Haff v. Adams

• Citation: 59 P. 111,6 Ariz. 395
• Decision Date: 01 November 1899
• Docket Number: Civil 666
• Parties: MARY R. HAFF, Plaintiff and Appellant, v. J. C. ADAMS, Defendant and Appellee
• Court: Arizona Supreme Court

59 P. 111

6 Ariz. 395

MARY R. HAFF, Plaintiff and Appellant, v. J. C. ADAMS, Defendant and Appellee

Civil No. 666

Supreme Court of Arizona

November 1, 1899

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Affirmed.

The facts are stated in the opinion.

Baker &amp Bennett, for Appellant.

"The case should not be withdrawn from the jury unless the conclusion follows as a matter of law from the evidence, that no recovery can be had on any view which could properly be taken of the facts the evidence tends to establish." Texas Railway Co. v. Cox, 145 U.S. 593, 12 S.Ct 905; Dunlap v. Northwestern R.R. Co., 130 U.S. 649 9 S.Ct. 647; Kane v. Central R.R. Co., 128 U.S. 91, 9 S.Ct. 16; Jones v. East Tenn. R.R., 128 U.S. 443, 9 S.Ct. 118; Lewis v. Prien, 98 Wis. 87, 73 N.W. 654; Reid v. Kellog, 8 S.D. 596, 67 N.W. 687; Barbour v. Moore, 25 Wash. L.R. 55; Boyd v. Cross (Tex. Civ. App.), 33 S.W. 1039; Van Etten v. Edwards, 48 Neb. 25, 66 N.W. 1013; Phoenix Assoc. Co. v. Lucker, 77 F. 243; Chicago etc. R.R. Co. v. Anderson, 166 Ill. 572, 46 N.E. 1125; Frame v. Electric Trac. Co., 180 Pa. St. 49, 36 A. 404; Fraser v. Schroder, 163 Ill. 459, 45 N.E. 288; Cons. Coal Co. v. Schneider, 163 Ill. 393, 45 N.E. 126; Rogers v. Meinhardt, 37 Fla. 480, 19 South, 878; Florida etc. Co. v. Williams, 37 Fla. 406, 20 South, 558; Woelfel v. Federal St. etc. R.R. Co., 183 Pa. St. 213, 38 A. 592; People v. People's Ins. Co., 126 Ill. 466, 18 N.E. 774; 2 L.R.A. 340.

In the case of Fay v. Pacific Imp. Co., 93 Cal. 253, 27 Am. St. Rep. 198, 26 P. 1099, the court says: "The Del Monte being a public hotel, in the absence of evidence showing that plaintiff went there as a boarder, the presumption would be that she went there as a guest. Not only does the evidence fail to overthrow this presumption, but the testimony of the plaintiff shows that she was there as a mere temporary sojourner, without any agreement as to the time she should stay," etc. If then, as in the case last cited, the fact that the hotel was a public hotel raises the presumption that persons stopping at such hotel are guests, how is that presumption overcome in the case at bar? No evidence was offered by the defendant to overcome that presumption, and with that presumption remaining unrebutted in favor of the plaintiff, it alone is sufficient to support a verdict for plaintiff. Magoffin v. Missouri Pacific R.R., 102 Mo. 540, 20 Am. St. Rep. 798, 15 S.W. 76. And in such case, under all the authorities above cited, it is error to direct a verdict for defendant.

It is contended by plaintiff that she was a guest at the hotel and not a boarder. "The distinction between a guest and a boarder is, that the former comes without any bargain as to the length of time he is to stay, and therefore may go when he pleases. A guest may remain a long time at an inn without becoming a boarder. He may contract to pay by the week or month without losing his character as a guest and assuming that of a boarder." Jones on Liens, 511; Storey on Bailments, 477; Redfield on Bailments, 577, 588; Chamberlain v. Masterson, 26 Ala. 371; Jolie v. Cardinal, 35 Wis. 118; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Ross v. Mellin, 36 Minn. 421, 32 N.W. 172; Hancock v. Rand, 91 N.Y. 1; Hall v. Pike, 100 Mass. 495; Strecroft v. Bailey, 25 Iowa 553; Pollock v. Landis, 36 Iowa 651.

In order to constitute a person a guest it is not necessary he should be an actual traveler. It is sufficient if he is a transient person and a temporary sojourner in the place, and is received and entertained at the inn or hotel as such. Walling v. Potter, 35 Conn. 183; Hancock v. Rand, 91 N.Y. 1; Hall v. Pike, 100 Mass. 497.

The ultimate fact as to whether plaintiff was a guest or a boarder is always a question of fact for the jury. Hall v. Pike, 100 Mass. 495; Fay v. Pacific Imp. Co., 93 Cal. 253, 27 Am. St. Rep. 198, 26 P. 1099; Magee v. Pacific Imp. Co., 98 Cal. 678, 35 Am. St. Rep. 199, 33 P. 772; Jolie v. Cardinal, 35 Wis. 118; Ross v. Mellin, 36 Minn. 421, 32 N.W. 172; Lusk v. Belote, 22 Minn. 468; Forsyth v. Hooper, 11 Allen, 419.

C. F. Ainsworth, for Appellee.

The distinction made by the authorities between a boarder and a guest seems to be that if a person comes upon a special contract to board and sojourn at the inn he is not in the sense of the law a guest, but a boarder; but if he is a transient and wayfaring man, and stops at an inn and registers, he at once becomes a guest, and after becoming a guest should he make an agreement to pay by the week or the month it does not change his status as a guest so long as he retains his character as a traveler. Where a person, before going to a hotel or inn makes a special agreement for board by the month, and the time is indefinite but simply to be determined by his own volition, then and in every such case the person in the first instance becomes a boarder and retains his status as a boarder as long as he remains at the hotel or inn under such a contract. In the case at bar, the appellant never had any status as a guest, for the reason that in the first instance her acts in law constituted her a boarder. When she made a special contract before coming to the hotel, even before the hotel was a hotel, to take rooms at a special price, and, as we contend the evidence fairly shows, for at least a year, that fact alone constitutes her a boarder. Moore v. Longbeach Dev. Co., 87 Cal. 483, 22 Am. St. Rep. 265, 26 P. 92; Lawrence v. Howard, 1 Utah, 142; Manning v. Wells, 9 Humph. 746, 51 Am. Dec. 688; Kisten v. Hildebrand, 9 B. Mon. 72, 48 Am. Dec. 416; Johnson v. Reynolds, 3 Kan. 251, 87 Am. Dec. 471; Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762; Lusk v. Beloit, 22 Minn. 468; Horner v. Harvey, 3 N. Mex. 197, 5 P. 329; Handcock v. Rand, 94 N.Y. 1, 46 Am. Rep. 112, and note; Taylor v. Downey, 104 Mich. 532, 53 Am. St. Rep. 472, 62 N.W. 716.

OPINION

DOAN, J.

-- This action was brought by the appellant, Mary R. Haff, in the district court, against the appellee, J. C. Adams, to recover the sum of $6,452 and interest thereon on account of certain jewelry and diamonds alleged to have been lost by the appellant while stopping at his hotel as a guest for hire, and while she was temporarily absent from her sleeping-room. The case was tried to a jury, and at the close of the evidence for the plaintiff the court, on motion of counsel for defendant, instructed the jury the bring in a verdict for the defendant; to which ruling the counsel for plaintiff excepted. On a verdict for the defendant, the court entered judgment in accordance therewith. From the judgment and the order denying a motion for a new trial, plaintiff appeals.

The evidence in the case furnished by the testimony of the plaintiff and her witnesses was to the effect that plaintiff and her adopted son came from Frankfort, Kentucky, to Phoenix, in the latter part of 1896; that defendant in that year erected and furnished the Hotel Adams in Phoenix; that the adopted son of the plaintiff had, in July, 1896, written the defendant, Adams, on behalf of himself and plaintiff, for rooms and permanent board in the Hotel Adams when finished and suggested that plaintiff would prefer shipping her own furniture to furnish her rooms, and asked for terms accordingly. On plaintiff's arrival in Phoenix before the completion of the Hotel Adams, she visited the hotel, in company with the defendant, and selected the rooms she desired to occupy; selected the furniture with which, in addition to her own furniture, she desired to have them furnished, and before she took the rooms made a bargain that she should pay one hundred and thirty-five dollars per month, to be paid monthly, and to include board, service, and provisions; that she and her adopted son afterwards entered the hotel and occupied the rooms in question (at the contract price of one hundred and thirty-five dollars per month) from December 5th -- the date of the opening of the hotel -- until about the 30th of July the following year; that on the 1st of February, during her temporary absence from her room, her diamonds and jewelry, to the value of $6,452, were lost or stolen from the dresser in her room. Mr. Berryman, the adopted son, testified in behalf of the plaintiff that they had come from Kentucky in the fall of 1896, and that he had made his home in Phoenix, and had gone into business there, and that his home when in Phoenix was at the Hotel Adams, in the rooms mentioned, which he occupied jointly with the plaintiff, his foster mother; that from the fifth day of December, 1896, until they left the Hotel Adams, on the 30th of July, 1897, he was a boarder there; that neither he nor Mrs. Haff had any other home in Phoenix at that time. J. F. Pearce, the hotel clerk, a witness for the plaintiff, testified that the Hotel Adams accommodated transient guests and permanent boarders, and he stated that the plaintiff and her adopted son were among the latter class. The plaintiff herself testified that she had sold out her business in Kentucky, and entered into a partnership with and for her adopted son in Phoenix for two years; that she had a home in Frankfort, Kentucky, which she rented out by the month while she was absent in Arizona, and to which she expected to return at some future time; that she had come to Phoenix with her adopted son; had shipped her piano, harness, carriages, horse, and furniture: had started her adopted son in business, and was making her home with him while here. The plaintiff testified that the hotel was a first-class hotel, and that the service was proper and efficient; that the servants and employees were competent. At the conclusion of the plaintiff's evidence, on motion of defendant, the...