Steele v. May

• Decision Date: 26 November 1902
• Parties: STEELE v. MAY ET AL.
• Court: Alabama Supreme Court

33 So. 30

135 Ala. 483

STEELE v. MAY ET AL.

Supreme Court of Alabama

November 26, 1902

Appeal from circuit court, Madison county; Osceola Kyle, Judge.

Action by May, Buttrey & Cooney against Walter R. Steele. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This suit was brought to recover damages for injury to plaintiffs' stock of merchandise, caused by the overflow of a bath tub in the bath room adjoining and forming a part of room No. 5 in the Huntsville Hotel, of which the defendant was the proprietor and operator at the time of the injury complained of. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court at the request of the plaintiffs, gave to the jury the following written charge: "If the jury believe the evidence they will find for the plaintiffs, and the amount of their recovery will be two hundred and ten dollars with interest at eight per cent. from the 25th day of March, 1900, to the date of trial." To the giving of this charge the defendant duly excepted.

Humes Sheffey & Speake, for appellant.

Cooper & Foster, for appellees.

HARALSON J.

In each count, the first and third, on which the case was tried, it is averred that the injury complained of to plaintiffs' stock of goods, was caused by reason of the negligence of the defendant, or his servants or employés, in allowing the faucets which supplied the bath tub (in the hotel above plaintiffs' store), to be and remain open, so that the tub became full and ran over, thus damaging the plaintiffs in the sum claimed.

The defendant's contention, as stated by his counsel is, that the injury sustained on account of the overflow of the tub and the seeping of the water through the floor into plaintiffs' storeroom below, injuring their goods, was occasioned by the fault of one Lowery,--who was a guest in the hotel, and who had gone into this bathroom to take a bath,--in not watching the flow of water into the bath tub while the bell boy of the hotel, who came to prepare the bath for him, and who had opened the faucets, had gone out of the bathroom to get towels for bath, and that Lowery and Harris,--the latter occupying as a guest, room No. 5, to which the bathroom was attached, and who consented for Lowery to take a bath in said room,--were Lable for the negligence of the former in not closing the faucets, in the absence of the bell boy.

The contention of the plaintiffs is, that the injury was caused by the negligent act of the bell boy, Barnett, who, as the proof shows, was in the employment and service of the defendant in his hotel as a bell boy, whose duty it was to answer the calls of the bells of the numerous rooms occupied as chambers by guests, including those apartments or rooms where the bath arrangements were connected, as well as the rooms occupied by guests where no bath was attached.

The evidence showed without conflict that the damage to the goods was $210; that Harris, as a guest of the hotel, had been assigned to and occupied this room, paying an additional sum for it, because it had a bathroom connected with it. It was customary and not against the rules of the hotel, for other guests, with the consent of parties who occupied rooms with baths, to repair to such rooms for bathing purposes, instead of to the common bathroom, for the use of all guests, and no extra charge was made in such cases. Lowery was a guest boarding in the hotel. With Harris' consent, he went into the latter's room. The bell communicating with the office of the hotel was rung, and in response a bell boy, in the employment of defendant, was sent to the room. He was informed of what was desired, and prepared the tub for Lowery for his bath, and opened both the cold and warm water faucets, so as to discharge water for the bath, into the tub. It appears, there was not a sufficient supply of towels on hand, and he left to get others. He was delayed in his return, and stayed away until the tub had filled with water and overflowed, causing the damage to plaintiffs for which they sue. Harris was in bed at the time, in room 5, and Lowery was not in the bathroom but was also in room 5.

1. The deposition of R. B. Jones, the former associate of defendant in keeping the hotel, and who had retired from the business, leaving the premises and their conduct under the lease in charge of defendant, was taken as a witness for the plaintiffs.

The fourteenth direct interrogatory to him was: "What was the nature of your contract with your lessees [lessors] as to repairs?" The answer was: "The nature of our contract for the last three years we were in charge of the house was, that we were allowed $50 per month out of the rent for repairs," etc. The defendant objected to the interrogatory and answer, and moved to exclude them, because irrelevant and immaterial to any issue involved...