Hummingbird v. Schurich

SCHAUER, J.

On February 19, 1936, plaintiff, who was then and for some days had been a guest in defendant's hotel, wishing to take a trip of several days’ duration but expecting to return after such period and resume the relation of guest with defendant innkeeper, checked out, paying his bill in full, but at the time of departure left with defendant and defendant (through an authorized employee) accepted, for safekeeping and delivery to plaintiff upon his return, without any stated consideration for such bailment, a suitcase and contents having a value in excess of $50. On February 23, 1936, plaintiff, having returned and again registered as a guest at defendant’s hotel, demanded his suitcase and its contents, but without avail, being then informed by defendant’s representative that the same had disappeared. Neither the case nor any of its contents has ever been returned to plaintiff and after a further demand upon defendant this action was brought to recover the value of the lost property. From a judgment for plaintiff, defendant appeals.

The complaint alleges among other things that “the defendant was guilty of negligence in caring for the plaintiff’s property in that he did not put said property under lock and key as he agreed to do; did not prevent strangers from having access to it, and did not adequately protect or secrete it”. The evidence is not insufficient in law to support the implied finding of the trial court that the foregoing allegation is true. It discloses that the suitcase was placed in a linen closet which was readily accessible to anyone entering or leaving the hotel, unless the door thereof was locked; that the door thereof was left unlocked on some occasions, and that when it was locked the key to it was kept in an unlocked fuse box, which fuse box was also observable by and readily accessible to all who might be entering or leaving the hotel.

*Supp. 759

It was testified that hotel maids “three or four times” each day (Rep. Tr., p. 51, lines 9-11) took the key from the fuse box, unlocked the linen closet, extracted linen therefrom or changed their clothes therein, relocked the door and returned the key to the unlocked fuse box, all of this in such a position that “Every guest in the hotel, walking up for instance, could see you (the maid) putting that key in this box.” (Rep. Tr., p. 51, lines 19-21.) Such evidence under the allegations of the pleadings, if ordinary care was the measure of defendant’s duty, presented a question of fact as to his negligence, the determination of which in the trial court is conclusive upon appeal. The question is: For what degree of care is defendant responsible?