Dye-Washburn Hotel Co. v. Aldridge, 6 Div. 564.

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
Citation93 So. 512,207 Ala. 471
Docket Number6 Div. 564.
Decision Date19 January 1922

Rehearing Denied May 11, 1922.

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action for damages by Mary Pauline Aldridge against the Dye-Washburn Hotel Company. Judgment for plaintiff. From an order denying a motion for new trial, defendant appeals. Affirmed.

Stokely Scrivner & Dominick, of Birmingham, for appellant.

Brown &amp Denson, of Birmingham, for appellee.


This case was submitted on motion to dismiss the appeal and on the merits. The appellee moves to dismiss the appeal because it was from a judgment against appellant and H. P. Dye. Dye did not appeal and no notice by summons or publication was given him of the appeal as required by act approved April 21, 1911 (Acts 1911, p. 589, amending section 2884, Code 1907), and there has been no severance.

The certificate to the transcript by the clerk of the court recites it contains proceedings in the cause, wherein "Mrs. Mary Pauline Aldridge is plaintiff and the Dye-Washburn Hotel Company is defendant." The name of H. P. Dye is not mentioned therein. The certificate on file, required by section 3 of an act approved February 15, 1919 (Laws 1919, p. 85) to be made by the clerk when an appeal is taken, contains the names of the parties to the cause as follows: "Dye-Washburn Hotel Company (defendant) appellant versus Mary P. Aldridge (plaintiff) appellee." The name of H. P. Dye is not mentioned therein as a party.

The court in its oral charge to the jury stated:

"The suit, as last amended, is against H. P. Dye, defendant, the Dye-Washburn Hotel Company, a corporation, and against-do you withdraw as to the Hillman Hotel Company?
"Mr. Brown: 'Yes, sir; I understood that was out.'
"The Court: So there, gentlemen, are the only two defendants before you, by the pleadings in the case; H. P. Dye and the Dye-Washburn Hotel Company. I will give you a charge, however, which is asked in writing which will eliminate the defendant H. P. Dye, under the evidence in the case. Therefore, the suit is between the plaintiff, so far as your consideration is concerned, and the defendant the Dye-Washburn Hotel Company. I say that so that you may get clearly in your minds the parties in the case, because there have been different parties in it from the beginning, and elimination by pleadings, and so forth. So there are only two parties-the plaintiff and the defendant Dye-Washburn Hotel Company."

This directly eliminated H. P. Dye as a party defendant. The court also gave the jury this written charge:

"(6) If the jury believe the evidence, they cannot find for the plaintiff and against the defendant H. P. Dye."

The verdict of the jury was in the following words:

"'We the jury, find for the plaintiff and assess her damages at twenty-five hundred ($2,500) dollars,' as shown by the minutes of the court."

The minutes containing the judgment do not state the names of the parties; after reciting the verdict of the jury, a judgment is rendered thereon in favor of plaintiff and against the defendants. The plural and not the singular of defendant is used. The names of the parties are not given. This plural-defendants-is the only evidence in the entire record indicating a judgment against H. P. Dye. Taking the record as a whole, we must conclude that this letter "s" after the word defendant in the judgment, as shown by the transcript, was inadvertently placed there by the clerk in copying it from the minutes. All the record evidence, except that letter "s" after defendant, is to the effect that H. P. Dye was not a defendant; that he was eliminated from the case. As there was no judgment against H. P. Dye, there was no necessity for the clerk of the circuit court, or for this court, to give H. P. Dye notice of the appeal taken by the Dye-Washburn Hotel Company, by summons or publication as required by section 2834 of the Code of 1907, as amended by Acts 1911, p. 589. The case is properly before this court on its merits on appeal by appellant. Hence the motion of appellee to dismiss the appeal is refused.

The plaintiff, Mrs. Mary P. Aldridge, was a guest of the Hillman Hotel in Birmingham. It was operated by the defendant the Dye-Washburn Hotel Company, a corporation. H. P. Dye was defendant's general manager in charge of the hotel. Mrs. Aldridge was sitting on the mezzanine floor, at a place provided for guests of the hotel. There was a skylight over this floor, which is in the second story of the building. The walls of the building above the skylight form an inner court in the shape of the letter "U" and extend up several stories. There are windows in each room around the inner court; they are screened. The glass of the skylight over the mezzanine floor is about 10 feet from the inner court wall of the building, and under the screened windows of the rooms of the stories above. G A. Trice, a guest of the hotel, occupied one of the inner court rooms, two stories above the skylight. He opened his suit case, and several roaches ran out; some went on the bed, some ran on the floor and one ran on the inside of the screen window. He commenced killing them by striking them with a towel, which was between 5 and 6 feet long [a dry, army, bath towel]. He struck the screen in the window with the towel several times in an effort to kill the roach running on it. The last stroke from the towel on the screen knocked the screen out of the window. It fell on the skylight below, broke it, and the broken glass fell on and cut Mrs. Aldridge seriously in several places.

The hotel keeper must furnish safe premises for the guests, which they may use in the ordinary and reasonable way without danger; and if any guest, while using the building where she is reasonably expected to go, is injured by a defective condition of the building, the manager is liable for the injuries to his guest that are proximately caused by his negligence in the defective condition. The law is clearly stated as follows in 14 R. C. L. p. 508, § 14:

"The law imposes a duty on an innkeeper to furnish safe premises to his guests, *** which may be used by them in the ordinary and reasonable way without danger, but this duty is limited to those parts of the premises to which a guest may be reasonably expected to go. The duty of a proprietor to exercise reasonable care for the safety of those he entertains is not contractual, but is imposed by law by reason of the relation of the parties. Though it is generally held that an innkeeper is not an insurer, of his guests' safety, and that his responsibility is limited to the exercise of reasonable care." 14 R. C. L. p. 508, § 14, headnotes 13, 14, 15, and 16, and authorities there cited.

Mrs. Aldridge was a guest of the hotel. She was injured. At the time of the injury she was at a place in the building where a guest had a right to go and was reasonably expected to go. She was injured by falling glass from a broken skylight above her, which was broken by a window screen being knocked out of a window on it by a guest of the hotel while in his room, striking with a towel at a roach running on the wire screen. Was this screen window which was a part of the building in a defective condition, not safely fastened at the time? If yea, then was this defective condition of the premises due to the negligence of defendant, its servants or agents while acting in the line and scope of their employment?

There was evidence from which the jury could reasonably infer that this screen in this window was, or was not, safely fastened, and was, or was not, in a defective condition; and if defective, not safety fastened, there was evidence from which they might reasonably decide that it was due to the negligence of the general manager of the defendant who testified:

"It was my duty to look after the those screens and have them inspected and see they were in proper condition."

These questions were, under the conflicting tendencies of the evidence, properly submitted to the left with the jury to answer.

Was the defendant guilty of negligence in failing to keep the screen fastened with reasonable safety in the window? If yea, was that negligence the proximate cause of the injury to the plaintiff; or was the new intervening stroke of Trice, the guest, in striking the screen, sufficient of itself to be alone the cause, and was the injury of the plaintiff caused as a proximate consequence from this blow of the guest on the screen? On this subject, in Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 So. 349, this court, speaking through Chief Justice McClellan, said:

"The logical rule in this connection, the rule of common sense and human experience as well (if indeed there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. 1 Sher. & Red. Negligence, § 29."

See also, A. G. S. R. Co. v. Arnold, 80 Ala. 600, 2 So. 337; L. & N. R. R. Co. v. Quick, ...

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