9 N.W.2d 807 | Neb. | 1943
This 'is an action at law to recover damages in the amount-of $45,965.95 for the loss of a salesman’s trunk containing a quantity of jewelry. The trial court sustained the motion of the defendants to dismiss at the close of plaintiff’s-case and plaintiff appeals.
The plaintiff, Shiman Brothers & Company, Inc., is engaged in the wholesale jewelry business in New York City. On June 5, 1939, Milton J. Jackson, executive vice-president of, and traveling salesman for, plaintiff left on a sales trip which was to take him to Pittsburgh, Chicago, Detroit and other cities in the middle west. The jewelry was carried in trays placed in two leather sample cases which were in turn placed in what appeared to be an ordinary ward
On July 13, 1939, after completing his calls on Omaha customers, Jackson returned to the Paxton Hotel and directed a uniformed porter of the hotel to make a Pullman reservation for him on a night train to Denver. Shortly thereafter he telephoned the porter’s desk to send some one to his room for his trunk.- A different uniformed porter went to his room, gave him a baggage check of the defendant, Railway Express Agency, for transportation of the trunk from the Paxton Hotel to jthe Union Station. The porter then told Jackson that the transfer company had just left with a load of trunks and that it would be from 30 to 45 minutes before the trunk would be called for. The testimony of Jackson is that he then said: “And I told him to be sure and keep that trunk in a place of safe-keeping, which is the baggage room, until such time as they called for that trunk, as it contained a very large amount of valuable jewelry.” The porter then took the trunk to the first floor of the hotel. Jackson thereupon left the hotel and did not return until 8:30 p. m., when he was informed that the trunk had been left on the loading platform and that it
It is the contention of the plaintiff that Jackson was a paying guest at the hotel and that in taking charge of his trunk it was performing service for him. Plaintiff also contends that the delivery of the baggage check to Jackson by the hotel porter was by virtue of an agency relationship between the Railway Express Agency and the Nebraska National Hotel Company and constituted an immediate acceptance of the trunk by both as bailees for hire. Plaintiff contends that .the loss of the trunk was due to the negligence of both defendants in placing the trunk on the loading platform of the hotel and leaving it unguarded.
The defendant express company alleges that it is a common carrier and denies that the hotel porter was its agent to receive baggage for it, or that it or 'its authorized agents ever had possession of the trunk before it was stolen. The negligence of plaintiff and its agent Jackson is alleged as the proximate cause of the loss. The express company also contends that the plaintiff is not the real party in- interest. Other defenses are alleged which are not material to this appeal as we view it.
The defendant hotel company contends that plaintiff has been paid the full amount of its loss and that it is not, therefore, the real party in interest. The hotel company further contends that its liability is limited by section 41-118, Comp. St. Supp. 1941, and section 41-119,. Comp. St. 1929, that plaintiff failed to comply therewith and that liability, consequently, does not attach. This defendant also claims that the loss was due to the negligence of Jackson, the plaintiff’s agent, and not to any negligence upon the part of the hotel company.
After hearing the evidence of the plaintiff upon these . issues the trial court dismissed the action. Did the trial court err in entering this order?
The record discloses, for the purposes of this appeal, that the stolen jewelry had a market value of $45,965.95. It is also shown that the loss was protected by insurance in the St. Paul Fire and Marine Insurance Company and that on August 21, 1939, said insurance company loaned plaintiff $27,967.82 to be repaid from any recovery made from any other person or corporation for the value of the lost jewelry. The market value of the lost jewelry was fixed by Jackson, an experienced salesman of jewelry. On cross-examination, however, he testified that the $27,967.82 which had been advanced to plaintiff covered the entire amount of the loss sustained by the robbery. It is urged by defendants that by reason of the foregoing facts the insurance company has become the real party in interest and the only party who could maintain the action under the provisions of section 20-301, Comp. St. 1929, which provides that every action must be prosecuted in the name of the real party in interest. The position assumed by the defendants on this question cannot be sustained. The proper measure of damages for property lost by the negligence of a bailee 'is the reasonable market value of such property. Gibbons v. Chicago, B. & Q. R. Co., 98 Neb. 696, 154 N. W. 226. The reasonable market value of the stolen j ewelry for the purposes of this appeal is $45,965.95. It is true that the record shows that the insurance company loaned plaintiff $27,-967.82, the full amount of its liability on its obligation as insurer. But the record does not show that the $27,967.82 was the reasonable market value of the stolen jewelry. The basis for computing the liability under the insurer’s contract is not shown by the- record. - Consequently, the sum
In the instant case the $27,967.82 was paid to plaintiff in the form of a loan, unaccompanied by any kind of an assignment of plaintiff’s cause of action against the defendants. This type of loan was carefully considered in Luckenbach v. McCahan Sugar Refining Co., 248 U. S. 139, 39 S. Ct. 53, wherein the court said: “Agreements of this nature have been a common practice in business for many years. * * * It is clear that if valid and enforced according to their terms, they accomplish the desired purpose. They supply the shipper promptly with money to the full extent of the indemnity or compensation to which he is entitled on account of the loss; and they preserve to the insurers the claim against the carrier to which by the general law of insurance, independently of special agreement, they would become subrogated upon payment by them of the loss. The carrier insists that the transaction, while in terms of a loan, is in substance a payment of insurance; that to treat it as if it were a loan, is to follow the letter of the agreement and to disregard the actual facts; and that to give it effect as a loan is to sanction fiction and subterfuge. But no good reason appears either for questioning its legality or for denying it effect. The shipper is under no obligation to the carrier to take out insurance on the cargo; and the freight rate is the same whether he does or does not insure. The general law does not give the carrier, upon payment of the
The plaintiff alleged in its petition, and now contends, that the Railway Express Agency was a bailee for hire as a common carrier and is therefore liable as an insurer. In order to hold the express company, on its liability as a common carrier in the loss of the trunk and its contents, plaintiff must establish that the trunk Was unconditionally delivered to it for immediate transportation and that it was accepted for that purpose. The possession of the baggage check of the express company by Jackson was prima facie evidence that the baggage it represents had been so delivered to the express company, and in the absence of any oth
The question then arises whether the express company came into possession of the trunk because of any existing agency relationship. In other words, was the hotel porter the agent of the express company? There is no evidence in the record of the existence of any agency relationship between the hotel or any of its employees and the express company, except for any inferences that might be drawn by the use of the baggage check. There is no evidence that the defendant express company exercised any control or direction over the hotel porter, or that it paid him any compensation for his'services. All of the elements of an agency relationship are absent and the evidence is consistent with
As to the defendant hotel company, the situation is altogether different. The evidence recited in this opinion, standing alone, is sufficient to sustain a finding that the hotel company was negligent in. the manner in which it cared for the trunk. The hotel company alleges that the loss was due to the contributory negligence of plaintiff’s salesman Jackson. The hotel company has not as yet produced its evidence on this issue. An examination of the record does not reveal such contributory negligence on his part as would warrant a finding that as a matter of law a recovery could not be had.
It is urged by the defendant hotel company that Jackson failed to comply with the provisions of the statutes necessary to establish the liability of an innkeeper for the loss of a valuable quantity of jewelry and that no liability for the loss of the trunk therefore exists. Comp. St. Supp. 1941, sec. 41-118, and Comp. St. 1929, sec. 41-119. Plaintiff contends that before the hotel company can claim any benefit from these sections it must appear that all conditions precedent contained in the statutes have been met by the hotel company. The case of Leon v. Kitchen Bros. Ho
There is a further reason why the motion to dismiss as to the hotel company was improperly sustained. A statute regulating or limiting the liability of an innkeeper applies •only to his common-law liability as an insurer and has no application where the cause of action of the guest is based solely on the negligence of the innkeeper in caring for property entrusted to him. The following authorities sustain this rule:
“However, even though the innkeeper has complied with the statute and the guest has deposited his property for safe-keeping, if the loss is occasioned by the negligence, or wrongful act of the innkeeper or his servants or employees, he is nevertheless liable, since the statutes have not removed the common-law liability in this respect.” 28 Am. Jur. 591, sec. 74.
“Likewise the exemption ceases when the goods are packed for departure and the innkeeper is so informed. Ex
“Where a hotel company has complied with the provisions specified by the statute for the purpose of relieving it from liability for the money and articles of a guest specified therein, if a guest, on account of convenience to himself, sees proper to retain his money on his person or in his own room, he does so at his own risk in the absence of pleading and proof of actual negligence on the part of the hotel company.’-’ Leon v. Kitchen Bros. Hotel Co., supra. See, also, Hyman v. South Coast Hotel Co, 146 App. Div. 341, 130 N. Y. Supp. 766; Chatillon v. Cooperative Apartment Co., 90 Misc. 108, 152 N. Y. Supp. 593; Benjamin v. Colonial Hotel Co., 268 Pa. St. 459, 112 Atl. 54.
It is evident in the present case that the fact that plaintiff’s salesman did not keep the jewelry in the hotel safe did not contribute to the loss. In any event, it would have been necessary to deliver it to the express company and if the loss occurred by reason of the negligence of the hotel and its employees while such delivery was being made, the liability arose by virtue of the negligence of the hotel company and not because of any liability as an insurer; In a case involving very similar facts, the Illinois court said: “The innkeeper’s act did not apply to the situation at alL The stay of the plaintiff at the defendant’s hotel as a guest was about to terminate, and if she was responsible for the care and protection of the jewelry up to that time for the reason that she did not deposit 'it with the defendant, the property could not remain in the iron safe while she was
Plaintiff .alleges as error the rulings of the trial court in . excluding the testimony of Fred Franks as to certain statements made to him by Leon Mutz, a baggage porter at the Paxton Hotel. It appears that after the trunk of jewelry was stolen, Franks, as inspector of detectives of the Omaha police department, carried on an investigation in an attempt to discover the perpetrators of the crime. One of the persons interviewed was Leon Mutz, who told Franks that he was the porter who took the trunk in question from Jackson’s room to the loading platform, left it there unattended and reported to the head porter that he had placed the trunk on the loading dock. The applicable rule is: “An admission of an agent may be received in evidence against his principal, where the agent, in making the admission, was-acting within the scope of his authority, and the transaction or negotiation to which the admission relates was pending at the time when it was made. * * * The admission which it is sought to use must have been made in connection with the discharge of the agent’s duty, must have been based on his own knowledge, and must be a statement of fact, rather than an expression of opinion.” 22 C. J. 367. See, also, 20 Am. Jur. 505, sec. 596. This rule has
Defendants have filed a motion to quash the bill of exceptions for the reason that it was not settled by the trial court as required by section 20-1140, Comp. St. 1929. The bill of exceptions consists of three volumes. The first volume contained a transcription of the oral evidence and certain exhibits and was properly certified by the trial court. The other two volumes were not separately certified by the trial court. The second volume was a record book which was offered in evidence and because of its bulk was certified to separately by the court reporter. The third volume consisted of a number of written exhibits which because of their bulk were placed in a large envelope, certified to by the reporter and designated as volume 3 of the bill of exceptions. These exhibits designated as volumes 2 and 3 were shown to have been described, identified, offered and admitted in evidence by the record appearing in the volume of the bill of exceptions, which was properly settled by the trial judge. Exhibit 1-A, the book constituting volume 2 of the bill of exceptions, is referred to in volume 1 as follows: “The said exhibit 1-A so received in evidence, being too cumbersome to be attached hereto, is transmitted herewith under separate cover.” The exhibits constituting volume 3 are referred to in similar language in volume 1 of the bill of exceptions. It is customary, and we think proper, to incorporate bulky exhibits by reference’ as a part of the bill of exceptions. There is no other satisfactory way for large books, guns, mechanical devices and other bulky exhibits to
For the reasons herein stated, the order dismissing the action as to the defendant Railway Express Agency is affirmed, and as to the defendant Nebraska National Hotel Company, the order is reversed and the cause remanded for a new trial.
Affirmed in part and reversed in part.