Driskill Hotel Co. v. Anderson

• Citation: 19 S.W.2d 216
• Decision Date: 22 May 1929
• Docket Number: (No. 7363.)
• Parties: DRISKILL HOTEL CO. v. ANDERSON.
• Court: Court of Appeals of Texas

19 S.W.2d 216

DRISKILL HOTEL CO. v. ANDERSON.

(No. 7363.)

Court of Civil Appeals of Texas. Austin.

May 22, 1929.

On Rehearing July 1, 1929.

Further Rehearing Denied July 17, 1929.

Error from Travis County Court; G. S. Matthews, Judge.

Action by J. E. Anderson against the Driskill Hotel Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered on rehearing.

Hy Byrd, J. Harris Gardner, and White, Wilcox & Taylor, all of Austin, for plaintiff in error.

Victor Gleckler and Hart, Patterson & Hart, all of Austin, for defendant in error.

McCLENDON, C. J.

Anderson sued Driskill Hotel Company for $78 alleged to have been stolen from Anderson's room while he was a guest of the Driskill Hotel. The judgment was for Anderson upon a special issue verdict. The hotel company has appealed.

Two grounds for reversal are urged by appellant: (1) That the evidence will not support the judgment, because no affirmative act of negligence on defendant's part was shown, and it conclusively appears that Anderson was a boarder and not a guest at the hotel. (2) That the third jury finding, to the effect that Anderson was negligent in failing to use the means and precautions available to prevent the loss of the money, entitled defendant to judgment.

Upon the first issue the evidence shows that Anderson had been a resident of Austin for a number of years, and had been living in different hotels. He had lived at the Driskill about a year prior to the loss at issue; his arrangements being that he was given a lower rate than that of a transient guest, but the rate charged roomers, and paid his bills usually once each month, "while transient guests paid each day, or at the end of each week."

In Kieffer v. Keough (Tex. Civ. App.) 188 S. W. 44, the Galveston Court gives an extended review of the authorities, showing the modern trend of decision to abrogate the early common-law distinction between a guest and a boarder. In that case it was held that the relation of hotel or innkeeper and guest arose where the proprietor rented furnished rooms by the day, week, or month, furnishing the occupants with bell boy service, lights, water, heat, and attended to having laundry sent out, returned, paid for, and charged to the guests of the respective rooms. The proprietor also had some unfurnished rooms, which he rented when tenants could be secured. There was a fixed rate for each class of accommodation by the day, week, or month for furnished rooms, and a rate for unfurnished rooms. The plaintiff in that case rented an unfurnished room and paid therefor the regular rate. The Supreme Court refused a writ of error, which we consider an approval of the conclusion reached. The facts in that case are, if anything, stronger than those in the case at bar as supporting the relation of boarder under the earlier holdings. We regard the decision as controlling here, and overrule appellant's first contention.

We overrule the second contention, on the ground that there was no pleading to support the defense of contributory negligence. It is true that pleadings in a justice court may be oral, and much latitude is indulged in support of their sufficiency. Nevertheless the holdings of our appellate courts appear to be that there must be some pleading to support an issue which is essential to a decision, and such pleading must be evidenced at least by some notation or memorandum thereof in the record. Southwestern Portland Cement Co. v. Havard Co. (Tex. Civ. App.) 155 S. W. 656; Atnip v. Hinkle (Tex. Civ. App.) 258 S. W. 860. The only record of any pleading whatever on behalf of defendant is the following notation from the...