Rose v. Rather
| Citation | 199 So. 299,190 Miss. 105 |
| Decision Date | 23 December 1940 |
| Docket Number | 34349 |
| Court | United States State Supreme Court of Mississippi |
| Parties | ROSE v. RATHER |
APPEAL from the circuit court of Marshall county, HON. T. H MCELROY, Judge.
Action by T. U. Rose against H. H. Rather, for injuries suffered in hotel fire. From a judgment for defendant, plaintiff appeals. Affirmed.
Affirmed.
W. I Stone, of Coffeeville, for appellant.
We attempted, and I think we succeeded, in charging Mr. Rather as the owner of a building used as a hotel and in the same town where Mr. Rather lived, with gross negligence in letting the building out for hotel purposes when it was inadequately equipped in its provisions for the safety of guests in case of fire. This means not only the direct violation of the law by Mr. Rather in failing to put in the gong positively required by the law but generally in having no facilities for the protection of guests.
The learned circuit judge, we think, made more than one error first, in rendering his decision sustaining the motion to exclude, he erroneously concluded that our whole suit was grounded on the violation of the statute by Mr. Rather; and, second, we think that he misconstrued the statute; that is, while the whole suit was not grounded on the statute but deferentially and respectfully we submit that the violation of the statute would have furnished us sufficient grounds to go to the jury in the cause against Mr. Rather, the owner of the building.
Section 4693 by its terms plainly applies to "the proprietor or keeper." The learned circuit judge decided that Mr. Rather as owner was not included in the terms of Section 4693, the proprietor or keeper."
The word, "proprietor" signifies one who has the legal right for exclusive title in anything, whether in possession or not; an owner is the proprietor of a farm or mill.
Elridge v. Finnegar, 105 P. 334, 335, 28 L. R. A. (N. S.) 227; Goldwyn Distributing Corp. v. Carroll, 21 App. D. C. 75, 276 F. 63, 95 A. L. R. 1099; Yall v. Snow, 100 S.W. 1, 3, 201 Mo. 511, 10 L. H. A. (N. S.) 177, 119 Am. St. Rep. 781, 9 Ann. Cas. 1161.
The use of the word, "owners" in this act indicates that the legislature meant to impose the duty upon more persons than the occupant alone. A person may be the owner of a hotel building and still not be the occupant or keeper thereof, and hence the liability of the "owner" is not contingent upon his being in possession.
Johnson v. Snow, 100, S.W. 5, 6, 201 Mo. 540; 3 Words & Phrases 853; 3 Bouvier's Law Dictionary, p. 2753; Turner v. Cross, (Tex.), 15 L. R. A. 262, 32 C. J. 541, footnote 54; Rose v. King, 15 L. R. A. 160; Willie v. Muelledy, 34 Am. Rep. 536.
Appellee is not saved in this case because of the very obvious responsibility of the lessees of his hotel. Of course, they are liable if one wanted to sue them, but the liability being a several one and not joint, Mr. Rose and any other person injured is not forced to sue the whole outfit, and Mr. Rather cannot claim immunity on account of the fact that others may be liable jointly and severally.
Brewer v. Lucedale, 198 So. 42.
Under the common law rule the man owning and handling a hotel must first see that the hotel was properly constructed for the ordinary business carried on within it in order to claim protection under the common law and in the absence of a statutory requirement.
Rose v. King (Ohio), 15 L. R. A. 160; Jones v. Granite Mills, 30 Am. Rep. 661; Keith v. Granite Mills, 30! Am. Rep. 666.
Long before statutes were ever dreamed of there was common law liability on the part of a master to provide means for employees to escape from a burning building, and certainly a guest of a hotel stands higher than an employee.
Schwandner v. Birge, 33 Hun 186, 46 Hun 66; Yall v. Snow et al. (Mo.), 100 S.W. 1; Jabour v. McKnight, 145 Miss. 841.
There cannot be the slightest possible doubt on earth that the negligence of Mr. Rather in not providing facilities required by the law and the statutes was the proximate cause of the injuries of this poor appellant. If such provisions had been made, he could have found a way out of this inferno of fire and smoke before it reached the stage outlined in the testimony when there was nothing for this poor man to do except to take the one chance on earth left to him, and that was to jump out of that window. There were only two openings into the room; one was a door leading into the hall on the south, and the other was a window leading to the outdoors on the north, and he had to take the latter or be very promptly suffocated and burned up.
Lester G. Fant, Sr. & Jr., Hindman Doxey, and L. A. Smith, Jr., all of Holly Springs, for appellee.
Under the common law, the appellee was under no legal duty as owner of the hotel building, which he did not fully perform.
32 C. J. 564, sec. 74; 296 Pa. 249, 145 A. 822; Baugh v. McCleskey, 292 S.W. 950; Schmalzied v. White, 97 Tenn. 36, 36 S.W. 393, 32 L. R. A. 782; Jones v. Granite Mills, 126 Mass. 84, 30 Am. Rep. 661; Arms v. Ayer, 192 Ill. 601, 61 N.E. 851, 58 L. R. A. 194; West v. Inman, 137 Ga. 822, 74 S.E. 527, 39 L. R. A. (N. S.) 744, Ann. Cas., 1913B, 276; Weeks v. McNulty, 101 Tenn. 495, 48 S.W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693; Radley v. Knepfly, 104 Tex. 130, 135 S.W. 111; Note, 15 L. R. A. 160; Keith v. Granite Mills, 126 Mass. 90, 30 Am. Rep. 666; Nat. Hotel Co. v. Motley, 123 S.W.2d 461; Yall v. Snow, 10 L. R. A. (N. S.) 177.
Under the statutes, the appellee was under no legal duty as owner of the hotel building, which he did not fully perform.
Yall v. Snow, 10 L. R. A. (N. S.) 177; Chap. 114, Code 1930, Secs. 4688, 4689, 4690, 4692, 4693, 4694, 4701, 4703; Lee v. Smith, 42 Ohio State 458, 51 Am. Rep. 839; Schott v. Harvey, 105 Pa. St. 222, 51 Am. Rep. 201.
The words "owner" and "proprietor" are not synonomous, they are not inter-changeable, and the owner of a hotel building and the lot on which it is located is not the proprietor of the hotel unless the owner also has charge of the operation and management of the hotel business. In the case at bar, no such charge is made, but the declaration itself recites that Rather was the owner of the lot and building and that he had leased it to Mrs. Robinson and Mrs. Stille who, as lessees, operated and managed the same under the name Travelers Inn. Surely, if a man went into this hotel and wanted to see the propriet or or the keeper, he would not have in mind Mr. Rather, but, on the other hand, Mrs. Robinson or Mrs. Stille. If a traveling salesman goes into a drug store, a grocery store, dry goods store, a filling station, a cafe or any other business and asks to see the proprietor, he is thinking of the one in charge of the business and not the owner of the building in which said business is located.
The learned trial judge was eminently correct in his reasoning in this matter and reached the only logical conclusion possible. In his very clear and able opinion he analyzed the difference between the duties of the owner of the building and the proprietor of the hotel business. In discussing the duty of the proprietor, he said that it is the duty of the proprietor to provide devices such as ropes to be used in emergencies in buildings of more than two stories, but it is the duty of the owner to construct the building itself which includes permanent iron stairs and balconies in hotels of more than two stories.
It was not incumbent on Mr. Rather, the owner of the building, but upon the proprietor or keeper of the hotel business, to provide the gong mentioned in Section 4693.
Lee v. Smith, 42 Ohio State 458, 51 Am. Rep. 839; Schott v. Harvey, 105 Pa. St. 222, 51 Am. Rep. 201.
In the case at bar, the question of causation is not technical. It requires no distinctions of the controversial adjective, "proximate." For the purpose of clarity, therefore, we will base our position upon this broad ground: that there was no element of legal cause connecting any conduct of the defendant with the plaintiff's injury.
Restatement of the Law of Torts, sec. 430.
Nothing can be deemed the (proximate) cause of an accident unless, had it not happened, the injury would not have occurred.
Thompson Negligence, sec. 56; Ill. Cent. R. R. Co. v. Wright, 135 Miss....
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