Mayo Hotel Co. v. Danciger

• Decision Date: 01 April 1930
• Docket Number: Case Number: 19156
• Parties: MAYO HOTEL CO. v. DANCIGER.
• Court: Oklahoma Supreme Court

1930 OK 147

288 P. 309

143 Okla. 196

MAYO HOTEL CO. v. DANCIGER.

Case Number: 19156

Supreme Court of Oklahoma

Decided: April 1, 1930

Syllabus

¶0 1. Innkeepers--Degree of Care Required for Protection of Guests.

The hotel keeper, while not an insurer of the personal safety of his guests, nevertheless is held to a very high degree of care to protect them against assaults, insults, and negligent acts of servants employed therein. The duty and obligation resting upon him are similar to those of a common carrier towards its passengers.

2. Damages--Torts--Right to Exemplary Damages.

The measure of damages for torts committed through mere negligence, or even gross negligence, is compensation only; but as to such torts as are committed willfully, maliciously, oppressively, or so negligently as to indicate a clear and wanton disregard of the rights of others, the jury is not restricted to compensation merely, but may, if the evidence justifies, award punitive or exemplary damages on the theory of punishment and public example.

3. Corporations--Liability for Exemplary Damages for Torts of Servants.

The rule has been definitely established in this state that a corporation may, to the same extent as a natural person, be liable in exemplary damages for a tort committed by its agent or servant while engaged in the master's business, where the act is such an act as would subject the servant to exemplary damages if he had been sued as a principal; and it is not necessary that the particular act of negligence be either authorized or ratified by the corporation.

4. Innkeepers--Action by Guest for Damages for Assault by Servant of Hotel--Error in Submitting to Jury as Issue Purely Introductory Matters Alleged in Petition.

Where plaintiff in an action against a hotel company for a tort committed by its servant (1) bases his cause of action upon an assault committed upon him by such servant of the company; and in stating his cause of action sets forth, as purely introductory or preliminary, matter concerning a separate and previous controversy between himself and the servant relating to an insult to plaintiff's wife and a trespass in plaintiff's room; and (2) where there was no competent evidence reasonably tending to establish the negligence or trespass described in the petition, it was error for the court to submit an instruction to the jury authorizing them to find for plaintiff by reason of these alleged previous and preliminary acts of negligence of the servant and the hotel company.

5. Appeal and Error--Reversible Error--Improper Argument to Jury.

In the progress of a trial, and especially in the argument to the jury, very great latitude is allowed counsel in their comments on matters having a legitimate and recognized legal relationship to matters at issue; but, in the presence of the jury, the repeated reference by counsel to the fact that his client was deprived of the benefit of the testimony of his wife, a person declared by statute to be incompetent to testify in the case, is reversible error unless it reasonably appears that such conduct in all probability did not affect the verdict. In such case the error is not cured by the action of the court in sustaining objections thereto and admonishing the jury to disregard the statements.

Commissioners' Opinion, Division No. 2.

Error from District Court, Tulsa County; Luther James, Judge.

Action by Jack Danciger against the Mayo Hotel Company. Judgment for plaintiff, and defendant appeals. Reversed.

Hulette F. Aby, William F. Tucker, and Frank Settle, for plaintiff in error.

R. C. Allen, I. J. Underwood, and H. L. Smith, for defendant in error.

HALL, C.

¶1 This action was instituted by Jack Danciger, defendant in error, and who will be hereinafter designated as plaintiff, against the Mayo Hotel Company, a corporation, the plaintiff in error, and hereinafter designated as defendant, to recover both compensatory and exemplary damages against the defendant, said hotel company, because of certain personal injuries which he received at the hands of one of the servants of the hotel company while plaintiff was a guest of defendant's hotel. The material facts are as follows:

¶2 The defendant operated and operates the Mayo Hotel in Tulsa, Okla. On the 23rd and 24th days of December, 1925, the plaintiff, his wife, and six year old daughter were guests at this hotel and occupied a room exclusively for themselves, for which they paid the regular price for its occupancy. It is alleged that on the night of the 23rd of December, plaintiff's wife opened the door of her room leading to the hallway, and a man named Bowles, who was a detective or house policeman for the hotel company, fell into the room, but immediately ushered himself on the outside without any particular explanation as to his presence. However, the testimony relating to Bowles falling into the room is purely hearsay, as it was denied by Bowles and was not seen by plaintiff. Plaintiff says he was in the bathroom and heard some commotion, and his wife told him that a man had fallen into the room. Plaintiff, however, went outside of his room, found Bowles there, and started an argument, or demanded an explanation from him. Bowles denied the accusation and each "contingent" withdrew without bloodshed.

¶3 On the following night, according to plaintiff's testimony, he and his wife and child were en route to their room from the hotel elevator, and they saw Bowles lurking about their room. Plaintiff's wife made some remark to the effect that it appeared that they would have company again. That situation seemed to be unsatisfactory to plaintiff, and he started a rather tempestuous argument with Bowles, speaking in a somewhat loud tone of voice and protesting against Bowles' "hawkshaw" habits; and then Bowles, who was armed with a six-shooter and a "blackjack" (a kind of a weapon composed of lead slugs covered with leather and suspended to a flexible handle), struck plaintiff in the face with this latter weapon. The blow did not knock plaintiff down, but dazed him considerably. It was committed in the presence of his wife and child and perhaps a negro bell-hop and a white newsboy. The weapon struck plaintiff on the cheek below the eye. Plaintiff expended $ 8 for medical treatment, two visits from a physician and $ 15 for an X-ray photograph. The evidence disclosed that no bones were broken, and that the only physical injury done was a flesh bruise, from which plaintiff, in about the usual time, recovered. It appears from plaintiff's testimony that he suffered much humiliation, mental worry, and anxiety over the affair, and that it disorganized him completely for several weeks. However, plaintiff's physician testified that there was no necessity for medical treatment after he saw him the second time, which was about one week after the injury.

¶4 Plaintiff asked for $ 10,025 actual damages, and $ 5,000 exemplary or punitive damages. The petition contained two causes of action. The second cause of action involved the matter of exemplary damages only. The jury returned a verdict upon which judgment was pronounced, for actual or compensatory damages in the sum of $ 1,025, and $ 5,000 for punitive damages. The defendant appealed and in seeking to reverse the judgment, its counsel in substance advanced the following propositions:

(1) That an innkeeper is not liable for unlawful acts of violence of a servant acting beyond the scope of his employment; and that the servant in this case was acting without such scope.

(2) That it was error to submit to the jury certain issues of fact, of which it is claimed there was no competent evidence to support the same, or which were not covered by the pleadings.

¶5 In this connection, it contends (a) that the submission to the jury of the matter contained in instruction No. 5, which authorized a recovery against the defendant because of the trespass committed by the servant Bowles in falling into plaintiff's room, was error; and (b) the submission to the jury of the question of the permanent nature of plaintiff's injuries when the cause of action was not based upon permanent injuries, but temporary injuries only, and that there was no evidence warranting submission of that question to the jury.

(3) That the judgment should be set aside because it is obvious that the jury was influenced by bias or prejudice; and

(4) That exemplary or punitive damages cannot be recovered in an action of this nature.

¶6 The first and fourth propositions go to the very foundation of plaintiff's cause of action, and therefore they will be considered first, because, if these contentions of defendant should be sustained, the whole structure of plaintiff's cause of action falls.

¶7 We think the first contention of defendant is without merit, both in point of law and in fact. It is the contention of the defendant that the duty of an innkeeper to protect his guests against the tortious acts of his servants is restricted to only ordinary care, and that as the defendant did not employ the house officer, Bowles, to commit unwarranted acts of violence upon its guests, but employed him for other purposes, the hotel company is not responsible for his malicious and tortious acts.

¶8 To sustain such a contention would certainly establish a new and novel rule in jurisprudence. It would exonerate or immunize in all cases all corporations and all masters for the willful misconduct of their agents or servants, because neither a corporation nor an unincorporated business institution employs men to commit actionable negligence or to commit unwarranted assaults upon persons. Counsel for plaintiff in error cite a few cases, not cases involving an innkeeper, however, save and except one, which tend to announce such an absurd doctrine. The case tending to support defendant is Clancy v. Barker, 131 F. 161. The other cases involved a pool of water, a restaurant, a furniture store, a storage warehouse, and a freight depot where the plaintiff...