo. 547; Edelmann v. Transfer Co., ... 3 Mo.App. 503; McPheeters v. Railroad, 45 Mo. 26; ... Boocher v. Nassee, 75 Mo. 383; ... ...
  • Cunningham v. The Doe Run Lead Company, a Corp.
    • United States
    • Missouri Court of Appeals
    • 15 Junio 1926
    ... ... 442; Gardner v. Railroad, 167 Mo.App ... 605; Dunnigan v. Briggs, 170 Mo.App. 691; Beggs ... v. Shelton, 173 Mo.App. 127; Wiser v. Chesley, ... 53 Mo. 547; Dry Goods Co. v. Schooley, 66 Mo.App ... 406; Digby v. Insurance Co., 3 Mo.App. 603; ... State v. Johnson, 111 ... ...
  • Massaletti v. Fitzroy
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 29 Octubre 1917
  • Blanchard v. Wolff
    • United States
    • Missouri Court of Appeals
    • 21 Marzo 1876
    ... ... on Con. 96; ... Nicholson v. Chapman, 2 N.H. 254; Rivera v ... Ghio, 3 E. D. Smith (N. Y.), 264; Esmay v ... Fanning, 9 Barb. 176; Wiser v. Chesley, 53 Mo ... 547; Edw. on Bail. 88; Beardslee v. Richardson, 11 ... Wend. 25; McNabb v. Lockhart, 18 Ga. 495; Scott ... v. Crane, 1 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT