Leon v. Kitchen Brothers Hotel Company
| Decision Date | 22 February 1938 |
| Docket Number | 30144 |
| Citation | 277 N.W. 823,134 Neb. 137 |
| Parties | S. J. LEON, APPELLEE, v. KITCHEN BROTHERS HOTEL COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C THOMSEN, JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
1. During the trial of a case, the court overruled a motion for directed verdict for plaintiff and submitted case to jury. Jury returned verdict for defendant. Plaintiff filed motion for judgment notwithstanding verdict. Court at same term sustained motion in part and entered judgment for plaintiff for a portion of amount claimed. Held, that the trial court had jurisdiction to vacate, set aside, amend or correct any judgment or orders made by it at the same term.
2. Justice does not require a court or jury to accept as absolute verity any statement of a witness not contradicted by direct testimony. Circumstantial evidence is equally competent with direct testimony; their relative convincing powers as against each other are for the jury's determination.
3. Plaintiff and his wife, prior to the alleged loss from his room, had lived at defendant's hotel for nearly two years, under agreement whereby he was given a monthly rate, received a bill every week with percentages figured according to the days, and paid the bill weekly; it all figuring up at end of the month to the agreed monthly rental. He registered at hotel; was assigned rooms; was furnished the same service and accommodations as transient patrons of hotel. He had no other home or domicile and was not a traveler; but so far as actual relationship between plaintiff and management of the hotel was concerned, it was identical with that existing between the hotel management and temporary guests, except that he was charged, and paid, as above specified. Held, that the plaintiff and his wife were " guests" within the meaning of section 41-118, Comp.St.Supp.1935, and section 41-119, Comp.St.1929, with rights and liabilities governed thereby.
4. Where hotel company claims the benefit of a statute altering its common-law liability, the burden is on it to show compliance with the provisions of such statute on its part.
5. A platinum wrist watch is neither an article of " jewelry," nor an article of " personal ornament," within section 41-118, Comp.St.Supp.1935, exempting operators of hotels who have provided metal safe fit for custody of money, jewelry, personal ornaments, etc., and who keep suitable locks on sleeping rooms, and a copy of law posted in ten places in hotel, from liability for loss of the guest's property specified therein, where guest does not offer to deliver it for custody in such metal safe.
6. A lady's Tiffany diamond ring and a lady's 14-carat Tiffany wedding ring band are articles of " jewelry" and " personal ornament," and held to be within the provisions of said section 41-118, Comp.St.Supp.1935, requiring that they be delivered to keeper of hotel for custody in metal safe, regardless of specific use to which rings may be available and adapted, or the occasion which may have brought them into possession of owner, or the fact that they may be part of owner's ordinary wearing apparel.
7. In a case involving said section 41-118, Comp.St.Supp.1935, if a proprietor of a hotel has complied with the requirements on his part by furnishing metal safe, suitable locks, and posting notices, a guest's failure to deliver money, claimed to have been lost from his room, to keeper of hotel for custody in metal safe, held, to relieve the proprietor of the hotel of liability therefor, notwithstanding the amount of money, considering guest's financial standing, his business connections and requirements of hotel life, may have been a reasonable sum for the guest to carry on his person or retain in his room.
8. Section 41-118, Comp.St.Supp.1935, provides: " Provided, however, that the proprietor of such business place, shall not be obliged to receive from any one guest for deposit in such safe or vault, any property hereinbefore described, exceeding a total value of $300, and shall not be liable for the value of any such property in excess of $300, whether receipted for or not." Held, that such proviso limits the liability of the proprietor of the hotel for all property lost by guest to the sum of $300, in the absence of pleading and proof of actual negligence; and, further, that by its terms, it applies to all property whether receipted for or not.
Appeal from District Court, Douglas County; Thomsen, Judge.
Action by S. J. Leon against the Kitchen Bros. Hotel Company to recover the value of personalty allegedly lost by plaintiff while living in hotel operated by the defendant. From a judgment in favor of the plaintiff notwithstanding the verdict of the jury, the defendant appeals, and the plaintiff cross-appeals.
Judgment reversed and cause remanded.
Finlayson, Burke & McKie, for appellant.
Leon & White and Louis E. Lipp, contra.
Heard before GOSS, C. J., ROSE, EBERLY, PAINE, CARTER and MESSMORE, JJ., and ELDRED, District Judge.
This action was instituted by S. J. Leon, appellee and cross-appellant, herein referred to as plaintiff, against Kitchen Brothers Hotel Company, a corporation, appellant and cross-appellee, herein referred to as defendant, to recover the value of personal property alleged to have been lost in the Paxton Hotel in Omaha while the plaintiff and his wife were living at said hotel. The petition alleges that about July 22, 1935, plaintiff and his wife were guests at defendant's Hotel Paxton, occupying rooms 1021-1024. As a first cause of action it is alleged that plaintiff's wife had on her person, as a part of her ordinary wearing apparel and wearing outfit, one lady's Tiffany diamond ring of the value of $ 498.50, one lady's 14-carat Tiffany wedding ring band of the value of $ 10, and one lady's platinum diamond wrist watch of the value of $ 285; that on said date when retiring for the night she removed said articles from her person and placed the same in her purse on a dresser in a sleeping room constituting a part of rooms 1021-1024; and that said articles were missing when she awoke the following morning. Plaintiff alleges that his wife assigned her claim for the loss of said property to him. In the second cause of action plaintiff alleges that he removed $ 60 from his person on retiring on said date, and placed the same upon the dresser in said sleeping room; and that said money was missing the next morning. As applicable to both causes of action, it is alleged that there were no suitable locks or bolts on the doors of the sleeping rooms used by plaintiff and his wife; and that keys were available to numerous persons other than plaintiff and his wife, contrary to their wishes and without their consent, and that defendant knew, or should have known, of said facts.
The answer of the defendant admits it operated the Paxton Hotel, and alleges that as a hotel keeper it complied with the provisions of the statutes of Nebraska with reference thereto. It also alleges that plaintiff and his wife failed to deliver said articles to the defendant for safe-keeping; and further denies that plaintiff and his wife were guests, but alleges that they were tenants and lessees, leasing the premises occupied by them from month to month on a monthly rental basis, and denies generally all other allegations. The reply was general denial.
On trial to jury, after the taking of evidence had been completed, plaintiff moved the court that the jury be instructed to return a verdict in his favor in the amount of $ 840, which motion was overruled and case submitted to the jury. Verdict was returned for defendant. Plaintiff thereupon moved for judgment in the sum of $ 840, notwithstanding verdict of the jury. Motion was sustained in part, and the court found the plaintiff entitled to recover from defendant for the following items: Wrist watch, $ 285, wedding ring, $ 10, and cash, $ 60, total $ 355, for which judgment was rendered. Motions of both plaintiff and defendant for a new trial were overruled. Defendant has appealed. Plaintiff has filed cross-appeal.
The first proposition urged by defendant is that judgment notwithstanding the verdict may be rendered only when statements in the pleadings, without the introduction of evidence, require a judgment in favor of one of the parties. Section 20-1315, Comp. St. 1929, and a number of decisions of this court are cited in support of this contention. But this case comes within the exception to this general rule announced in Netusil v. Novak, 120 Neb. 751, 235 N.W. 335, where it is said:
Defendant urges that an issue for the jury was presented on question of loss of property. While the plaintiff seeks to apply the rule that, when an allegation is supported by competent testimony which is uncontroverted and uncontradicted, it is error to submit the same to the jury as a question for their determination. The rule urged by plaintiff is to be followed when the facts justify its application. However, direct testimony may be controverted by circumstantial evidence. The administration of justice does not require the establishment of a rule which would compel the court or jury to accept as...
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