Alpaugh v. Wolverton, Record No. 3019.

Citation184 Va. 943
Decision Date04 March 1946
Docket NumberRecord No. 3019.
PartiesCHARLES W. ALPAUGH v. EARL B. WOLVERTON.
CourtSupreme Court of Virginia

INNS AND INNKEEPERS — Duty to Furnish Accommodations. — An innkeeper holds out his house as a public place to which travelers may resort, and of course surrenders some of the rights which he would otherwise have over it. Holding it out as a place of accommodation for travelers, he cannot arbitrarily prohibit persons who come under that character, in a proper manner, and at suitable times, from entering, so long as he has the means of accommodation for them; nor can he arbitrarily refuse to continue to furnish a guest with proper accommodations.

2. INNS AND INNKEEPERS — Who Are Guests. — A townsman or neighbor may be a guest at an inn, provided he is away from home and receives transient entertainment.

3. INNS AND INNKEEPERS — Duty to Furnish Accommodations. — 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.

4. INNS AND INNKEEPERS — Innkeeper as Insurer. — An innkeeper becomes practically an insurer of the safety of property intrusted to his care by the guest.

5. INNS AND INNKEEPERS — Lien for Charges. — An innkeeper has a lien on the property of his guest for the reasonable charges of keep and entertainment.

6. INNS AND INNKEEPERS — Restaurants — Definition. — A restaurant is an establishment where meals and refreshments are served.

7. INNS AND INNKEEPERS — Restaurants — Proprietor's Duties Distinguished from Innkeeper. — The proprietor of a restaurant is not subject to the same duties and responsibilities as those of an innkeeper, nor is he entitled to the privileges of the latter. His rights and responsibilities are more like those of a shopkeeper. He is under no common-law duty to serve everyone who applies to him. In the absence of statute, he may accept some customers and reject others on purely personal grounds.

8. INNS AND INNKEEPERS — Who Are Guests. — Every one patronizing or seeking to patronize the facilities of a hotel or inn does not necessarily become a "guest" of the establishment within the technical meaning of that term. It is well settled that the proprietor of a hotel may be a technical "innkeeper" as to some of his patrons and a "boardinghouse keeper" as to others. Or the relationship may be that of landlord and tenant.

9. INNS AND INNKEEPERS — Who Are Guests — Casual Patrons of Certain Facilities Supplied. — A casual patron of a barbershop located in a hotel, or one who purchases a newspaper or cigar from a hotel newsstand, or one who uses the pay telephone in the hotel lobby, by virtue of such patronage alone, does not thereby become a "guest" of the hotel in a technical sense.

10. INNS AND INNKEEPERS — Restaurants — Status of Hotel Keeper Operating Restaurant. — Where a hotel operator operates a restaurant for the accommodation both of its guests and of the public in general, he may be an innkeeper as to some of his patrons and a restaurateur as to others. Clearly, one who goes into a restaurant, to which the general public is invited, for a meal, should be entitled to no greater privileges and subject to no greater liabilities because the establishment is operated by one who also operates a hotel, rather than by one who furnishes only food to his customers. In either case the customer seeks only restaurant service.

11. INNS AND INNKEEPERS — Determination of Relationship of Innkeeper and Guest. — The controlling factor in determining whether the relationship of innkeeper and guest has been established is the intent of the parties.

12. INNS AND INNKEEPERS — Who Are Guests — Patron of Restaurant — Case at Bar. — In the instant case, a motion for judgment against the keeper of a hotel and restaurant, there was an allegation in the motion that defendant had entered into an agreement with two social clubs, under the provisions of which defendant was to serve certain meals on certain days to members of the clubs, including plaintiff. While plaintiff was seated at a table in the restaurant, pursuant to these arrangements, he sought and was refused service of meals on two occasions. There was no allegation that plaintiff sought or intended to become a guest of the hotel and there was no allegation that he sought any other accommodation furnished by the establishment. On the contrary, it was clear that he sought merely to patronize the restaurant, as such. Defendant filed a demurrer to the motion which was sustained.

Held: That the allegations of the notice of motion did not show the establishment of the relation of innkeeper and guest between the parties, but, on the contrary, they showed merely the relationship of restaurateur and patron. Since the notice charged defendant with the breach of no legal duty, the demurrer thereto was properly sustained.

Error to a judgment of the Circuit Court of Prince William county. Hon. Paul E. Brown, judge presiding.

The opinion states the case.

H. Thornton Davies, for the plaintiff in error.

Robert A. Hutchison, for the defendant in error.

EGGLESTON, J., delivered the opinion of the court.

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 plaintiff 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 thereof, 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 ...

To continue reading

Request your trial
25 cases
  • Wise v. U.S.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • June 9, 1998
    ... ... Nothing in the record suggests that the men had committed criminal sexual assaults prior to ... Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906, 908 (1946). As the Virginia ... ...
  • John R. Thompson Co. v. District of Columbia
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • January 22, 1953
    ... ...         As the appeals stand before this court on the record and briefs they present two principal questions: The first, were the ... Alpaugh v. Wolverton, 184 Va. 943, 36 S.E.2d 906 (1946); Nance v. Mayflower ... ...
  • State v. Avent, 654
    • United States
    • North Carolina Supreme Court
    • January 20, 1961
    ... ... 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 ... The license is not in the record before us, and there is no suggestion by defendants that the license ... ...
  • State v. Clyburn
    • United States
    • North Carolina Supreme Court
    • January 10, 1958
    ... ... 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 ... The record as brought to us, prepared by appellants and accepted by the State as ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT