Tyler v. Lindell Trust Co.
| Decision Date | 20 December 1955 |
| Docket Number | No. 29082,29082 |
| Citation | 285 S.W.2d 16 |
| Parties | James W. TYLER (Plaintiff), Appellant, v. LINDELL TRUST COMPANY, a Corporation (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
William A. Ratican, St. Louis, for appellant.
Walther, Hecker, Walther & Barnard, St. Louis, for respondent.
Plaintiff, appellant, instituted this action to recover $3,500 from defendant, respondent. Plaintiff's theory is that currency in that amount belonging to him was in a safe deposit box which he had rented from defendant, and that between October 29, 1945, and November 2, 1945, the defendant wrongfully, and without his knowledge or consent, permitted the removal of all of said currency from the box. The trial resulted in a verdict for defendant, and following judgment entered thereon, plaintiff has appealed to this court. We shall refer to plaintiff, appellant, as plaintiff, and defendant, respondent, as defendant, or trust company.
Plaintiff, shown by the record to be a Negro, was 49 years old at the time of the trial in March of 1954. In support of his case plaintiff offered evidence disclosing: He rented box No. 62 from the defendant on April 4, 1943; during that year he was operating a cleaning and pressing business at 2742 Cass Avenue, St. Louis, Missouri. Between the date of renting the box and October 29, 1945, on different occasions, plaintiff placed currency in said box. On October 29th he and another Negro named Joe Gholson went to the trust company, located at Grand Boulevard and St. Louis Avenue, St. Louis, Missouri. Pursuant to requirements of the trust company, plaintiff signed the entry or admission card, and gave it and the key to John F. Peters, then a director and vice-president of defendant, who obtained the box from the vault and handed it to plaintiff. The latter took the box into a booth, placed $300 in currency therein, counted all of the bills and found there was $3,500 in the box. Thereupon the box was returned to Peters, who placed it in the vault. Plaintiff and his companion left the bank and returned to plaintiff's place of business. In the meantime a load of coal had arrived at plaintiff's cleaning establishment and the coal man was demanding payment therefor. Not having the required amount of money, plaintiff returned to the trust company for the purpose of procuring from his box enough money to pay for the coal. Again he followed the usual procedure, signed the entry card, and handed same with his key ring to Miss Edna A. Bergmann, a bank employee. The latter discovered the key to the box was not on the ring and so informed plaintiff, who immediately returned to his shop and made an unsuccessful search for the missing key. According to plaintiff's version of what took place, he did not go back to the bank until November 2nd, which fell on Friday. By that time he had the second key in his possession, having obtained two when he rented the box, and after signing the card he obtained the box from Miss Bergmann. He took it to a booth, opened it, and discovered all of the currency gone. He immediately made a report of the missing currency to Miss Bergmann and Mr. Peters, and in a short while he called a police officer.
Defendant's evidence presented a different picture in many respects. During the year 1943 and prior thereto, one desiring to rent a box from the trust company was required to sign a written contract which contained certain provisions not necessary to mention in this opinion. That procedure was followed when plaintiff rented box No. 62. After execution of the contract a box of a certain number was designated for the use of the customer, who was given two keys therefor. And the renter could not gain admission to his box without signing an admission card, sometimes referred to as an entry slip. The bank attendant would compare the signature on the card with the signature on the rental contract, and if they were found to be the same, the card was then placed in a time clock which automatically recorded the date, year, and time of day. Then, with the key obtained from the renter, and the master key retained by the trust company, both of which had to be used in order to open the door of the compartment in which the box was retained, the attendant would obtain the box and hand the same to the renter, who was privileged to use an enclosed booth provided by the trust company while the box was in his possession.
Miss Bergmann was the vault attendant in 1945. Plaintiff had gained access to his box on twenty different occasions between January, 1945, and October 29th of the same year, and by reason of her contacts with him on his visits to her department she knew the plaintiff. According to Miss Bergmann's testimony, confirmed by the card signed by plaintiff, the latter came to her department at 12:26 p. m. on October 29th accompanied by another Negro. Upon signing the card plaintiff was given his box, and in the words of Miss Bergmann, 'he asked this other colored man to accompany him to the booth'. After about ten minutes plaintiff returned and handed the box to Miss Bergmann, who returned it to its place in the vault. At that time plaintiff's gait was unsteady, and Miss Bergmann detected the odor of liquor on his breath. Another admission card was signed by plaintiff the same day at 12:46 p. m., or twenty minutes after the first card was signed. Both Miss Bergmann and Mr. Peters, who was present on the second occasion, testified that plaintiff was then intoxicated, that he had difficulty in signing his name, was unable to do so with a pen, but managed to affix his signature with a pencil provided by Mr. Peters. The box was obtained by Miss Bergmann, handed to plaintiff, who took same to a table next to a filing cabinet, and in a few minutes it was returned to Peters who inserted the box in the proper place and locked the compartment door. Again plaintiff was accompanied by Joe Gholson and although Gholson evidenced a state of insobriety, he was not as unsteady as plaintiff, and assisted the latter from the safe deposit box department. The trust company's records disclosed further that at 9:03 a. m. on the following day, October 30, 1945, an admission card bearing plaintiff's signature was stamped. In this connection Miss Bergmann testified that she saw plaintiff sign that card. She detected a slight odor on his breath, but his gait was steady. She obtained and gave the box to plaintiff, who took it to a booth where he remained five or ten minutes, after which he returned the box to Miss Bergmann who placed it in the vault. Plaintiff categorically denied being in the trust company on October 30th, and insisted the signature on the admission card was not his but a forgery.
Bearing upon the issue of whether plaintiff actually had currency amounting to $3,500 in his box, the defendant produced evidence showing that in 1945 plaintiff was indebted for a steam pressing machine and was making payments of $28 per month on that indebtedness; that in March, 1945, plaintiff had obtained a loan from the Commercial Loan Company which he was discharging by making monthly payments of $10 each; that he also told the police officers who made the investigation following plaintiff's report to the police department that in 1945 he owed $130 for a clothes rack, and $50 to a painter; that in 1943 plaintiff's first wife divorced him and obtained a judgment against plaintiff for $5 per week for support, which plaintiff had failed to pay. In explanation of such failure plaintiff stated his former wife refused to permit him to see their child, and he was advised not to pay her.
The lengthy report of the police officers,...
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Rossomanno v. Laclede Cab Co.
...instructed that it 'must' disregard such portion of the testimony as it believed to be false and relies in part upon Tyler v. Lindell Trust Co., Mo.App., 285 S.W.2d 16, 20, which holds that th appellant in that case could not have been prejudiced by an instruction which told the jury that '......