Cunningham v. Bucky
| Decision Date | 09 December 1896 |
| Citation | 26 S.E. 442,42 W.Va. 671 |
| Parties | CUNNINGHAM v. BUCKY. |
| Court | West Virginia Supreme Court |
Submitted September 9, 1896
Syllabus by the Court.
1. An inn or hotel keeper is a guarantor for the good conduct of all members of his household, including those engaged in his service, and is liable for thefts committed by them of the property of his guests while asleep in rooms assigned them.
2. The fact that the guest is intoxicated or his door is unlocked will not destroy the landlord's liability for the acts of his servants.
Error to circuit court, Randolph county.
Action by W. A. Cunningham against Alpheus Bucky. Judgment for plaintiff. Defendant brings error. Affirmed.
L. D Strader and C. H. Scott, for plaintiff in error.
E. D Talbott, for defendant in error.
W. A Cunningham obtained a judgment for $254.40 on the 18th day of May, 1895, in the circuit court of Randolph county, against Alpheus Bucky, who obtained a writ of error therefrom to this court. The errors assigned are for the refusal of the court to give certain instructions for the defendant, and the giving of certain instructions for the plaintiff, and the overruling of the motion for a new trial. The cause of the action is the loss of $240 on the part of plaintiff, by theft, while stopping at defendant's hotel, in the town of Beverly, Randolph county. The evidence is all certified. Hence it becomes the duty of the court, in accordance with its former rulings, to first determine whether the verdict of the jury is sustained by a plain preponderance thereof, and if so, to disregard all errors of law, if any were committed, which do not in a material degree tend to produce the result reached (Bank v. Napier, 41 W.Va. 481, 23 S.E. 800); for it the court finds, on an examination of the evidence, that the conclusion reached is sustained by a decided or plain preponderance thereof, and is in accordance with law, although errors may have been committed in the giving of instructions or otherwise, the judgment will not be reversed. A reversal in such case would be abortive and injurious to both parties, as prolonging useless litigation. A result having been reached plainly in accord with the evidence and the law cannot be overthrown by the rulings of the court, however erroneous, for such errors would not be to the prejudice of the party complaining. Plate v. Durst, 42 W.Va. 63, 24 S.E. 580.
The circumstances of the case are as follows, to wit: Plaintiff went to the defendant's hotel, called the "Valley Hotel," to stop for a few days at the most. His home was in Virginia. He had an arrangement with defendant to board the mail carrier at reduced rates, and, when stopping there was accorded these rates himself. On this occasion, he had received payment of a draft; was drinking, and slightly intoxicated; exhibited his money freely; was arrested, fined, and paid the same. Mrs. Bucky, during the day, asked him to let her take charge of his money. This he declined to do, saying he was able to take care of his own money. At night he was assigned to a room which had two outside doors, both of which were locked and bolted. Another door opened in another small room, which communicated with the office through another door. There was no way of fastening the door between the rooms on plaintiff's side, but the door of the outer room, which communicated with the office, had a lock on, with a key in it. The son of the proprietor says he gave the key of this door to plaintiff, but plaintiff says that he simply told him that the doors between the rooms could not be fastened, but that he would see that the office door was properly fastened, and, relying on this statement, he (plaintiff) paid no more attention to the matter. He examined his pocketbook, to see that his money was in it; then placed it down in his coat pocket, and hung his coat on the bedpost, and retired for the night. On awakening in the morning, he noticed the pocketbook had been disturbed, and, on examining it, found his money gone. He got up, went out, found the colored porter, and acquainted Mr. Bucky with his loss. The money could not be found, and has never been restored, and amounted to $240. W. H. Franklin, a colored servant, employed about the hotel, testified, in substance, as follows, to wit: That he got up as usual the morning of the theft, about daylight, and was busy about his customary duties, sweeping out the office and hall, when Mrs. Bucky, wife of the defendant, came into the office where he was sweeping, and told him to stop awhile, and stand still, and then she went in through the doors into Mr. Cunningham's room, and in a short time returned, with a pocketbook in her hand, and went around behind the counter, and says, "Now, Franklin, never say anything about what you see me do." She then opened the pocketbook, and took several bills out of it, and then handed the pocketbook to him, and told him to take it back, and put it in Mr. Cunningham's coat pocket. He slipped in, and did as she told him. Mr. Cunningham was asleep. She then called him around to a side door, and told him not to say anything about what he saw her do, and gave him two five-dollar notes, a two-dollar note, and a one-dollar note. That afterwards he went on with his sweeping, until Mr. Cunningham came out, and told him to call Mr. Bucky. After a few days, hearing that he was going to be arrested, he left, and went to Barbour county, where he was arrested, and brought back, and lodged in jail. As to this witness' implication in this theft there is no contradiction. That he knows how and when and by whom the money was stolen is plainly evident. That h...
To continue reading
Request your trial