Fisher v. Bonneville Hotel Co.

• Decision Date: 17 March 1920
• Docket Number: 3417
• Citation: 55 Utah 588,188 P. 856
• Court: Utah Supreme Court
• Parties: FISHER v. BONNEVILLE HOTEL CO

188 P. 856

55 Utah 588

FISHER v. BONNEVILLE HOTEL CO

No. 3417

Supreme Court of Utah

March 17, 1920

Appeal from District Court, Salt Lake County, Third District; P. C Evans, Judge.

Action by Annie M. Fisher against the Bonneville Hotel Company.

From a judgment for plaintiff, defendant appeals.

AFFIRMED.

Gustin Gillette & Brayton, of Salt Lake City, for appellant.

H. L Mulliner, of Salt Lake City, for respondent.

THURMAN, J. CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff alleges in her complaint the corporate existence of defendant and that it was the keeper of an inn or hotel in Salt Lake City known as the "Newhouse Hotel"; that on the 20th day of January, 1917, after plaintiff had been received by defendant as a guest in said hotel, plaintiff delivered to and left in the custody of said defendant her baggage, consisting of a leather grip, containing wearing apparel, toilet articles, and other personal property, all of the reasonable value of $ 204.75; that after defendant had taken possession of said baggage and property, and assumed the relation of hotel keeper thereto, said defendant negligently failed to care for the same, so that it became wholly lost to the plaintiff, to her damage in the sum heretofore mentioned.

Defendant, answering, admits that at the time mentioned in the complaint it was a corporation, and keeper of the inn or hotel described in the complaint. It denies both specifically and generally all the remaining allegations thereof.

The cause was tried to the court without a jury, findings were rendered in favor of the plaintiff, judgment was entered thereon, from which judgment defendant appeals, and assigns numerous errors in the findings of the court.

Before considering the alleged errors of the court, it becomes our duty to dispose of a motion made by respondent to strike the bill of exceptions. The motion is voluminous, and calls attention to numerous apparent irregularities in the document filed as a bill of exceptions. Various documents purporting to be orders extending time to prepare and serve the bill are challenged by respondent and their authenticity disputed. All of the alleged orders covered by the motion appear to have been procured and attached to the bill after it had been prepared and served, and even after it had been returned to appellant and presented to the court for settlement. This, of course, is an irregularity, and it is difficult to understand just how it could have occurred. The explanation made by appellant's counsel, however, tends to show good faith on their part in attaching the documents to the bill, so that no intentional wrong may be imputed to them in respect to the matter which constitutes the basis of the motion to strike.

As we view the question, the documents objected to are wholly immaterial, and need not have been attached to the bill at all. The record shows that judgment was entered and filed May 15, 1919. Defendant's time within which to appeal would not expire until November 15th of the same year, and if no notice in writing of the entry of judgment was served upon the defendant at all, it would have the whole six months, and perhaps longer under certain conditions, in which to prepare and serve its bill of exceptions and procure a settlement thereof. See Wilson v. Salt Lake City, 52 Utah 506, 174 P. at page 851. Of course defendant was required to file and serve its notice of appeal within six months from the entry of the judgment, whether notice of the entry was served or not; there being in this case no stay of judgment by motion for a new trial or other proceeding. The record shows that notice of appeal was filed and served on the 11th day of November, 1919, and was therefore in time. It further shows that the bill of exceptions was settled on the same day by the judge who tried the case, which was also in time if no notice in writing of the entry of judgment was served upon appellant.

Comp. Laws Utah, 1917, section 6969, among other things, provides that a bill of exceptions may be prepared and served within thirty days after notice of the entry of judgment when the case is tried without a jury.

The controlling question in this proceeding is, was there notice of the entry of judgment served upon appellant at any time? If so it should appear in the bill of exceptions. It could not appear in the judgment roll. There is no notice of entry in the bill of exceptions. A document purporting to be a notice of entry of judgment served upon appellant appears in the transcript sent up by the clerk of the district court, but we have no power to give it effect in determining the question. It is pertinent to remark that if this document, which on its face indicates that it was served on appellant the next day after the judgment was entered, had been incorporated in the bill of exceptions, respondent's motion to strike would of necessity prevail, because the purported orders to extend the time in which to prepare and serve the bill were wholly insufficient. Our conclusion, therefore, is that the orders objected to were immaterial, and appellant's proposed bill of exceptions was served in time. The motion to strike the bill is denied.

The principal and controlling question presented by appellant in its assignment of errors is the relationship existing between the plaintiff and defendant at the time of the transaction complained of. Plaintiff contends she was a guest of the hotel, while defendant insists she was not. This involves a consideration of all the evidence bearing upon that question.

There is substantial evidence in the record to show that early in January, 1917, plaintiff's husband, a member of the Utah Legislature of that year, came from his home in Heber City, Wasatch county, Utah, and went to defendant's hotel, known as the Newhouse Hotel, in Salt Lake City, and there made arrangements for a room for himself and plaintiff: that the price arranged for was so much per month during the time that they might remain; that plaintiff came two or three days after her husband made the arrangements, and from thence on they occupied the room. It does not appear that plaintiff registered, or that her name appears on the register of the hotel; but she was there occupying the room with her husband. One or two of their children came down from Heber and occupied the room with their parents a portion of the time while they were there. It also appears that on or about the 20th of January, 1917, and during their occupancy of the room, plaintiff and her husband made a trip of one day to Provo, Utah; that as plaintiff was leaving her room, carrying her grip or suitcase in her hand, one of the porters of the hotel offered his services in carrying the grip; that plaintiff stated she could carry the grip herself, but the porter insisted on carrying it and took the grip; that the porter did not get on the elevator with the plaintiff in going down to the lobby; that plaintiff's husband told the bell boy to tell the porter when he came to put the grip with the other grips, and showed the bell boy where they were; that plaintiff and her husband then went out to breakfast, after which plaintiff waited on the corner while her husband and another gentleman went for the grips; that when they returned, and while on the street car, plaintiff called her husband's attention to the fact that he had left her grip; that they went on to the railroad depot, and there her husband telephoned to the hotel and was answered by one of the porters; that he informed the porter that he had left plaintiff's grip, and after some inquiry or investigation by the porter he informed plaintiff's husband that the grip was there, and promised to take care of it until plaintiff and her husband returned from Provo; that they did return that evening, but upon investigation were unable to find the grip; that considerable investigation was made by the manager of the hotel, the porters were examined, and the manager informed the porters that they had been careless, and promised plaintiff's husband that the matter would be fixed up if the grip could not be found. The grip contained ladies' and children's wearing apparel, toilet articles, etc., found by the court to be of the value of $ 171.75. There is more or less conflict in the evidence, but it would be useless to review the same, for, as stated in the beginning, there is substantial evidence to the effect above stated.

It is contended by appellant that plaintiff was not, in law, a guest of the hotel; that, if she occupied any relation at all to the hotel, it was as a boarder, and not as a guest. As to the responsibility of a hotel keeper for the loss of property of one patronizing the hotel, much depends upon the question whether the patron is a boarder or a guest. If a guest, the hotel keeper becomes an insurer of the property committed to his care, and is responsible for its loss, unless the loss is caused by the act of God, the public enemy or the negligence of the owner himself. If the patron is a boarder, the hotel keeper is not responsible except in case of his failure to use ordinary care. Lawrence et al. v. Howard, 1 Utah 142, and cases hereafter cited.

In the case at bar the court found that the property was lost through the negligence and carelessness of the defendant company. So that, even if plaintiff was only a boarder in the sense that that term is used in the law, still...