Corbin v. Gentry & Forsythe Cleaning and Dyeing Company
| Decision Date | 18 May 1914 |
| Citation | 167 S.W. 1144,181 Mo.App. 151 |
| Parties | W. D. CORBIN, Respondent, v. GENTRY & FORSYTHE CLEANING AND DYEING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.
AFFIRMED.
Judgment affirmed.
Langsdale & Howell for appellant.
(1) The demurrer offered on behalf of the appellant at the conclusion of respondent's testimony and the demurrer offered on behalf of the appellant at the close of all the testimony in the case, should have been sustained; and the peremptory instruction directing a verdict for appellant should have been given at the close of all the testimony. Levi & Co. v. Railroad, 157 Mo.App. 536; Ridgeway et al. v Railroad, 161 Mo.App. 260; Decker v. Railroad, 149 Mo.App. 534; Am. Brew. Assn. v. Talbot et al., 141 Mo. 674; Edwards Bailments, sec. 286; Clark v Shrimski, 77 Mo.App. 166. (2) The court erred in refusing to give an instruction offered on behalf of the appellant on the burden of proof. Berger v. Storage Co., 136 Mo.App. 36.
Sebree Conrad & Wendorff for respondent.
(1) In bailment cases it is not necessary to plead negligence, but an allegation of contract of bailment, compliance therewith by plaintiff, and a failure of compliance therewith by defendant, states a good cause of action. Freeman v. Freeman, 141 Mo.App. 359, 363; Dixon v. McDonnell, 92 Mo.App. 479, 481; Casey v. Donovan, 75 Mo.App. 665, 667. (2) Even though it be held the petition is founded on negligence, yet since the allegations are general and not special, res ipsa loquitur is applicable and respondent made a prima-facie case by showing delivery of the clothes to appellant and failure of appellant to return same to respondent. Freeman v. Freeman, 141 Mo.App. 359, 363, 664; Berger v. Storage & Commission Co., 136 Mo.App. 36, 40; Trimming Co. v. Railroad Co., 165 Mo.App. 353, 355.
This suit originated in a justice court upon a statement which alleged that "plaintiff delivered to defendant a suit of clothes, the property of this plaintiff, of the value of eighty-five dollars ($ 85), for the purpose of being cleaned and pressed by defendant, which said suit defendant agreed to return to plaintiff when said work was completed; that defendant received said suit upon the agreement and for the purpose aforesaid, but has failed to perform said agreement on its part, and so carelessly and negligently kept said suit, that while it was in the possession of defendant for the purpose as aforesaid, it was lost, destroyed or stolen, to plaintiff's damage in the sum of eighty-five dollars." A trial in the circuit court resulted in a verdict and judgment for plaintiff and defendant appealed.
Plaintiff proved at the trial that he delivered the suit to defendant for cleaning and pressing and that defendant failed to return it and attempted to excuse its failure on the ground that a burglar had entered the shop and stolen the suit.
Defendant admitted the bailment and the loss of the property and introduced evidence tending to show that a burglar had entered the shop one night through a closet window and had stolen the suit and other articles of clothing. The employee of defendant who closed the store the night of the theft testified to having locked the doors and windows. The examination of the premises which immediately followed the discovery of the loss disclosed that the lock of one of the windows was broken and that the window had been pried open.
The only instruction given at the request of plaintiff was on the measure of damages. On behalf of defendant the jury were instructed "that if you find and believe from the evidence that the suit of clothes mentioned in the evidence was stolen from defendant while in the custody of defendant your verdict must be for the defendant unless you further find that said suit was stolen through some act or acts of negligence or carelessness on the part of the defendant or its agent or agents."
Before this instruction was asked the court refused to give a demurrer to the evidence and this ruling is assigned as the principal error committed against defendant at the trial.
The duty defendant owed plaintiff was that of a bailee for hire. The gist of a cause of action inuring to a bailor for the inadvertent loss of the property during the bailment is negligence of the bailee and in an action for such loss the...
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Benz v. Monarch Trans. & Stor. Co.
...the facts, that if defendant had not been guilty of negligence, a fire would not have occurred in this compartment. [Corbin v. Gentry, etc., Dyeing Co., 181 Mo. App. 151; Vaughn v. Jackson, 216 S.W. The judgment is affirmed. Frank, C., concurs. * Corpus Juris-Cyc References: Warehousemen, 4......