194 A. 338 | Pa. Super. Ct. | 1937
Argued April 29, 1937.
Plaintiff brought this action of trespass to recover damages for the deaths of his wife and daughter, then aged 22 years and 3 years, 9 months, respectively. It was averred, in substance, that the deaths were caused by the negligence of defendant, the operator of a hotel, in that he failed to provide a safe method of heating the room occupied by plaintiff's wife and daughter. The jury rendered a verdict in favor of plaintiff, and, defendant's motions for judgment n.o.v. and for a new trial having been refused, defendant's executrix has appealed from the judgment entered thereon. Under these circumstances, the evidence must be read in the light most favorable to plaintiff. Lessy v.Great Atlantic Pacific Tea Co.,
Although defendant admitted that he and his wife were the owners of the building in which the occurrence took place, his affidavit of defense denied that he was the operator of the hotel. The second and third floors containing a number of rooms were used for hotel purposes, together with a reception room on the second floor. On the first floor there was a restaurant and beer parlor.
It was for the jury to determine from all the evidence whether the defendant was the operator of the hotel. The jury by its verdict so found, and the evidence was sufficient to warrant such a finding. Both defendant and his son Samuel assigned rooms to guests and received payment therefor. Although Samuel had a beer license for the restaurant on the first floor, and although he had a lease for the entire property from his father, the defendant, dated October 2, 1933, for a period of seven months, such facts were not conclusive and the jury was not bound to accept them. A lease can be prepared and dated at any time, and the rent receipts from defendant to his son are no more conclusive. Defendant was actively engaged in renting rooms in January and February, 1934, and this was true for a long time prior to February, 1934, except for short periods when he had leased the second and third floors to others. On one occasion the second and third floors, containing about 13 rooms, used as a hotel, were rented for three weeks to a tenant, at a total rental of $2 per night. In 1933 he sought to rent a room to plaintiff and his wife by the day, week, or month. The gas and electric light bills for the hotel were made out to defendant on contracts signed by him for the period in question. The credibility of the witnesses who testified to facts from which it could be inferred as to who was the operator was for the jury. The evidence amply sustains the jury's conclusion *433 that defendant was the operator and responsible as such.
Defendant's negligence was likewise a question for the jury. If the room was procured for an unlawful purpose, such purpose, the jury could properly find, was known to defendant's servant in charge, and the parties were not subject, under the circumstances, to the rule applicable to trespassers. Defendant was liable to those assigned to room No. 7 for the failure to exercise ordinary care for the condition and operation of his hotel. Lyttle v. Denny,
By its verdict the jury has found upon sufficient evidence: (1) That defendant was the operator of the hotel; (2) that, if the room was procured for an unlawful purpose, such purpose was known to defendant; (3) that the deaths of plaintiff's wife and child were due to negligence of the defendant. This leaves for our consideration appellant's contention relating to the verdict. We find no merit in this contention which is to the effect that to allow the verdict to stand is tantamount to an increase of the verdict against defendant. Appellant's argument in this connection is predicated on certain statements in the opinion of the court below overruling defendant's motion for judgment n.o.v., and refusing defendant's motion for a new trial. In its opinion the court below indicated that plaintiff was not entitled to recover for the death of his wife because the evidence established that the use of the room was illicit, and that she was therefore a trespasser not entitled to the degree of care imposed on an innkeeper in relation to guests, but that such evidence could not prevail as to the child, and that the verdict was justified for the liability of defendant for the death of the child alone. We are not in accord with these statements of the court below. The court below did not disturb *435
the verdict, but directed that judgment be entered thereon. Of course, the appeal is not from what the court has said in its opinion, but from the judgment entered on the jury's verdict. It affords no comfort to appellant that the court below arrived at what we believe to be a correct conclusion by reasoning which does not have our approval. As was said in Fullerton's Estate,
Assignments of error are overruled.
Judgment is affirmed.