213 F. 969 | 4th Cir. | 1914
The plaintiff in error, hereinafter referred to as “plaintiff,” instituted an action against the defendant in error, hereinafter referred to as “defendant,” in the District Court of the United States for the Western District of Virginia, based upon the .unlawful and wrongful refusal o.f the defendant to furnish plaintiff, his wife, and daughter with accommodation at defendant’s inn, and oppressively turning them away from the inn in the nighttime; the plaintiff’s wife, Ida G. Jackson,, being at the time an invalid. At the time of the institution of this suit Ida G. Jackson also instituted a similar action against the defendant; that case being No.' 1212 (213 Fed. 975). A demurrer was filed to. the original declaration in each case which was sustained with leave to amend; at that time plaintiff filed an amended declaration to which the defendant again demurred,
In passing upon the questions presented for our consideration in this case we will also consider those involved in the Ida G. Jackson case, inasmuch as the counts in each case are practically the same.
In the second count the defendant’s hostelry, is described as a house of private entertainment.
In the third count it is described as a hotel.
In the fourth count it is described as a house of entertainment at which the defendant customarily furnished for hire or compensation lodging and diet for travelers or sojourners.
And in the fifth count it is described as an ordinary.
The sixth count contains the averment that the defendant kept a certain inn or hotel known as “The Homestead,” and was also the owner and proprietor of certain celebrated springs known as the “Virginia Hot Springs,” to which said inn and springs the public generally, and especially invalids and infirm persons, were accustomed to resort for the purpose of obtaining the usual accommodations at the inn and partaking of the benefits of the curative and healing properties of the waters of the springs, the defendant having held out the said inn and the said springs to the public as a place of resort and sojournment for health, entertainment, and pleasure, and having held itself out as ready, prepared, and willing to receive, accommodate, entertain, and care for, as guests of its said inn for hire, all such travelers and sojourners as might resort thereto for any of the purposes aforesaid, and especially invalids and infiripi persons, to whom defendant .recommended and held out the curative and healing properties of the waters of its springs as of great merit and efficiency; that the plaintiff’s wife, being an invalid and infirm person, and having been attracted by the defendant’s exploitation of its said inn and springs and the general reputation thereof, and having been thereby led to believe that the baths at the defendant’s resort would be greatly
In the seventh count the allegation is simply that the plaintiff' and his wife and daughter were unlawfully refused accommodations at the defendant’s inn, although the plaintiff was ready, willing, and offered to pay for such accommodations, and were turned away in the nighttime and forced and obliged to quit the inn and travel,-in cold and inclement weather, a long distance in order to procure lodgings elsewhere.
In the eighth count it is alleged that they were unlawfully and wrongfully turned away from the inn and refused accommodations, etc.
The ninth count was withdrawn, without prejudice.
Among other things, it is alleged that the defendant is an innkeeper and kept a common inn for the purpose of accommodation of the public. Where one thus holds himself out for the entertainment of the
In the Civil Rights Cases, 109 U. S. 40, 3 Sup. Ct. 43, 27 L. Ed. 835, Justice Harlan, among other things, said:
“The innkeeper is not to select his guests. He has no right to say to one, you shall come to my inn, and to another, you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants, they having in return a kind of privilege of entertaining travelers and supplying them with what they want.”
While as a general rule this is true, nevertheless there are instances where an innkeeper would not be required to furnish accommodations. For instance, if one suffering from smallpox, yellow fever, or any other contagious disease should apply for accommodation the proprietor would not be required to accept such person, and 'if upon refusal to do so a suit should be instituted as in this instance, the innkeeper could set up such matter as a defense to the action; but it would not be necessary for the plaintiff to allege that he was in a sound physical condition and free from such diseases in order to state a cause of action. In other words, the plaintiff would not be required to anticipate by allegation any defense that the defendant might interpose to his right to recover.
The rule is well stated in the case of Norfolk, etc., Co. v. Carr, 106 Va. 508, 56 S. E. 276, in which the court said:
“The purpose of a declaration is „to inform the defendant of the nature of the demand upon him. The facts must be stated with sufficient certainty to be understood by the defendant, who has to answer them,' by the jury, who have to inquire into their truth, and by the court, which has to render the judgment. Wood v. Am. Nat. Bank, 100 Va. 306, 40 S. E. 931; Wheel Co. v. Harris, 103 Va. 708, 49 S. E. 991.”
He is not required to allege a fact when the burden of establishing the same rests not upon him, but upon the defendant. It would be manifestly unjust to require plaintiff to allege a fact as to the existence of which he knows nothing, where it appears as it does in this instance that the existence or nonexistence of such fact is wholly within the knowledge of the defendant. The only method by which the plaintiff could have ascertained the facts as to whether the defendant had or had not room for accommodation on the occasion in question would1 have been to have gone to the defendant and made demand upon him for full information as to whether, at that time, he had rooms 'for the accommodation of guests. This request would have undoubtedly been refused, and the defendant would have been justified in withholding such information until required to answer the allegations contained in the declaration.
In the case of Hammer v. Kaufman, Fed. Cas. No. 5997, it was held that it was not necessary for the declaration to contain any allegation as to matters which should come from the defendant. The court, among other things, said:
“But there is another well-settled principle of special pleading that has a direct bearing on this question. It is not necessary to state matter which should come more properly from the other side. . Steph. Pl. 350. The author says the meaning óf this is that it is not necessary to anticipate the answer of the adversary. And in 2 Chit. Pl. 223, it is laid down that matter in defeasance of the action need not be stated, and whenever there is a circumstance, the omission of which is to defeat the plaintiff’s right of action, prima facie well founded, whether called by the name of a proviso, or a condition subsequent, it must, in its nature, be matter of defense, and ought to be shown in pleading.by the opposite party. Now the application of this rule to the question before the court is obvious. The ground of demurrer to the declaration is that the plaintiff does not allege the nonuser of his improvement by the defendants on or after the 1st of March, and that such nonuser, under the agreement, was to release the defendants from their obligation to pay. But clearly this nonuser, if such was the fact, was within the knowledge of defendants more properly than of the plaintiff, and must be set forth as matter of defense by plea. The object of all pleading is to advise the adversary party of what is relied on to sustain or defeat the suit. Now it clearly was not necessary for this plaintiff to notify the defendants of the abandonment of the use of the plaintiff’s improvement, on the 1st of March, by an averment to that effect in the declaration; for the plain reason that whether the defendants did or did not cease the use on or before that day was within their knowledge.”
The only objection sustained by the court to the remaining counts was the failure to allege that the defendant had rooms at its inn at the time for accommodation of guests, and, inasmuch as we are of the opinión that the court erred in sustaining the demurrer thereto, it becomes immaterial as to the sufficiency of the second and fifth counts, inasmuch as the other counts are abundant to enable the plaintiff to test the liability of the defendant.
The Supreme Court in adopting the new Equity Rules has practically .-abolished all technical requirements as to pleading. This action on the part of the Supreme Court clearly indicates the trend of judicial sentiment as respects what may be properly termed technical procedure in the preparation and trial of equity cases. While the’ rules as to common-law pleadings are still in force, yet there is a marked tendency on the part of the courts to dispense with as many technical requirements as possible.
However, we do not wish to be understood as saying that any essential allegation should be omitted from pleadings. The declaration in
The léarned judge who heard this case in the court below filed a very able and interesting opinion, but after a careful consideration of the same we find ourselves unable to concur in his conclusion as to the rule applicable to the facts in this case.
Under the circumstances we do not think the plaintiff should be required to go further and allege matters that from the very nature of this action may be interposed as a defense.
For the reasons stated the judgment of the lower court is reversed, and the case will be remanded, with instructions for further proceedings in accordance with the views herein.expressed.
Reversed.