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

• Decision Date: 10 November 1931
• Citation: 241 Ky. 455,44 S.W.2d 541
• Parties: PIRTLE'S ADM'X v. HARGIS BANK & TRUST CO. et al.
• Court: Kentucky Court of Appeals

44 S.W.2d 541

241 Ky. 455

PIRTLE'S ADM'X v. HARGIS BANK & TRUST CO. et al.

Court of Appeals of Kentucky

November 10, 1931

Rehearing Denied Jan. 19, 1932.

Appeal from Circuit Court, Perry County.

Action by J. E. Pirtle's administratrix against the Hargis Bank & Trust Company and others. From an adverse judgment plaintiff appeals.

Reversed for new trial.

Jesse Morgan, of Hazard, and C. S. Landrum, of Lexington, for appellant.

J. W Craft and W. A. Stanfill, both of Hazard, South Strong, of Jackson, A. F. Byrd, of Lexington, and Turner & Creal, of Frankfort, for appellees.

RICHARDSON J.

This appeal requires a construction and application of sections 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 Jackson, Breathitt 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 and three feet in width, guarded by an iron railing not less than thirty inches in height.

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 appellee 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 from them 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 his 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 authorized and directed the tearing down and the removal of certain buildings in the rear of the hotel building. On the 22d day of June, 1927, Charley Mealey took charge of the business of the hotel and continued in charge of it for nearly one year, when he ceased about May 1, 1928, to have any connection with it. A. H. Hargis stated to witnesses that he had employed Mr. Mealey to work at the hotel. After Mealey severed his connection, the Combs family operated it for about four months. During the time they operated it the income from its operation was turned over to A. H. Hargis. When the Combses ceased to operate it, Tom Hargis, a son of A. H. Hargis, assumed the clerical management of the business. A. H. Hargis employed Tom Hargis to work in the hotel. He did so for about three months, and was so engaged at the time of the destruction of the building by fire. A. H. Hargis increased the wages of one employee from $60 to $100 per month. This employee continued to work at the hotel under his employment by A. H. Hargis until and including the night of the fire. He employed this man to run the furnace and to work as night clerk, and fixed his salary. He employed a housekeeper and fixed her salary. Daily reports of the receipts of the hotel were made by the day clerk and mailed to A. H. Hargis, at Jackson, Ky. A barber engaged in barbering at the hotel, for awhile paid his rent to L. F. Brashear until A. H. Hargis notified him "that he had not paid the right man, and that Brashear has nothing to do with it," and demanded that he pay it again and to "pay it right today." The checks which were delivered by this witness to Brashear were taken possession of by A. H. Hargis. A. H. Hargis directed that in the future he should pay his rent to Tom Hargis, and informed the witness that he (A. H. Hargis) had control of the Combs Hotel.

There were presented by both pleadings and the evidence the two mortgages from A. B. Combs and wife to A. H. Hargis; the deed of trust from A. H. Combs and wife and sons and daughters to the Hargis Bank & Trust Company. Also an order of court in an action wherein the Hargis Bank & Trust Company and L. F Brashear were plaintiffs and the widow and sons and daughters of D. Y. Combs were defendants and wherein it is recited that Mary Combs, J. Richmond Combs, Sophie Combs, Abbie Combs, and Della Fuller, were required immediately to vacate the hotel, property, and to surrender to the Hargis Bank &...