Dispeker v. New Southern Hotel Co.

• Decision Date: 05 December 1963
• Citation: 213 Tenn. 378,373 S.W.2d 904,17 McCanless 378
• Parties: , 213 Tenn. 378 Mrs. Gertie S. DISPEKER v. The NEW SOUTHERN HOTEL COMPANY.
• Court: Tennessee Supreme Court

Page 904

373 S.W.2d 904

17 McCanless 378, 213 Tenn. 378

Mrs. Gertie S. DISPEKER v. The NEW SOUTHERN HOTEL COMPANY.

Supreme Court of Tennessee.

Dec. 5, 1963.

Moss & Benton, Schneider, Schneider & Harris, Jackson, George O. Benton, Victor F. Schneider, Jackson, of counsel, for complainant.

William E. Leech, Franklin Murchison, Jackson, for defendant.

Gullett, Steele & Sanford, Nashville, W. Harold Bigham, Nashville, of counsel, amicus curiae, on behalf of Tennessee Hotel Ass'n.

FELTS, Justice.

This suit was brought in the Chancery Court of Madison County by Mrs. Gertie S. Dispeker against The New Southern Hotel of Jackson, Tennessee, for damages to her automobile caused when its employee, then off-duty, came onto its parking lot, and wrongfully misappropriated complainant's automobile by driving it away and later wrecking it.

The Chancellor dismissed the suit. The Court of Appeals reversed and decreed in favor of complainant for the value of the automobile, less salvage value. Defendant has filed in this Court a petition for certiorari.

It appears from the Chancellor's finding of fact that on March 31, 1949, at approximately 5:10 P.M., complainant and her husband, while en route from New Orleans to their home in Cincinnati, drove their Buick automobile to the front entrance of defendant's hotel to become an overnight guest of the hotel. Fred Govan, a bell boy employed by the defendant hotel, greeted complainant and her husband and assisted them in removing their baggage to an assigned room.

At the request of the complainant, Govan then drove the complainant's automobile from the front entrance of the hotel to a parking lot located in the rear of and adjoining the hotel building, which parking lot is owned by the defendant. Complainant, however, retained the keys to said automobile, the ignition on this Buick capable of being operated without the use of the ignition key. (Complainant explained to Govan that the automobile could be operated without the key, and apparently showed him how to so operate it.)

Later in the evening at approximately 7:00 P.M., complainant and her husband, while on a casual stroll, observed their automobile parked in the defendant's parking lot. This lot was outdoors and unattended and it was free to the guests. Persons having automobiles parked there had free ingress and egress and the guests could park and remove their cars at will.

The defendant hotel also had an agreement with a local parking garage located a few blocks away whereby its guests could, if they chose, store their car for a fee; but the Chancellor said there was no evidence that complainant knew of this arrangement.

After the defendant's employee, Govan, went off duty, he returned sometime that night prior to midnight to the parking lot and wrongfully appropriated complainant's vehicle and wrecked it, thereby causing damage to the automobile. At the time Govan took the car, however, he was not acting within the scope of his employment. These are substantially the findings of fact by the Chancellor by which the Court of Appeals and this Court are bound.

On the basis of these facts, complainant sued in Chancery Court to recover from defendant the sum of $2,050.00, the alleged damages suffered by complainant as a result of the failure of defendant to re-deliver her car.

After preliminary motions and a demurrer were overruled, all of which are irrelevant to the petition now before us, defendant filed an answer admitting that the complainant and her husband were guests of the hotel on the night in question, but denying each and every other allegation of the complaint. In addition, defendant relied on the following special defenses: (1) That the bill did not allege any negligence on the part of defendant; and (2) That any damage claimed by complainant is solely attributed to complainant's negligence.

The cause finally came to be heard in 1962 before Chancellor McLemore upon the original bill, defendant's answer, a stipulation of certain facts, depositions, and oral testimony in open court. He dismissed the case on the ground that the common law rule making an innkeeper practically an insurer of the property of its guests 'infra hospitium' was not applicable since the automobile was outside the hotel in an open, unattended parking lot; and further, on the ground that defendant was a bailee for hire and there was no evidence to show that the removal and misappropriation of complainant's automobile was occasioned by the negligence of the defendant bailee.

Complainant perfected her appeal to the Court of Appeals, and that Court, in an opinion by Judge Bejach of the Western Section, reversed the Chancellor and held that the defendant was liable on the ground that defendant hotel was practically an insurer of the automobile of its guest. The Court of Appeals further held that the question of defendant's liability as a bailee was eliminated on appeal since no bill of exceptions was filed.

The case is here on a writ of certiorari, defendant making two assignments of error: (1) That the Court of Appeals erred in failing to dismiss the appeal of complainant because no bill of exceptions had been filed; and (2) That the Court of Appeals further erred in holding that the common law rule making innkeepers practically an insurer was applicable.

The Tennessee Hotel Association came into the case as a petitioner amicus curiae after the petition for certiorari was filed in this Court; and it, through able counsel, filed a brief which was duly answered by respondent.

It is petitioners' first contention that the Court of Appeals erred in denying the defendant's motion to dismiss the appeal in the absence of a bill of exceptions. They contend that, in the absence of a bill of exceptions, there is a conclusive presumption that the decree of the Chancellor was sustained by the evidence.

In Rose v. Third National Bank, supra, 27 Tenn.App. 553, 563, 183 S.W.2d 1, 5, the case came to the Court of Appeals without a bill of exceptions and the Court, in overruling the motion to dismiss the appeal, said:

'But this does not compel an affirmance of the chancellor's decree. It only precludes a review of the assignments of error which depend on the bill of exceptions. We must still consider the assignments which depend upon the technical record--that is, the pleadings and minute[s] entries.' (citing cases) (italics ours).

This Court, in Daniel v. East Tenn. Coal Co., 105 Tenn. 470, 477, 58 S.W. 859 (1900), in an opinion by Mr. Justice Caldwell, said that in the absence of a bill of exceptions it is conclusively presumed in this Court that the proof before the Circuit Court justified the judgment there rendered. He relied on his prior decision in Pratt v. Gillespie, 97 Tenn. 217, 219, 36 S.W. 1097 (1896), where it is said:

'In the absence of a bill of exceptions showing the evidence submitted in the court below, this court presumes conclusively that it was sufficient to justify the judgment of the trial judge.'

This principle was approved by Mr. Justice Tomlinson in Freeman v. Freeman, 197 Tenn. 75, 82, 270 S.W.2d 364, 367, (1954), where he said:

'And there being no bill of exceptions, and no error appearing in the technical record, there arose a conclusive presumption that the decree of the Chancellor is correct' (italics ours).

It is true that a paragraph in Mr. Justice Prewitt's opinion denying certiorari in Spivey v. Reasoner, 191 Tenn. 350, 352, 233 S.W.2d 555, 556 (1951), tends to support petitioner's contention. There, the case was heard in the Chancery Court on the pleadings, oral testimony, a stipulation of certain facts, and exhibits, and went to the Court of Appeals in the absence of a bill of exceptions. Mr. Justice Prewitt concluded his opinion by saying:

'The Court of Appeals was correct in holding that it had no power to review the complainant's assignments of error, and in the absence of a bill of exceptions, there is a conclusive presumption that the Chancellor's findings and decrees based on these matters were correct. Rose v. Brown, supra.'

Although the case seems to say that both the Chancellor's finding of fact and decrees on questions of law are conclusive on appeal, this was not intended as is shown by the later case of Findlay v. Monroe 196 Tenn. 690, 693, 270 S.W.2d 325 (1953).

There, although not citing it, Mr. Justice Tomlinson correctly interprets the language of Spivey v. Reasoner, supra. He said:

'Where there is no bill of exceptions it will be presumed on appeal that the evidence supports the facts as found by the Trial Judge in his signed and filed opinion. * * * This, of course, does not mean that the conclusions of law which a Trial Court reaches from that finding of fact must be assumed to be correct' (italics ours).

Thus, on appeal, the Court of Appeals could properly review on the merits any...