Shiman Bros. & Co. v. Nebraska Nat. Hotel Co.

• Decision Date: 28 May 1943
• Docket Number: 31487.
• Citation: 9 N.W.2d 807,143 Neb. 404
• Court: Nebraska Supreme Court
• Parties: SHIMAN BROS. & CO., Inc., v. NEBRASKA NAT. HOTEL CO. et al.

9 N.W.2d 807

143 Neb. 404

SHIMAN BROS. & CO., Inc., v. NEBRASKA NAT. HOTEL CO. et al.

No. 31487.

Supreme Court of Nebraska

May 28, 1943

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Under a statute providing that every action must be prosecuted in the name of the real party in interest, if the insurance paid by an insurer covers only a portion of the loss, the right of action against the wrong doer who caused the loss remains in the insured for the entire loss and the action must be brought by him in his own name.

2. An arrangement between an insurer and an insured, whereby the former loaned to the latter the amount of a loss under the terms of a policy of insurance, to be repaid only if the insured made a recovery from a third person, is a lawful agreement and the loan thus made is not such a payment of insurance as to make the insurer the real party in interest.

3. In order to charge a common carrier with negligence for the loss of property it is necessary to show that such property was unconditionally delivered to it for immediate transportation and that it was accepted for that purpose.

4. A baggage check is prima facie evidence that the baggage it represents has been delivered to the issuing company by the person to whom the check was delivered, but where the evidence affirmatively shows that delivery of the baggage was not made to the company or its authorized agent, no liability attaches.

5. Where a hotel company claims the benefit of a statute altering its common-law liability as an insurer, the burden is on it to show compliance with the statute on its part.

6. A statute limiting the liability of an innkeeper applies only to his common-law liability as an insurer and has no application where the cause of action of the guest is based solely on the negligence of the innkeeper in caring for property entrusted to him.

7. A statute limiting the common-law liability of an innkeeper as an insurer has no application where the loss occurs after a guest has begun his departure from the hotel and has delivered his baggage to a hotel porter for delivery to a transportation company.

8. An admission of an agent may be received in evidence against his principal where the agent, in making the admission sought to be used, made it in connection with the discharge of his duties and it consists of a statement of fact within his own knowledge and not a mere expression of opinion.

9. Bulky exhibits, which have been described, identified and offered in evidence in a volume of the bill of exceptions that has been properly settled by the trial judge, are a part of the bill of exceptions where it appears that they have been properly identified and designated by the official court reporter to be such.

Rosewater Mecham, Shackelford & Stoehr, of Omaha, for appellant.

Gaines & Shoemaker and Brown, Crossman, West, Barton & Fitch, all of Omaha, and Charles C. Evans, of New York City, for appellees.

Heard before SIMMONS, C. J. and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an action at law to recover damages in the amount of $45,965.95 for the loss of a salesman's trunk containing a quantity of jewelry. The trial court sustained the motion of the defendants to dismiss at the close of plaintiff's case and plaintiff appeals.

The plaintiff, Shiman Brothers & Company, Inc., is engaged in the wholesale jewelry business in New York City. On June 5, 1939, Milton J. Jackson, executive vice-president of, and traveling salesman for, plaintiff, left on a sales trip which was to take him to Pittsburgh, Chicago, Detroit and other cities in the middle west. The jewelry was carried in trays placed in two leather sample cases which were in turn placed in what appeared to be an ordinary wardrobe trunk, identified only by the initials "M. J. J." on the exterior. On July 12, 1939, Jackson was in Des Moines a part of the day and in the afternoon left for Omaha. On arrival at Omaha in the evening he registered as a guest at the Paxton Hotel, a hostelry owned and operated by the defendant, Nebraska National Hotel Company. He was assigned to room 1127 on the 11th floor and had the trunk of jewelry brought to his room that evening, he remaining with it constantly until the next morning. The trunk was at all times checked as baggage by Jackson on his railroad tickets without revealing or declaring that it contained a valuable collection of jewelry. Transportation of the trunk between railroad stations and hotels on the entire trip was by taxicabs or local baggage carriers, without notice of the value of the contents. During his stays in the various cities where he called upon his customers, Jackson kept the trunk and its contents in his hotel room without advising the hotel management of its contents or value.

On July 13, 1939, after completing his calls on Omaha customers, Jackson returned to the Paxton Hotel and directed a uniformed porter of the hotel to make a Pullman reservation for him on a night train to Denver. Shortly thereafter he telephoned the porter's desk to send some one to his room for his trunk. A different uniformed porter went to his room, gave him a baggage check of the defendant, Railway Express Agency, for transportation of the trunk from the Paxton Hotel to the Union Station. The porter then told Jackson that the transfer company had just left with a load of trunks and that it would be from 30 to 45 minutes before the trunk would be called for. The testimony of Jackson is that he then said: "And I told him to be sure and keep that trunk in a place of safe-keeping, which is the baggage room, until such time as they called for that trunk, as it contained a very large amount of valuable jewelry." The porter then took the trunk to the first floor of the hotel. Jackson thereupon left the hotel and did not return until 8:30 p. m., when he was informed that the trunk had been left on the loading platform and that it had been stolen from there. The evidence is that the trunk had been left on the loading dock unguarded while waiting for the Railway Express Agency truck to call for it. The thieves have not been apprehended, nor the jewelry recovered.

It is the contention of the plaintiff that Jackson was a paying guest at the hotel and that in taking charge of his trunk it was performing service for him. Plaintiff also contends that the delivery of the baggage check to Jackson by the hotel porter was by virtue of an agency relationship between the Railway Express Agency and the Nebraska National Hotel Company and constituted an immediate acceptance of the trunk by both as bailees for hire. Plaintiff contends that the loss of the trunk was due to the negligence of both defendants in placing the trunk on the loading platform of the hotel and leaving it unguarded.

The defendant express company alleges that it is a common carrier and denies that the hotel porter was its agent to receive baggage for it, or that it or its authorized agents ever had possession of the trunk before it was stolen. The negligence of plaintiff and its agent Jackson is alleged as the proximate cause of the loss. The express company also contends that the plaintiff is not the real party in interest. Other defenses are alleged which are not material to this appeal as we view it.

The defendant hotel company contends that plaintiff has been paid the full amount of its loss and that it is not, therefore, the real party in interest. The hotel company further contends that its liability is limited by section 41-118, Comp.St.Supp.1941, and section 41-119, Comp.St.1929, that plaintiff failed to comply therewith and that liability, consequently, does not attach. This defendant also claims that the loss was due to the negligence of Jackson, the plaintiff's agent, and not to any negligence upon the part of the hotel company.

After hearing the evidence of the plaintiff upon these issues the trial court dismissed the action. Did the trial court err in entering this order?

The dismissal of plaintiff's case at the close of plaintiff's evidence is in effect a directed verdict for the defendants. It has been the rule, often announced, that in considering the correctness of the court's action in sustaining a motion for a directed verdict, all relevant and material evidence and every inference reasonably deducible therefrom will be treated as true. Plaintiff is entitled to the benefit of this rule in the present case.

The record discloses, for the purposes of this appeal, that the stolen jewelry had a market value of $45,965.95. It is also shown that the loss was protected by insurance in the St. Paul Fire and Marine Insurance Company and that on August 21, 1939 said insurance company loaned plaintiff $27,967.82 to be repaid from any recovery made from any other person or corporation for the value of the lost jewelry. The market value of the lost jewelry was fixed by Jackson, an experienced salesman of jewelry. On cross-examination, however, he testified that the $27,967.82 which had been advanced to plaintiff covered the entire amount of the loss sustained by the robbery. It is urged by defendants that by reason of the foregoing facts the insurance company has become the real party in interest and the only party who could maintain the action under the provisions of section 20-301, Comp.St.1929, which provides that every action must be prosecuted in the name of the real party in interest. The position assumed by the defendants on this question cannot be sustained. The proper measure of damages for property lost by the negligence of a bailee is the reasonable market value of such property. Gibbons v. Chicago, B. & Q. R. Co., 98 Neb. 696, 154 N.W. 226. The reasonable market value of the stolen jewelry for the...