Hervey v. Hart

• Decision Date: 18 December 1906
• Citation: Hervey v. Hart, 149 Ala. 604, 42 So. 1013 (Ala. 1906)
• Parties: HERVEY ET AL. v. HART.
• Court: Alabama Supreme Court

42 So. 1013

149 Ala. 604

HERVEY ET AL. v. HART.

Supreme Court of Alabama

December 18, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Loui Hart against Frank A. Hervey and others. Plaintiff was granted a new trial, and defendants appeal. Affirmed.

The cause of action as stated in the complaint was as follows "Plaintiff claims of the defendant the sum of five thousand dollars damages, for that heretofore, to wit, on the 15th day of February, 1904, the defendants were the keepers of an inn known as the 'Bienville Hotel' in the city of Mobile, and plaintiff, being then and there a traveler applied to defendants to become a guest of said inn, and was by the defendants accepted as such guest and assigned a bed in a room numbered as 'Parlor A,' and after he had been so assigned to said room, and his baggage placed therein, he had occasion to be temporarily absent from said room, and, while so absent, defendants caused plaintiff's baggage to be removed from said room, and upon plaintiff's return to said inn defendants refused to allow him the use of said room to which he had been assigned and refused to furnish him any other proper accommodations although it was then late in the night, and the city of Mobile was crowded with people visiting the Mardi Gras festivities, and defendants well knew that it was probably impossible for plaintiff to obtain, at that time, accommodations at any other inn in said city; and plaintiff avers that he was compelled to wander about the city for the greater portion of the night, seeking a place to sleep, and was wholly unable to obtain any accommodations until nearly morning, and that he was greatly mortified and his feelings hurt by his said treatment; that he was sick and greatly suffered, and was made tired by the exposure and effort necessarily made to obtain accommodations elsewhere, and was put to great expense for hack hire in driving from place to place seeking accommodations as aforesaid, all to his damage $5,000." Issue was joined upon the general issue.

Ervin & McAleer, for appellants.

Gregory L. & H. T. Smith, for appellee.

HARALSON J.

Our statutes on the liability of innkeepers, provide, that "in the absence of a special contract as is authorized by the succeeding section (2540) the right of guests and the liability of the keeper remain as at common law." Code 1896, § 2539.

The succeeding section, authorizes a special contract in writing between an inn or hotel keeper and guest, by which the liabilities of the parties may be regulated. It is unnecessary to set out this section, as there is no pretense, that there was any such contract between the parties and defendants in this case. In Beale v. Posey, 72 Ala. 330, construing these sections, the court said: "The purpose of the statute is, to confer on the keeper of the unlicensed house of public entertainment the liability of receiving only such guests or boarders as may enter into a special contract with him. But if the keeper of such house does not enter into a special contract with the guest, furnishing him a memorandum thereof in print or in writing, limiting his liability, the common law intervenes, and from that, the measure of his liability must be ascertained." Lanier v. Youngblood, 73 Ala. 587.

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