Smith v. The Texan
| Decision Date | 05 May 1944 |
| Docket Number | No. 14619.,14619. |
| Citation | 180 S.W.2d 1010 |
| Parties | SMITH et al. v. THE TEXAN, Inc., et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.
Action by Mrs. Florence Smith and others against The Texan, Inc., and another for death of guest who was killed in hotel fire. From a judgment for defendants, plaintiffs appeal.
Affirmed as to named defendant and reversed and cause remanded as to defendant R. C. Levy.
H. M. Muse, of Wichita Falls, and Blakeney & Blakeney, of Oklahoma City, Okl., for appellants.
Carrigan, Hoffman & Carrigan, of Wichita Falls, for appellee The Texan, Inc.
Bromberg, Leftwich, Gowan & Schmucker, of Dallas, for appellee R. C. Levy.
This case arises out of the disastrous fire that consumed The Texan Hotel in Wichita Falls, Texas, and is a companion case to that of Hays v. The Texan, Inc., et al., Tex.Civ.App., 174 S.W.2d 1006, and the trial court sustained the special exceptions urged against plaintiffs' petition by both defendants, viz., The Texan, Inc., owner of the hotel building, and R. C. Levy, lessee and operator of the hotel, and the cause was dismissed, when plaintiffs declined to amend. The plaintiffs, who are the surviving wife and children of W. Ernest Smith, a guest who lost his life in the fire, have appealed.
All of the allegations that were made in the Hays case were incorporated in the petition in the instant suit. Some of these allegations were enlarged upon, but the matters that give us much concern are the new allegations and those enlarged by the pleadings before us. These we will attempt to detail in order that we may show that the instant case is not "on all fours" with the Hays case.
We are not impressed with the allegations in which it is made to appear that the hotel building was so constructed and of such material that it was a fire hazard and a building likely to be consumed by fire when one was "started" in it, as applying to some theory of negligence on the part of the owner of the building, or the lessee thereof, who was operating the hotel, merely by reason of such construction, but we are of opinion that such allegations are material when pleaded in connection with proper allegations to the effect that those in charge of the hotel, when the fire "started", knew of the fire shortly after it occurred and in sufficient time in which to warn and notify the guests, but neglected to perform such duty and neglected to call the fire department of the City of Wichita Falls, and that the fire during such time spread through the building and enveloped the stairway and the elevator shaft and cut off all escape.
We observe here that there is to be found no holding by the Court of Civil Appeals for the Eastland District in the case of National Hotel Co. et al. v. Motley, Tex. Civ.App., 123 S.W.2d 461, none by the Court of Civil Appeals for the Texarkana District in the cases of Texas Hotel Co. et al. v. Cosby et al., Tex.Civ.App., 131 S.W. 2d 261, and Texas Hotel Co. et al. v. Jones et al., Tex.Civ.App., 131 S.W.2d 265, and none by our Court in the case of Hays v. The Texan, Inc., et al., Tex.Civ.App., 174 S.W.2d 1006, to the effect that there can arise no duty on the part of the operator of a hotel to warn the guests, after the fire has been discovered by the operator, or his employees, even though the fire originates in a room occupied by a guest, and not in a room that is under the control of the hotel operator. This Court is of opinion that to so hold would be inhuman and contrary to the spirit of American justice.
We recognize the fact, however, that there must be some time limit involved and that such facts must be alleged in connection with the duty to exercise ordinary care to warn the guests of the danger as that a question of fact is presented for determination.
The allegations are that the deceased was a guest who occupied room 703, at the south end of the hall, on the seventh floor; that the hotel was seven stories in height; that the fire "broke out" in one of the rooms of said hotel, and thereafter spread to all parts of said hotel building, and the same was completely burned to the ground; that the fire started...
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Greene v. Thiet
...the failure to install a proper fire escape on a hotel is no cause of the death of a man suffocated in bed by smoke. Smith v. The Texan, Inc., 180 S.W.2d 1010, 1012 (Tex.Civ.App.--Fort Worth 1944, writ ref'd w.o.m.) (no showing guest made any effort to use fire escape). From such circumstan......
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...United States, supra, 95 F.Supp. at p. 953; Hercules Powder co. v. Crawford, 163 F.2d 968, 970 (8 Cir.1947); cf. Smith v. The Texan, Inc., 180 S.W.2d 1010 (Tex.Civ.App.1944) (hotel); 43 C.J.S. Innkeepers § 22(c), pp. 1185--1186 (1945), and 29 Am.Jur., Innkeepers, § 64, pp. 52--54 (1960); se......
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...cites: Crooke v. Lumpkin, 1953, 89 Ga. App. 277, 79 S.E.2d 321; Irwin v. Torbert, 1948, 204 Ga. 111, 49 S.E.2d 70; Smith v. The Texan Inc., Tex.Civ.App.1944, 180 S.W.2d 1010; Hays v. The Texan Inc., Tex.Civ.App.1943, 174 S.W.2d 1006; National Hotel Co. v. Motley, Tex.Civ.App.1938, 123 S.W.2......
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