Lincoln Operating Co. v. Gillis, 29000
| Decision Date | 21 October 1953 |
| Docket Number | No. 29000,29000 |
| Citation | 232 Ind. 551,114 N.E.2d 873 |
| Parties | LINCOLN OPERATING CO. v. GILLIS. |
| Court | Indiana Supreme Court |
Theodore L. Locke, Hugh E. Reynolds, Emerson Boyd, Slaymaker, Locke & Reynolds, Indianapolis, for appellant.
Otto W. Cox, Indianapolis, Hunter J. von Leer, Terre Haute, for appellee.
This is an appeal from a judgment in the sum of $7,500. We acquired jurisdiction by transfer from the Appellate Court under § 4-209, Burns' 1946 Replacement, because four judges of that court failed to concur. The verdict was for $15,000, but the trial court ordered the appellee to file a remittitur in the sum of $7,500, or appellant's motion for new trial would be granted. Appellee filed the remittitur, and does not question here the action of the trial court by any cross-assignment of errors. The error assigned on appeal is that the court erred in overruling appellant's motion for new trial, which questions the sufficiency of the evidence to sustain the verdict and the giving and refusing of certain instructions.
The complaint was for negligence in causing appellee, while an invited guest at the Lincoln Hotel, to fall in a bathtub, which broke her right kneecap and caused other permanent injuries. The specific allegations of negligence in the complaint which are material for the decision of this appeal are as follows:
'(a) In negligently permitting said bathtub to be, become and remain in a dangerous and unsafe condition in that said bathtub about parts of its bottom and lower sides had a slippery soaplike scum and substance thereon.
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'(c) In negligently failing to inspect said bathtub before its assignment to plaintiff's use.
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'(f) In negligently failing to clean said bathtub after the previous occupant of said room had left and before assignment thereof to plaintiff.
'(g) In improperly cleaning said bathtub in that a soap-like scum and slippery substance accumulated thereon was permitted to remain. * * *'
The evidence when viewed most favorable to the appellee discloses that appellee and her husband, who was a funeral director in business at Terre Haute, were in Indianapolis attending a convention of funeral directors. They were registered guests at the appellant's hotel, and about 11:00 A.M. appellee went to the bathroom to take a shower. There was a light on in the bathroom, and she disrobed and turned on the hot and cold water. She glanced at the bathtub but did not make any inspection of it. The tub had no rubber mat to stand on, and she stepped in the center of the tub. While the water was running she reached to adjust the shower curtain. As she turned to pull the curtain her feet 'hit something as slick as glass and both feet flew out' before she could touch the shower curtain. Her knee hit the bottom of the tub with a loud noise. She tried to get out of the tub, but the tub was so slick she couldn't get out at first. The substance on the bottom of the tub 'was just like grease,' 'it was scummy and dirty.' She could see the substance and could feel it and it got on her hands. She tried several times to get out of the bathtub. Her 'hands had white, scummy stuff on them,' so did her hip. She had not used any soap before she fell. Then she dragged herself to the telephone and called for help.
She was at once taken by ambulance to the hospital in Terre Haute where an X-ray of the kneecap was taken and an operation was performed. The X-ray disclosed the kneecap was fractured in the middle, and the two parts were separated about an inch. Appellee had been in good health before the accident and had been able to go deer hunting, duck hunting, pheasant hunting, swimming and ride a motorcycle. She had worked for her husband in the funeral home, where she did cosmetic work and hairdressing for the women prepared for burial at the home; she had acted as hostess for her husband, and driven funeral cars for him. For this work her husband paid her a salary of $55 a week. The knee was permanently injured, and it is difficult for her to go up and down stairs. She hired another lady to do the cosmetologist work and hired another hostess. Her ability to walk and drive an automobile is limited.
Most of appellant's contentions of error can be disposed of by determining whether appellee was guilty of contributory negligence as a matter of law. In this state we adhere to the rule announced in Gamble v. Lewis, 1949, 227 Ind. 455, 461, 85 N.E.2d 629, 633, as follows:
1
The statute places the burden of proving contributory negligence on the defendant in a personal injury case. Section 2-1025, Burns' 1946 Replacement, Acts 1899, ch. 41, § 1, p. 58.
We agree with appellant that the hotel operator is not an insurer of the safety of its guests. However, the hotel operator has the duty to use due care under the circumstances for the safety of its guests. 32 C.J. 561, § 69; 43 C.J.S., Innkeepers, § 22, page 1176 et seq., 28 Am. Jur. p. 578, § 56, p. 581, § 60. We believe under the facts in this appeal it was a question for the jury to determine if said duty had been violated.
Appellant insists that the appellee owed a duty to inspect the tub before using it, but we cannot say as a matter of law there was any such duty upon the appellee. The room had been cleaned and there were fresh towels in the bathroom. The general rule on negligence in Indiana is that an actor, until he has notice to the contrary, has the right to assume that other persons will exercise due care in their conduct toward him. Until the appellee had notice to the contrary, she had the right to assume that the hotel operator had used due care in seeing to it that the bathtub was not in a dangerous condition. 'The invitee has a right to assume, and unless otherwise informed does assume, that the place will be reasonably safe for his reception.' Harper, Torts, § 99, p. 230.
Appellant places great stress upon the holding in Miller v. Shull, Fla.1950, 48 So.2d 521. In this case the guest complained that the hotel keeper had 'carelessly and negligently failed to remove a certain slippery substance from the bottom of said tub' causing her to fall. The allegation stated that the substance resembled soap, the exact nature of which was unknown to the plaintiff. The Supreme Court of Florida sustained a demurrer to the complaint, and held as a matter of law the guest was negligent because she should have known 'that a small amount of water in * * * a bathtub creates a slippery condition'. We are not impressed with the reasoning of this case for several reasons. While it is a matter of common experience that water makes an enamel or porcelain tub more slippery than a dry tub, it is also a matter of common experience that millions of people take baths in such tubs without ever falling or injuring themselves. It is also a matter of common experience that wet soap acts as a lubricant and makes a wet bathtub much more slippery than water alone. 2
The rule in Florida is that 'on demurrer, the allegations of a declaration must be construed most strongly against the pleader.' 48 So.2d at page 522. The Indiana rule is in favor of the pleading. I Lowe's Work's Ind. Practice § 14.39, p. 565. As was stated in Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 439, 122 N.E. 662, 664, See also State ex rel. Tittle v. Covington, Etc., Schools, 1951, 229 Ind. 208, 214, 96 N.E.2d 334. 3 The verdict was sustained by sufficient evidence and was not contrary to law, and the trial court did not err in refusing to direct a verdict for the defendant.
Instruction No. 22, which was given by the court at the request of appellee, was a so-called 'stock instruction' on the question of damages. In part it stated, 'in determining the damages to be awarded it will be proper for you to consider, the age of the plaintiff, the condition of her health before the alleged accident, her own pecuniary loss, if any,' etc. The appellant asserts it was error to instruct the jury on appellee's 'pecuniary loss, if any,' for two reasons: (1) § 38-103, Burns' 1949 Replacement, prohibited her from contracting with her husband for her services in assisting him at the mortuary, and (2) that there was no evidence that the appellee had sustained any pecuniary loss.
Section 38-103, Burns' 1919 Replacement, Acts 1879 (Spec. Sess.), ch. 67, § 2, p. 160, provides as follows:
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