206 Ky. 494 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
During the latter part of the year 1920, Herbert F. McClure was the manager and .superintendent of a branch office of plaintiff below and appellant here, Goodyear Tire and Rubber Company, which office it maintained in the city of Cincinnati, Ohio. At that time and prior thereto, the corporate defendant and appellee here, the Altamont Springs Hotel Company, operated a hotel near the city of Fort Thomas in Campbell county, Kentucky, which was but a short distance across the Ohio river from the city of Cincinnati, Ohio. In connection with its hotel the defendant had constructed a cheap garage for the storage and housing of the automobiles of its patrons. Its. walls were of corrugated iron, with a large entrance in one end and wide enough for the parking of automobiles on either side with space for an open aisle in the middle so as to afford the owners of automobiles who stored'them therein easy ingress and egress. Plaintiff had furnished its superintendent and manager with a 1919 model Buick roadster for his use as such officer or employee, and while so acting and while so using the automobile he entered into a contract with defendant on September 28,1920, for a month’s board at its hotel for which he agreed to and did pay $150.00 for himself and wife. At the same time
At about 7 o’clock p. m. on October 7 of that year, he placed the automobile in defendant’s garage and went for it the next morning at about eight o’clock, and it was gone and was never found. Plaintiff, as the owner of the automobile, brought this action in the Campbell circuit court against defendant to recover for its value, which was fixed in the petition at the sum of $750.00. The petition, as amended, alleged that its loss was due to the failure of defendant to exercise ordinary care to preserve it. The original petition only set out the relationship between McClure and defendant and the loss of the automobile without charging that it resulted from any failure of defendant to observe proper care, upon the theory that defendant’s duty in the premises was measured by the common-law rule with reference to the obligations of an innkeeper as to his guests and their baggage, vehicles and other belongings. But the court was of a different opinion and believing that defendant, under the alleged facts, assumed only the duty of a bailee for hire, sustained defendant’s demurrer filed to the petition, which was followed by the amendment above referred to. Appropriate pleadings made the issues, including one of contributory negligence of McClure, and under the instructions of the court the jury returned a verdict for defendant, which the court declined to set aside on plaintiff’s motion for a new trial, and from the judgment pronounced thereon it prosecutes this appeal.'
Numerous complaints against the correctness of the judgment are made here by plaintiff’s counsel, chief among which, and the only ones we consider of sufficient materiality to deserve consideration, are: (1), that the court erred in holding that the relationship of guest and innkeeper, with the corresponding liabilities of the latter, did not exist under the proven facts between defendant and McClure, plaintiff’s agent, and (2), erroneous instructions of the court; each of which we will determine in the order named.
1. In disposing of the first complaint, we will not attempt an elaborate review of the law pertaining to the duties of innkeepers as imposed on them by the common law, or to give the actual or supposed reasons therefor;
The excerpt taken from the Hildebrand case, supra, and in the Yance case the same distinction is adopted fol
We can find nothing in this record distinguishing its facts from those in the foregoing cases from this court and, whatever may be the rule adopted by a majority of the other courts, we feel that we are bound by our prior opinions which require us to and we do hold that McClure in this case was a boarder at defendant’s hotel and not a guest within the common law definition of that term so as to impose upon defendant the common law obligations of an innkeeper, and the trial court did not err in so holding.
2. The court gave to the jury four instructions, to the giving of which plaintiff objected and excepted. Number 3 embodied a definition of ordinary care, and number 4 authorized nine of the jury to return a verdict in case the whole number did not agree; so that neither of them is involved under the conclusions we have reached. In-, struction number 1 is somewhat confusing and in addition it contains, as we are convinced, an erroneous statement. That statement requires the jury to believe as a condition precedent to the defendant’s liability “that the defendant had exclusive control over the car in question at the time in question.” It would, no doubt, have been proper to require the jury to believe before it could find for plaintiff that the automobile at the time of its loss was in the control of defendant, but it was not essential
But it is insisted that such conclusion ignores the issue raised by defendant’s pleading as to the relationship created between it and plaintiff with reference to the storage place of the latter’s automobile. The averment in its answer upon that subject was:
“Defendant denies that at any time mentioned in said petition it operated, in connection with the hotel mentioned therein, a garage for the use of any guest or guests of said hotel, but says that it had only a shed in which it permitted its guests to house their automobiles, and denies that for an additional consideration of $4.00 paid by said McClure to defend*500 ant, as garage charges or otherwise, it agreed to store or house said automobile during the nighttime for a space of one month from September 28th, 1920, and says that it only agreed to permit said McClure to house said automobile during said last mentioned period of time in said shed.”
We construe that language to not materially alter the issue presented by plaintiff in its pleading, since practically the only difference between the pleadings of the two litigants is that plaintiff designates the building as a ‘ ‘ garage ’ ’ while the defendant designates it as a ‘ ‘ shed. ’ ’ If the facts are that a different relationship was created by the contract with reference to the housing of plaintiff’s automobile and defendant desires to amend its pleadings to conform to its conception of the facts, it may yet do so by an appropriate amendment upon a return of the case, and if it should present a state of facts excusing it from the duty of exercising the care herein required, and there should be evidence to support those facts, it would then be the duty of the court to instruct the jury as to the law upon such issue.
Instruction number 4 relieved defendant of liability if the loss of the automobile was the result of the failure of McClure to exercise ordinary care to protect and preserve it. In other words, it was the ordinary instruction on contributory negligence, and it is our conclusion that the court erred in submitting that issue, since we are unable to find any testimony in the record upon which it could be based. It is true that McClure stated that he did not remember whether he locked the garage when he left his automobile in it or not, but there is nothing to show that it was locked when he drove the automobile in it, nor that -he had a key at that time; and it furthermore appears that others later went into the garage for there were a number of other cars parked therein after McClure stored the one here involved. Furthermore, the hotel operated one or more trucks which were also parked therein, and the drivers of them were employees of defendant, and under the proof they had access to the garage at any time. There was nothing proven that McClure- should have done or omitted to do with reference to the safety of plaintiff’s automobile. He placed it in defendant’s garage, that it had provided for the purpose, and for which privilege he paid defendant. The keys to the garage were in the possession of defendant,- and it
Wherefore, the judgment is reversed with directions to sustain the motion for a new trial and for proceedings consistent with this opinion.