Robert v. Rialto Building Company
| Citation | 199 S.W. 428,198 Mo.App. 121 |
| Parties | DOUGLAS W. ROBERT, Appellant v. RIALTO BUILDING COMPANY, Respondent |
| Decision Date | 04 December 1917 |
| Court | Court of Appeal of Missouri (US) |
Appeal from the Circuit Court of the City of St. Louis.--Hon. George H. Shields, Judge.
Order reversed and cause remanded. (with direction).
Brownrigg Mason & Altman for appellant.
It was not error to give the instruction on the credibility of witnesses. There was a decided conflict in the testimony. The circuit court misconstrued the case of Keeline v Sealy, 257 Mo. 497; Weller v. Laboratories Corp., 191 S.W. 1056; Volk v. Zepp, 190 S.W 609; Dawson v. Flintom, 190 S.W. 972; Schuler v Life Ins. Co., 176 S.W. 274; Price v. Building Construction Co., 191 Mo.App. 395.
Blodgett & Rector for respondent.
(1) The action of the trial court in granting the defendant a new trial should be upheld because the verdict of the jury was clearly against the weight of the evidence. (2) It was gross error to read to the jury instruction No. 1 offered by the plaintiff, in view of the fact that at most defendant was only a gratuitous bailee and liable only for gross negligence. Story on Bailments, 63; McKenna v. Walker, 85 Mo.App. 570; Taussing v. Shields, 26 Mo.App. 318; Wiser v. Chesley, 53 Mo. 547; Mason v. Stockyards Co., 60 Mo.App. 97; 3 Ruling Case Law, sec. 27, p. 102; Townsend v. Meagher, 44 Mo. 368. (3) The trial court's action in granting defendant a new trial on account of the erroneous giving of instruction No. 5 of the court's own motion was proper. Keeline v. Sealy, 257 Mo. 527.
This action was instituted before a justice of the peace to recover the value of three chairs, which, it is charged, were received by the defendant corporation from plaintiff "for safe-keeping and delivery of same" to plaintiff, and which defendant refused to so deliver on plaintiff's demand. The trial before the justice of the peace resulted in a judgment for plaintiff and on defendant's appeal to the circuit court and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff in the sum of $ 40. Thereafter, the court sustained defendant's motion for a new trial upon the ground that the court had committed error in giving an instruction to the jury, of the court's own motion, on the credibility of witnesses and the weight to be given to their testimony. From the order granting such new trial plaintiff prosecutes the appeal before us.
It appears that plaintiff, an attorney at law, became a tenant of the defendant on March 1, 1912, upon which date plaintiff moved his law office from another building in the City of St. Louis to the "Rialto Building," taking with him certain office furniture, including six "reception-room chairs;" and that for lack of room in his new quarters plaintiff requested one Gus Wichman, "janitor" of defendant's building, and said by plaintiff to have been in charge thereof, to take three of these chairs and store them for plaintiff for a time. It is undisputed that Wichman received the three chairs at or about the time when plaintiff became a tenant of the building. The remaining three of the six chairs were placed in plaintiff's lobby or reception-room constituting a part of his offices in the building. It seems that the three chairs delivered to Wichman were placed by him in his "private office," on the same floor on which plaintiff's offices were situated.
Plaintiff's testimony is that the three chairs which had been delivered to Wichman were never returned. On or about March 1, 1914, plaintiff moved from the building, as stated above, and shortly prior to that date plaintiff made demand upon Wichman for the three chairs in controversy. Plaintiff's testimony is that when such demand was made, Wichman said that he did not have the chairs and did not know where they were; that thereupon plaintiff and Wichman made search in the attic of the building and throughout all the floors thereof but were unable to locate the chairs; that in the latter part of April or early in May, 1914, Wichman came to plaintiff's office and, for the first time, asserted that the chairs had been previously delivered to plaintiff.
In behalf of defendant the testimony is that the three chairs left with Wichman on about March 1, 1912, were delivered to plaintiff, at the request of a stenographer then in plaintiff's employ, by depositing them in his lobby or reception-room in the Rialto Building some time in the summer of 1912. Wichman testified that pursuant to this request he ordered his assistants, one Kolen and Kalisch, to take the chairs to plaintiff's office, and that this was done in the latter part of June or early in July, 1912. And this witness declared that when plaintiff made demand for the chairs, about March 1, 1914, he then told plaintiff that they had been previously returned. Kolin and Kalisch testified that they took three chairs to plaintiff's office in the summer of 1912; and plaintiff's former stenographer--who was with plaintiff but for a few months during that summer--testified that she received the chairs.
Plaintiff, however, denying that the chairs in controversy were ever returned to his office, testified that during all of the time that he occupied offices in the Rialto building he had but three of the original six chairs in his lobby or reception-room. And an attorney, who had previously been a member of plaintiff's former law firm, and who was familiar with the six reception-room chairs mentioned, testified that after plaintiff moved to the Rialto building he was in the latter's offices there almost daily until about October 1, 1912, in connection with matters of business in which he and plaintiff were interested, and that during all of that period he saw but three of these chairs in plaintiff's lobby or reception-room.
Touching the matter of Wichman's authority, plaintiff testified that Wichman was in charge of the Rialto building during the period in question; that there was no one "in the building over him;" that it was defendant's custom to take care of any furniture for a tenant in the building and store it, usually in the attic; and that no furniture could be removed from the building without Wichman's permission.
Wichman at first testified that it was not the custom of the building company to store furniture for tenants, and that the attic contained boxes "and a lot of stuff," but no furniture. Later he said that there was some "old scratched chairs up there and so on, if you want to call that furniture." And still later in his testimony he admitted that he had often had tenants ask him to take charge of furniture for them and that he had done so; that he had placed desks in the attic as well as in his office; and that this had been his practice.
An employee of a trust company, which acted as agent for the Rialto building, testified that his duties included the general management of the building, leasing and renting offices, etc., and that he employed the head janitor and engineer; that Wichman's duties were "to look after the general upkeep of the building, the cleaning and so forth, and to take care of any ordinary requests of the tenants, furnishing keys or anything of that nature." He stated that he knew, at the time, that Wichman had charge of plaintiff's three chairs, having seen them in Wichman's office.
The instruction given by the court on the credibility of witnesses, for the giving of which the new trial was granted, is the ordinary instruction of that character, and among other things tells the jury that if they believe that any witness has sworn falsely to any fact or facts material to the issues in the case then the jury are at liberty to reject all or any portion of the testimony of such witness. It appears that upon the authority of Keeline v. Sealy, 257 Mo. 498, 165 S.W. 1088, the court concluded that reversible error was committed in giving the instruction. A reading of that opinion, however, will disclose that the giving of a like instruction was held to be error for the reason that there was nothing in the testimony in the case to afford a basis for the giving thereof. With that opinion before us we have more than once held that the giving of an instruction of this character is not error where there is a direct conflict in the testimony as to a material fact, or material facts, which cannot reasonably be attributed to mistake, inadvertence or lapse of memory; i. e. where there is contradictory evidence in the record of such a nature that the jury may with propriety find that a witness or witnesses wilfully gave false testimony as to a matter or matters material to the issues. [See Schuler v. Met. Life Ins. Co., 191 Mo.App. 52, 74, 75, 176 S.W. 274; Price v. Bldg. & Const. Co., 191 Mo.App. 395, 404, 177 S.W. 700; Cohen v. Terminal Ry. Co., 193 Mo.App. 69, 181 S.W. 1080; Volk v. Zepp, 190 S.W. 609; Weller v. Plapao Laboratories Corporation, 191 S.W. 1056, 1060.] And see the opinion of the Kansas City Court of Appeals in Dawson v. Flintom, 190 S.W. 972.
The trial court, we think, misapprehended the effect to be given to the opinion in Keeline v. Sealy, supra. Indeed in the more recent case of Hall v. Coke & Coal Co., 260 Mo. 351, 168 S.W. 927, an instruction of this identical character is expressly approved; the case being one wherein a conflict in the testimony existed of such character as to afford a basis for the giving of such instruction.
That there is a "sharp conflict" in the testimony in the record before us is conceded in the brief of counsel for respon...
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