Adler v. Planters' Hotel Co.

• Decision Date: 04 January 1916
• Docket Number: No. 14232.,14232.
• Parties: ADLER v. PLANTERS' HOTEL CO.
• Court: Missouri Court of Appeals

181 S.W. 1062

ADLER v. PLANTERS' HOTEL CO.

No. 14232.

St. Louis Court of Appeals. Missouri.

January 4, 1916.

Rehearing Denied January 26, 1916.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

"Not to be officially published."

Action by Simon J. Adler against the Planters' Hotel Company. Verdict for plaintiff was set aside, and he appeals. Reversed and remanded, with directions to render verdict and enter judgment for plaintiff.

Albert C. Davis, of St. Louis, for appellant. Fordyce, Holliday & White and James A. Rector, all of St. Louis, for respondent.

NORTONI, J.

This is a suit for $100, said to have been deposited with defendant hotel company. The finding was for plaintiff, but the court set the verdict aside, in the view it had erred in refusing an instruction requested by defendant. Plaintiff prosecutes the appeal from this order of the court.

Defendant is an incorporated hotel company, and as such maintains its establishment in St. Louis. Plaintiff was a guest at the hotel, and his evidence is that on the 9th day of August, 1912, he handed to the hotel clerk $100, together with his key to box No. 9 in defendant's vault, for deposit. The clerk retired to the vault, and then returned and delivered the key to plaintiff. Again, on the 10th day of August, 1912, plaintiff gave the clerk in charge of the hotel office and the vault the sum of $165, together with his key to box No. 9 in defendant's vault, and the clerk deposited this amount in the vault. Subsequently plaintiff demanded the return of the money so deposited, and received only $165; that is, the amount of the second deposit. The $100 deposited on August 9th, it is said, was never returned to plaintiff, though demanded, and defendant asserts no such deposit was made.

The case originated before a justice of the peace, and found its way into the circuit court by appeal. No formal pleading whatever was interposed on the part of defendant, either before the justice or in the circuit court, but the appearance of defendant in such circumstances raised the general issue for the purpose of the case. At the trial the issue sharply contested related to the deposit of the $100 on August 9th. Plaintiff insisted that he deposited this amount with the clerk of the hotel, and subsequently demanded its return, and that no return of the money was made to him. On the other hand, defendant insisted sharply that no such deposit was made, and that no one connected with the hotel knew anything about it, and defendant's counsel in his opening statement declared that defendant would defend on this ground. The court submitted this issue to the jury by instruction, and, as before said, the jury found in favor of plaintiff. However, defendant requested, and the court refused, the following instruction:

"The jury are instructed that if you believe and find from the evidence that the Planters' Hotel Company did receive from the plaintiff the money claimed by plaintiff in this case, the Planters' Hotel Company is not bound absolutely and in all events to return the money, but is only liable in case the hotel company is guilty of gross negligence in losing or misplacing plaintiff's money; nor was the Planters' Hotel Company bound to use, in taking care of plaintiff's money, that degree of care and prudence which persons of extraordinary prudence and foresight are accustomed to use; nor was the Planters' Hotel Company bound to use that degree of care and diligence which persons of ordinary care and diligence observe. Hence, if you find and believe from the evidence in this case that the Planters' Hotel Company did use that degree of care which the most...