— The plaintiff sued before a justice for the value of certain goods alleged to have been abstracted from a room let to him by defendant on account of the negligence of defendant in putting other persons in the room while entrusted Avith the keeping of the key during the temporary absence of the plaintiff. Upon an appeal to the circuit court at the end of the trial the jury were directed to find for defendant. Plaintiff perfected an appeal from this ruling and complains thereof in this court.
1. The evidence tends to show that on the' first of Eeb. 1899, plaintiff hired a room from defendant, who was a lodging house keeper, and paid the rent for one month in advance; that plaintiff pnt his trunk in the room, locked the door, and gave the key to defendant to be kept until called for upon plaintiff’s return from a short trip which he was about to take; that vdthin a month plaintiff returned, received the key from defendant, entered his room, attended to his toilet, came out, locked the door and again handed the key to defendant to be kept until plaintiff returned later in the day from his place of business in the city; that plaintiff returned in the afternoon, took the key, entered his room, and upon an examination discovered that his trunk had been broken open, and that the articles sued for had been stolen. *574There was evidence that during plaintiff’s absence on his trip, defendant had hired out the room to a stranger and had given him the hey and put him in possession of it for one night. The evidence further tended to show that at all other times the key was in the possession of the defendant; that defendant had no authority from plaintiff to deliver it to any one but himself, or to permit the room to be used by any other person.
2. Clearly there was no relation of innkeeper and guest in this transaction, and the law governing the respective rights and duties of such persons has no application whatever. But there was an unauthorized and negligent act of the defendant in opening plaintiff’s room for the use of a third party, and thus depriving plaintiff’s property stored in such room of the protection afforded to it by being guarded under lock and key. As there was evidence that the property was taken away after having been securely deposited in a locked room, whose key, as the symbol of possession, was deposited with defendant, who delivered it and the occupancy of the room for his own private profit, without any authority from the rightful tenant to a stranger, we can not say that there is no evidence tending to show gross negligence on the part of defendant as a basis from which an inference of the cause of the loss to plaintiff might have been drawn. As defendant was only a gratuitous bailee he could only be held liable for gross negligence. Mason v. Union Stock Yards Company, 60 Mo. App. loc. cit. 98, 99; Plow Co. v. Railroad, 61 Mo. App. 372; Wiser v. Chesley, 53 Mo. 547. Our conclusion is that there was some evidence in the record tending to show gross negligence on the part of defendant, and that the case should have been submitted to the jury under proper instructions defining the liability of defendant. Tbe judgment of the trial court is accordingly reversed and the cause remanded.
All concur.