Lehnen v. E. J. Hines & Company

• Decision Date: 09 November 1912
• Docket Number: 17,707
• Citation: 88 Kan. 58,127 P. 612
• Court: Kansas Supreme Court
• Parties: ALICE LEHNEN, Appellee, v. E. J. HINES & COMPANY, a Copartnership, etc., Appellants

127 P. 612

88 Kan. 58

ALICE LEHNEN, Appellee, v. E. J. HINES & COMPANY, a Copartnership, etc., Appellants

No. 17,707

Supreme Court of Kansas

November 9, 1912

Decided July, 1912.

Appeal from Montgomery district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRIAL--Special Questions for Jury--When Request Should Be Made. It is competent for a court to make reasonable rules regulating the time within which parties desiring the submission of special interrogatories shall present them to the court. Ordinarily they should be presented early enough to enable the court to revise and the opposing party to examine them before the jury is charged or the argument by counsel is begun, and under the circumstances of the present case it is held that the refusal of the court to submit the special interrogatories when they were requested was not an abuse of discretion or prejudicial error.

2. HOTEL--Guests--Responsibility of Proprietor. Where a person is received in a hotel as a guest the law implies a contract between the proprietor and the guest that the proprietor, by himself and his servants and agents, will exercise reasonable care for the safety, convenience and comfort of the guest, and that the guest on his part will observe the recognized proprieties of life and refrain from any boisterous or other conduct offensive to other guests or which would bring the hotel into disrepute.

3. HOTEL--Same. A hotel keeper is responsible to a guest for the acts of his servants in charge of a hotel whether the particular acts were expressly authorized or not providing the servant was acting in behalf of the proprietor at the time and within the general scope of his employment.

4. HOTEL PROPRIETOR--Responsible for Acts of Night Clerk. A night clerk left in charge of a hotel, with authority to receive guests, assign them to rooms, preserve order, and generally look after the hotel during the night, has the implied authority to eject guests from their rooms in order to preserve peace and order; and if the clerk undertakes to eject a guest from his or her room, and uses force and violent language, and summons the police, and directs the police to make an arrest and place the guest in jail, such action on the part of the night clerk will be held in law to be the act of the employer of such clerk, or the proprietor of the hotel, and for the right or wrong of which the hotel proprietor must be held responsible.

5. DAMAGES--Misconduct of Hotel Clerk--Not Excessive. Under the circumstances of the case it can not be held that an award of $ 4000 as damages is so excessive as to indicate passion or prejudice of the jury.

A. B. Clark, and S. H. Piper, both of Independence, and Chas. D. Welch, of Coffeyville, for the appellants.

W. H. Sproul, of Sedan, W. N. Banks, of Independence, and Monroe, Roark & Taylor, of Topeka, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action brought by the appellee, Alice Lehnen, against the appellants, E. J. Hines & Company, to recover damages for injuries sustained by her while she was a guest at the Mecca, the appellants' hotel, at Coffeyville, Kan. She alleged and offered proof tending to show that she came as a guest to appellants' hotel on the evening of August 27, 1910, when she registered and was assigned to a room which she and her companion, Miss Edna Smith, occupied, and that at about two or three o'clock on the following morning, when she and her companion were asleep in the room, a knock was heard at her door, and upon arising she found Atwood, the clerk then in charge of the hotel, there asking to be admitted to the room, and that when admission was refused he forced the opening of the door and entered the room in an intoxicated condition, and that when she tried to reach the manager of the hotel by telephone to report the intrusion he became angry and called a policeman to arrest the appellee and to eject her from the hotel, that she protested and declined to leave the hotel and insisted on finding the manager and invoking protection from him; that Atwood called appellee vile names, and when she refused to leave the hotel struck her several blows on the face and knocked her against the wall. There were averments to the effect that she and Miss Smith were arrested in their night clothes, and that Atwood and the officer undertook to take them out of the hotel before they were dressed, and that when appellee insisted on dressing the officer refused to step outside of the room and remained there while they dressed themselves. During the controversy appellee says she went to the manager's room and reported the invasion of her room and asked for protection, but that he did not respond for some time, and when he came to her room he declined to interfere in their behalf and directed the officer to take them out of the hotel to the jail. They were taken to the jail, which it is claimed was in an unsanitary condition, and incarcerated with negro women, where they were held for a day or more before they could secure a release. She alleged that as a consequence of the ill treatment and injuries she suffered damages in the sum of $ 10,000. The appellants alleged and claimed that the appellee and her companion were drinking intoxicating liquors and smoking cigarettes in the room and were making a boisterous noise likely to disturb the other guests of the hotel, and that Atwood, without authority from the appellants, undertook to quiet her, and failing to accomplish it called a policeman who on his own responsibility arrested the parties and placed them in jail. At the trial she recovered a judgment of $ 4000 against appellants, from which they appeal and assign numerous errors.

Although there is complaint that the allegations of the petition are indefinite, and also of the refusal of the court to grant a continuance of the case when it was amended two days before the trial by changing the name of the plaintiff from Alice Burles to Alice Lehnen, we find nothing substantial in either objection. The petition was sufficiently definite and the amendment as to the name was not so material as to require a continuance of the cause. The limitation on the cross-examination of appellee of which complaint is made is not a good ground for reversal of the judgment.

There may be some ground for complaint of the testimony of what happened at the Carl-Leon Hotel in Independence, but it appears that the greater part of it was finally stricken out by the court. Appellee and Miss Smith first went to the Carl-Leon Hotel, conducted by appellants at Independence, and in the course of the trial appellee was permitted to testify that after going to her room in that hotel a porter came into the room and inquired if they had noticed the white-haired gentleman in the lobby when they entered the hotel. Appellee replied that she had not and asked the reason for the inquiry. The porter replied that the person referred to was the proprietor of the hotel and was quite a ladies' man and had his eyes on appellee and Miss Smith. Appellee stated that this inquiry gave her offense and she paid their bill and left the hotel, going to the Mecca at Coffeyville. In reply to a question whether Mr. Hines had not tried to induce them to return to the Carl-Leon that night she stated that Mr. Hines did not but his clerk did follow them to the station and asked them to come back, saying that Mr. Hines would not harm them. Some of the challenged testimony was received without objection and the only objection to a part of it was that it was hearsay, but in the end the principal part of it was stricken out by the court. Under the circumstances the rulings are not deemed to be material errors and only such errors warrant a reversal.

Error was assigned on the refusal of the court to submit fifty-two special questions which appellants requested and which the court refused because the request came too late. There is a rule in force in that district, with which counsel was familiar, which provides that parties who desire the submission of special questions to the jury shall present them to the court as soon as the testimony is concluded. In this case the testimony was concluded at six o'clock on a certain day, and the judge then announced a meeting with counsel at eight P. M. of that day when he would submit to counsel for the parties the instructions he proposed to give to the jury. At that hour counsel met with the judge and the proposed instructions were examined and discussed, and certain modifications were suggested which the court took under advisement until the following morning. There was no request for the submission of special questions during this time, nor even when the court convened at nine o'clock the next morning. At the convening of court rulings were made on requests for and objections to proposed instructions and then the charge was read to the jury. After the court had instructed the jury and counsel were about to proceed with their argument appellants requested the submission of special questions of fact in writing, but the court refused to stop the proceedings for that purpose, holding that the request had not been made in good time.

It is competent for courts to make and enforce reasonable rules regulating the practice in cases pending before them. The rules must, of course, harmonize with statutory provisions and the times fixed by statute within which steps are to be taken can not be shortened by rules. The statute (Civ. Code, § 294) does not expressly provide when the request for special findings shall be made, and in the absence of such provision a rule is not unreasonable which requires those desiring special findings to make application for them before the argument is begun. In Wilcox v. Byington, 36...