Sulpho-Saline Bath Company v. Allen

• Citation: 92 N.W. 354,66 Neb. 295
• Decision Date: 06 November 1902
• Docket Number: 12,206
• Parties: SULPHO-SALINE BATH COMPANY v. WINFRED E. ALLEN
• Court: Nebraska Supreme Court

92 N.W. 354

66 Neb. 295

SULPHO-SALINE BATH COMPANY v. WINFRED E. ALLEN

No. 12,206

Supreme Court of Nebraska

November 6, 1902

ERROR from the district court for Lancaster county. Action in nature of special assumpsit by bailor against bailee for hire. Tried below before HOLMES, J. Judgment for plaintiff. Defendant brings error. Affirmed.

AFFIRMED.

Charles O. Whedon and J. A. Brown, for plaintiff in error:

Plaintiff-below's testimony discloses negligence on his part in losing his key or in allowing the same to be stolen while in his possession. This negligence was the direct or proximate cause of the loss complained of, and plaintiff could not recover. Brady v Chicago, St. P., M. & O. R. Co., 59 Neb. 233; Omaha H R. Co. v. Doolittle, 7 Neb. 481.

Frederick Shepherd, contra.

DUFFIE, C. AMES and ALBERT, CC., concur.

OPINION

DUFFIE, C.

The plaintiff in error operates a bath-house in the city of Lincoln, having among its other attractions a plunge bath. In the office where tickets are sold is a system of drawers or boxes in charge of an attendant who presents one of them to any patron having valuables about his person, in which the valuables are deposited, the box returned to its proper place and locked, and the key given to the patron. After taking his bath the visitor returns the key to the attendant, who unlocks and presents the drawer to the visitor, who, in this way, regains possession of such valuables as he may have deposited. On the evening of July 21, 1900, Allen, the defendant in error, visited the bath-house, in company with one Chase, for the purpose of getting a bath. On purchasing tickets, the attendant presented a box to each of them, in which they deposited their valuables, received the keys to their respective boxes, passed into the bath-room, each taking a separate dressing room, where they disrobed, and afterward enjoyed their bath in the plunge. Allen testifies that he placed the key given to him in his coat pocket and that on returning to his dressing room he noticed that his clothing had been disarranged by some one during his absence in the bath, and his key was missing. He immediately notified the attendant from whom he had received the key, and was told that his property could not be returned until the managing official opened the boxes. The next morning he called at the bath-house and had a talk with the manager, who told him that his key had been turned in, and that his property was gone; that detectives had been employed; and requested him to call again a day or two later. The second day thereafter Allen again called upon the manager, and was told that nothing further had been learned, and, on Allen's demand to be paid the value of his property, payment was refused. This action was thereupon commenced to recover the value of the deposit, which, in his petition, Allen alleges was a gold watch of the value of $ 45, and currency to the amount of $ 116.

The answer is as follows:

"For answer to the petition of the Plaintiff defendant admits that on or about the 21st day of July, 1900, plaintiff came to the defendant's bath-house to take a swim in its swimming pool; that before he went into said pool he without any request from defendant placed in a drawer at defendant's counter certain effects the kind, character and value of which if the same had value defendant was not at any time informed or advised, which drawer was securely locked and the key was then and there delivered to plaintiff who took the same away with him. Plaintiff never returned said key nor is defendant aware what disposition he made of it.

"Defendant denies each and every allegation and averment in the petition contained not hereinbefore specifically admitted.

"Wherefore defendant prays to be hence dismissed with costs."

We think the evidence fairly establishes the fact that a custom prevailed at the bath-house of inviting its patrons, when they purchased a ticket entitling them to a bath, to place their valuables in one of the boxes described. That this made the company a bailee of the property, can not be doubted. The evidence shows that the house had many patrons, that the dressing rooms were not provided with locks, thus rendering it necessary that some place should be provided for the safe-keeping of such valuables as visitors might have about their person while taking a bath.

In Woodruff v. Painter, 16 L.R.A. 451, a retail dealer in clothing was sued for the value of a watch which, at the direction of a clerk, he had placed in a drawer while trying on a suit of clothes. The court said (page 452): "When the defendants opened a retail clothing store they thereby invited the public to come into their place of business and purchase clothing in the usual manner; and when they extended this invitation they assumed some duty to the people who should respond to it. Even the house-holder who permits the use of a path leading to his house is deemed to hold out an invitation to all people who have any reasonable ground for coming thither to pass along his pathway, and is therefore held responsible for neglecting to fence off dangerous places. 1 Addison, Torts, ^[*] 203. So, too, a shopkeeper is liable for neglect on leaving a trap-door open without any protection by which his customers receive injury. Parnaby v. Lancaster Canal Co., 11 Ad. & El. [Eng.] 223. In like manner it can not be doubted that, if these defendants had maintained or permitted a danger of any kind in their store, and by reason of it the plaintiff had sustained bodily injury, they would have been answerable to him for the consequences. In such case they would be said to have been guilty of negligence,--guilty of a neglect of duty which they owed to the customer; but I apprehend that the duty neglected would arise from an implied contract that, if customers would come to their store, no harm that could reasonably be averted should overtake them, and the consideration...