Frewen v. Page

• Citation: 238 Mass. 499,131 N.E. 475
• Parties: FREWEN v. PAGE et al. (two cases).
• Decision Date: 31 May 1921
• Court: United States State Supreme Judicial Court of Massachusetts

238 Mass. 499

131 N.E. 475

FREWEN

v.PAGE et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 31, 1921.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Two actions, by Leo Frewen and by Margaret Frewen, against George H. Page andanother. Verdicts against the defendant named, and he brings exceptions. Exceptions overruled.

The actions were by hotel guests against the proprietor of the hotel. There was evidence that while they were in bed in the room, to which they had been escorted and given a key, it was entered successively by different employees of defendant, and finally by defendant himself and a police officer, that plaintiffs were ordered to leave the hotel and refused to do so, and also conflicting evidence of an assault, false imprisonment, and slander.Eaton & McKnight and Robert G. Wilson, Jr., all of Boston, for plaintiffs.

T. J. Barry, Elijah Adlow, and C. S. Hill, all of Boston, for defendant.

BRALEY, J.

The only reference to the evidence in the record is the ‘statement of facts,’ from which it appears that the plaintiffs, who are husband and wife, were accepted as guests at the Hotel Langham, managed and kept by the defendant George H. Page, and the question whether they had been properly registered, as required by St. 1918, c. 259, § 5, has been answered in the affirmative by the jury. A finding would have been warranted that while in bed in a room assigned to them, to which they had been escorted and given a key, three employees of the defendant entered, followed by the defendant with a police officer, and although ordered to leave the hotel the plaintiffs refused compliance with the order, and that evidence was offered ‘of an assault, of false imprisonment, and slander, all incidental to the plaintiffs' right to the quiet enjoyment of their room, but the defendant offered evidence to dispute this.’ We assume that this summary refers to what took place after the defendant came in, and that the jury could find he acted as the proprietor in control of the hotel, and the employees and police officer were present at his direction and solicitation.

The action is in tort or contract. But at the plaintiffs' election by order of the court on motion of the defendant, the cases were submitted to the jury on the counts in contract, and general verdicts were returned for the plaintiffs. The jury having specially found that the plaintiffs had duly registered, they were rightly in occupation. The defendant's fifth and sixth requests, that if the plaintiffs were violating the law in occupying a room without having been properly registered ‘they are precluded from recovering for any injury suffered while in the room,’ and the defendant was ‘justified in entering the room for the purpose of learning whether the law had been complied with, and, if the occupants refused to assist him, he is justified in assuming that their presence is unlawful, and can use any reasonable means to remove them,’ are no longer material. See St. 1918, c. 259, § 5.

The questions raised by the seventh request, whether the defendant was ‘responsible for the acts of the police officer done by the police officer while in the performance of his lawful duty,’ and ‘that the police officer was acting within the scope of his lawful duty in entering the room * * * to investigate into the right of their presence there,’ were for the jury under suitable instructions. Mason v. Jacot, 235 Mass. 521, 127 N. E. 331.

The eighth request, that if the defendant had no intention of frightening the plaintiffs, but merely went to the room to ascertain whether they ‘had a right to be there,’ he is not responsible ‘for her fright, or the consequent injury to her health,’ is not supported by any legal presumption. The defendant was not justified in assuming the plaintiffs were not registered. The hotel registry disclosed their names, and he could not for this reason intrude upon their privacy. Sampson v. Henry, 11 Pick. 379, 387. It is necessary, however, to ascertain the respective rights of the parties upon which the defendant's remaining requests must rest. The defendant urges that consequential damages for breach of contract are limited to such damages as were within the contemplation of the parties at the time of entering into the agreement. But it was held in Dickinson v. Winchester, 4 Cush. 114, 121 (50 Am. Dec. 760), that a plaintiff who had lost a trunk and its contents while a guest at the defendant's hotel could declare in case of assumpsit.

‘The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise.’ Vannah v. Hart Private Hospital, 228 Mass. 132, 117 N. E. 328, L. R. A. 1918A, 1157;Norcross v. Norcross, 53 Me. 163.

The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse and unjustifiable interference, whether exerted by the defendant or his servants, or those under his control, or acting under his orders. The plaintiffs, having duly registered and been put in possession of a room for their exclusive use, had the right of occupation for all lawful purposes until vacated, subject only to the access of the defendant at reasonable times, and in a proper manner, for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated, controlling emergency. Com. v. Power, 7 Metc. 596, 601,41 Am. Dec. 465;Holden v. Carraher, 195 Mass. 392, 81 N. E. 261,11 Ann. Cas. 724;De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527,21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969;Lehnen v. Hines, 88 Kan. 58, 127 Pac. 612,42 L. R. A. (N. S.) 830.

If without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice, or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in damages if excessive force, or coercion, or intimidation was used, or his conduct towards the plaintiffs was abusive, insulting, and wanting in ordinary respect and decency. And his tenth request, that if as owner of the hotel he entered the room ‘for the purpose of inspecting the same and seeing that the rules of the hotel,...