Summary
In Dixon v. Hotel Tutwiler Operating Co., 214 Ala. 396, 108 So. 26, we referred to De Wolf as being a leading case on the subject.
Summary of this case from James v. Governor's House, Inc.Opinion
6 Div. 435.
January 14, 1926. Rehearing Denied April 8, 1926.
Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.
Rudulph Smith, of Birmingham, for appellant.
A guest of a hotel has the right to insist upon respectful and decent treatment at the hands of the hotel keeper and his servants. Florence Hotel Co. v. Bumpas, 69 So. 566, 194 Ala. 69, Ann. Cas. 1918E, 252; De Wolf v. Ford, 86 N.E. 527, 193 N.Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969; Beale on Innkeepers and Hotels, § 111. The innkeeper cannot shield himself from the consequences of misconduct on the part of one of his servants by reason of a mistake on the part of another servant. L. N. v. Hine, 25 So. 857, 121 Ala. 234; L. N. v. Fletcher, 69 So. 634, 194 Ala. 257; L. N. v. Harper, 83 So. 142, 203 Ala. 398; Sou. Ry. v. Blackwell, 100 So. 215, 211 Ala. 216. The acts of defendant's clerk in making out room cards were immaterial. 22 C. J. 741; Andrews v. Tucker, 29 So. 34, 127 Ala. 602; Thornton v. Savage, 25 So. 27, 120 Ala. 449; Bunzel v. Maas, 22 So. 568, 116 Ala. 68; McKinney v. Darden, 68 So. 269, 192 Ala. 369; Byars v. James, 94 So. 536, 208 Ala. 390. Proof of custom of the officers of the defendant to resort to the room rack for information was inadmissible. Syson v. Hieronymus, 28 So. 967, 127 Ala. 482. That the tone and manner of the house officer were insulting was a shorthand rendition of fact. Standard Cooperage Co. v. Dearman, 86 So. 537, 204 Ala. 553; Ala. Co. v. Norwood, 100 So. 479, 211 Ala. 385.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellee.
Defendant is entitled to show any facts surrounding the injury complained of which tend to reduce the amount of compensation to plaintiff. 17 C. J. 926; 8 R. C. L. 553. The innkeeper has the right to make and enforce reasonable regulations for the conduct of his hotel. Hurd v. Hotel Astor Co., 169 N.Y. S. 359, 182 App. Div. 49. The right of the guest is subject to the right of the innkeeper or his agents or servants to enter the room at proper times, for proper purposes. 32 C. J. 567; De Wolf v. Ford, 86 N.E. 527, 193 N.Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969. A party excepting to a part of the charge of the court must distinctly state the grounds of such exception. Liverpool Co. v. McCree, 105 So. 901, 213 Ala. 534; Hines v. McMillan, 87 So. 691, 205 Ala. 17; Knowles v. Blue, 95 So. 481, 209 Ala. 33. The trial court will not be put in error for giving or refusing abstract charges. Allen v. Birmingham Southern, 97 So. 93, 210 Ala. 41; Curb v. Dabbs, 97 So. 109, 19 Ala. App. 149; Thompson v. Vildibill, 100. So. 139, 211 Ala. 199. It is not permissible for a witness to testify to his own opinion on an issue to be decided by the jury. N.C. St. L. v. Yarbrough, 69 So. 582, 194 Ala. 162; 22 C. J. 502.
The suit was for damages and was tried on count 2 of the complaint. It was brought by a guest and against the hotel for humiliation, worry, insult, fright, and disturbing his rest and comfort during the night.
The evidence shows that plaintiff and wife were guests of the hotel in question conducted by defendant, and that some servant or agent of the defendant, while acting in the line and scope of his employment, as alleged in said count, interrupted the guests under the circumstances detailed by the evidence and in the respects indicated by the several witnesses. It is also without dispute that plaintiff was lawfully occupying the room assigned to him in compliance with all of defendants' reasonable regulations; had violated no rule; and was guilty of no impropriety as a guest of the hotel.
The learned trial judge instructed the jury in his general charge as follows:
"Under the law it is the duty of one operating a public hotel, that is, for the reception and entertainment of guests, not to by their agents or officers subject them to offensive and insulting conduct and language, and the complaint alleges, among other things, that they did do so in violation of that duty, and that the defendant's servants or agents, while acting in the line and scope of their employment, did do these things as alleged in count 2 of the complaint, and that the plaintiff suffered damages as a proximate result thereof.
"Now, the law also says that a hotel, a person operating a hotel or an inn, has the right to make reasonable rules and regulations for the conduct of its hotel, such as is reasonably necessary to conduct a hotel that is decent, and in a manner that it is free from improprieties, or lewdness, or conduct that is substantially offensive to other guests.
"The law also says that the servant or agent of the hotel having grounds to suspicion that there is any such improprieties or indecencies has the right to make a reasonable investigation to ascertain the existence of such matters or not. But the law further says that those investigations must not be in an insulting and offensive manner."
When the delivery of the oral charge was concluded, and before the jury retired the plaintiff's counsel said:
"I want to except to the part where you said the agent or servant of the hotel having a suspicion of immorality — I think he would have to have reasonable grounds for suspicion."
The business of an innkeeper is of a quasi public character, invested with its appropriate and well-recognized privileges, duties, and burdens. De Wolf v. Ford, 86 N.E. 527, 530, 193 N.Y. 397, 403, 127 Am. St. Rep. 969, 973 (21 L.R.A. [N. S.] 860); 17 A.L.R. 139. In this leading case it is said:
"* * * The innkeeper holds himself out as able and willing to entertain guests for hire, and, in the absence of a specific contract, the law implies that he will furnish such entertainment as the character of his inn and reasonable attention to the convenience and comfort of his guests will afford. If the guest is assigned to a room upon the express or implied understanding that he is to be the sole occupant thereof during the time that it is set apart for his use, the innkeeper retains a right of access thereto only at such proper times and for such reasonable purposes as may be necessary in the general conduct of the inn or in attending to the needs of the particular guest. * * * It is equally clear that for the purpose of enabling the innkeeper to fulfill his express or implied contract to furnish his guest with such convenience and comfort as the inn affords, he and his servants must have such access to the room at all such reasonable times as will enable him to fulfill his duty in that behalf. It is obvious that as to this general right of entry no hard and fast rule can be laid down, for what would be reasonable in a case where a room is occupied by two or more guests, or where access to one room can only be had through another, might be highly unreasonable where a separate room is assigned to the exclusive use of a single guest. It is also manifestly proper and necessary that an innkeeper should have the right to make and enforce such reasonable rules as may be designed to prevent immorality, drunkenness, or any form of misconduct that may be offensive to other guests, or that may bring his inn into disrepute, or that may be radically inconsistent with the generally recognized proprieties of life. To these reserved rights of the innkeeper the guest must submit. But the guest also has affirmative rights which the innkeeper is not at liberty to willfully ignore or violate. When a guest is assigned to a room for his exclusive use, it is his for all proper purposes and at all times until he gives it up. This exclusive right of use and possession is subject to such emergent and occasional entries as the innkeeper and his servants may find it necessary to make in the reasonable discharge of their duties; but these entries must be made with due regard to the occasion and at such times and in such manner as are consistent with the rights of the guest. One of the things which a guest for hire at a public inn has the right to insist upon is respectful and decent treatment at the hands of the innkeeper and his servants. That is an essential part of the contract whether it is express or implied. This right of the guest necessarily implies an obligation on the part of the innkeeper that neither he nor his servants will abuse or insult the guest, or indulge in any conduct or speech that may unnecessarily bring upon him physical discomfort or distress of mind. * * *"
This, in effect, is the holding of this court as to the implied obligations, rights, and duties in the premises. And, where one has shown himself to be a guest of a hotel or public inn, the burden is on the keeper thereof to justify his ejection. Florence Hotel Co. v. Bumpas, 69 So. 566, 194 Ala. 69, Ann. Cas. 1918E, 252. That justification cannot be the mistake on the part of another agent materially betraying the offending agent and causing the latter to injure the guest. L. N. R. Co. v. Hine, 25 So. 857, 121 Ala. 234, 238; L. N. R. Co. v. Harper, 83 So. 142, 203 Ala. 398; Southern Ry. Co. v. Blackwell, 100 So. 215, 211 Ala. 216; Florence Hotel Co. v. Bumpas, supra; Beale on Innkeepers and Hotels, § 101.
Plaintiff having done what was required of him in signing defendant's register, and having his room assigned to him, and not having been present when defendant's clerk transcribed such registration to other records or cards, and not being shown to have had any knowledge of the custom of making such transcriptions or of the error of defendant's clerk in making the same, acts of such clerk in erroneously making out room rack cards, ledger cards, etc., were res inter alios acta. Byars v. James, 94 So. 536, 208 Ala. 390; McKinney v. Darden, 68 So. 269, 192 Ala. 369; L. N. R. Co. v. Hines. 25 So. 857, 121 Ala. 234, 236; Andrews v. Tucker, 29 So. 34, 127 Ala. 602, 614; Thornton v. Savage, 25 So. 27, 120 Ala. 449, 458; Bunzel v. Maas, 22 So. 568, 116 Ala. 68; Shealy v. Edwards, 75 Ala. 411; Pace v. L. N. R. Co., 52 So. 52, 166 Ala. 519; Martin v. Jesse-French P. O. Co., 44 So. 112, 151 Ala. 289; Lay v. Fuller, 59 So. 609, 178 Ala. 375, 379.
It follows from the well-recognized rule that the registration card prepared by defendant's agent showing the name of plaintiff alone as guest was res inter alias acta. And there was error in the admission of the same in evidence over plaintiff's objection and exception. That is to say, such is the result unless it had been shown that plaintiff had theretofore been informed or had knowledge of the notice:
"Important. Kindly inform room clerk of any error in your name, address, or room rate as indicated on the inclosed slip."
And this was not the predicate of fact that preceded or was stated to the court to authorize the introduction of the evidence as to said cards. So the private custom of defendant to refer to the room rack and not the register for information regarding guests could not affect plaintiff's rights in the premises, in the absence of proof of knowledge of the custom by plaintiff, and in the absence of evidence that the custom was so general as to raise the presumption of his knowledge of the same. Syson v. Hieronymus Bros., 28 So. 967, 127 Ala. 482; Munson v. Horace Turner Co., 81 So. 76, 202 Ala. 574. There was error as to the introduction of such through the witness Kyle.
It was proper to allow the witness Mrs. Dixon to state that the tone of voice and manner of the house officer was insulting. This was a mere shorthand rendition of fact or of collective fact that could hardly be described otherwise and could not be shown by imitation. Standard Co. v. Dearman, 86 So. 537, 204 Ala. 556; Alabama Co. v. Norwood, 100 So. 479, 211 Ala. 385; Birmingham A. Ry. v. Campbell, 82 So. 546, 203 Ala. 296; Hereford v. Combs, 28 So. 582, 126 Ala. 369.
The more "having grounds of suspicion" of improprieties or indecencies will not authorize a violation of the well-recognized rights of the guest. The grounds should be more than a suspicion; that is, should be reasonable and calculated to stir to a proper inquiry for the truth and facts in the premises.
Written charge 1, requested by appellant, should have been given.
Refused charge A invaded the province of the jury under the evidence. Charge 2 should have been given. There was no evidence that plaintiff had knowledge of the mistake made by defendant's servant. There was no error in giving defendant's charges D, 10, 6, 13, and 14. Charge 6 is practically taken from De Wolf v. Ford, 86 N.E. 527, 193 N.Y. 397, 127 Am. St. Rep. 969, 21 L.R.A. (N.S.) 860, and contains a mere abstract of sound principles of law. So, also, was charge 13. See text of 32 C. J. 567.
The foregoing will illustrate on another trial, and it is not necessary to further protract the discussion.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
On Rehearing.
The mistake of transcription of registration cards, if limited to the question of mitigation of damages or wanton misconduct, was admissible, and also competent in rebuttal to plaintiff's evidence.
We are of opinion that the instruction as we have pointed out was reversible error.
Application overruled.