White v. Burke

• Decision Date: 07 October 1948
• Docket Number: 30531.
• Citation: 31 Wn.2d 573,197 P.2d 1008
• Parties: WHITE et ux. v. BURKE et ux.
• Court: Washington Supreme Court

197 P.2d 1008

31 Wn.2d 573

WHITE et ux. v. BURKE et ux.

No. 30531.

Supreme Court of Washington

October 7, 1948

Department 1

Action by Paul White and Edythe White, husband and wife, against Stephen P. Burke and Beulah L. Burke, to recover for loss of plaintiffs' money which had been deposited by plaintiffs in safe in defendants' hotel. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

Appeal from Superior Court, Yakima County; Robert J. Willis, Judge.

Halverson & Applegate, of Yakima, for appellants.

Tonkoff & Holst, of Yakima, for respondents.

SCHWELLENBACH Justice.

This is an appeal from a judgment for plaintiffs in the amount of $3,770, with interest at six per cent, upon an award of a jury for the loss of money deposited by plaintiffs in defendants' hotel.

Defendants have operated the Donnelly Hotel in the City of Yakima for fourteen years. In one corner of the lobby of the hotel is a counter, back of which are stationed the clerk and telephone operator. At the rear of the clerk's quarters is a door leading to the manager's office. Just back of this door and under a stairway, is a large safe, containing compartments used for the keeping of money, bonds, and papers belonging to the hotel, and for the safekeeping of money and other valuables of guests and friends of the hotel. The outer door of the safe is closed, but seldom locked by the combination. The inner compartment is locked by a key which hangs on a hook in the clerk's office.

Plaintiffs operate a real estate office in Yakima and also serve as tax accountants. They live in the Wenas District, about eighteen or nineteen miles from town. During the winter months, when the weather was inclement, and especially during the tax season, January and February, they were guests of the hotel. Almost daily Mrs. White was a patron of the coffee shop operated by defendants in conjunction with the hotel. On different occasions plaintiffs sent guests to the hotel. At various times Mrs. White had deposited money in the hotel safe. Mr. Burke testified: 'We showed her the courtesies that are extended to patrons and to other people we had transacted business with.' He also testified on cross-examination:

'Q. Now, you stated on direct examination that the Whites had on some occasions sent people to your hotel? A. That's right.

'Q. Have you ever requested the Whites to do that sort of work for you? A. No. It was appreciated by us their going out of their way to bring business to the hotel.

'Q. Did you request them to do that, however, at any time? A. No.

'Q. You stated, as I recall, that you kept other money in this safe where the White money was? A. Yes.

'Q. And that was money of the barber shop--A. Well, it was money of the barber shop, the mixer shop and other guests of the hotel and other business people and then we have had money--envelopes in there and bonds and some of our own and our coffee shop and some money has been in there three or four years.

'Q. In other words, the safe that was used there was used for your coffee shop money and for other moneys that were left there with you at the hotel? A. That's right.'

and again on redirect:

'Mr Tonkoff: (Q.) Mr. Burke, you say at no time had you ever requested Mrs. White to send you any guests at the hotel, is that right? A. That's right.

'Q. Lots of times you can accomplish that without request and as a matter of courtesy? A. Well, we transacted business during the war with the Whites when eggs were hard to get and they brought eggs in to us and we also went out to their ranch and purchased eggs on different occasions, and so I would say in place of soliciting their business it was a sort of mutual----

'Q. Affair? A.--mutual affair that we could send people that were interested in the tax being made out, and during that time there was a sort of boom at Hanford and there was people that wanted tax made out, and it was a sort of reciprocation that people that wanted to make out their tax we would send these people to them. It was a sort of solicitation that was mutual without solicitation on either one's part.'

On the afternoon of May 5, 1947 Mrs. White withdrew $3,200 from the bank. To this she added $570, intending to give the money to her mother for the purpose of assisting her in buying a home. She walked from the bank to the hotel, received from the clerk a safety deposit envelope in which she placed the $3,770, and which was then locked in the safe. The safety deposit envelope was the kind used by the hotel for customers who leave valuables for safekeeping. To it are attached two checks, Check A and Check B. The depositor signs his name on Check A; also, the clerk who receives the package signs his name on Check A, and dates it. Check B is torn off and given to the depositor as his receipt. When the depositor calls for his package, he signs his receipt, the signature is compared with the original signature on Check A, and the package delivered.

On May 17, 1947, Mrs. White went to the clerk in charge, signed her receipt, and asked for the package. Upon investigation it was discovered that the package was not in the safe. The clerk called Mr. and Mrs. Burke, who, in turn, called the police, and a thorough investigation was made. The package has never been recovered.

After the verdict of the jury, the defendants moved for a judgment n.o.v., or, in the alternative, for a new trial, which motion was denied.

Appellants assign error in refusing to sustain their position that they were gratuitous bailees as a matter of law; in refusing to grant a motion for dismissal at the close of the plaintiffs' case; in denying the motion for judgment n.o.v., or, in the alternative, for a new trial; in entering judgment for plaintiffs; and in the giving of certain instructions.

In Simmons v. Cowlitz County, 12 Wash.2d 84, 120 P.2d 479, 480, in discussing the granting of respondents' motion for judgment notwithstanding the verdict, we said:

'We have uniformly held that a motion for judgment notwithstanding the verdict should not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from the evidence to justify the verdict.

'All competent evidence in the record which is favorable to the appellants we must regard as true and must give to them the benefit of every favorable inference which may reasonably be drawn from such evidence. Where the minds of reasonable men may differ, the question should be submitted to the jury. If, when so considered, we find there is substantial evidence to sustain the verdict, the judgment thereon must be affirmed. Boyd v. Cole, 189 Wash. 81, 63 P.2d 931; Perren v. Press, 196 Wash. 14, 81 P.2d 867.'

Here, there was substantial evidence to submit to the jury the question of the nature of the bailment. The trial court did not commit error in refusing to grant the motion for judgment n.o.v.

Instruction No. 6 was as follows:

'You are instructed that a gratuitous bailment, or one for the sole benefit of the bailor, results when the care and custody of the bailor's property is accepted by the bailee without charge and without any expectation of receiving a benefit or consideration, directly or indirectly, for so doing.

'You are further instructed that in the case of a gratuitous bailment, the bailee is liable to the bailor for the loss, if any, of the bailed property, only in the event that such loss is proximately caused by the gross negligence of the bailee.

'In this connection you are instructed that gross negligence is the failure to exercise slight care or diligence. Whether or not a gratuitous bailee has been guilty of gross negligence, in case of loss of the thing bailed, is always to be ascertained from all the circumstances surrounding the particular bailment in question.'

Instruction No. 7 was as follows:

'You are instructed that a person becomes a bailee for hire, and the bailment is thus one for the mutual benefit of the bailor and bailee, when he takes property into his care and custody for a consideration. In such a case the nature and amount of the consideration are immaterial; and it is sufficient if the consideration be of some value, though slight, or of a nature which may inure to the benefit of the bailee.

'You are further instructed that if a bailment is made at the instance or upon the invitation of the bailee, because of benefits, direct or contingent, which he expects to accrue in his favor, then it is a bailment for hire, or, as it is sometimes called, a bailment for mutual benefit.

'You are further instructed that in the case of a bailment for hire or for mutual benefit, the bailee is under a duty to exercise ordinary care for the protection of the bailed property; and would be liable to the bailor for its loss, if any, if such loss proximately resulted from the failure of the bailee to exercise ordinary care in his custody of the property.'

There is no question but that a bailment existed in this case. Possession of respondents' money was transferred to appellants to be later returned to respondents. The principal question is whether the transaction constituted a gratuitous bailment, (or one for the sole benefit of the bailor), or a bailment for hire (or for the mutual benefit of the bailor and bailee).

In Prince v. Alabama State Fair, 106 Ala. 340, 17 So. 449, 28 L.R.A. 716, a picture was sent to the Alabama State Fair for the purpose of having it exhibited and later returned to the sender. It was lost and in an action to recover its value, the court said:

'The insistence of the counsel of the defendant is that, though there was a bailment of the painting, the bailment was of the class known as 'naked, gratuitous deposits,' accepted as matter of mere favor or...