Mobile Battle House, Inc. v. Wolf

• Decision Date: 26 January 1961
• Docket Number: 1 Div. 780
• Citation: 126 So.2d 486,271 Ala. 632
• Court: Alabama Supreme Court
• Parties: MOBILE BATTLE HOUSE, INC. v. Meyer E. WOLF.

Page 486

126 So.2d 486

271 Ala. 632

MOBILE BATTLE HOUSE, INC. v. Meyer E. WOLF.

1 Div. 780.

Supreme Court of Alabama.

Jan. 26, 1961.

Johnston, McCall & Johnston, McCorvey, Turner, Johnstone & May, and Vickers, Riis, Murray & Curran, Mobile, for appellant.

Inge & Twitty, Mobile, for appellee.

LIVINGSTON, Chief Justice.

Meyer E. Wolf, individually and doing business under the trade name of Meyer E. Wolf Company, sued the Mobile Battle House, Inc., a corporation, for the loss of a sample case containing a large number of diamonds while he was a guest at the defendant's hotel.

As amended, Count 1 of the complaint alleged, in substance, that on, to wit, October 7, 1956, while a guest at appellant's hotel, he deposited a sample case containing a large number of diamonds with an agent or servant of the hotel for safekeeping in the hotel's vault; that he received a claim check as receipt for said sample case, and that on, to wit, October 8, 1956, while still a guest at the hotel, he presented said claim check to the agent or clerk of the hotel and requested return of his said sample case; and that the hotel at all times since has refused or failed to return the same, or any part thereof.

We are not here concerned with Count 2 of the amended complaint, a count for the conversion of the diamonds, because, as to Count 2 the trial court gave the general charge for the defendant.

The hotel filed pleas, numbered 1 and 2 (the general issue), and several additional pleas to which demurrers were sustained. All of the special pleas filed by the hotel were based upon the $300 limitation of liability as provided by Sec. 15, as amended, of Title 24, Code of Alabama 1940.

It appears from the record before us that Wolf, a jewelry salesman, entered the appellant hotel as a guest on the date set out above. He deposited his sample case with the clerk who put it in the hotel's vault. Sometime later, when a different clerk was on duty, some unidentified man, by some form of trickery, got the plaintiff's sample case, and he has never been caught or identified.

While not admitted, it seems clear enough that the hotel did not comply with Sec. 13 of Title 24, Code of 1940. But the hotel claims that Sec. 13 is designed by the legislature to give proper notice to guests in order to relieve them of the common law liability which obtains in the loss of valuables, and inasmuch as Wolf positively knew, by having deposited his sample case with the clerk, that the posted notice, as required by Sec. 13, Title 24, Code of 1940, is unimportant in this case.

On the other hand, Wolf contends that the entire limitation contained in Sec. 15, supra, is predicated upon compliance with Sec. 13 of Title 24, and since there is no such compliance in this case, no limitation of liability under Sec. 15, supra, is available to the appellant and he is liable as at common law.

The jury returned a verdict for the plaintiff and judgment was rendered thereon, and a motion to set aside the verdict and judgment and to grant a new trial was denied by the trial court. Clear enough the liability of hotel and innkeepers, under the common law, for the loss of money or other valuables of their guests was that of an insurer. This is not denied by appellant.

Several sections of Title 24, Code of Alabama 1940, are pertinent to this inquiry. Those sections are as follows: Sections 11, 12, 13, 14 of the Code of 1940, and Sec. 15, as amended by Act No. 407, Acts of Alabama 1943, p. 374, approved July 8, 1943:

' § 11. Liability of inn or hotel keepers.--In the absence of a special contract, as is authorized in the succeeding section, the rights of guests, and the liability of the keeper, remain as at common law.

' § 12. Special contract between inn or hotel keeper and guest authorized.--The keeper of a public inn or hotel may require any guest, or person proposing to become a guest, to enter into a special contract as to the kind and place of board, entertainment, or lodging to be furnished such guest, and the price therefor to be paid; and if such guest refuses to enter into such contract and to accept board, entertainment, or lodging at the price proposed, as the keeper may offer, the keeper may refuse to receive or entertain such guest, and because of such refusal shall not incur any liability whatever. Such special contract must be in writing, signed by both parties; and thereby the inn or hotel keeper may limit his liability for the safety of the goods of such guest, as it is defined or declared by the common law.

' § 13. Keep safes and post up notices.--Every keeper of a public inn or hotel in a city must provide himself with an iron chest, or other safe depository for the valuable articles belonging to his guests and customers, and must keep posted up on his doors and other public places in his house of entertainment, written or printed notices to his guests and customers, that they must leave their valuables with the landlord, his agent, or clerk, for safekeeping, that he may make safe deposit of the same in the place provided for that purpose.

' § 14. Liability on failure to comply.--Any hotel or innkeeper, who shall refuse or neglect to comply with the requirements of section 13 of this title shall not be entitled to the exemptions and benefits contained in the preceding section, but shall, in all respects, be liable as at common law.

' § 15. (As amended by Act No. 407, Acts of Alabama 1943, p. 374). Liability on compliance.--Such hotel or innkeeper as shall comply with the requirements of section 13 of this title shall not be liable in any amount for any loss of such valuables, by theft or otherwise, if the same shall not have been left with the hotel or innkeeper, his clerk or agent, for deposit in said safe depository; and the liability of said hotel or innkeeper for such valuables left with said hotel or innkeeper, his clerk or agent, for deposit in said safe depository, shall be limited to an amount not exceeding three hundred dollars, unless a written contract providing a greater liability is entered into and executed by such guest and the proprietor of said hotel or inn.

Valuables shall mean and include money, jewelry, watches, plate or other things made of gold, silver or platinum, rare or precious stones, rings, ornaments and bonds, securities, bank notes or other valuable papers, railroad tickets, or other valuable articles of such description as may be contained in small compass, owned or possessed by said guests.'

Before the 1943 Amendment, Sec. 15 of Title 24 read as follows:

' § 15. Not liable for articles not deposited.--Such hotel or inn keeper as shall comply with the requirements of section 13 of this title, shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such public inn or hotel, if the same shall not be left with the hotel or inn keeper, his clerk, or agent, for deposit, unless such loss shall occur through the fraud of the hotel or inn keeper, or some clerk or servant employed by him in such inn or hotel.'

The 1923 Code of Alabama contained Chapter 156, Sections 4464-4478, both inclusive, which dealt with hotels, innkeepers, restaurants, and cafekeepers. The 1923 Code also contained Chapter 305, Sections 8313 to 8318, both inclusive, dealing with hotels and innkeepers. The Code Committee of 1939 combined, revised and rewrote Chapters 156 and 305 of the Code of 1923, and the combination as revised and rewritten appear in the 1940 Code as Title 24, Hotels and Innkeepers, Sections 1 through 20. The combination, revision and rewriting of Chapters 156 and 305 of the Code of 1923 rendered obsolete certain sections of the Code of 1923, and they were left out of the Code of 1940. The revision also changed the juxtaposition of certain sections of the Code of 1923. The revision of Chapters 156 and 305 of the Code of 1923 also made the same apply to hotels and innkeepers only, and reference to restaurants and cafes were left out of Title 24 of the Code of Alabama 1940.

The position of Sec. 8317 of the Code of 1923 was reversed in its position with Sec. 8318 of the Code of 1923, and they appear in the Code of 1940 as follows: Sec. 8318 as Sec. 14, and Sec. 8317 as Sec. 15. This change was made by the Code Committee and adopted by the legislature upon adoption of the Code.

These sections of the Code must be read and construed in pari materia.

Sec. 15 of Title 24, Code 1940, prior to the 1943 Amendment, provided, in substance, that there shall be no liability upon the hotel where the hotel has complied with Sec. 13, supra, and the guest has not utilized the facilities offered. There is no provision defining the liability of the hotel where the hotel has complied with Sec. 13, supra, and the guest has also utilized the facilities. Apparently, the legislative intent was to place the hotel under the common law liability where it had complied with Sec. 13 and the guest had utilized the facilities. In other words, the protection afforded the hotels under Sec. 15, prior to the 1943 Amendment, was the fact that the hotel, while still liable as at common law also had possession and control of the valuables of the guest and ostensibly could protect itself.

What effect did the 1943 Amendment have on that status or situation? It seems to us that the legislature intended by the amendment to limit the liability of the hotel to $300 where the hotel has complied with Sec. 13 and the guest has utilized the facility, but also gave to the hotel and guest the right to contract for a greater liability if they saw fit to do so.

In brief, the appellant states the issues involved on this appeal as follows:

'By way of explanation, the appellant is basing this appeal on one question viz., is it entitled to the $300 limitation of liability set forth...