Southwestern Hotel Co. v. Rogers

• Decision Date: 13 July 1944
• Docket Number: No. 4396.,4396.
• Citation: 183 S.W.2d 751
• Parties: SOUTHWESTERN HOTEL CO. v. ROGERS et ux.
• Court: Texas Court of Appeals

183 S.W.2d 751

SOUTHWESTERN HOTEL CO. v. ROGERS et ux.

No. 4396.

Court of Civil Appeals of Texas. El Paso.

July 13, 1944.

Rehearing Denied August 3, 1944.

Judgment Affirmed January 10, 1945.

See 184 S.W.2d 835.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, El Paso County; David E. Mulcahy, Judge.

Action by James D. Rogers and wife against the Southwestern Hotel Company for the value of two diamond rings stolen from plaintiffs' room in defendant's hotel. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded.

Brown & Brooke, of El Paso, for appellant.

Samuel K. Wasaff, of El Paso, for appellees.

SUTTON, Justice.

The appeal here comes from the 41st District Court of El Paso County.

The suit was brought by James D. Rogers and his wife, Grace Rogers, to recover the value of two diamond rings in the sum of $4,000 alleged to have been stolen from the hotel room occupied by plaintiffs on March 9, 1943. The trial on the facts was to a jury and the case submitted on special issues. On the findings of the jury judgment was rendered in favor of the plaintiffs for the sum of $3,000. From this judgment the defendant has perfected this appeal.

The petition of plaintiffs was in two counts. In the first they pleaded the relationship of innkeeper and guests, the loss of their rings and the consequent damage, and sought recovery on such allegations. In the second count they pleaded negligence on the part of the defendant. They alleged the room occupied by them could only be entered from the outside by the use of a special emergency key, and the defendant, its officers, agents, servants and employees were negligent in failing to keep such key in their possession; that such key was negligently permitted to fall into the hands of some person or persons unknown to plaintiffs and the loss of the rings and the consequent damage resulted from such negligence. The case was submitted on this allegation of negligence without objection from the plaintiffs.

The defendant answered with certain special exceptions, a general denial and a special answer setting up compliance with the provisions of the Limited Liability Law (Art. 4592, Vernon's Civil Statutes), and the failure of the plaintiffs to comply with the law; actual and constructive notice of defendant's facilities to take care of their rings, and contributory negligence on the part of the plaintiffs in failing to avail themselves of the facilities of the defendant for the safe keeping of their rings and the careless handling of them on the occasion in question.

The jury found some unknown person or persons used an emergency key to unlock the door of the room occupied by plaintiffs and took their rings; that the defendant failed to use ordinary care to see that such emergency key did not fall into the hands of such unknown person or persons; that such was a proximate cause of the loss; that the rings were worth $3,000. The jury further found plaintiffs were negligent in not depositing their rings with the defendant for safe keeping, but that such was not the proximate cause of the loss thereof.

The defendant has briefed seven points of error. Four of them have to do with the lack of and insufficiency of the evidence to show negligence; two, with the claimed error of the court based on its refusal to render judgment in favor of the defendant on the finding of the jury the plaintiffs were guilty of contributory negligence, and the proximate cause established as a matter of law, and one because of the error claimed on the submission of the issue which inquired of the jury whether or not some unknown person or persons entered the room, because there was no evidence to warrant the submission of the issue.

The facts are the defendant owns and operates the Hilton Hotel in El Paso. Mr. Rogers came to the hotel as a guest about September 28, 1942, and Mrs. Rogers joined him about one month later. They have each lived as guests in the hotel continuously since. They had occupied room 956 until a few weeks prior to March 9, 1943. On that date they were occupying room 917, which is a twin-bed room. The room is completely enclosed by four walls with a door and transom above, which opens into a hallway, and one window, opening outside unto and above the street. Within the room is a clothes closet and a bathroom, which may be completely shut off from the room proper by closing the door thereto, which opens into the room. The room door was equipped with an automatic lock; that is, when the door was closed it could not be opened from the outside except with a key, but might from the inside, and a night latch. When the night latch was turned, the room could only be opened from the outside with the special emergency key. On the night of March 9, 1943, plaintiffs testified they double-locked the door, that is, turned the night latch and retired to bed about 10:30. They further testified, in accordance with their custom, they each removed their rings from their fingers and laid them on top of the dresser together with Mr. Roger's watch and eyeglasses. The next morning about eight o'clock Mrs. Rogers found the rings gone and the night latch turned or open.

The record further discloses there was a printed card or slip framed and fastened to the inside of the bathroom door about four feet above the floor level. At the top of the card was written "Hilton Hotel," followed by some printed matter, the number of the room, 917, maximum rents, some further little printed matter, the date posted, 1st day of March, 1943. Then in prominent, black capital letters were these words: "Limited Liability Law," followed in smaller type, "A Bill to be Entitled," etc., concluding with the words, "Be it enacted by the Legislature of the State of Texas:" Then follows a complete copy of Art. 4592, supra, Article 4593—Gratuitous Bailee in full, and Article 1551, P.C. Obtaining Board or Lodging by Trick, etc.

We take it to be conceded the defendant in all respects was within the provisions of the law, Article 4592, supra, in that it had a proper safe and vault for the safe keeping of plaintiffs' rings, and the door, transom and window were equipped with proper lock and fasteners, and the only contention that defendant's liability is not limited under the statute is because it is said under the undisputed evidence a copy of the law was not posted on the door of the sleeping room of plaintiffs. The provision of the statute is the liability shall be limited except for the negligence of the defendant, provided "that a printed copy of this law is posted on the door of the sleeping room of such guest." It is contended the posting on the bathroom door is not a sufficient posting under the quoted provision.

The Legislature may be presumed to have known a hotel sleeping room may have and does have more than one door, even more than one entrance door, as in case of a hotel apartment with the sleeping room and kitchenette or livingroom connected with a door. The statute does not say on which side of the door the copy shall be posted. If it were posted on the outside of an entrance door there could be no doubt but that the posting is sufficient. A posting on either side of a connecting door would compel the conclusion the law is complied with. We can see no difference between such a door and the door connecting the sleeping room and the bath. An outside door is nothing more nor less than a connecting door—connecting the sleeping room and the outside corridor or hall. It is obvious the purpose of the requirement that it be posted on the door is because doors are frequently used and because of such use the opportunities to see and take note of the law are multiplied. We think it a matter of common knowledge the bathroom door in a hotel room is used as frequently, if not more, than an entrance door. The conclusion is, therefore, the primary purpose of the statute is met by the posting on the door between the sleeping room and bathroom and likewise the requirement of the statute complied with. The statute does not require the posting to be had on all or every door of the sleeping room. It could not be seriously contended a room, for example, having two or more entrance doors each would have to be posted under the statute, or the statute could not be complied with because the posting must be limited to one, and which one is not designated. It is said the article "the" does not always mean one, and the use of it in such statutes is construed to mean "any." In Noyes v. Children's Aid Society, 10 Hun, N.Y., 289, also Id., 70 N.Y. 481, it was held a statute providing the surrogate in his discretion award the costs to "the party" who in his judgment is entitled thereto, means any one or more parties entitled thereto. It is likewise held in Lavin v. Board of Commissioners, 151 Ill.App. 236, at page 244, the article "the" used in a statute, Smith-Hurd Stats. c. 53, § 7, providing that "the state's attorney" elected by the people shall be paid a certain salary or sum, must be construed to mean "any," and includes a special attorney appointed for the State. Also the Supreme Court of Georgia, in Howell v. State, 164 Ga. 204, 138 S.E. 206, at page 210, in construing a statute providing: "That there shall be present at such execution [of a prisoner condemned to die] the Warden of the Penitentiary, who shall serve as executioner * * *," Laws 1924, p. 195, held that where there were two or more wardens the statute is construed to mean "any." And likewise that a statute requiring the sheriff to take and subscribe his oath "before the judge of the superior court or ordinary" Civ. Code 1910, § 4905, in a county having five such judges, the article is construed to mean "any," and the oath may be taken before any one of such judges.

Plaintiffs seem to proceed upon the theory noncompliance with the statute would render the defendant's liability absolute, but such is not the case. The liability is in all events made to...