Kramer v. Grand Natl. Bank

• Decision Date: 17 April 1935
• Docket Number: No. 32532.,32532.
• Parties: HENRY KRAMER, Appellant, v. GRAND NATIONAL BANK OF ST. LOUIS, a Corporation.
• Court: Missouri Supreme Court

81 S.W.2d 961

HENRY KRAMER, Appellant, v. GRAND NATIONAL BANK OF ST. LOUIS, a Corporation.

No. 32532.

Supreme Court of Missouri.

Division One, April 17, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. James F. Green, Judge.

REVERSED AND REMANDED.

A. Samuel Bender and Robert L. Aronson for appellant; Robert E. Hannegan of counsel.

(1) The relationship between an owner of personal property who deposits same in a safe deposit box and the company which owned said box is that of bailor and bailee. Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 977; Young v. First Natl. Bank, 150 Tenn. 451, 265 S.W. 681; McDonald v. Perkins & Co., 133 Wash. 622, 234 Pac. 456; Morgan v. Citizens' Bank, 190 N.C. 209, 129 S.E. 585; Webber v. Bank of Tracy, 33 Cal. App. 29, 225 Pac. 41; Schaefer v. Washington Safe Deposit Co., 281 Ill. 43, 117 N.E. 781; Trainer v. Saunders, 270 Pa. 451, 113 Atl. 681; Lockwood v. Manhattan Storage & Warehouse Co., 28 App. Div. 68, 50 N.Y. Supp. 974; Blair v. Riley, 37 Ohio App. 513, 175 N.E. 210; Cussen v. So. Cal. Savs. Bank, 113 Cal. 534, 65 Pac. 1099. (2) Generally, a bailee is estopped to deny or dispute the title of his bailor, and the instant case comes within no exception to the rule. 6 C.J. 1108; Dougherty v. Chapman, 29 Mo. App. 233; Pulliam v. Burlingame, 81 Mo. 111; Oehmen v. Portmann, 153 Mo. App. 240, 133 S.W. 104; Sherwood v. Neal, 41 Mo. App. 416; Bricker v. Stroud Bros., 58 Mo. App. 183. (3) Instruction 3 is further erroneous because it is not based upon and not authorized by any of the evidence in the case, and it therefore authorizes a verdict based solely upon speculation, surmise and conjecture. Arkla Lumber & Mfg. Co. v. Henry Quellmalz Lumber & Mfg. Co., 252 S.W. 961; Willis v. Kansas City Term. Ry. Co., 199 S.W. 736. (4) The instruction impinges upon the rule that if plaintiff were himself merely a bailee of the contents of the box, rather than the "owner" thereof, yet he is entitled to bring an action and to recover for the loss thereof. 6 C.J. 1149; Vermillion v. Parsons, 101 Mo. App. 602, 73 S.W. 994; Sowden v. Kessler, 76 Mo. App. 581; Parker-Washington Co. v. St. Louis Transit Co., 165 Mo. App. 302, 147 S.W. 189. (5) Instruction 3 conflicts with, and therefore destroys, Instruction 2. Anderson v. Sutton, 308 Mo. 406, 275 S.W. 32; Crone v. United Rys. Co., 236 S.W. 657. (6) Instruction 3 disposes of the case on premises which relate only to a portion of the issues and subject matter. (7) Instruction 3 was grammatically incorrect and confusing. 1 Randall on Instructions, 863; Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 460. (8) Instruction 3 contained an undue and prejudicial emphasis in that it twice directed a verdict for defendant. (9) Instruction 3 should not have been given to the jury in mutilated form. (10) The error committed in giving Instruction 3 was prejudicial and reversible error. Hurck v. Mo. Pac. Ry. Co., 252 Mo. 39; Fink v. Kansas City So. Ry. Co., 161 Mo. App. 314; Mansur-Tebbetts Implement Co. v. Ritchie, 143 Mo. 587; Brown v. Railroad Co., 281 S.W. 452; Moloney v. Boatmen's Bank, 232 S.W. 133; Thompson v. Main Street Bank, 42 S.W. (2d) 56; Larsen v. Webb, 58 S.W. (2d) 971. (11) Instruction 2 should have been given as offered by plaintiff and without modification; and plaintiff's refused Instruction A should have been given; each and both instructions being proper, accurate, complete, and legally correct. Allen v. Mansfield, 82 Mo. 688.

Cave & Hulen for respondent.

(1) Defendant's demurrer at the close of all the evidence should have been sustained. (a) The burden was on plaintiff to prove that the loss, if any, sustained by him, was caused by the negligence of defendant. McKeever v. Kramer, 218 S.W. 403; Witting v. Ry. Co., 101 Mo. 631; Ducker v. Barnett, 5 Mo. 97; Holtzclaw v. Duff, 27 Mo. 392; State ex rel. Comm. Co. v. Cochrane, 264 Mo. 581; Carpenter v. Hines, 239 S.W. 594; March v. Railroad Co., 167 S.E. 276; Wilson v. Christal, 176 N.Y. Supp. 342; Cheshire v. Bailey, 1 K.B. 237, 4 B.R.C. 553, 74 L.J.K.B. (N.S.) 176, 92 L.T. (N.S.) 142, 21 Times L.R. 130, 53 Week. Rep. 322, 1 Ann. Cas. 94; Schmidt v. Blood, 9 Wend. 268, 24 Am. Dec. 143; Meridian Fair & Exposition Assn. v. Railroad Co., 70 Miss. 808, 12 So. 555; Stone v. Case, 43 L.R.A. (N.S.) 1168, 34 Okla. 5, 124 Pac. 960; Higman v. Camody, 112 Ala. 267, 57 Am. St. Rep. 33, 20 So. 480; Lancaster Mills v. Merchant's Cotton-Press & Storage Co., 89 Tenn. 1, 24 Am. St. Rep. 586, 14 S.W. 317; Stewart v. Stone, 127 N.Y. 500, 14 L.R.A. 215, 28 N.E. 595; Cumins v. Wood, 44 Ill. 416, 92 Am. Dec. 189; Yazoo & M. Valley Railroad Co. v. Hughes, 22 L.R.A. (N.S.) 975, 94 Miss. 242, 47 So. 622, 16 Am. & Eng. Enc. Law 448; Schouler on Bailm. (3 Ed.), p. 29; Van Zile on Bailm. (2 Ed.), sec. 202. (b) There was a total failure of proof on the charge of negligently leaving — "the whole of said bank and the entrance to said safety deposit boxes unguarded by any watchman or other person during the early part of the said 25th day of May, 1930." Roseman v. United Rys. Co., 197 Mo. App. 342. (2) Plaintiff, by offering Instruction 2, abandoned all assignments of negligence contained in its petition except the charge that the defendant negligently — "at and prior to the time of said robbery left the whole of said bank and the entrance to said safe deposit box unguarded by any watchman or other person during the early part of said 25th day of May, 1930," as contained in said instruction. Johnson v. Railroad Co., 259 Mo. 551; Yuronis v. Wells, 17 S.W. (2d) 521; Dietzman v. St. Louis Screw Co., 254 S.W. 65; Siberell v. Railroad Co., 9 S.W. (2d) 917; Crossno v. Terminal Railroad Assn., 41 S.W. (2d) 800. (a) It was not error for the trial court to add a paragraph to plaintiff's Instruction 2 withdrawing all assignments of alleged negligence excepting the one contained in the instruction. Fuenfgeld v. Holt, 70 S.W. (2d) 147; Wright v. Quattroch, 49 S.W. (2d) 7; Linders v. Peoples Motor Bus Co., 32 S.W. (2d) 582. (3) The trial court properly refused plaintiff's Instruction A because: (a) There was no evidence to support the assignments of negligence contained in the instruction. (b) Said instruction is confusing, misleading and does not definitely tell the jury the parts of the instruction that are to be considered as assignments of negligence. Levi & Co. v. Railroad Co., 157 Mo. App. 536; Hartford Mining Co. v. Tabon, 21 S.W. (2d) 207; Casey v. Donovan, 65 Mo. App. 521; Halyard v. Dechelman, 29 Mo. 459; Bowman v. Am. Car & Foundry Co., 226 Mo. 53; Rochette v. Terminal Ry. Assn., 225 S.W. 1019; Stanard Milling Co. v. Transit Co., 122 Mo. 258. (4) Plaintiff having failed to make a submissible case the judgment for defendant was for the right party and error, if any, in the instructions, is harmless. Bello v. Stuever, 44 S.W. (2d) 621; Frick v. Millers' Natl. Ins. Co., 223 S.W. 644; Hammond v. Emery-Bird-Thayer D.G. Co., 240 S.W. 170; Cadwell v. Wilson Store & Mfg. Co., 238 S.W. 415; Moloney v. Boatmen's Bank, 288 Mo. 435, 232 S.W. 133; Waldmann v. Skrainka Const. Co., 289 Mo. 622, 233 S.W. 242; Zasemowich v. Am. Mfg. Co., 213 S.W. 799; Quinn v. Met. St. Ry. Co., 218 Mo. 545, 118 S.W. 46; Walsh v. St. Louis Ex. & M. Assn., 101 Mo. 534, 14 S.W. 722.

COLES, J.

This is a suit brought by appellant Henry Kramer as plaintiff in the Circuit Court of the City of St. Louis against Grand National Bank of St. Louis, Ed Mays, Gifford J. Herbert and William A. Brittin, as defendants, for the recovery of damages alleged to have been sustained by plaintiff as the result of the theft of diamonds, jewelry and money from a safe deposit box, rented by the plaintiff from the defendant bank. Plaintiff alleged that the theft of the contents of his safe deposit box resulted from the negligence and carelessness of the defendants in failing to properly guard and safeguard the defendant bank's safe deposit vault and particularly the safe deposit box rented to plaintiff, and set forth the negligence complained of in ten specifications. At the close of plaintiff's case in the trial court plaintiff dismissed his suit as to the defendants Ed Mays, Gifford J. Herbert and William A. Brittin. In his petition plaintiff set forth in detail the items of property alleged to have been placed in his safe deposit box and to have been stolen therefrom, and also the value of each item and sought recovery in the aggregate sum of $38,365. The total damages for which recovery was sought by plaintiff included the alleged value of "loose diamonds," mounted diamonds, mountings and jewelry averred to be of the value of $35,665. And also the sum of $2700 "cash." Among the assignments of negligence set forth in plaintiff's petition was the following: "Defendants negligently and carelessly left the whole of said bank and the entrance to said safe deposit vault wholly unguarded by any watchman or other persons during the early part of May 25, 1930, while said vault was in the unprotected and exposed condition hereinbefore described, to entrance by burglars and thieves." Other assignments of negligence charged in plaintiff's petition will require consideration upon this appeal but they will be discussed hereafter. The defendant bank filed a general denial to plaintiff's petition. At the close of all the evidence in the trial court defendant requested an instruction in the nature of a demurrer to the evidence which the court refused to give. The jury returned a verdict in favor of defendant upon which judgment was entered. Plaintiff's motion for new trial was overruled in due course and thereupon plaintiff was granted an appeal to this court.

The alleged errors of the trial court assigned and urged in this court by appellant are:

1. The trial court erred in giving defendant's Instruction No. 3.

2. The trial court erred in refusing to give Instruction No. 2 requested by plaintiff.

3. The trial court erred in modifying plaintiff's Instruction No. 2 and...