Hadley v. Orchard

Bland, P. J. About October 1, 1893, plaintiff delivered to the defendant, a tailor in the city of St. Louis, a suit of clothes to be cleaned and pressed, for which service plaintiff agreed to pay defendant $1.50; plaintiff called for the suit on two occasions thereafter and demanded it; defendant did not deliver, for the reason he said his place of business had been burglarized and the suit stolen; plaintiff brought suit alleging the bailment, demand of the clothes, failure of delivery and their value. As an excuse for nondelivery and nonliability, the defendant set up that his place of business was burglarized and that the suit of clothes had been taken and carried away by a thief. The issues were tried by a jury, who found for the plaintiff; after an unavailing motion for a new trial the defendant appealed. instruction. Defendant assigns as error the giving of improper and the refusing of proper instructions. The instructions given of which complaint is made is ag f0u0Wg. “Under the evidence in this case it will be your duty to find for the plaintiff unless you believe from the evidence that while the plaintiff’s clothes were in the defendant’s store the store was entered by a thief in the night — or between the time [146] it was closed for the' night and the time it opened in the morning and the clothes stolen therefrom. And if you find that the store was so entered and the clothes stolen therefrom, you should find for the defendant. The burden of proving that the store was so entered and the clothes stolen is on defendant and unless those facts are proven by a preponderance of the evidence to your satisfaction your verdict should be for . the plaintiff.” [147] BdenMo1>roofl!r" [146] The testimony offered by defendant tended to prove that his place of business was carefully closed on the night of October 5, 1893, the doors being locked and the windows made secure by bolts and locks, that notwithstanding this during the night a burglar had climbed up the wall on outside to window, seven or eight feet above the ground, cut a hole in a wire screen protecting the window, unbolted the window sash, opened it, and through the openings thus made entered his store and stole a lot of clothing, including the suit of respondent; defendant further testified that when he entered the store in the morning after the burglary, the doors were all locked and the windows all secure, except the one through which the burglar must have entered; he also testified that a part of the goods stolen were found by a police officer in a pawnshop on Morgan street; that he went to the pawnshop with the officer and there identified and recovered some of the clothing that had been stolen. Respondent proved, by two or three police officers, who examined defendant’s premises the morning after the burglary, that, in their opinion, no one had entered through the open window, giving as a reason for this opinion that one fourth of an inch of dust on the sill of the window had not been disturbed. The plaintiff offered no evidence of the want of the exercise of due care by the defendant in [147] the preservation of his clothes. His contention at the trial and here is, that there was no burglary; no larceny of his clothes from defendant’s shop; he did not allege in his petition that defendant had failed to exercise due care; he offered no direct evidence to prove the want of care on the part of the defendant, hence this issue was not before the jury. The bailment and nondelivery of the thing bailed to the bailor on demand were confessed; this with proof of damages made out plaintiff’s case. To excuse himself for nondelivery the defendant sought to prove a burglary and larceny of his store and the theft of the goods. Plaintiff denied the burglary and larceny. The defendant having the affirmative of this issue the burden was on him to prove it by a preponderance of the evidence. American Brewing Co. v. Talbot, 141 Mo. 674; Stanard Milling Co. v. Transit Co., 122 Mo. loc. cit. 275; Taussig v. Schields, 26 Mo. App. 318. The instruction given by the court put this issue squarely to the jury, and placed the burden of proof where it rightfully belonged, on the appellant. The instructions asked by the defendant, except one, were on the theory that the burden, in this kind of a case, is on the plaintiff to show that the thing bailed was lost through the negligence of the defendant. Such is not the case, except where the plaintiff assumes this burden by alleging in his petition that the property was lost, and that the loss was occasioned by the negligence of the bailee. Stanard Mill. Co. v. Trans. Co., 122 Mo. 273. If he, plaintiff, alleges the manner or cause of the loss in his petition, of course he will be held to prove what he has elected to state as his cause of action. The plaintiff, as ajjpears by his complaint, did not assume this burden; nor did he accept the defendant’s challenge to introduce evidence to [148] prove negligence, but rested on the falsity of the alleged burglary and theft. The instructions asked by the defendant were on a theory different from the one on which the case was tried, and were rightfully refused. Defendant asked an instruction directing the jury to find for defendant; of the refusal of this he complains. If there is any evidence tending to support an action or defense, it should go to the jury; a jury is never bound to believe a witness. Lee v. Knapp & Co., 137 Mo. 385; Twohey v. Fruin, 96 Mo. 104; George v. Railway, 40 Mo. App. 433. While it seems to us that the evidence largely preponderates in favor of the defense set up, yet we are not prepared to say that there was not some evidence from which the jury might reasonably infer that the goods were not stolen from defendant’s store; in such circumstances it was proper to submit the question of larceny orno larceny to the jury. Lee v. Knapp & Co. and other cases, supra; Donohue v. Railway, 91 Mo. 357; O’Hare v. Railway, 95 Mo. 662; Herriman v. Railway, 27 Mo. App. 435. Discovering no reversible error in the record, we affirm the judgment. All concur.