Busby Hotel & Theatre Co. v. Thom
| Decision Date | 12 April 1927 |
| Docket Number | Case Number: 17359 |
| Citation | 1927 OK 105,125 Okla. 239,257 P. 314 |
| Parties | BUSBY HOTEL & THEATRE CO. et al. v. THOM. |
| Court | Oklahoma Supreme Court |
¶0 1. Innkeepers--Statutory Liability for Loss of Personal Property of Guests.
Section 5210, C. O. S. 1921, providing that "An innkeeper or keeper of a boarding house is liable for all losses of, or injuries to, personal property placed by his guests or boarders under his care," in effect, makes such innkeeper or keeper of a boarding house an insurer of his guests' personal property unless such loss or injury is occasioned "by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of someone whom he has brought into the inn or boarding house."
2. Same--Liability for Loss from Fire of Unknown Origin.
Under section 5210, C. O. S. 1921, making an innkeeper liable for the loss of personal property placed by his guests under his care, "unless occasioned by an irresistible superhuman cause", a loss occurring by fire of unknown origin which originated in the basement of a hotel cannot be considered "occasioned by an irresistible superhuman cause."
3. Same--Salesman's Samples as "Personal Property."
The words "personal property," as used in this act, embrace the samples of traveling salesmen.
4. Same--Pleading--Action for Statutory Liability--Allegations of Negligence as Surplusage.
Where plaintiff pleads a cause of action based upon negligence and, in so pleading, his petition states all the facts necessary to authorize a judgment under a provision of the statute, by pleading a cause of action for negligence and thereby stating more than is required, plaintiff does not forfeit his right to recover upon a statutory liability.
5. Appeal and Error--Questions of Fact--Conclusiveness of Verdict.
Where questions of fact are submitted to the jury under proper instructions, the verdict of such jury and the judgment of the court rendered thereon will not be disturbed on appeal if there is any evidence reasonably tending to support it.
6. Trial -- Instructions -- Sufficiency as a Whole.
It is not necessary for each separate instruction to embody every fact or element essential to sustain or defeat an action, nor is it necessary for each separate instruction to over the entire case. If the different instructions, taken together and considered as a whole, fairly present the law of the case, and there is no conflict between the different paragraphs thereof, this will be sufficient.
William J. Horton, Jackman A. Gill and Fordyce, Holliday & White, for plaintiffs in error.
A. C. Markley (Miller, Winger & Reeder, and S. J. McCulloch, of counsel), for defendant in error.
¶1 This cause comes here on appeal from the district court of Pittsburg county, the facts out of which it grew being substantially as follows: C. W. Thom, defendant in error, was a traveling salesman carrying with him trunks containing samples of merchandise, also his personal effects; that on September 15, 1924, he was a regular registered guest at the Hotel Busby, conducted by plaintiffs in error in the city of McAlester, Okla., at which time the hotel was destroyed by fire, the sample trunks with their contents and personal effects of defendant in error being also destroyed. He filed his action in the district court of Pittsburg county for damages in the amount of the value of the personal property so destroyed. The cause was tried to a jury, and upon a verdict in favor of Thom judgment was rendered, to reverse which this appeal is prosecuted.
¶2 The case is very ably and exhaustively briefed on both sides, and a number of questions raised and presented, but primarily the paramount question to be determined here is whether, under section 5210, C. O. S. 1921, plaintiff in error, as an innkeeper, was an insurer of the personal property of its guests. Said section reads as follows:
"An innkeeper or keeper of a boarding house is liable for all losses of, or injuries to, personal property placed by his guests or boarders under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of someone whom he brought into the inn or boarding house; and upon such property the innkeeper or keeper of a boarding house has a lien and a right of detention for the payment of such amount as may be due him for lodging, fare, boarding, or other necessaries by such guest or boarder; and the said lien may be enforced by a sale of the property in the manner prescribed for the sale of pledged property."
¶3 It is the contention of defendant in error that this section of the statute in its legal effect makes the innkeeper an insurer of and liable for all losses or injuries to personal property placed under his care by his guests except where specifically exempted from liability by the provisions of said statute.
¶4 Plaintiffs in error contend that this section of the statute, in the absence of negligence pleaded and proved, does not make the innkeeper an insurer of such property. Counsel for both parties cite Huckins Hotel Co. v. Hooper, 44 Okla. 307, 144 P. 177, but an examination of that authority indicates that the principal controversy there presented was whether the complaining party was in fact a guest of the hotel at the time the property for which he sued was lost, but the opinion, written by Mr. Commissioner Brewer, is illuminating as to whether this court shall hold that this section of the statute was intended to make the innkeeper an insurer of his guests' personal property, when, in the opinion, the following language was used:
"This statute practically makes the innkeeper an insurer of the property of his guests placed under his care * * *"
--and, again:
* * *'"
¶5 It appears that this statement is the only expression of this court on the question here involved, and it was doubtless judge Brewer's intention, when he wrote that opinion, to say that the statute under consideration does make the innkeeper an insurer except in the instances specifically exempted. This, apparently, was the view of the trial judge when he gave instruction No. 2 in which he instructed the jury that under the evidence introduced plaintiff was entitled to recover and the only question to which the jury should address its inquiry, so far as the hotel company was concerned, was as to the amount the plaintiff was entitled to recover. This view, in our judgment, is in harmony with the intention of the legislators when they enacted this statute.
¶6 It is the contention of plaintiffs in error that in the absence of negligence pleaded and proved the destruction of the hotel by fire came within the meaning of the term "irresistible superhuman cause" as contemplated by the use of that term in the statute.
¶7 Referring to the section of the statute under consideration, in Abercrombie v. Edwards, 62 Okla. 54, 161 P. 1084, this court said:
"California prior to 1895 had a statute which is an exact duplicate of our own"
--and in Fay v. Pacific improvement Co., 93 Cal. 253, 26 P. 1099, it appears that the guests' personal property was destroyed, as in the instant case, by fire of unknown origin and, commenting upon this section of the statute, in the body of the opinion, that court said:
¶8 The construction placed upon this language of the statute by the Supreme Court of California seems to us a reasonable one, and since our attention has not been called to a contrary view, we shall adopt the construction placed thereon by the California court.
¶9 It is further contended by plaintiffs in error that the words "personal property," as used in section 5210, C. O. S. 1921, supra, are not sufficient to extend the liability of the innkeeper to the samples of merchandise carried by traveling salesmen. Cou...
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