Alpaugh v. Wolverton
| Decision Date | 04 March 1946 |
| Citation | 36 S.E.2d 906 |
| Parties | ALPAUGH. v. WOLVERTON. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Prince William County; Paul E. Brown, Judge.
Proceeding by notice of motion for judgment filed by Charles W. Alpaugh in two counts against Earl B. Wolverton, based on the refusal of defendant, who was the owner and operator of a hotel and restaurant, to serve food and drink to plaintiff. To review a judgment dismissing the notice of motion, the plaintiff brings error.
Affirmed.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
H. Thornton Davies, of Manassas, for plaintiff in error.
Robert A. Hutchison, of Manassas, for defendant in error.
Charles W. Alpaugh, hereinafter called the plaintiff, filed in the court below a notice of motion for judgment in two counts against Earl B. Wolverton, hereinafter called the defendant.
The first count alleges, in substance, that the defendant was the owner and operator of a "certain public hotel and restaurant, " in the town of Manassas, Virginia, "for the reception, lodging and entertainment of the public in general"; that the defendant had entered into an "arrangement and agreement" with the local Chamber of Commerce, under the provisions of which the defendant had agreed to furnish to the members of that organization "lunch, food and drink, " on Tuesday of each week; and that although the pla'intiff was a member "in good standing" of the Chamber of Commerce, and was known to the defendant to be such, and although the plaintiff tendered to the defendant the price of the meal, yet the defendant, in violation of his "duties and obligations" to the plaintiff, and "in utter disregard of his rights, " "wilfully, wickedly, wantonly and maliciously" refused to serve the plaintiff with food and drink on Tuesday, October 31, 1944, while he (the plaintiff) was "seated at the dining table" in the "hotel, " along with "other members of the said Chamber of Commerce, " "thereby maliciously humiliating him and bringing him into ridicule, disrespect and disgrace."
The second count is identical with the first, except that it alleges that the defendant had a similar "arrangement and agreement with the Kiwanis Club of Manassas, " of which the plaintiff was a member "in good standing, " under the terms of which the defendant was to serve dinner to the members of that club on each Friday evening, and that on Friday, November 10, 1944, the defendant had refused to serve the plaintiff along with the other members of the organization.
The defendant filed a demurrer which, in substance, challenged the sufficiency of the notice of motion, and each count there of, on the grounds that, (1) it improperly combined a tort action with one arising out of a contract, and (2) it failed to allege that the defendant had violated any legal duty which he owed to the plaintiff. The lower court sustained the demurrer on the second ground, without passing on the first, and to review a judgment dismissing the notice of motion the present writ of error has been allowed.
Since we are of opinion that the trial court was right in sustaining the second ground of demurrer, it is not necessary to inquire whether the first ground was likewise well taken.
The notice of motion for judgment is not skilfully drawn. It is not clear from its allegations whether the plaintiff claims that the defendant's failure and refusal to serve him was a breach of the "arrangement and agreement" which the defendant had made with the two organizations, of which the plaintiff was a member, and for his benefit, or whether it was a breach of the legal common-law duty which the defendant, as the operator of the "public hotel and restaurant, " owed to him (the plaintiff) as a member of the public. However, both in the written brief and in the oral argument before us, the plaintiff has proceeded under the latter theory, and to that we will address and confine our attention.
The plaintiff insists that the allegations of the notice of motion for judgment are sufficient to show that in furnishing and agreeing to furnish the meals, under the circumstances stated, the defendant was a hotel operator or an innkeeper; that, as such, he "was not entitled to say whom he would serve and whom he would not so serve, " but that "he was legally bound to entertain and serve each and every one requesting such service and entertainment, " whether he be a local resident or a traveler from a distance.
The defendant, on the other hand, insists that the allegations show that the relation established, or sought to be established, between the parties was not that of innkeeper and guest, but merely that of restaurateur and customer, and that under the latter relation there was no common-law duty on the part of the defendant to serve the plaintiff, or any other customer, with meals.
In 28 Am.Jur., Innkeepers, § 46, p. 568, the author says: See also, Cooley on Torts, 4th Ed., Vol. 3, § 462, pp. 280, 281; Jackson v. Virginia Hot Springs Co, 4 Cir, 213 F. 969, 973; Talbott v. Southern Seminary, 131 Va. 576, 579, 109 S.E. 440, 19 A.L.R. 534 (dictum).
While some of the early cases seem to restrict the relation of guest of an innkeeper to one who comes from a distance, and to exclude a resident of the town in which the hotel or inn is situated, the modern cases place no such limitation on the relationship. Hence, a townsman or neighbor may be a guest at an inn, provided he is away from home and receives transient entertainment. 28 Am.Jur, Innkeepers, § 22, pp. 552, 553, and authorities there cited.
Once the technical relation of innkeeper or hotelkeeper and guest has been established, the parties become subject to the duties, responsibilities and liabilities which attach to the relationship. Because of the quasi public nature of his business, the innkeeper must furnish proper accommodations in the way of lodging, food, etc, so far as they are available. 43 C.J.S, Innkeepers, § 9, p. 1149. He becomes "practically an insurer of the safety of property...
To continue reading
Request your trial
-
Wise v. U.S.
...and the general public may be an innkeeper as to some of the patrons, and a business invitor as to the others. Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906, 908 (1946). As the Virginia Supreme Court has [e]very one patronizing or seeking to patronize the facilities of a hotel or inn doe......
-
John R. Thompson Co. v. District of Columbia
...employment" ?€” thereby altering the common law, which required inns, but not restaurants, to serve all travellers. Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906 (1946); Nance v. Mayflower Tavern, 106 Utah 517, 150 P. 2d 773 (1944); Beale, Innkeepers and Hotels, 1906, ?? 15, 35, 53, 61, ......
-
State v. Avent, 654
...White Tower System, Inc., D.C., 181 F.Supp. 124, affirmed by the U. S. Court of Appeals for the 4 Cir., 284 F.2d 746; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906; Wilmington Parking Authority v. Burton, Del., 157 A.2d 894; Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773. See 10 A......
-
State v. Clyburn
...v. Middlestaff, 147 Cal.App.2d Supp. 833, 305 P.2d 1020; Fletcher v. Coney Island, 100 Ohio App. 259, 136 N.E.2d 344; Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906. The owner-operator's refusal to serve defendants, except in the portion of the building designated by him, impaired no righ......