Holcomb v. Meeds

• Decision Date: 03 July 1952
• Docket Number: No. 38692,38692
• Citation: 246 P.2d 239,173 Kan. 321
• Parties: HOLCOMB v. MEEDS et al.
• Court: Kansas Supreme Court

Page 239

246 P.2d 239

173 Kan. 321

HOLCOMB v. MEEDS et al.

No. 38692.

Supreme Court of Kansas.

July 3, 1952.

Syllabus by the Court.

Defendants operated a tourist camp with cabins for transient guests. A man went to the camp about 2:00 a. m. one morning and requested accommodations of one of the owners. He was assigned to a cabin, for which he paid. The evening of the next day he and a woman, not his wife, were found in the cabin dead as a result of carbon monoxide poisoning generated from a radiant natural gas heater which was not connected with any chimney or any outlet, or combination of outlets. Held, the fact that he may have used the cabin for immoral or unlawful purposes had no causal connection with his death and did not bar his widow from recovering for his wrongful death for the benefit of herself and their minor child.

Grant Waggoner, of Baxter Springs, argued the cause, and C. R. Stauffacher, of Columbus, was with him on the briefs for appellants.

Sylvan Bruner and Pete Farabi, both of Pittsburg, argued the cause, and L. M. Resler and Morris Matuschka, both of Pittsburg, and Paul Armstrong and Robert T. Patterson, both of Columbus, were with them on the briefs for appellee.

HARVEY, Chief Justice.

This was an action for damages for an alleged wrongful death. After the issues were made up the parties in writing stipulated the facts. A trial by jury was waived and a trial by the court was had, resulting in a judgment for plaintiff. Defendants have appealed.

The pertinent facts as stipulated may be summarized or quoted as follows: The deceased, Lionel Holcomb, his wife, the plaintiff herein, and their son David, about six months old, resided in Joplin, Missouri, about fourteen miles east of Baxter Springs, Kansas. The defendants, as partners, owned and operated nine tourist cabins and courts known as the Baxter Courts, located about a mile south of Baxter Springs, and held themselves out to the public as engaged in the business of furnishing accommodations for lodging of travelers and transient guests for compensation.

On January 2, 1950, about two o'clock a. m., Lionel Holcomb went to the Baxter Courts and requested accommodations of the defendant Meeds, who offered two cabins, No. 3 at $3 and No. 6 at $2. Holcomb accepted Cabin No. 6 and paid defendant Meeds $2 and went to the cabin unaccompanied by either of the defendants. The person accompanying Holcomb did not go to the office with him. Defendants did not know the parties were not husband and wife until after their bodies were found on January 3. Holcomb did not sign the register at the tourist camp at the time the cabin was assigned to him.

'Said cabin was approximately fourteen feet by ten feet, with its length east and west, having one door at the east end, and two windows, one on the south side and one on the west end and a toilet room in the southwest corner with a six inch vent in the ceiling; that when rented the south window was open; that said room was equipped with what is known as a radiant natural gas heater, approximately sixteen inches tall, and eighteen inches in width; that heater being open and not connected with any chimney or other outlet or combination of outlets. That the stove, furniture and other equipment of said cabin was the same as had been in use in said cabin for several years prior thereto. That said radiant gas heater was the only equipment by which said cabin was heated. That at the time Lionel Holcomb rented said cabin, the outside temperature was between 55 and 60 degrees fahrenheit, and that the temperature during the remainder of said night and the following day ranged between 55 and 70 degrees fahrenheit. That during the afternoon of January 3rd, the weather turned cold, accompanied by sleet and snow.'

Sometime after 5:00 o'clock p. m. on January 3, 1950, Lionel Holcomb and a woman, later identified as Ruth Beets, unmarried, a resident of Quapaw, Oklahoma, about five miles southwest from the cabins, were found dead in Cabin No. 6. His nude body was lying on the floor with his head not far from the door. Her body, nude except for a brassiere, was lying on the bed. The top bed coverings were on the end of the bed. An investigation made by the coroner and an attending physician disclosed that both of them died as a result of carbon monoxide poisoning. The condition of the bodies indicated that they died shortly after they occupied the cabin. An investigation made by the Baxter Springs police officers and two troupers of the Kansas Highway Patrol disclosed no evidence of violence, of foul play, or of intoxication, but two empty beer bottley were found in the back seat of Holcomb's car and there were two or three beer cans in the waste paper basket. Sometime later a gin bottle was found under the mattress near the head of the bed. The radiant gas heater was operating with medium flame.

In effect at all the times above mentioned were our statutes (G.S.1949, 36-129 and 36-130). The pertinent portions of the first of these sections reads:

'All gas stoves in any public building, resort, hotel, restaurant, tourist camp and other similar public places in the state of Kansas shall be equipped with metal nonflexible connections and shall be properly connected with a chimney or other outlet or combination of outlets. * * *' The next section provides a penalty for the violation of this section.

In deciding the case the trial court stated:

'Under the pleadings and agreed statement of facts, three main questions are presented, first, the liability of a cabin camp proprietor for negligence where a person enters for an immoral or illegal purpose, second, contributory negligence, and third, the amount of damages, if any.'

Shortly stated, in deciding the first question the court held that the immoral or illegal purpose of Lionel Holcomb in renting the cabin did not cause his death; that the cause of death was the negligent and illegal conduct of defendants in having the radiant natural gas heater open and not connected with any chimney or other outlet or combination of outlets. As to the second question the court found no contributory negligence on the part of Lionel Holcomb which contributed to his death, and on the third question the court found the amount of damages to be $8,000, for which judgment was rendered. In this court no complaint is made of the amount of the verdict if the plaintiff was entitled to recover; hence, we need to give it no more attention.

Defendants filed a motion for a new trial upon two grounds:

'First: That the decision and judgment was given under the influence of passion or prejudice.

'Second: That the judgment and decision is in whole or in part contrary to the evidence.'

This motion for a new trial was duly presented to and considered by the court and was overruled. Defendants appealed and set out the following specification of errors:

'First: The trial Court erred in its decision and judgment for the reason that the decision and judgment was given by the trial Court under the influence of passion and prejudice.

'Second: The Court erred in rendering the judgment and decision for the reason that the judgment and decision is in whole or in part contrary to the evidence.'

In this court appellants present the following questions for consideration by the court:

'(A) Does the law of this States make any differentiation between the liability of an innkeeper to legitimate guests and those who occupy and use the premises for illegal and immoral purposes?

'(B) Do the facts agreed upon in this case show such active negligence on the part of the appellants as to render them liable in damages?

'(C) Do the facts agreed upon in this case show the deceased, Lionel Holcomb, was guilty of contributory negligence?

'(D) Does the judgment of the trial court based upon an agreed statement of facts and without the necessity of weighing conflicting testimony indicate that it was rendered under the influence of passion and prejudice?'

As to question '(A)' appellants frankly state, 'The question is a new one in this State.' It appears that no statute enacted by our legislature and no decision of this court bear directly upon the question. We do note that our statute (G.S.1949, Chap. 36), pertaining to hotels, lodging houses and restaurants, which is applicable to the cabin court operated by defendants since it has more than five rooms used for the accommodation of transient guests, although quite comprehensive, has no section pertaining to this question. It does have a section (36-206) pertaining to 'Fraud or cheating in obtaining accommodations'. But this has to do with an intent to defraud the owner in failing to pay for the accommodation. From this it may be concluded that members of the legislature never thought of the point raised by appellants or purposely omitted it from the statute. It does include the section (36-129) requiring gas stove connections, the pertinent portions of which have been previously quoted.

Appellants cite and rely heavily on Curtis v. Murphy, 1885, 63 Wis. 4, 22 N.W. 825. The facts in that case were that about 12:00 o'clock at night of March 13, 1882, plaintiff came to the hotel with a disreputable woman, whom he had met on the streets and whose name he did not know, and registered as Thomas Curtis and wife and called for a room, which was assigned to him by the night clerk. He noticed at the top of the register a statement to the effect that all money and jewels should be given to the proprietor. The clerk informed him the proprietor was in bed. Curtis thereupon handed to the clerk $102 for safekeeping and took a receipt, which read: 'I. O. U. $102,' signed by the clerk. That night the clerk absconded with the money. Curtis sued the proprietor of the hotel for that amount. There was a state statute then in force which placed a special liability on the proprietor of a hotel for the safekeeping of money or jewels left with him. The trial court concluded plaintiff could...