McKeever v. Kramer
| Decision Date | 06 January 1920 |
| Citation | 218 S.W. 403,203 Mo.App. 269 |
| Parties | ROBERT S. McKEEVER, Respondent, v. ARTHUR KRAMER, Doing Business as BURLINGTON HOTEL, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Benjamin J. Klene, Judge.
REVERSED.
Judgment reversed.
Durham & Durham for appellant.
(1) The court erred in refusing to instruct the jury to find for the defendant. (a) Because there was a failure to prove a cause of action based upon the liability of an innkeeper for valuables of a guest lost while a guest. De Lapp v VanCloster, 136 Mo. 475; 22 Cyc, 1088, citing Hays v. Turney, 23 Iowa 214. (b) Because there was a total failure to prove any authority in Fred Schmidt to bind defendant by the contract of failment or deposit testified to by plaintiff. 31 Cyc, 1644; Knocke v. Whiteman, 86 Mo.App. 568; Hutchinson v. Donovan, 76 Mo.App. 391; Bunn v. Johnson, 77 Mo.App. 596. (2) The court erred in the instruction given to the jury of its own motion, being a modification of the instruction requested by plaintiff. (a) The form of the instruction is misleading, in that it commands a verdict for plaintiff upon incomplete elements of his case and by a mere proviso injects another element into the case. (b) The instruction fails to define to the jury the elements necessary to constitute one a guest on a temporary absence and submits to the jury a question of law, namely the question of what constitutes a guest. Mfg. Co. v. Ball, 43 Mo.App. 509; Dry Goods Co. v. Schooley, 66 Mo.App. 415; Morton v. Heridom, 135 Mo. 617. (c) The evidence was conclusive that plaintiff was not a guest on a temporary absence, within the meaning of that term, while absent from the hotel from February 22 to March 5, yet the court submits the question to the jury. De Lapp v. VanCloster, 136 Mo.App. 475; 22 Cyc, 1088-89. (d) The instruction assumes, as a matter of law, that the agreement to keep the money was made in a representative capacity, which was an issue in the case. Crow v. Houch's Missouri, etc., 212 Mo. 589; 22 Cyc, 1079 (note 87). (e) The instruction attempts to submit to the jury a cause of action based upon the liability of an innkeeper for the valuables of his guest lost or converted while the relationship continued which was not within the issues raised by the pleadings, namely, the petition did not allege a loss or conversion during such relationship, necessary to such a cause of action. De Lapp v. VanCloster, 136 Mo.App. 475.
Frank H. Fisse for respondent.
(1) A depositor makes out a prima facie case against a gratuitous bailee when he shows a deposit made and a demand and refusal of the thing deposited. The onus is then upon the depositary to exonerate himself from the liability which attached when he assumed the custody of the article with which he was entrusted. He must either restore the thing bailed or account for his failure to return it. Wiser v. Chesley, 53 Mo. 547; Dixon v. McDonnell, 92 Mo.App. 479; Corbin v. Cleaning & Dyeing Co., 181 Mo.App. 151; Berger v. Storage & Commission Co., 136 Mo.App. 40, 41. (2) The clerk of the hotel was the agent of defendant and had authority to bind his principal under the facts and circumstances of this case. Buckle v. Probasco, 58 Mo.App. 49, 52; 2 Corpus Juris, 566; 22 Cyc, 1078. (3) The court's instruction was not error. Robert v. Rialto Building Co., 198 Mo.App. 121, 128.
Judging from the petition, evidence and instructions, this cause appears to be a mixture of a suit against defendant on his liability as an innkeeper and a suit against him based on his liability as a gratuitous bailee of plaintiff's property.
The petition alleged that on the 21st day of February, 1916, defendant was an innkeeper, and as such kept a common inn for the entertainment of the public in the City of St. Louis, known as the Burlington Hotel; that on said date plaintiff was received by defendant in his said inn as a traveler and guest; that as a guest of the said hotel, plaintiff on said date deposited with defendant the sum of $ 375 for safe keeping, and that thereafter plaintiff demanded the money so deposited, but the defendant refused and still refuses to pay the same.
The answer was a general denial, and after trial there was a verdict and judgment for plaintiff for the full amount sued for, from which judgment the defendant has prosecuted an appeal to this court, making the contention that the lower court should have directed a verdict for the defendant, for the reason that there was a failure to prove a cause of action based upon the liability of an innkeeper and, in the event the plaintiff claims there was a liability upon the defendant's part as a gratuitous bailee, that there was a failure to prove the authority of Fred Schmidt, hotel clerk, to bind the defendant by the contract of bailment.
Inasmuch as the uncontradicted evidence shows that at the time the plaintiff's money and Fred Schmidt, the night clerk, disappeared, the plaintiff had ceased to be a guest at the hotel, the plaintiff concedes he has no cause of action based upon the liability of the defendant as an innkeeper, but asserts defendant is liable as bailee of plaintiff's property.
Plaintiff, a resident of Indiana, was a traveling timber inspector for the Vandalia railroad with headquarters at St. Louis. For a number of years he had traveled in and out of this city and while here usually stopped at the defendant's hotel. He had been in the habit of stopping there for a period of seven years and was acquainted with the defendant Kramer and also with his night clerk, Fred Schmidt, who had been employed as clerk of the hotel for several years. On February 21, 1916, the plaintiff arrived in the city between 8 and 9 o'clock in the evening, registered at the defendant's hotel, and was assigned a room. He had with him at the time $ 375 which he brought with him to St. Louis for the purpose of paying an obligation the next day. On arrival at the hotel he received letters which required him to leave early the next morning for Southeast Missouri. He thereupon put the $ 375 in an envelope and left it with Fred Schmidt, the night clerk of defendant's hotel, telling the clerk that he wanted to leave it there for a few days and that he would be back. Fred Schmidt took the envelope and deposited same in the hotel safe in the presence of the plaintiff. Plaintiff stayed at the hotel that night and in the morning he paid the customary charge for his room and departed, saying to Fred Schmidt as he left that he should tell Mr. Kramer about the money and that the plaintiff would be back in a few days and would need it. Plaintiff, however, did not return to St. Louis until the 5th day of March, some twelve days later, when he then made demand upon Kramer for the money. At that time it appeared the money and also the night clerk had disappeared. Schmidt worked the night of the 22nd and also the 23rd, and then suddenly disappeared. When plaintiff had been the guest at the hotel on previous occasions he had been in the habit of leaving his money while a guest with defendant and also with Fred Schmidt, the clerk. Defendant did not know of the transaction until after the clerk left.
It is plain from this evidence that at the time the loss occurred the relation of innkeeper and guest had been terminated, as plaintiff had given up his room at the hotel, paid his bill and took his departure. When the relation of innkeeper and guest had been thus terminated by the plaintiff, the mere expectation of plaintiff to thereafter return and become a guest is not sufficient to support the continuation of the relation, and the plaintiff having settled his bill with the innkeeper, although he announced his intention to be absent only a few days, the relation of innkeeper and guest was ended, and for goods left in the inn the innkeeper could be liable only as a gratuitous bailee. [14 Ruling Case Law 553; DeLapp v. VanCloster, 136 Mo.App. 475, 118 S.W. 120.]
As heretofore stated, the plaintiff abandons his right to recover on the theory of defendant's liability as an innkeeper, and asserts that he established a case of liability against the defendant as a gratuitous bailee and made a prima-facie case when he proved that the money had been deposited with the defendant and that he thereafter...
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