holding that presence of rat holes in guest room put premises owner on notice of presence of ratsSummary of this case from McCall v. Hillis
The defendant objected to evidence that it had made repairs on the ground that control of the premises was admitted by it, and that therefore this evidence had no place in the case. The record was silent as to the nature of this admission and this court cannot hold that it was so direct and certain that the trial court should have treated it as a judicial admission sufficient in itself to protect the rights of the parties without the production of evidence. Photographs taken four months after the time the plaintiff claimed to have been bitten by a rat in the defendant's hotel, showing tin patches on the baseboard in the room where he had slept, were admissible for the sole purpose of locating the ratholes, as corroborating the plaintiff's testimony that there were such holes, and in the absence of a motion for a more specific statement the allegations of the complaint were sufficient to justify their admission. The court's charge that the photographs were admitted to show an existing physical condition to aid the jury in determining whether or not there were holes in the floor at and prior to the date of the bite was proper, the plaintiff having been present when the holes were covered. That an inference unfavorable to the defendant could also be drawn from them was no reason to bar their admission for a proper purpose. An innkeeper is required to use reasonable care to keep his inn in a reasonably safe condition for his invitees. The trial court gave the jury the accepted rule as to the defendant's duty and, in the absence of a request to charge, the instruction was adequate without a further charge with respect to the character of the inn.
Argued December 7, 1943
Decided January 27, 1944.
ACTION to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant, brought to the Superior Court in New Haven County and tried to the jury before McEvoy, J.; verdict and judgment for the plaintiff and appeal by the defendant. No error.
The appellant filed a motion for reargument which was denied.
Spencer A. Hoyt, with whom, on the brief, was Walter A. Mulvihill, for the appellant (defendant).
John Henry Sheehan, with whom, on the brief, was George W. Chisaski, for the appellee (plaintiff).
The assignments of error pursued in the defendant's brief relate to rulings on evidence admitting testimony of events subsequent to the date of injury, the charge on this evidence and a charge on the standard of care required of the defendant. The plaintiff's claims of proof necessary for a consideration of these assignments are as follows: The defendant operated a hotel in New Haven, and on August 27, 1942, and for a long time prior thereto the plaintiff occupied one room in the hotel. On August 27, he was bitten by a rat while lying in bed in the night season. There were numerous ratholes in the baseboard of the room, prior to this date, and he had frequently seen rats in the room before he was bitten and had called the manager's attention to the fact. On the night he was bitten the door and windows in his room were closed and it was impossible for rats to enter through them. On the day following the defendant covered the ratholes with tin and thereafter the plaintiff, who continued to occupy the room, was never troubled with rats entering it.
The defendant claimed that its hotel was located in a highly industrialized section immediately adjacent to main-line railroad tracks; that it catered to persons of moderate means; that it employed maids to clean every room daily and a housekeeper to inspect their work; that it had employed, purely as a preventive measure, a reliable "exterminator" company which inspected the hotel monthly and pursued the usual methods, such as traps and poison, to keep rats from the hotel; that this company had never received complaints of rats being in the hotel; and, finally, that the plaintiff was not bitten by a rat and, whether he was or not, the defendant was not negligent in view of the type of hotel, its location, rates and the means taken to keep it free of vermin.
The plaintiff testified on direct examination that the defendant had made some structural changes in his room after the date he was bitten. He was asked what the defendant did and objection was made by the defendant on the ground that such evidence was only admissible to prove control, which it admitted. The plaintiff then claimed the question solely to prove control and the court admitted it for that purpose but not on the question of liability. The defendant took an exception and the plaintiff then testified that the defendant covered the holes, where it was claimed the rats had entered, with tin.
Where control of premises is one of the issues in a case, such evidence is admissible to prove it. Vinci v. O'Neill, 103 Conn. 647, 652, 131 A. 408; Aprile v. Colonial Trust Co., 118 Conn. 573, 580, 173 A. 237; 2 Wigmore, Evidence (3d Ed.), p. 158. The objection of the defendant to the evidence was not because control of the premises was not in issue but on the ground that, as it was admitting control, the evidence would have no place in the case. The record before us is silent as to the nature of that admission, and we are not in a position to hold that it was so direct and certain that the trial court ought to have regarded it as a judicial admission sufficient in itself to protect the rights of the plaintiff without the production of evidence. 9 Wigmore, op. cit., 2591. Further, the trial court, both at the time of the ruling and in the charge to the jury, stated that the evidence was not to be considered upon the question of liability other than as to control.
A second assignment of error relates to the admission of photographs taken four months after the alleged bite. These purported to show tin patches on the baseboard. They were offered to indicate where the holes had been. Objection was made to their admission on the grounds that evidence of repairs was not admissible since control was admitted and that there was no allegation of ratholes in the complaint. They were admitted for the sole purpose of locating the holes. They were admissible for this purpose as corroborating the plaintiff's evidence that there were such holes, and in the absence of any motion for a more specific statement the allegations in the complaint were sufficient to justify the court in admitting them.
Another assignment, as pursued in the brief, relates to the charge of the court that the photographs were admitted for the purpose of showing an existing physical condition to aid the jury in determining whether or not, as the plaintiff claimed, there were holes in the floor at and prior to the date of the bite. This was a proper charge. The plaintiff was present when the holes were covered and could locate them by the patches he had seen put over them. That the question and answer might lead to an inference that the defendant recognized their danger and remedied it was not a valid reason for barring admission of the photographs for another and proper purpose. Woodward v. Waterbury, 113 Conn. 457, 464, 155 A. 825.
The final claim of error is that the trial court failed to charge that the standard of care required of an innkeeper must be considered in relation to the character of the inn. The short answer to this is that its character is not disclosed by the record other than that it was located in a highly industrial section, catered to persons of moderate means, and was adjacent to mainline railroad tracks. This was hardly enough to require, or even justify, a charge that might suggest to the jury that the defendant was under no duty to protect its guests from vermin. After explaining the claims of the parties and defining negligence generally, the trial court charged as follows: "You will determine whether the conditions which the defendant maintained here were such as would have been maintained by the person of ordinary prudence, the reasonable person who was thus managing the hotel under these circumstances." An innkeeper is required to use reasonable care to keep his inn in a reasonably safe condition for his invitees. Adams v. Mohican Hotel, 124 Conn. 400, 402, 200 A. 336; Beale, Innkeepers Hotels, 170; Goddard, Outlines Bailments Carriers (2d Ed.), 179; 28 Am. Jur. 578, 579; Friedman v. Shindler's Prairie House, Inc., 224 App.Div. 232, 234, 230 N.Y.S. 44, aff'd, 250 N.Y. 574, 166 N.E. 329. The trial court gave the jury the accepted rule as to the defendant's duty and, in the absence of a request to charge, the instruction was adequate. Rogoff v. Southern New England Contractors Supply Co., Inc., 129 Conn. 678, 692, 31 A.2d 29.