Watt v. Kilbury

• Decision Date: 09 June 1909
• Citation: 53 Wash. 446,102 P. 403
• Court: Washington Supreme Court
• Parties: WATT et ux. v. KILBURY et ux.

102 P. 403

53 Wash. 446

WATT et ux. v. KILBURY et ux.

Supreme Court of Washington

June 9, 1909

Department 1. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Action by Henry Watt and wife against Thomas T. Kilbury and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.

Munter & Lovejoy and Neal, Sessions & Myers, for appellants.

Belt &amp Powell, for respondents.

GOSE J.

The respondents, the plaintiffs below, commenced this suit for the recovery of the value of certain money and personal property. The complaint charges: That on November 6, 1907 the appellants were hotel and innkeepers, owning and conducting the Riverside Hotel in the city of Spokane; that the respondents were guests at such hotel, and had in their possession at such time $460 in lawful money, one gold watch of the value of $150, one gold ring of the value of $25, and one gold right of the value of $10, which were kept by them in a small handbag; that on such day the respondents were absent from their room for a few minutes, leaving the handbag with its contents in their room in the hotel; that, at the time of leaving their room, the door to the same was closed and that, upon their return to the room, they discovered that the handbag with its contents had been abstracted and stolen. The answer admitted that the appellants owned and conducted the inn and hotel at the time stated, and that the respondents were guests therein. Issue was joined upon the other averments of the complaint. The appellants pleaded affirmatively: (1) A compliance with the provisions of 2 Ballinger's Ann. Codes & St. § 5977 (Pierce's Code, § 5586); (2) that, if any loss occurred, it was due to the negligence of the respondents in absenting themselves from their room and leaving their room door unlocked for an unreasonable length of time; (3) that after the loss, if any, occurred, there was a settlement between the appellants and the respondents, whereby the respondents gave appellants their note for $17 in payment of the rental for their room. The reply joined issue upon the affirmative matter pleaded in the answer. The case was tried to the court, and terminated in a judgment for the respondents. An appeal was taken from such judgment.

At the threshold of the case, the appellants insist that, in cases of this character, a recovery cannot be had on a mere preponderance of evidence, but that the evidence upon which a recovery is authorized must be clear, convincing, and conclusive. Crapo v. Rockwell, 48 Misc. 1, 94 N.Y.S. 1122, is cited as supporting this contention. As we read the case, it affords them no aid. The question at issue in that case was whether a woman who had lived in a hotel continuously for some 17 months was a guest. The court held that the relation of innkeeper and guest did not exist under such circumstances. When the relation of innkeeper and guest and the loss of goods have been established, the true rule is that the innkeeper is prima facie liable, and the burden is on him to show such facts as well exonerate him. 22 Cyc. 1082; Johnson v. Chadbourn Finance Company (Minn.) 94 N.W. 874.

The evidence discloses the following facts: The respondents, a farmer and his wife, sold a tract of land, received therefor something over $400 in money and a note and mortgage for $500, and then went to Spokane, primarily to secure treatment for the wife, who was past 60 years of are and in ill health. They became guests in the appellants' hotel on the 19th day of October, 1907, and had a room assigned to them, which they continued to occupy until December 2d following. While sustaining the relation of guests at such hotel, they kept this money and the note and mortgage in a small handbag which the wife usually carried when absent from the room. On November 6th the wife was absent from the room for a few minutes, leaving the handbag with its contents on the bed. Upon her return she discovered that it had been taken from her room during her absence. She at once called her husband who was sitting in the hotel office near the room, and who had been absent at the same time, and advised him of the loss. A few days later they found the note in the top of their trunk in a...