Pettit v. Thomas

• Decision Date: 27 May 1912
• Citation: 148 S.W. 501
• Parties: PETTIT v. THOMAS.
• Court: Arkansas Supreme Court

148 S.W. 501

PETTIT v. THOMAS.

Supreme Court of Arkansas.

May 27, 1912.

Appeal from Circuit Court, Garland County; Calvin T. Cotham, Judge.

Action by Mrs. Kate S. Thomas against T. J. Pettit. Judgment for plaintiff. Defendant appeals. Affirmed.

Appellee sued appellant, the proprietor of the Waverly Hotel, at Hot Springs, for the value of her baggage, wearing apparel, money, and jewelry, destroyed by fire when the hotel was burned, alleging that he was an innkeeper, and that she was a guest at the time of the destruction of the property. Appellant denied that he was an innkeeper and that he received appellee as a guest at the inn, alleged that he was the proprietor of a family boarding house, where visitors to the city of Hot Springs for the benefit of the waters were entertained, and that she was a boarder at the hotel at the time of the destruction of the building and her personal effects by fire, denied that the fire was caused by any negligence or carelessness of himself or his servants, and that appellee lost the articles alleged.

Appellee testified: That she lived in Louisville, Ky., and went to Hot Springs, Ark., on the 9th day of January, 1910. That she had known appellant for a little more than a year, and had been in Hot Springs twice during the winters recently before and once 10 years before. On her arrival there, she went directly to the Waverly Hotel, having previously written appellant to meet her at the train. That she stayed at the hotel until it was burned, on the 23d of January. "Q. Now, did you go to the hotel to stay any particular length of time? A. I had come to stay indefinitely. Q. Did you notify them before you came that you intended to stay indefinitely? A. Yes, sir; I wrote to Mr. Pettit, and he replied that I could get my old room back, room 31, and when I got there it was all ready for me. Q. What terms were made for you? A. Fifteen dollars a week. Q. For any special length of time? A. I suppose right straight along all the time I was to be there. Q. Did you have any definite time to remain? A. No, sir; I expected to stay indefinitely. I expected to stay until I was cured. Q. You didn't make any contract for any definite period? A. No. I had always liked that hotel. I had always been comfortably situated, and expected to stay in one place all the time I was in Hot Springs. * * * Q. How long did you expect to stay at the Waverly when you went there? A. Indefinitely; probably until April. Q. Did you tell Mr. Pettit so? A. I did. Q. That you wanted to stay there possibly until April? A. I told it all around the hotel. I often said to Mr. Pettit that I meant to stay until I was benefited. I suppose he would have kept me as long as I paid my bills, and I expected to stay as long as it was agreeable and the accommodations suited."

Appellant testified: That he was proprietor of the Waverly Hotel on the 9th day of January, 1910, and conducting the place as the New Waverly Hotel, and that he advertised his business as a family hotel. That he had one or two transient guests in one year. That his rates were from $12.50 a week up to $21. That he did not advertise day rates. That he gave Mrs. Thomas one of the best rooms in the house. The rate in January for that room was $21, and he let her have it at $15 on the statement that she would be there quite a while. That she said she thought she would stay until April, or until she was cured, if she was benefited, if it took a year or more. The day rates for transient guests were $2 or $3 or more a day, and for her room would have been $3 a day for a transient guest. His rates were less in the summer than in the winter, and made relative to the length of time stayed. That the Waverly Hotel trade was all family trade, they were long stayers, and as a general rule nice family people, and that Mrs. Thomas was familiar with the room at the time she engaged it. On cross-examination, he stated: That he had owned the Waverly Hotel for a little over a year; that is, the furniture and the lease. His principal patrons were families, and that the only reason he did not take some more transients was because he could not get them. That he was ready to entertain them whenever they came, was ready to receive any one there who was a proper person, just like any other hotel or boarding house. Mrs. Thomas paid $17.50 for the room the winter before, and, when she wrote and asked him what the rate would be, he told her $15. He had no contract for any particular length of time, but just a verbal contract that she would be there until April. "She said: "I will be here until April, anyway, and longer, if necessary.'"

The fire occurred on January 23d, and destroyed the hotel and all of the plaintiff's baggage, wearing apparel, jewelry, and personal effects, which she testified were of the value of $2,500, giving an itemized list thereof. There were 83 bedrooms in the hotel, a register was kept, day and night clerk, porter, and bell boys, and Mrs. Thomas registered on her arrival and paid her bills weekly.

There was a good deal of testimony as to the origin of the fire, which probably started in the bathhouse adjoining the hotel, which was under a separate lease to another party, although Epperson, the engineer at the heating plant stated that he saw through the door into the basement the fire blazing at a place about under where the dishwashers stood, and where there was no occasion for any fire to be; that there was some kindling wood, an old boiler, and a few other things stored in the basement. Other witnesses testified that they saw the fire over the bathhouse, and supposed it originated there. There was no night watchman employed at the hotel, but the night clerk's duties comprehended that he should go through the corridors at night and have a general supervision of the hotel, and the engineer of the heating plant was supposed to look out for fires on the outside of the hotel, and guard against prowlers and tramps.

The court instructed the jury, giving, over appellant's objections, instructions numbered 1, 2, and 3, as follows:

No. 1: "You are instructed that the distinction between a boarder and a guest is made by the contract. A boarder is one who contracts for board and entertainment for a definite period and for a fixed sum. One who stays at a hotel for an indefinite period is not a boarder but a guest."

No. 2: "If you believe from the evidence that the plaintiff resided in Louisville, Ky., and, desiring to come to Hot Springs for her health, arranged to stop at the defendant's hotel at so much per week, and that her proposed stay was for an indefinite period subject to be terminated by the plaintiff at will, and that she was received into the said hotel on these terms and conditions, then you will find that the plaintiff was a guest of the defendant, and was not a boarder."

No. 3: "You are instructed that, if the relation of innkeeper and guest has been established between plaintiff and the defendant, then it was the duty of the defendant, his agents and servants, to use the utmost care and the highest degree of care and diligence to protect the plaintiff against loss by fire, and, if the plaintiff has suffered such loss, then you are instructed that the defendant is prima facie liable for the same, and the burden is on the defendant to establish such facts as will exonerate or relieve him from such burden, and, unless you believe that the defendant has discharged this burden, you will find for the plaintiff."

The jury returned a verdict for appellee in the sum of $800, and from the judgment appellant...