89 W. Va. 470 | W. Va. | 1921
The judgment under review on this writ of .error is one recovered against, an innkeeper by a guest, for money stolen from the latter while he slept in his host’s hotel. The case went to a jury upon the evidence and without instructions. Reversal is sought upon the theory of a finding contrary to the law and the evidence.
On or about October 12, 1919, the plaintiff registered at the hotel of the defendant and was assigned to an improvised room in a hall, known as Room No. 110. Although he had been a guest at the hotel on several previous occasions and had sometimes deposited money in the office, he said nothing about his money on the occasion in question. The room consisted of the end of a hall cut off by a partition lower than the ceiling, wherefore it was susceptible of access over the partition. While the guest slept, a thief took from his coat pocket $210.00 and carried it away.
He does not claim he inspected the room to ascertain whether it contained a posted notice. Interrogated as to whether he had seen a notice in it, he said he had not. Being asked whether there was one in it, he replied: “No, I seen no notice like that in my room — no sign of paper, no kind of paper. ’ ’ The defendant testified that he had kept the lobby and rooms of his house posted, but was unable to say there was a notice in Room No. 110, on the night of the theft, although he was in it the next morning. He stated positively, however, that he had personally placed a notice in that room and most of the others, before the loss. He also testified that, before and after the theft, he had maintained a notice on a partition by the side of a door in the lobby, the door opening into the baggage room. His clerk at the time of the occurrence testified that there was a notice in Room No. 110, on the morning after the loss, and also that there was one in the lobby and in every room and bath room in the house. L. C. Dills testified that he had roomed in the house in October, 1919, and had seen notices in the lobby and the rooms he had
Nothing conclusive is perceived in this evidence. No doubt the plaintiff’s own testimony is clearly negative in character, since he does not claim to have looked for notices. This might be legally overthrown by the positive evidence adduced by the defendant and the uncontradieted fact that the plaintiff had previously made deposits, a circumstance tending to prove his knowledge of the requirement. But Mr. Gordon’s positive and direct testimony to the effect that there was no notice in the room nor in the lobby, a few days after the loss, and that the defendant had admitted sole reliance upon the notice printed in the register, completely covers this phase of the case, and makes the issue turn altogether upon the credibility of the witnesses. It is neither inadmissible nor devoid of evidential value, by reason of lapse of time between the loss and his visit to the hotel. He contradicted the witnesses who said notices were up after as well as before the loss, and impeached the defendant as to practically all of his evidence. Under such circumstances, neither á trial court nor an appellate court can disturb a verdict. Harman v. Appalachian Power Co., 77 W. Va. 48.
An inn guest’s actual knowledge that his host requires a
No conclusive evidénce of actual notice of the require^ ment in question is found in the record. Though testimony to the fact that the plaintiff, on previous occasions, had deposited his money at the office, is uncontradicted, it merely tends to prove knowledge of a rule requiring him to do so. Notwithstanding such tendency, the jury could have attributed the act to timidity or unusual caution on his part. Neither the defendant nor any other witness testified to any express notification to him of such a rule, custom or specific requirement. As to the reason for the deposits, the plaintiff was not interrogated, nor did he say anything. . The utmost value that can be given them, as evidence of actual knowledge of the rule, in question, is that of mere tendency to prove it. From them, ah inference of such knowledge may arise, but it is manifestly not a ncessary nor a conclusive one. Others probative of a different reason for the acts just as readily arise from them. Moreover, his failure to deposit on other occasions argues as strongly against knowledge, as the deposits argue in favor of it. The plaintiff may have seen the notice printed in the register, but there is no proof that he did. As to that, he was not interrogated. The jury might have combined two circumstances, presence of the notice in the register and the deposits, and based a finding of knowledge on them, but they were clearly not bound to do so, and they did not. A guest, in signing a hotel register, is not bound to assume that he is
For the reasons stated, the judgment complained of will be. affirmed.
Affirmed.