Pirtle's Adm'X v. Hargis Bank & Trust Co.

Decision Date10 November 1931
CourtUnited States State Supreme Court — District of Kentucky
PartiesPirtle's Administratrix v. Hargis Bank & Trust Company et al.

4. Principal and Agent. — Agent's disregard or violation of statutory duty in discharging act for principal renders both principal and agent liable for resulting damages.

5. Corporations. — Agent of corporation is liable for injuries suffered by third persons through his tort, whether he acted for himself or for corporation, and regardless of corporation's liability.

6. Master and Servant. — Whether servant is guilty of misfeasance or nonfeasance is immaterial as regards his liability to third persons for negligence.

7. Negligence. — One injured may recover from person violating statute if violation is direct and proximate cause of injury.

8. Innkeepers. — Bank operating hotel, and president thereof, when sued for death in fire, claimed to have resulted from absence of statutory safeguards, had burden of proving deceased guest's contributory negligence (Ky. Stats., secs. 2059a-5 to 2059a-7, 2059a-10).

9. Innkeepers. Court will not presume that guest intentionally remained in hotel with knowledge of presence of fire.

10. Innkeepers. — Operators of hotel sued for death of guest in fire, claimed to have resulted from absence of statutory safeguards, held not to establish guest's contributory negligence (Ky. Stats., secs. 2059a-5 to 2059a-7, 2059a-10).

The evidence showed that the deceased was occupying a room on the fifth floor of the hotel at the time of the fire, that there was no fire escape, and that in order to reach exit on ground floor he was compelled to pass from his bedroom through larger room into hallway which lead into another hall, from which he could reach the ground floor by elevator or inside stairway. Deceased was in the bathroom when warned of the presence of the fire, and the place of fire and its extent appear not to have been fully disclosed to him at that time; and a few minutes afterwards smoke accumulated and more or less spread throughout the building.

11. Trial. — Credibility and weight of testimony are matters for jury's consideration.

Appeal from Perry Circuit Court.

JESSE MORGAN and C.S. LANDRUM for appellant.

J.W. CRAFT, W.A. STANFILL, SOUTH STRONG, A.F. BYRD, and TURNER & BREAL for appellees.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing for new trial.

This appeal requires a construction and application of section 466 and 2059a-10, Ky. Statutes, as to the appellee Hargis Bank & Trust Company, on the facts alleged in appellant's petition and amended petition, and as to the appellee A.H. Hargis on the alleged and proven facts. The action was instituted against them by the administratrix of J.E. Pirtle to recover damages for his death, alleged to have resulted directly and proximately from their operation, without its being equipped as required by sections 2059a-5 2059a-6, and 2059a-7, Ky. Statutes, of the Combs Hotel, situated at Hazard, Perry county, Ky., at the time it was destroyed by fire on the evening of December 15, 1928, and in which the deceased, J.E. Pirtle, was a guest when he lost his life during its burning.

The appellees Hargis Bank & Trust Company and A.H. Hargis entered their respective motions to quash the summons served on them, and each filed a special demurrer to the jurisdiction of the court. The court overruled both the motion to quash, and the special demurrer of the appellee A.H. Hargis, but sustained the special demurrer as to the appellee Hargis Bank & Trust Company, and overruled its motion to quash the summons. The effect of the ruling was for the court to take jurisdiction of the case against A.H. Hargis and to decline jurisdiction of it as to the Hargis Bank & Trust Company.

Under the authority of Ocean Accident & Guarantee Corporation v. Milford Bank et al., 236 Ky. 457, 33 S.W. (2d) 312, the court erred in sustaining the special demurrer of the Hargis Bank & Trust Company. Combs v. Hargis Bank & Trust Co., 234 Ky. 202, 27 S.W. (2d) 955.

An intelligent consideration of the right of the appellant to a recovery, and of the right of the appellee A.H. Hargis to the peremptory instruction, requires a review of the pleadings and the evidence.

The appellant filed an original and amended petition. In the first she substantially alleged that the appellees operated in the city of Hazard, Perry county, Ky., a hotel, known as the Combs Hotel, a building more than two stories high and containing more than ten sleeping rooms; that the hotel building was five stories high and contained 121 bedrooms. The bedrooms were located on the second, third, fourth, and fifth floors, and on each floor there were thirty or more bedrooms; that on the 15th day of December, 1928, and prior thereto, the appellees had possession of the building, the fixtures and furniture therein, and appurtenances; that they received guests and boarders at the hotel, charged and received compensation therefor; that J.E. Pirtle was such a guest at the hotel; that by and through agents, servants, and employees, the appellees were at the time of his death operating the hotel.

It is charged that the appellees negligently failed to equip or provide the hotel, and that it was not equipped or furnished, at the time of the fire on the evening of December 15, 1928, when deceased lost his life by reason of the burning of the hotel, with an iron stairway on the outside of the building not less than two feet wide, with steps with not less than a six-inch tread and inclined to not more than forty-five degrees from its cornice to within twelve feet of the ground, connecting each other above the ground with an opening therefrom with a platform landing at each floor, not less than six feet in length.

It is alleged that no equipment was provided in the hotel for the purpose of fighting or extinguishing fire therein. In short, it is averred that the requirements of sections 2059a-5, 2059a-6, and 2059a-7, Ky. Statutes, were absolutely disregarded by the appellees, and that by reason thereof deceased came to his death by the destruction of the building by fire on the 15th day of December, 1928. The incorporation and powers of the Hargis Bank & Trust Company are properly alleged. Allegations are made that appellee A.H. Hargis was its authorized and acting president at that time, and as such he had dominion over and the present right and power to control, and was in fact operating the hotel for the bank and trust company.

In his answer to the original petition he denied the allegations therein, except as to the incorporation of the bank and his acting as its president. By the second paragraph of his amended answer he pleaded contributory negligence of J.E. Pirtle. By the third paragraph thereof he pleaded special facts constituting contributory negligence. Certain allegations of the appellant's amended petition on motion of the appeal were stricken. It is not necessary to a proper determination of this case to review this action of the trial court.

Certain mortgages, containing a description of the property, executed and delivered by D.Y. Combs and his wife, Mary Combs, to A.H. Hargis, and a deed of trust to the Hargis Bank & Trust Company, are set out in the petition as the source of authority of the Hargis Bank & Trust Company, as trustee of the Combs Hotel, and of Hargis to operate it. The deed of trust vested in L.F. Brashear of Hazard, Ky., the authority and duties of manager of the hotel, and exclusive supervision, direction, and control of it, with power to employ and discharge all assistants and labor, subject to the approval of the trustee, and to make report to the trustee or holders of the bonds on or before the 10th day of each month. The deed of trust was executed January 16, 1928, by Mary Combs, Della Fuller, Estelle Combs, Abbie Combs, J. Richmond Combs, Sophie Combs, and was accepted by the Hargis Bank & Trust Company, by A. H. Hargis, president, trustee, and by L.F. Brashear, general manager. Subsequent to the execution and delivery of it, an action was filed in the Perry circuit court by the Hargis Bank & Trust Company, trustee, and L.F. Brashear, general manager, against the Combses, in which on the 19th day of October, 1928, an order was entered requiring the Combses "immediately" to give to the Hargis Bank & Trust Company, as trustee, the management and operation of the hotel business, and to give to it absolute and complete possession and control of the hotel building, and "all the furniture, fixtures, paraphernalia, equipment and personal property and stores used in connection with or about the Combs property or adjunct thereto." The real estate and personal property are particularly described in the order D.Y. Combs died on April 25, 1927, owning the Combs hotel, its furniture, fixtures, and supplies. About ten days after his death, A.H. Hargis voluntarily assumed the management and control of the affairs and business of the hotel. After he did so, he...

To continue reading

Request your trial
1 cases
  • Turner v. Taylor's Adm'X
    • United States
    • United States State Supreme Court — District of Kentucky
    • 24 Enero 1936
    ...and our declarations of law as applicable to them, are stated in detail in our opinion in the case of Pirtle's Adm'x v. Hargis Bank & Trust Co. et al., 241 Ky. 455, 44 S.W. (2d) 541. Two of the other appeals were similarly disposed of following the opinion in that case in the two opinions o......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT