Pregent v. Mills

• Decision Date: 09 December 1908
• Citation: 98 P. 328,51 Wash. 187
• Parties: PREGENT v. MILLS et al.
• Court: Washington Supreme Court

98 P. 328

51 Wash. 187

PREGENT v. MILLS et al.

Supreme Court of Washington

December 9, 1908

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Charles Pregent against D. O. Mills and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Sayre &amp Sutherland, for appellants.

Reynolds Ballinger & Hutson, for respondent.

DUNBAR J.

This is an action at law, brought for the recovery of money deposited by the respondent with Mills & Smith, copartners engaged in the saloon business. The amount in controversy is $530. The respondent, on the 25th of July, 1907, came to appellants' saloon, and deposited in their safe, for safe-keeping for him, the said sum of $530 in gold. The money was placed in a buckskin sack in the presence of the respondent. The sack was tied, and placed in appellants' safe, which was behind and near the closed end of the bar. The safe was an ordinary iron safe. It is conceded that no consideration was received by appellants for keeping respondent's money. At this time appellants had in their employ a bartender named Axel Johnson. He was present, and saw respondent deliver the money to appellants. It is the contention of the appellants that, so far as they knew Johnson did not know the combination of the safe, nor did any one save the appellants. It was their custom to lock the safe at closing time about 1 o'clock a. m. of each night, and to open at about 10:30 the following morning, and to keep the safe locked during the day on half combination. It is admitted that the safe was behind the bar, and that a bartender, by making special effort, could ascertain the means of opening the safe when on half combination; it being necessary to open and close the safe a number of times throughout the day. On the night of either the 30th or 31st of July one of the appellants, in checking the contents of the safe, discovered that the sack containing the respondent's deposit was missing. It appears that earlier in the evening the appellant Smith had left the saloon for his evening meal, remaining away about 35 minutes, and leaving the barkeeper Johnson in charge. Upon the discovery that the sack was missing the fact was reported to a detective, and suspicion centered on Johnson, who was placed under arrest, but subsequently released. He was again arrested on complaint made by Smith, and was again subsequently released by order of the prosecuting attorney. The money not being returned, this action was commenced. At the beginning of the trial the court ruled that the burden of proof was on the defendants. After the close of all the testimony appellants moved for a nonsuit, which motion was denied, and the cause submitted to the jury. The jury returned a verdict in favor of respondent. Appellants thereafter moved for judgment non obstante veredicto, and also for a new trial, which motions were denied by the court, and judgment entered a favor of respondent, from which judgment this appeal is taken.

The assignments of error are (1) that the court erred in placing the...