Seitz v. Lemay Bank and Trust Co.
| Decision Date | 27 January 1998 |
| Docket Number | No. 79983,79983 |
| Citation | 959 S.W.2d 458 |
| Parties | Geoffrey J. SEITZ and Valerie A. Seitz Respondents, v. LEMAY BANK AND TRUST COMPANY Appellant. |
| Court | Missouri Supreme Court |
John K. Springborn, Davis Biggs, Jr., St. Louis, for Appellant.
David M. Duree, Bernard A. Reinert, Thomas J. Burnside, St. Louis, for Respondents.
Geoffrey and Valerie Seitz filed suit against Lemay Bank and Trust Company for the negligent bailment of an eighteenth century Italian violin and mandolin. The instruments were located in a rented safe deposit box at Lemay Bank when they were destroyed in the flood of 1993. A jury awarded the Seitzes $315,000. Lemay Bank appealed. After opinion by the court of appeals, this Court granted transfer. 1 The judgment of the trial court is affirmed.
The following facts are undisputed. In August 1991, the Seitzes rented a safe deposit box from Lemay Bank in Lemay, Missouri. 2 Into the box, the Seitzes placed a violin and a mandolin that an expert had traced back to 1740 Italy.
On July 8, 1993, the United States Army Corps of Engineers determined that the Keyser Creek Levee near the bank would not survive any significant further rise in the creek level. Lemay Bank's basement began to flood and the bank turned on its water pumps.
On July 9, a state of emergency was declared. Evacuation of the designated area, which included Lemay Bank, commenced. All utilities were shut down. Lemay Bank was allowed to keep a skeleton crew on site to continue operation of the departments that were still functioning with the aid of a generator. Gasoline-powered pumps continued pumping water out of the basement.
The Federal Emergency Management Agency forecast the waters to crest at forty-five feet by July 14. The ground floor of Lemay Bank's lobby sat at the equivalent of a forty-six foot water level. Water began seeping into the lobby from outside the bank. An inch of standing water accumulated. The vault containing the safe deposit box, built in the 1920s, was located two inches above the ground floor. At some point, water also began coming up through the drains on the first floor. There was a drain directly across from the vault. A plumber was called and the drains were blocked.
On July 10, Lemay Bank relocated all bank records, movable furniture, a large mural, glass desktops, and the draperies from the ground floor. Apart from the contents of the vault, the only other items not removed were those that were "part of the building that couldn't really be dismantled and removed."
On July 11, Mr. Seitz learned that the bank was closed to the public. He went to the bank the next morning and was not allowed to enter. He went to a different branch and was told by the receptionist that the main branch was closed, but the vault had been sealed, and "everything was safe." He called or visited the bank every day thereafter, Monday through Saturday, and was repeatedly told that "everything was safe."
On July 16, Lemay Bank began to sandbag the front entrance, side entrance, and loading dock entrance. The sandbags were stacked to the equivalent of a fifty foot water level. By July 27, the water level outside the bank had risen to forty-nine feet. Lemay Bank opened the vault to find it dry. Lemay Bank brought in vault experts and resealed the vault. Mr. Seitz received a notice by mail that "SAFE DEPOSIT CONTENTS are safe and secured."
On July 30, five or six propane tanks began breaking loose from their moorings on the riverfront. Each tank contained 30,000 gallons of propane gas. At 6:30 p.m., a total evacuation was ordered. All but two employees left the bank. At 9:30 p.m., these last two bank employees were given ten to fifteen minutes to leave the premises. To minimize the risk of an explosion, they shut down the pumps and removed the gasoline tanks that had been fueling the pumps.
On August 11, Mr. Seitz was told that water had infiltrated his box. The Seitzes were allowed to enter the bank on August 26. They opened the box in the company of bank officials. The violin and mandolin were destroyed.
Lemay Bank contends that the trial court erred in overruling its motions for directed verdict and its motion for judgment notwithstanding the verdict (JNOV) because the Seitzes failed to prove that the instruments were delivered to the bank. This Court reviews the evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict, disregarding evidence to the contrary. 3 This Court will reverse the jury's verdict for insufficient evidence only where there is a "complete absence of probative fact" to support the jury's conclusion. 4
The term 'bailment' "signifies a contract resulting from the delivery of goods by bailor to bailee on condition that they be restored to the bailor, according to [bailor's] directions, so soon as the purposes for which they were bailed are answered." 5 Lemay Bank claims the evidence did not manifest that the bank ever had exclusive control over the box and, therefore, delivery was not proved.
It is well settled that when a bank lets a safe deposit box to a customer, a bailment relationship is created between the bank and the customer as to the property deposited into the box. 6 The Seitzes introduced into evidence a rental contract between themselves and Lemay Bank for a safe deposit box. The contract granted Lemay Bank the power to "bar access to the safe, break open the safe and/or take other actions with respect to the safe or its contents if deemed necessary in the opinion of the Bank." On August 26, 1993, the Seitzes, in the company of bank officials, opened the box. The box contained the instruments. The Seitzes presented sufficient evidence for the jury to infer that delivery occurred.
Lemay Bank next alleges that the trial court erred in failing to grant its motions for directed verdict and for JNOV because, "even if the plaintiffs did prove a specific condition which prevented the boxes from being 'reasonably safe,' plaintiffs failed to prove that the Bank knew or should have known of the condition." The condition the Seitzes set forth in their amended petition was the "floodwater in and around the location" of the safe deposit box.
The president of Lemay Bank testified, on behalf of the Seitzes, that water from outside the bank had seeped into the lobby and came within one inch of the vault on July 10. On July 27, the water level outside the bank was forty-nine feet. The vault floor sat at the equivalent of a forty-six foot, two inch water level. Lemay Bank employees were in the bank until 9:30 p.m. on July 30. The Seitzes presented sufficient evidence for the jury to infer the bank had knowledge of the floodwaters "in and around" the location of the safe deposit box.
"Reasonable Banker" Standard
Lemay Bank also argues that the trial court erred in failing to grant its motion for directed verdict and for JNOV because the Seitzes did not offer sufficient evidence that the bank failed to act like a "reasonable banker." Lemay Bank urges this Court to apply a more stringent standard to this case than that submitted by the Seitzes: "that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances." Lemay Bank argues that the Seitzes had the burden of producing an expert witness to offer evidence concerning the actions of a reasonable banker regarding 4,500 safe deposit boxes in the midst of a civil emergency. This Court need not review this issue as it was not included in Lemay Bank's motions for directed verdict or its motion for JNOV, the dispositions of which it now complains. Issues raised for the first time on appeal are not preserved for review. 7
"Roving Commission" Objection
The trial court offered the following instruction to the jury:
Your verdict must be for plaintiffs if you believe:
First, plaintiffs delivered a J.B. Guadagnini violin and a mandolin in an undamaged condition to defendant for safekeeping and storage, and
Second, defendant failed to move or cause those instruments to be moved to a safe place, and
Third, defendant, was thereby negligent, and
Fourth, as a direct result of such negligence, plaintiffs sustained damage[,] unless you believe plaintiffs are not entitled to recover by reason of Instruction No. 6. 8
The term "negligent" or "negligence" as used in this instruction means failure to use ordinary care. The phrase "ordinary care" means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.
Lemay Bank made the following objection:
I have an objection to the verdict director in both the first and second paragraphs. Plaintiffs use safekeeping, 9 and moving instruments to a safe place, I think that those are a roving commission for the jury. The other problem is that it implies that the instruments were not already in a safe place, which the evidence has shown that the bank people certainly thought it was safe at the time that we are talking about. I think we ought to have something more neutral and that doesn't give the jury a roving commission.
MAI does not contain a negligent bailment instruction. Rule 70.02(b) states that "where there is no applicable MAI so that an instruction not in MAI must be given, then ... such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts." A not-in-MAI instruction, therefore, is reviewed to determine "whether the jury [could] understand the instruction and whether the instruction follows applicable substantive law by submitting the ultimate facts required to sustain a verdict." 10 What the ultimate facts are in any given case is necessarily a case-by-base determination. 11 A not-in-MAI instruction approved by an appellate court in one case, therefore, would not necessarily be...
To continue reading
Request your trial
-
Thompson v. Brown & Williamson Tobacco Corp.
...substantive law by submitting the ultimate facts required to sustain a verdict.'" Mehrer, 157 S.W.3d at 323 (citing Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 462 (Mo. banc 1998) (additional citations omitted). "The verdict is reversed if the offending instruction misdirected, misled,......
-
Peters v. General Motors Corp., WD 62807.
...inferences therefrom in a light most favorable to the jury's verdict, disregarding evidence to the contrary. Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998). Missing evidence is not supplied, and the plaintiff is not granted unreasonable, speculative, or forced inferenc......
-
First Bank v. Fischer & Frichtel, Inc.
...the instruction follows applicable substantive law by submitting the ultimate facts required to sustain a verdict.’ ” Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 462 (Mo. banc 1998), quotingBrown v. Van Noy, 879 S.W.2d 667, 672 (Mo.App.1994). If this Court finds that the instruction ......
-
Washington University v. Catalona
...bailee) be restored to the bailor according to his/her directions as soon as the purpose for the bailment ceases. Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 461 (Mo.1998); Stone v. Crown Diversified Indus. Corp., at 669. There was no evidence presented to this Court that any of the RP......