Summary
In Picard v. Waggoner, 204 Miss. 366, 37 So.2d 567 (En Banc 1948), a case in which a guest sued the owner of a lodging house for personal injuries sustained on the premises, the standard of reasonable care adopted was based upon the general authority contained in 43 C.J.S. Innkeepers § 22, and 28 Am.Jur. 579. (This latter authority has been twice modified and modernized. For current text, see 40 Am.Jur.2d, Hotels, Motels and Restaurants §§ 82, 100 and 104.)
Summary of this case from Crawford v. WorthOpinion
November 22, 1948.
1. Keeper of lodging house — duty as to safety of premises — pleadings — insufficient declaration.
It is the duty of the keeper of a lodging house, where guests are received for hire, to use reasonable care to provide the guests with reasonably safe means of ingress and egress, but when sufficient and suitable means have been designated and supplied for this purpose, the keeper is not under duty to any guest to maintain the entire premises in a safe condition, but only such other parts, as by invitation or customary use to the knowledge of the keeper, the guest would be reasonably expected to go. Hence a declaration by a guest for damages which alleges that she was injured by an open vent on the premises without stating where the vent was located on the premises is insufficient.
2. Trial — instructions — safety of premises.
An instruction, granted to the plaintiff in an action for damages against the keeper of a lodging house, which told the jury that it was the duty of the keeper "to maintain her premises in a reasonably safe condition," is erroneous in that it would allow recovery as to places on the premises not within the obligation of safety on the part of the keeper, and regardless of proof as to the location of the alleged defect in the premises.
3. Appeal — review limited by case as presented in trial court.
On a review by the Supreme Court, the court is limited to the case as presented to the jury in the trial court, and conjecture is not permitted as to what the result might or could have been had recovery been sought on some other ground.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Albert S. Johnston, Jr. for appellant.
The judgment appealed from is contrary to the law and the evidence. No testimony was introduced to make out any case against appellant. The declaration was fatally defective, and did not state a cause of action, and the proof offered by appellee was far short of that required to hold an innkeeper or boarding-house keeper liable for injuries to guests.
Innkeepers and boarding-house keepers are not insurers. Sneed v. Moorhead, 70 Miss. 680, 13 So. 235; Ritte v. Norman, 129 P. 103, 43 LRANS, 658-59.
In the Sneed v. Moorhead case, supra, Chief Justice Campbell, said:
"The declaration does not show liability of the defendants for the injury suffered by the plaintiff. They were under no obligation to have a railing or other protection around the gallery. The possibility that some one might fall off was not sufficient to suggest that a railing should be put there . . . Her misfortune is deplorable, but reparation cannot be made by despoiling the defendants, who were under no greater obligation to have railings around galleries than other persons who have galleries, and invite visitors in their houses."
The law is well settled that the general duty of the innkeeper to take proper care for the safety of his guests does not extend to every room in the inn at all hours of the night or day, but is limited to those places into which guests may be reasonably supposed to be likely to go in a reasonable belief that they are entitled to or invited so to do. 32 C.J., Innkeepers, Section 69, Page 561, and Section 70, Page 563; 23 Am. Jur., Section 57, Pages 579-580, and 43 C.J.S., Section 22, Pages 1179-1180.
In 32 C.J., Innkeepers, Section 69, page 561, and Section 70, Page 563, the rule is announced as follows:
"It is the duty of an Innkeeper or Hotel Keeper to keep his buildings and premises in a condition reasonably safe for the use of his guests, and where his negligence in this respect is the proximate cause of an injury to a guest, he is liable therefore, provided the guest at the time is in a place where he has a right, and is reasonably expected to go."
It is thus seen that two conditions are necessary to permit recovery by a guest against an inkeeper, or a rooming-house keeper, the law being the same in both cases, and such conditions are: (1) his negligence must be the "proximate cause" of an injury to a guest, and (2) the guest at the time he is injured, is in a place where he has a right, and is reasonably expected to go.
In the case at bar, appellee was not in a place where she had a right, and certainly not where she was reasonably expected to go. On the other hand, appellee was on the side of appellant's property, on Kuhn Street, in the City of Biloxi. She was not injured while entering the premises of appellant, by means of any defects in the entrance, or stairway, or porch, but on the side of the property, in the street, by falling, she alleged and testified, in an open vent to a city sewer. That was what her declaration alleged, and it was insufficient to state a cause of action, and her testimony as to the case made by her declaration helped none. She failed to make out a case for the jury, and appellant was entitled to a directed verdict.
If plaintiff, in the Sneed v. Moorehead, et al., case, supra, did not state a cause of action, as said by the Supreme Court of Mississippi, in 70 Miss. 680, then certainly appellee here failed to state a cause of action. Her declaration shows, on its face, she did not use the entrance-way provided by appellant, but wandered past the entrance onto a portion of Kuhn Street.
In 23 Am. Jur., Section 57, at pages 579-580, the rule is announced as follows: ". . . But it (the duty) does not extend to those (stairways) located on parts of the premises to which guests are not expected to go, and it has accordingly been said that a hotel keeper has no duty to keep a cellar stairway safe for his guests."
In 43 C.J.S., Section 22, at pages 1179, 1180, the law is anounced as: ". . . an injury to a guest while in a place where he has no right and cannot reasonably be expected to go is not one which the innkeeper could reasonably have anticipated, and there is no liability."
In the late case of Rose v. Rather, 199 So. 299, the Supreme Court of Mississippi held: "Where hotel guests could not get outside of door of his room, and into any hallway or stairway during fire, alleged inadequacies in construction of hotel building with respect to hallways, stairways, and the like were not `proximate cause' of injury to guest, and did not authorize recovery from hotel owner."
In 34 Words and Phrases, Per. Ed., pages 717, et seq., "proximate cause" is said to mean the moving or producing cause.
In the same authority, at page 718, it is said: "To constitute `proximate cause' the injury must be the natural and probable result of the negligence, and be of such character as an ordinarily prudent person could have known, or would or might or ought to have forseen might probably occur as the result", citing authorities.
Appellant certainly could not, ought not, or might not, have known that appellee would use Kuhn Street as a parking place, alight from an automobile there, and step into a vent in the city sewer. Appellant provided means of ingress and egress from her building, known to appellee, and used by appellee many times before the injuries received by her, and there is no testimony in the record, — the declaration does not pretend to state such a case, — that appellant failed in her duty to provide safe premises, or appliances, and that her premises or appliances, stairways, hallways, et cetera, were unsafe, and that appellee was injured as a result of any negligence on the part of appellant in a duty which the law imposed on appellant. Appellant owed no duty to appellee, as a guest, or otherwise, to keep Kuhn Street safe, and by no stretch of the imagination could she be liable for injuries to appellee outside of the premises, and beyond the stairways leading to her premises.
But appellee says it was dark, the grass had grown up around the sewer vent, and that appellant knew of the danger, or by the exercise of ordinary care and diligence ought to have known of such danger to appellee. Appellee would make appellant an insurer of the safety of appellee. We submit the declaration falls far short of stating a cause of action, and the proof introduced by appellee fails to make out a case of liability. Appellant was entitled to a directed verdict at the close of appellee's evidence, and to a peremptory instruction after both sides rested. Appellant's motion for judgment notwithstanding the verdict of the jury should have been sustained.
T.J. White, for appellee.
No effort will be made by appellee to answer the argument offered by appellant to justify his right in going through a trial to its completion, then seeking instructions on the law and obtaining the same and after an adverse verdict, then for the first time to raise the question of the failure of the declaration to state a cause of action.
In this case the following things are not denied:
1. The existence of the relationship of innkeeper and guest between the appellant and the appellee.
2. The date that the accident occurred.
3. The place that the accident occurred, and the method by which appellee sustained her injury.
4. The damages actually sustained by appellee.
There is no denial of the above facts. The only denial in this case was raised by the plea of general issue in which it is insinuated, but there is no proof offered, that the vent in question may or may not be upon appellant's property. There is direct testimony that it was several feet between Kuhn Street and the open vent and was located on appellant's property.
The appellant showed that she knew a great deal about the vent in her testimony. In fact she said she doubted its being large enough for appellee's foot to enter it. She said that there was no grass around the place as testified to by appellee; she said that the plumbers whom she employed and paid, had covered the vent with tarpaper.
At no place did she say that the location of this vent was in a place where her guests were not invited to be and were not reasonably expected to be. It would be absured in the absence of a defense to state that the guests at an inn had no right in the yard, especially where it was a small yard and only ten or twelve feet between Kuhn Street and the door to appellee's apartment. The testimony of the appellant does not attempt to defend this suit on the ground that appellee was in a place on the premises that she had no right to be.
We submit that it was and is a question of fact for a jury to determine under proper instructions; first, whether appellee sustained the injury complained of in the manner complained of and under the circumstances alleged. Second, whether the appellant was guilty of negligence that was the proximate cause of said injury, and third, the amount of damages sustained if any.
The declaration alleges that appellant, the defendant in the trial court, was the owner of a property on Kuhn Street between East Howard Avenue and East Beach Street in Biloxi, and that appellee, the plaintiff was a guest of the defendant, and that said defendant "negligently allowed an open vent to a sewer approximately six inches in diameter to remain open and unprotected among some grass and weeds on her property and the plaintiff . . . at or about 9:15 P.M. on the night of August 30, 1945 stepped onto this open vent to the sewer and received painful and lasting damages. . . ."
It will be noted that there was no allegation as to where on the said property the said open vent was located, the theory of the pleader being evidently that this particular fact would be immaterial, — in which we think the pleader was mistaken. (Hn 1) It is, of course, the duty of the keeper of a lodging house where guests are received for hire to use reasonable care to provide the guest with reasonably safe means of ingress and egress, and when sufficient and suitable means have been designated and supplied for this purpose, the keeper is not under duty to any guest to maintain the entire premises in a safe condition but only such other parts as by invitation or customary use to the knowledge of the keeper the guest would be reasonably expected to go. 43 C.J.S., Innkeepers, Sec. 22, page 1180, 28 Am. Jur. p. 579, and cases cited.
And the theory presented by the declaration was definitely followed up by (Hn 2) two instructions granted at plaintiff's request, which told the jury that it was the duty of the defendant "to maintain her premises in a reasonably safe condition," there being no effort by said instructions to bring the liability within the rule of law above stated, and there was no other instructure to cure the error. There seems to be no dispute that defendant had furnished a safe means of ingress both at and opposite the front entrance on East Beach Street and at and apposite the side entrance on Kuhn Street, and that the vent complained of was not within or closely upon either of the two entrance ways so furnished; and there is some testimony that it was located some twelve feet northward from the Kuhn Street regular entrance, but its exact location is not clear, and, as mentioned, the instructions relieved the jury of making any findings as to where it was, so long as anywhere on defendant's property.
(Hn 3) On a review here we are limited to the case as presented to the jury in the trial court, and we are not permitted to conjecture as to what the result might or could have been had the recovery been sought on some other ground. Illinois Cent. R. Co. v. Sumrall, 96 Miss. 860, 867, 51 So. 545; Williams v. Lumpkin, 169 Miss. 146, 153, 152 So. 842. It follows that the judgment must be reversed and the cause remanded.
So ordered.