Opinion
No. 69381
OPINION FILED: April 8, 1997
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HON. DANIEL J. O'TOOLE.
Bank appeals the judgment entered pursuant to a jury verdict in favor of Mr. and Mrs. Seitz on their claim for damages to property stored in a safe deposit box rented from Bank. The Seitz's property, a rare violin and a mandolin, was destroyed when Bank's vault flooded during the great flood of 1993. On appeal, Bank claims the trial court erred in denying its motion for judgment notwithstanding the verdict (JNOV) and, alternatively, in denying its motion for new trial predicated on instructional error. We reverse and remand for a new trial.
Because the submissibility of Plaintiffs' claim is contested on appeal, we view the evidence and reasonable inferences from the evidence in the light most favorable to the jury's verdict.Dierker Associates, D.C., P.C. v. Gillis, 859 S.W.2d 737, 746 (Mo.App. 1993). In this particular case, the operative facts are essentially undisputed.
In August, 1991, Geoffrey Seitz ("Customer") rented a safe deposit box from Bank. Customer used the box to store a rare violin and a mandolin. Both instruments remained locked in the box during the events described herein.
Mrs. Seitz jointly leased the box and joined in the claim on the theory that she was a joint owner of the property. For ease of description, we will treat Mr. Seitz as if he were the only customer involved.
On July 8, 1993, as a result of extensive rainfall and rising forecasted flood crests, the U.S. Army Corps of Engineers determined that the Keyser Creek levee located near Bank was in danger of breaking. The following day, civil authorities declared a state of emergency and ordered evacuation of the area where Bank was located. Bank was notified on the afternoon of Friday, July 9, 1993 that power to the affected area would be shut down that evening. A police line was set up to turn back the public from the affected area. A command post was established across the street from Bank.
At the time of the initial evacuation order, Bank officials were not concerned about water getting into the first floor of the bank building. The floor of the bank building was at 46 feet above flood level and the projected crest at the time of the initial evacuation order was 42 feet above flood level. Bank began moving records, appliances and telephone equipment out of the basement but Bank officials assumed that they would be opening Bank for business on Monday, July 12, 1993.
Bank officials were, however, aware that the building was located in a flood plain and the basement of the building had flooded during the last major flood in 1973.
Although the Keyser Creek levee did not breach over the weekend, a manhole cover did blow and the area near Bank began to flood. Bank was instructed by civil authorities to reduce personnel to the fewest needed to operate the departments still functioning in the building that did not involve customers entering the bank building.
Customer first learned that Bank was closed on Sunday night, July 11, 1993. He went to the vicinity of Bank and was turned away. Beginning the next day, Customer called Bank regularly and was told he could not obtain access to his safe deposit box but his property was "safe."
For the remainder of the month of July, Bank officials continued to move equipment and personnel to other sites. The building had power in only one room. On July 16, 1993, Bank officials ordered the front entrance sandbagged in case a levee broke, which could result in a surge of water. This sandbagging was later extended to include the entire front of the building. Later, as projected flood crest levels continued to rise, sandbags were placed around the entire building to withstand a fifty foot flood.
Bank also obtained pumps to maintain the water level in the basement at three to four feet above the basement floor to keep the floor from buckling and the walls from collapsing due to hydrostatic pressure. At one point, water also began leaking from drain pipes on the first floor but these leaks were successfully plugged. Water levels on the first floor were never more than one inch while the water level was controlled by pumping. The pumps were kept in operation twenty-four hours per day. The floor of the bank vault was two inches above the lobby floor.
Throughout the period of flooding, Bank officials assumed that the vault containing the safe deposit boxes was air and water tight. As a precaution, Bank officials obtained some silicone caulk from a hardware store and applied it as a seal on the door to the vault, which remained sealed from July 9 to July 27th. On July 27, Bank opened the vault and had the door resealed by a security company. At that time, the flood waters stood at 48 feet and the vault remained completely dry. Resealing the doors was the only action taken by Bank to make the vault watertight.
Until July 30, the combination of pumping and sandbagging to a level of fifty feet proved successful in maintaining the water level within the building at three to four feet above the basement floor. On July 30, however, a new problem arose. Tanks containing liquid propane became detached from their moorings at the Phillips Petroleum plant on the Mississippi river, less than a mile away from Bank. Fearing an explosion, civil authorities ordered an evacuation by everyone in the affected area. At 9:30 p.m. on July 30, employees manning the pumps at Bank were given 15 minutes to shut down the pumps (to avoid sparks that could set off an explosion) and leave the area. The employees were not allowed to secure the doors to the bank and were required to leave immediately. The next day, a Bank officer was allowed into the area to secure the outside doors. At that point, the water inside the sandbags was as high as it was outside, about three inches above the waist on the first floor of Bank. The flood waters ultimately crested at forty-nine and one-half feet above flood level.
After the flood waters receded, the vault was opened and Bank officials determined that flood water had entered the vault. In late August, Customer opened his safe deposit box in the presence of a bank officer. The violin and mandolin were completely destroyed. Although neither party presented any expert testimony concerning how the flood water entered the vault, two Bank officials called to testify by Customer opined that the floodwater entered the vault through a conduit carrying wiring for the alarm system. Both officials claimed that rust patterns on the vault door indicated that water did not breach the seals on the vault door.
Although the petition alleged three counts, Customer ultimately submitted only the count alleging negligence. The jury returned a verdict of $315,000.00, which was within the range attested by Customer's valuation expert. We will address Bank's points on appeal in a different order than they are presented in the brief.
In its third, fourth and fifth points, Bank claims Customer failed to make a submissible case by failing to prove: (1) that Customer "delivered" the violin and mandolin to Bank; (2) that Bank had knowledge of a specific condition that was not reasonably safe; and (3) that a reasonable person would have acted any differently than Bank.
The rental of a safe deposit box creates a relationship of bailor and bailee as to property deposited therein. Tyler v. Lindell Trust Company, 285 S.W.2d 16, 19 (Mo.App. 1955). In the absence of a special valid contract to the contrary, the bank or trust company, as bailee, is held to the exercise of ordinary care in the custody, preservation and care of the bailor's property. Id. Bank is correct that delivery to the bailee, either actual or constructive, is an essential element of a bailment. Weinberg v. Wayco Petroleum Company, 402 S.W.2d 597, 599 (Mo.App. 1966). What is required is that "such a full delivery of the property must be made to the bailee as will entitle him to exclude for the period of the bailment the possession thereof, even of the owner." Id.
The flaw in Bank's argument is that depositing property into a safe deposit box satisfies the requirement of constructive delivery. Once deposited in a safe deposit box, the property deposited is rendered inaccessible by anyone, including the owner, without the intervention of the bank, which holds the master key. Bank does not dispute the sufficiency of the evidence to establish that Customer deposited the violin and mandolin in the safe deposit box. Customer testified that he did so and a Bank official witnessed the opening of the box and discovery of the damage. This was sufficient to establish the element of delivery.
In its fourth point, Bank urges that Customer failed to prove that Bank had knowledge of a specific condition that was not reasonably safe. Bank's authorities, however, do not support such a requirement. The issue is whether Bank exercised ordinary care to preserve Customer's property — i.e., whether Bank was negligent. Thus, Bank's duty is predicated on foreseeability, not actual knowledge. "All that is necessary to establish foreseeability is knowledge, actual or constructive, on the part of the defendant that there is some possibility of injury sufficiently serious that the ordinary person would take precautions to avoid it." Price v. Seidler, 408 S.W.2d 815, 822 (Mo. 1966) (emphasis added). Further, "[i]t is unnecessary that the party charged should have anticipated the very injury complained of or anticipated that it would have happened in the exact manner that it did. All that is necessary is that [the defendant] knew or ought to have known that there was an appreciable chance some injury would result."Tharp v. Monsees, 327 S.W.2d 889, 894 (Mo. banc 1959).
Bank emphasizes the uncontested evidence that, up until the total evacuation ordered by the civil authorities due to the danger posed by the propane tanks, Bank officials felt they had the situation well under control. Customer does not dispute that Bank officials acted in good faith. But good faith is not a defense to negligence. Although Bank officials may well have believed the combination of pumps and sandbags would keep water out of the vault, the fact remains that from the moment the forecasted flood crest exceeded 46 feet there was at least an appreciable chance that property in the vault could be damaged. Sandbag walls have been known to breach and pumps have been known to fail. Bank officials assumed, but apparently made no attempt to verify, that the vault was watertight. On this record, the jury could have found that Bank officials should have realized that the precautions they took to safeguard the property in the vault still posed an unacceptable and unnecessary level of risk which could have been eliminated completely by moving the safe deposit boxes to higher ground. The fact that the damage ultimately resulted from a chain of events Bank could not have foreseen is not dispositive. See id.
Bank submitted an intervening cause instruction, but the jury did not find the evacuation ordered by civil authorities on July 30 to be an intervening cause.
In its fifth point, Bank complains that Customer failed to prove that a reasonable person would have acted any differently than Bank. This is, of course, the issue to be decided by the jury and, as articulated in the Point Relied On, preserves nothing for our review. In the argument following this point, Bank directs our attention to a portion of the rental agreement which gives Bank the right to break open a safe and/or take other actions with respect to the safe "if deemed necessary in the opinion of the Bank." Bank appears to be arguing that because Bank never deemed it necessary to move the boxes, it is somehow relieved from liability. We disagree. Neither the referenced passage nor any other provision of the agreement purports to limit or exclude Bank's liability for negligence. If anything, the referenced passage aids customer's case because it establishes that Bank had the right to move the boxes if and when the necessity arose. Bank further suggests that Customer should have been required to produce expert testimony concerning whether moving the boxes would have been required by the standards recognized in the banking profession. We disagree. This is not a professional malpractice case. There was evidence that the safe deposit boxes were portable and that Bank had successfully moved larger objects, such as desks, whenever Bank deemed it necessary. The issues involved were readily understandable and would not have been clarified by expert testimony. Point denied.
Having determined that Customer made a submissible case, we now turn to Bank's claim of instructional error. In its first two points, Bank complains that Customer's verdict director was a roving commission because it failed to require the jury to find a specific unsafe condition, that the condition was not reasonably safe, that Bank had knowledge of the condition, and that a reasonably prudent banker would have moved the safe deposit boxes. Bank objected to the instruction as a roving commission at the instruction conference and preserved its objection in its motion for new trial.
Customer's verdict director was as follows:
Your verdict must be for plaintiffs if you believe:
First, plaintiffs delivered a J.B. Guadagnini violin and a mandolin in an undamaged condition to defendant for safekeeping and storage, and
Second, defendant failed to move or cause those instruments to be moved to a safe place, and
Third, defendant was thereby negligent, and
Fourth, as a direct result of such negligence, plaintiffs sustained damage.
Unless you believe plaintiffs are not entitled to recover by reason of Instruction number 6.
The term "negligent" or "negligence" as used in this instruction means failure to use ordinary care. The phrase "ordinary care" means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.
Bank's contention that the instruction constitutes a roving commission focuses on the second paragraph of the instruction and specifically on the language "to a safe place." Bank first argues that by hypothesizing that Bank should have moved the property assumes away a disputed issue — i.e., whether the vault was "a safe place" while it remained in Bank's control. Although we agree that the instruction could have been more artfully worded (e.g., "to higher ground" or "to another location") we do not agree that the disputed issue was whether the vault was "a safe place." The disputed issue was whether Bank knew or should have known it wasn't a safe place. Indeed, the fact that it so obviously proved not to be a safe place demonstrates why the instruction was error.
Because it was undisputed that the property was destroyed, the vault was clearly not a safe place. Likewise, it was undisputed that Bank failed to move the safe deposit boxes. Thus, the jury was essentially instructed that it could find Bank liable for negligence without making any finding as to whether Bank knew or should have known that the property was in danger at a time when it could have safely moved the boxes to higher ground. The element of foreseeability, essential to a claim of negligence as discussed above, was never submitted to the jury. Jury instructions which allow a jury to speculate or determine on their own in what way or in what manner a defendant was negligent are an impermissible "roving commission." Duncan v. First State Bank of Joplin, 848 S.W.2d 566, 569 (Mo.App. 1993). Under Customer's instruction, the jury was essentially permitted to hold Bank liable based on the undisputed fact of damage and without any consideration of whether the damage was foreseeable. This was prejudicial error and requires reversal and remand for a new trial.
The parties shall bear their own costs on appeal.
Opinion Summary
Bank appeals the judgment entered pursuant to a jury verdict in favor of Mr. and Mrs. Seitz on their claim for damages to property stored in a safe deposit box rented from Bank. The Seitz's property, a rare violin and a mandolin, was destroyed when the bank vault flooded during the great flood of 1993. On appeal, Bank claims the trial court erred in denying its motion for judgment notwithstanding the verdict (JNOV) and, alternatively, in denying its motion for new trial predicated on instructional error.
REVERSED AND REMANDED.
Division Three holds: 1) Evidence was sufficient to establish constructive delivery of property to Bank, thus establishing a bailment and triggering Bank's duty to exercise ordinary care to preserve the property in the safe deposit box.
2) Customer was not required to prove that Bank had actual knowledge that property was not reasonably safe.
3) Rental agreement did not disclaim Bank's liability for negligence and Customer was not required to present expert testimony as to standard of care required of Bank.
4) Jury instruction which failed to require jury to find that Bank knew or should have known of danger to property in the vault was a roving commission.