Gore v. Whitmore Hotel Co.

• Decision Date: 18 February 1935
• Docket Number: No. 18234.,18234.
• Citation: 83 S.W.2d 114
• Parties: MARK H. GORE, RESPONDENT, v. WHITMORE HOTEL COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

83 S.W.2d 114

MARK H. GORE, RESPONDENT, v. WHITMORE HOTEL COMPANY, APPELLANT.

No. 18234.

Kansas City Court of Appeals. Missouri.

February 18, 1935.

Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.

AFFIRMED.

Geo. W. Meyer and Edmund B. Smith for respondent.

Henry S. Conrad, L.E. Durham, Hale Houts, I.M. Lee and Wright Conrad for appellant.

CAMPBELL, C.

The plaintiff, about eleven o'clock on the night of September 2, 1931, while walking on the sidewalk along the north side of the Muehlebach Hotel building, in Kansas City, was suddenly and violently pushed by other persons on the sidewalk into the street and against the side of a moving taxicab and severely injured. The persons who pushed plaintiff were endeavoring to escape being struck by a large paper bag containing water which had been thrown from a window of said hotel. Plaintiff brought this suit to recover for his injuries, obtained a judgment in the sum of $1500, from which the defendant has appealed.

The Muehlebach Hotel is an eleven-story building located on the southwest corner of the intersection of 12th Street and Baltimore Avenue.

The evidence discloses that the Veterans of Foreign Wars began its three-day convention on Sunday, August 31, 1931; that 250 to 300 of them were guests of the Muehlebach Hotel, which hotel was in the possession of the defendant and being operated by it. Beginning on the afternoon of August 31, placards, feathers, telephone books, pillows, paper sacks, large and small, containing water and large laundry bags filled with water were thrown from the windows of the hotel to the sidewalks below. The "bombardment" continued until about 4:30 o'clock of the next morning and then for a time there was a lull. The throwing was resumed on the afternoon of Monday and continued into the night and was resumed on Tuesday afternoon and continued until plaintiff was hurt. The defendant's night manager testified that the condition "continued the full time of the convention."

No witness in giving his testimony estimated the number of objects thrown from the windows of the hotel but it may reasonably be inferred that the objects were numerous. The defendant's day manager, Mr. Osborne, testified that from time to time there was a "regular deluge" of bags containing water falling and that at other times a single bag was falling; that he "saw bags being thrown out of the windows, with water in them, and saw water poured out of pitchers, on the sidewalks, whenever a passer-by would pass down the street, they would try to throw water on them;" that he made no effort to stop the throwing "except probably" to go with the house officer "and see who these people were... ." The witness was asked:

"... how long this business of bags being thrown out of the windows, how long it had been going on? A. I answered that in here (deposition), I said I thought it was as long as they were in town. I did not commit myself on that, because I didn't know for sure, so I didn't tell you so.

"Q. The question was every night the convention lasted, and your answer was — `Answer: I think so, as long as they were in town... .'

"Q. Regardless of whatever time, that was the answer you made, was it not? A. Which answer?

"Q. `Answer: I think so, as long as they were in town,' — that is what you said? A. That is what I said, yes.

"Q. How about the crowds in the streets, Mr. Osborne, during the convention? A. Which streets?

"Q. On Twelfth and Baltimore? A. On Baltimore there were many people out of the reach of the water on Twelfth — there were not so many people because the water fell over there — they were fed up on getting hit with the water.

"Q. And the crowd was the thickest up around the Dixon and Baltimore hotels? A. Right at Twelfth and Baltimore, where they were congested, because they was just out of reach of the water; they were standing watching the innocent passers-by come down the street and getting hit with the water, watching the fun, and the people standing there in the street."

Further pertinent evidence will be stated in the course of the opinion.

It is plaintiff's theory that a public nuisance was created and thereafter existed for three days in the hotel building; that defendant, though it knew of the condition, failed to exercise due care to abate it and that such failure resulted in injury to plaintiff.

The defendant contends that the court erred in refusing its request to direct verdict in its favor. In support of this insistence the defendant argues that the only negligence charged was that defendant knew or in the exercise of due care could have known that the particular bag, the falling of which resulted in injury to plaintiff, was likely to be dropped or thrown from a room in the hotel "in time, thereafter, by the exercise of ordinary care, to have prevented the occurrence." The petition sufficiently alleged facts showing that a nuisance was created and existed on premises in the exclusive possession and control of the defendant "on, and long prior" to the time plaintiff was injured; that the particular object, the falling of which caused the crowd on the street to push plaintiff against the taxicab, was of the same character as the other objects which had been falling from the windows of the hotel "on and long prior" to the time of injury; that the defendant knew that persons using the sidewalks were likely to be struck and injured by said falling objects; that the defendant knew, or by the exercise of ordinary care, would have known of the existence of said nuisance in time, thereafter, by the exercise of due care, to have remedied the same before plaintiff was injured and that it carelessly and negligently failed to do so. Thus, it is plain the petition charged that the falling of the particular object was only one of the many wrongful acts which created and maintained the nuisance. Considering all of the allegations of the petition we think it is not subject to the construction placed upon it by the defendant. [Plank v. Brown Petroleum Co., 61 S.W. (2d) 328; Atterbury et al. v. West et al., 122 S.W. 1106.]

The defendant further contends that the throwing of objects prior to the particular object did not cause the injury to plaintiff. True, the objects which were thrown prior to the particular one did not hurt the plaintiff. The evidence, however, shows that objects of the same general character were thrown from windows on both the north and east frontages of the hotel. This was sufficient to allow the jury to find that the defendant's offending guests were acting in concert both in creating and maintaining the nuisance and that the throwing of the particular object was merely one of the acts in the continuance of the wrong.

The reported cases show that a nuisance has not infrequently been created and maintained by sundry acts, which acts were of a similar character, and that only one of such acts caused injury. Each of these cases in effect holds that the injured person was entitled to recover damages resulting from the one act. [Liscomb v. Cincinnati, N. & C. St. Ry. Co., 39 S.W. (2d) 991; Katz v. Hebing, 1 Pac. (2d) 1076; Charlton v Jackson et al., 167 S.W. 670; Hogle v. Franklin Mfg. Co., 92 N.E. 794.]

The evidence of both plaintiff and defendant unmistakably shows that a nuisance was created and maintained in the hotel from sometime in the afternoon of August 31 until the time plaintiff was injured. [State ex rel. Renfrow v. Service Cushion Tube Co., 316 Mo. 640, 291 S.W. 106.]

The evidence further shows that the defendant was aware of the creation and maintenance of the nuisance and that damage was likely to result therefrom, or at least the jury could so find. When the defendant became aware of the existence of the nuisance it was its duty to exercise reasonable care to abate the condition and if it could by the exercise of such care have abated the nuisance prior to the time plaintiff was injured and negligently failed to do so then it is liable for the resulting damages. The defendant argues that the legal relations existing between it and its offending guests precludes recovery. Each guest to whom the defendant assigned a room was entitled to courteous treatment at the hands of the defendant and its employees and if the guest properly demeaned himself the defendant did not have right of access to the room of the guest save for the purpose of caring for it or for other purposes not necessary here to state. [Dazell v. Dean Hotel Co., 193 Mo. App. 379; Wolk et al. v. Pittsburgh Hotels Co., 42 A.L.R. 1081.] The guest was also under the duty not to engage in unlawful or disorderly conduct which endangered other guests or strangers and a wilful violation of that duty forfeited the right of the guest to possession of the room.

There was no evidence identifying any particular room from which any of the objects were thrown nor was there evidence identifying any of the offenders. Nevertheless, the defendant as a matter of law was under the duty to exercise reasonable care to identify the offenders and the rooms used by them in the perpetration of the wrong. Was there evidence showing that the defendant failed to perform that duty? The defendant's evidence was to the effect that its night manager, house officer and house detective went about the hotel, knocked on the doors of rooms occupied by guests, inquired of some of them whether or not they had thrown water into the street. In each instance the person to whom the...