Arcade Hotel Co. v. Wiatt

• Decision Date: 26 January 1886
• Citation: 44 Ohio St. 32,4 N.E. 398
• Parties: ARCADE HOTEL CO. v. WIATT.
• Court: Ohio Supreme Court

4 N.E. 398

44 Ohio St. 32

ARCADE HOTEL CO. v. WIATT.

Supreme Court of Ohio.

January 26, 1886

Error to district court, Hamilton county.

The action below was brought by the defendant in error, Edward Wiatt, in the superior court of Cincinnati, against the plaintiff in error, a corporation, operating the Hotel Emery at Cincinnati, to recover the sum of $2,195, which he alleged he deposited with the company on the fourteenth of October 1882, while a guest at the hotel, for safe-keeping in its safe, and which it refused to return or repay to him. The defendant below denied that Wiatt was a guest of the hotel and that he deposited, or it received, any money from him for safe-keeping. The cause was tried to the court, a jury being waived, and the plaintiff below recovered judgment for the amount claimed. The district court affirmed this judgment on error, and the present proceeding is to reverse the judgments below. All the evidence given upon the trial is before the court in a bill of exceptions. The questions considered by the court are: (1) Whether there was error in the admission of certain testimony relating to the amount of money involved in the loss of the defendant in error; and (2) whether Wiatt was a guest of the hotel at the time of the alleged deposit. So far as the evidence upon this issue is reviewed by the court, it is presented in the opinion.

The former question is presented by the action of the court, as shown by the following extract from the bill of exceptions. Robert Holloway, called for the plaintiff below, was asked in chief:

‘ Question . Do you known Mr. Wiatt? Answer . Yes, sir. Q. Is he in business with you? A. He was. Q. Do you know how much money was in his card-playing house on the morning of the fourteenth or neight of the thirteenth of October? A. No, sir; I know what he ought to have had. Q. You know what he ought to have had?

‘ Mr. Jenney . I object to it.

‘ The Court . Explain what you mean by that. The question as asked is open to objection.

‘ [Former question repeated.]

‘ Mr. Jenney . I object to it.

‘ The Court . The objection is overruled.

‘ Mr. Jenney . I will take an exception.

‘ A. Well, he was responsible for twenty-five hundred dollars; I do not know whether he had that or one hundred dollars. He was supposed to have had twenty-five hundred dollars in his possession.’

Perry & Jenney , for plaintiff in error.

Campbell, Bates & Bettman , for defendant in error.

OWEN, J.

1. Did the trial court err in admitting, against the objection of the defendant, the statement of the witness Holloway? The amount of money deposited by the plaintiff below was in controversy. The testimony objected to was material. It appears from the opinion of the trial judge, to which we are referred by counsel, that it exercised important effect in the determination of the case. The witness was asked if he knew how much money Wiatt had in his card-playing house on the morning of the fourteenth or night of the thirteenth of October. He answered: ‘ No, sir; I know what he ought to have had.’ Counsel then inquired: ‘ You know what he ought to have had?’ This was objected to. The question and objection were repeated. The objection was overruled, and exception taken. The answer was: ‘ Well he was responsible for twenty-five hundred dollars; I do not know whether he had that or one hundred dollars. He was supposed to have had twenty-five hundred dollars in his possession.’ It seems too clear for serious discussion that this was erroneously admitted and considered. The statements made by the plaintiff below concerning the amount of money contained in the package deposited were involved in much doubt and uncertainty. Holloway was his only corroborating witness. The statement objected to could have had but one effect,-to prejudice the defendant below. For this error alone we should feel called upon to reverse the judgment below. We do not, however, place our action wholly upon this ground.

2. Was Wiatt a guest of the hotel at the time he delivered to the clerk the package containing the money involved in suit? This is the vital issue in the case. That the money was deposited and lost is assumed. It is maintained by defendant in error that this was a question of fact, and that the judgment of the trial court upon the evidence is conclusive. Conceding that there was substantial conflict in the evidence upon this issue, the position of counsel is well chosen. If, however, the facts are definitely ascertainable from the undisputed evidence, whether Wiatt was a guest of the hotel, is a question of law. We do not undertake to weight conflicting proof. If there was evidence fairly tending to prove Wiatt a guest of the hotel at the time he deposited his money with the clerk, the judgment below is, upon that issue, conclusive. If, however, the evidence offered upon this issue, construed most favorably to the plaintiff below, does not fairly tend to establish that relation, it is our duty to say, as a legal conclusion, that the judgment below is erroneous. The arguments of counsel, aside from the alleged error in admitting the statements of Holloway, and whether Wiatt was a guest, are chiefly addressed to the question whether Wiatt, being a resident and householder of the city of Cincinnati at the time he left his money with the clerk of the hotel, and not in any sense a traveler, was capable of becoming a guest of the hotel and of charging its proprietor with the safe-keeping of his money. Without entering upon the consideration of this question, we are content to assume, without deciding, that Wiatt was so capable of becoming a guest, and to proceed with the consideration of the proof which is relied upon to establish such relation.

It must be conceded that, unless the relation of innkeeper and guest subsisted between Wiatt and the proprietor of the hotel at the very time the money was received by the clerk, or at the time of the loss, no recovery could be had for such loss. The testimony produced in behalf of the plaintiff below, reflecting upon what occurred after he entered the hotel, and before his departure therefrom, (having deposited his money,) is confined to three witnesses: the plaintiff himself, one Mullen, and Scott, a bell-boy of the hotel.

Wiatt testified that he entered the hotel about 10 minutes after 2 o'clock in the morning, accompanied by his friend, Mullen, and applied to the clerk for accomodations. He says:

‘ I asked for accommodations that night. I says to him: ‘ How are you fixed for accommodations?’ He says: ‘ Very well, as we have not been doing very much since the exposition.’ I says: ‘ Very good; let me have a room, and I will stop with you to-night.’ He says: ‘ All right; I will just take your name. I am busy now making up my night account. I will just take your name.’ I says: ‘ Very well; I have been eating something, and I do not care about retiring now. I will be back in perhaps a half an hour.’ * * *'

Repeating, he testifies:

‘ I says: ‘ I want a room.’ At the time he was busy at the side desk, looking over some books. He says: ‘ I am engaged now, just making up my night account, or night report; ’ says he: ‘ I will take your name, and reserve you a good room.’ I says: ‘ Very good.’ I then produced this package of money. I said: ‘ I would like to leave this with you.’ '

He delivered the package to the clerk and received, as a check for it, a slip of paper with his name written thereon by the clerk. He says:

‘ I then passed out through the west end of the Arcade. Some question was asked me by a friend, and I says: ‘ I was going up as far as Mr. Wallace's. The Turf Exchange.’ Question . Did you go there that night? Answer . Yes, sir. Q. You say some one was with you. Who was that? A. Mr. Mullen. Q. Did he accompany you to Wallace's? A. Yes, sir. Q. When did you leave there? A. I left there in the neighborhood of 5 o'clock. Q. Where did you go then? A. Direct from there to the Hotel Emery.'

Without reciting his testimony concerning what occurred upon his return to the hotel, it will suffice to say that the clerk and the money were missing. He soon became concerned for his money, and these with other circumstances may sufficiently account for his failure to take a room for the balance of the night or morning. He further testified that that there was $2,195 in the package left with the clerk, and that his business required about that amount of money. The foregoing testimony was in chief.

Then follows cross-examination by Mr. Jenney:

‘ Question . You say your business requires that must money. What is your business? Answer . I was engaged in operating a club-room here. Q. To speak plainly, a gambling-room? A. Yes, sir. Q. Where is it? A. At No. 266 Vine street. Up over Gilligan's place. Q. You were playing that night? A. I was doing business. Q. You were carrying on business that night? A. yes, sir. Q. After you left the Hotel Emery, did you carry on business both before and after you left the Hotel Emery? A. No, sir; not after I was in there. Q. You were not? A. No, sir; I left this money at the hotel as a safeguard. Q. Because you did not want to carry it around? A. Yes, sir. Q. You left the money there simply for safe-keeping? A. No, sir; I didn't. Q. What was your objectin leaving it there? A. I left it there as a guest of the hotel. Q. Why did you leave it there? A. I left it there not wanting to carry it on my person that time in the night. Q. You left the hotel, and you expected to go out around the city? A. No, sir; I didn't expect to go. If I had found agreeable friends in the hotel I should have perhaps stayed there and smoked, and perhaps not went out at all. Q. You are a married man? A. Yes, sir. Q. You are keeping house? A. Yes, sir.’

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