Rocoff v. Lancella, 20599

• Citation: 145 Ind.App. 440,251 N.E.2d 582
• Decision Date: 14 October 1969
• Docket Number: No. 1,No. 20599,20599,1
• Parties: Alexandra ROCOFF and Sophie Rocoff, d/b/a Batchelor Hotel, and Theodore Rocoff, Appellants, v. Roy LANCELLA and Sue Harlow, Guardian of Rosario Lancella, Incompetent, Appellees
• Court: Court of Appeals of Indiana

Page 582

251 N.E.2d 582

145 Ind.App. 440

Alexandra ROCOFF and Sophie Rocoff, d/b/a Batchelor Hotel and Theodore Rocoff, Appellants, v. Roy LANCELLA and Sue Harlow, Guardian of Rosario Lancella Incompetent, Appellees.

No. 20599.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1969.

Rehearing Denied Nov. 18, 1969.

George H. Dragus, Hammond, Bredell, Martin & McTurnan, Indianapolis, for appellants.

Saul I. Ruman, Hammond, for appellees.

COOPER, Judge.

This is an appeal from the LaPorte Circuit Court wherein the the plaintiff-appellee filed a complaint against the appellants for damages for alleged personal injuries sustained by him while he was a registered, paying guest in a hotel owned and operated by the appellants.

The appellee's complaint alleged, in substance, that the appellee was a paying guest of the Batchelor Hotel which was owned by the appellants; that for a long time the hotel guests had commonly used a stairway to reach the roof of the hotel to take sun baths and to enjoy fresh air; that on July 24, 1959, the plaintiff, intending to go to the roof for sunshine and fresh air, proceeded to climb the stairs which led to the roof; upon reaching the second step from the top, the step broke and collapsed, causing the plaintiff to fall to the floor below; that the plaintiff was seriously and permanently injured in that he received severe injuries to his head, neck and back.

The complaint alleged that the appellants were negligent in six particulars, to-wit: (1) Careless and negligent erection and maintenance of the stairway: (2) carelessly and negligently permitting the stairway to become dangerous and unsafe, weatherbeaten, rotten and insecure; (3) that appellants knew or should have known of the dangerous condition of the stairway; (4) failure to reconstruct or repair the stairway to a reasonably safe condition; (5) failure to make a reasonable inspection of the stairway; and (6) failure to post any warning signs that the stairway was in a dangerous and unsafe condition.

The appellants filed an answer in compliance with Rule 1--3 of the Rules of the Supreme Court of Indiana. The cause thus being at issue, trial was had to a jury which returned a verdict for the plaintiff in the sum of $23,700, and judgment was entered thereon. Thereafter, the appellants filed a motion for new trial which was overruled and this appeal followed.

The appellants' assigned error on appeal is that the trial court erred in overruling the appellants' motion for a new trial.

The first cause for a new trial discussed in the appellants' brief is that the 'Verdict of the jury is not sustained by sufficient evidence.'

The general rule concerning such cause for a new trial is, that in reviewing the evidence to determine its sufficiency, the Appellant Court will look only to that evidence most favorable to the appellee and the reasonable inferences to be drawn therefrom. Butler v. Forker (1966) 139 Ind.App. 602, 221 N.E.2d 570, 575; Isenhour v. Speece, Admr. et al. (1958) 238 Ind. 293, 296, 150 N.E.2d 749.

In addition, when the sufficiency of the evidence is questioned on appeal, this court does not weigh the evidence, but reviews the record to see if there is any evidence, or any reasonable or logical inferences which may be drawn therefrom, which, if believed by the jury, would sustain the verdict. Gamble et al. v. Lewis (1949) 227 Ind. 455, 460, 85 N.E.2d 629; Indiana Ins. Co. v. Handlon (1940) 216 Ind. 442, 24 N.E.2d 1003.

Appellants contend, in substance, that the plaintiff was not a guest of the Batchelor Hotel, but rather was a tenant, because he had lived in the same room and had paid $30.00 per month for rent for a period of two years prior to the date of the injury.

After reviewing the testimony contained in the record, we cannot agree with this contention. The evidence in this cause concerning whether the plaintiff was a paying guest or a tenant in the hotel was conflicting. The evidence shows that the hotel building displayed an exterior sign bearing the inscription 'HOTEL'. In addition, the Batchelor Hotel maintained a guest register book, and provided maid service for the entire building.

In the case of Buck v. Del City Apartments, Inc., (1967) Okl., 431 P.2d 360, 363, the Oklahoma Supreme Court was presented with a similar question, wherein that Court stated:

'The chief distinction between a tenant and an innkeeper's guest lies in the element of possession. A tenant is deemed to have exclusive legal possession of the demised premises and stands responsible for their care and condition. A guest, on the other hand, has merely a right to the use of the premises while the innkeeper retains his control over them, is responsible for the necessary care and attention and retains the right of access for such purposes. Modern law tends to regard as a guest anyone who is a patron of the inn as such, and receives the same treatment as that accorded to short-term guests. Leon v. Kitchen Bros. Hotel Co., 134 Neb. 137, 277 N.W. 823, 115 A.L.R. 1078; Cottmire v. 181 East Lake Shore Drive Hotel Corp., 330 Ill.App. 549, 71 N.E.2d 823; See, Tenant, Lodger and Guest, 64 Yale L.J., 391, 396.'

See also, 145 A.L.R. 633, and authorities cited therein.

The Court then continued by setting out certain characteristics used to distinguish a guest from a tenant, as follows:

'The status of a patron upon the premises as a tenant or as a guest is to be determined, inter alia, from the terms of the contract between the parties; the character of the premises; the nature of the business operated upon them; the extent of control or supervision maintained by the proprietor or possessor over the premises; the manner the premises are operated; the character of the part occupied by the patron; and the character of use to which the premises are generally adapted and devoted. Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947.

'The operation and management of the property as a motel under a license from the state and its advertising as a motel by the display of a highway sign afford a proper basis for the inference that the patron of the establishment is a guest. Marden v. Radford, supra. One who maintains a motel for the purpose of furnishing lodging accommodations to the public sustains to his occupants the relation of innkeeper. Crockett v. Troyk, Tex.Civ.App., 78 S.W.2d 1012. 29 Am.Jur., Innkeepers, Sec. 28, p. 26.

'Neither the length of the stay nor the fact that payment for the accommodation is made at a fixed rate per week rather than per day and that for the time the hotel may be the patron's only home precludes him from occupying the status of a guest in relation to the hotel establishment. Levesque v. Columbia Hotel, 141 Me. 393, 44 A.2d 728; Driskill Hotel Co. v. Anderson, Tex.Civ.App., 19 S.W.2d 216; Hart v. Mills Hotel Trust, 144 Misc. 121, 258 N.Y.S. 417; 29 Am.Jur., Innkeepers, Sec. 21, p. 21.' (Emphasis ours.)

Because the evidence is conflicting concerning whether the plaintiff was a tenant or a guest upon the premises of the Batchelor Hotel at the time of the occurrence of the accident, we cannot search the record, nor weigh the evidence, but we are bound by the jury's verdict. Neel v. Cass County Fair Association (1968) Ind.App., 240 N.E.2d 546; R. B. Tyler Co. v. White (1967) Ind.App., 230 N.E.2d 792.

The appellants contend in the argument portion of their brief, that the form of the judgment rendered in the trial court is incorrect. Since this error was not properly presented to the trial court for its ruling and the appellants failed to set out such error in the assignment of errors, that alleged error is waived.

In the case of Diane Co. Inc., etc., et al. v. Beebe (1960) 131 Ind.App. 161, 170, 145 N.E.2d 20, 169 N.E.2d 542, 546, the Court stated:

'* * * It has been stated many times by the courts of our state that the form or substance of a judgment cannot first be questioned in the Appellate or Supreme Court, but the question must first be presented to the court below by motion to modify. A ruling against the party asking such correction may be assigned as error in the Appellate or Supreme Court. Jackson v. State, 1953, 232 Ind. 453, 465, 112 N.E.2d 433; Kenny v. King, 1932, 94 Ind.App. 344, 346, 180 N.E. 871.'

The next assigned error of the appellants' motion for a new trial discussed in the argument portion of their brief, is that the verdict of the jury is contrary to law. Under this assignment, we may consider only the evidence most favorable to the appellee, and it is only where the evidence is without conflict and can lead to but one conclusion, and the trial court or jury has reached an opposite conclusion, that the decision of the trial court or jury will be set aside as being contrary to law. Pokraka et al. v. Lummus Co. (1952) 230 Ind. 523, 532, 104 N.E.2d 669; Hinds, Executor of the Estate of Sickles, Deceased, etc., v. McNair et al. (1955) 235 Ind. 34, 129 N.E.2d 553.

In the case of Olson v. Kushner (1965) 138 Ind.App. 73, at page 74, 211 N.E.2d 620, at page 621, this Court said:

'The duty owed by a person who owns land, or is in charge of the premises, to a person on such premises depends largely on the relationship between such occupier of the land and the person injured thereon. Standard Oil Co. of Ind., Inc. v. Scoville (1961) 132 Ind.App. 521, 524, 175 N.E.2d 711. (Transfer denied).

'While there are many decisions, both in this state and elsewhere, in which the rules applicable to cases of this character have been applied, the courts have been governed by the particular facts in each case in determining what rule should be applied, the essential question in each case being, Did the owner of the premises (under the particular circumstances of the case involved) own any duty to the party injured on his premises, and, if so, was such duty violated, and did such violation result in the injury complained of?' Brush v. Public Service Co., of Indiana (1939) 106 Ind.App. 554, at pages...