Batterson v. VoGel

• Citation: 10 Mo.App. 235
• Parties: HENRY A. BATTERSON, Appellant, v. JOHN C. VOGEL, EXECUTOR, Respondent.
• Decision Date: 12 April 1881
• Court: Missouri Court of Appeals

10 Mo.App. 235

HENRY A. BATTERSON, Appellant,

v.JOHN C. VOGEL, EXECUTOR, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 12, 1881.

1. An inn-keeper is liable for a loss of his guest's goods not occasioned by the latter's negligence, the act of God, or the public enemy.

2. That a guest is provided with facilities for fastening his door which he does not use, is not proof of negligence which will discharge the inn-keeper from liability for loss of the guest's property.

3. That the guest has means furnished him for securing himself which he fails to use, is a fact which, with other circumstances of the case, should be left to the jury.

4. The question in such a case is, whether the loss would have occurred if the plaintiff had used the ordinary care which a prudent man might reasonably be expected to take.

5. Unless good ground for it appears, an instruction that if the jury believe that a witness has knowingly sworn falsely as to any material fact they may disregard his entire testimony, should not be given.

6. When a cause has been reversed because of the admission of certain testimony, the error in admitting the same testimony again is not necessarily cured by withdrawing it from the jury by an instruction.

APPEAL from the St. Louis Circuit Court, BOYLE, J

Reversed and remanded.

ALLEN & CASTE, with whom is L. B. VALLIANT, for the appellant: That the guest fails to lock his door will not relieve the inn-keeper from liability.-- Coyle's Case, 8 Cow. 32; Burgess v. Clements, 4 Mau. & Sel. 316; Classen v. Leopold, 2 Sweeny, 705: Hulett v. Swift, 33 N. Y. 573; Cashell v. Wright, 6 El. & Bl.--; Filipwoski v. Merriweather, 2 Fost. & Fin. 285; Mitchell v. Woods, 16 L. T. (N. S.) 676; Oppenheim v. White Lion, L. R. 6 C. P. 515; Buddenburgh v. Benner, 1 Hilt. 84. Unless the occasion requires it, it is error to warn the jury by an instruction against false swearing.-- Iron Mountain Bank v. Murdock, 62 Mo. 74; White v. Marcy, 64 Mo. 559.

W. H. H. RUSSELL and BROADHEAD, SLAYBACK & HAEUSSLER, for the respondent: A new trial will not be granted because incompetent testimony was allowed to go before the jury, which was afterwards taken from their consideration by a proper instruction.-- Fitzgerald v. The State, 14 Mo. 413. “Where there is testimony tending to show negligence, it is for the jury, and not for the judge, to determine the question of proper care.”-- Sioux City R. Co. v. Stout, 17 Wall. 657. “A want of ordinary care on the part of the guest will relieve the inn-keeper.”-- Jalie v. Cardinal, 35 Wis. 118.

BAKEWELL, J., delivered the opinion of the court.

This is an action for the value of certain money and jewelry, worth altogether $275, alleged to have been stolen from plaintiff whilst a guest in a hotel kept by defendant's testator, in St. Louis. The answer was a general denial, and that the loss was occasioned by the negligence of plaintiff.

There was evidence tending to show that the lock of plaintiff's room was a complicated lock, working with a key outside, and with a thumb-screw inside. The thumb-screw required three turns thoroughly to lock the door. Every turn made a distinct click of the lock. Plaintiff testified that he turned the thumb-screw, and thought he had locked the door, when he went to bed. Whether the door was really locked, does not appear; there was some testimony tending to show that the lock was out of order. That the property was taken from the room during the night appears from uncontradicted testimony. There was evidence tending to show every fact essential to a recovery. There was a verdict and judgment for defendant.

The court gave the following instruction at the instance of defendant:--

“The court instructs the jury that although you may believe and find from the evidence that the plaintiff lost the money and property described in the petition at the said hotel, yet if you further believe and find from the evidence that the plaintiff did not safely lock or secure the door to his room, and by reasonable care and prudence he might have done so, and by reason of said negligence the loss occurred, you will find for the defendant.”

We know of no rule of law discharging the inn-keeper if it be shown that the guest might have locked his door and did not do so. There is a statute to that effect in New York; but it is in derogation of the common law. We have no such statute. The liability of an inn-keeper, though not precisely the same, is analogous to that of a common carrier, so far as it is not modified by statute; and the reasons for the liability are the same. It is quite clear that a guest at an inn is not bound to keep his room constantly locked, in order to entitle him to recover for the loss of his goods. Buddenburg v. Benner, 1 Hilt. 84; Huntington v. Drake, 24 Ind. 348; Classen v. Leopold, 2 Sweeny, 705; Filipwoski v. Merriweather, 2 Fost. & Fin. 285; Mitchell v. Woods, 16 L. T. (N. S.) 676; Morgan v. Ravey,6 Hurl. & N. 265; Oppenheim v. White Lion, L. R. 6 C. P. 515.

Morgan v. Ravey, supra, was a case in which the guest whose goods were taken from his room did not use the night-bolt. The finding for plaintiff was sustained by the judges of the Exchequer. It was objected that the directions to the jury assumed that the defendant was liable if there was no negligence in the plaintiff, and that therefore the defendant would be liable, though not only not negligent, but diligent. As to this the court says: “But we think this is the law. It is true that the expression in the forms in tort is that the loss was propter defectum of the inn-keeper; but we think ...