Hervey v. Hart , 149 Ala. 604 ( 1906 )

HARALSON, J.

— Our ' statutes on the'liability of Innkeepers, provide that “in the absence of a spécial contract as is authorized by the succeeding section (25.40) the right of guest’s 'and' the liability of. the keeper remain 'as at common law.” — Code 1896; § 2539.

The succeeding section, authorizes á special contract-in writing between án inn or hotel’ keeper and guest,'by which the. liabilities of the parties may be regulated. It is unnecessary to set out this section, as there is nó 'pretense, that there was. any such contract between the plaintiff and defendants in this case. In Beale v. Posey. 72 Ala. 330, construing' these' sections, the court said: “The purpose of „'the statute is, t'o- confer on the keeper of 'the unlicensed house ’of' bubliq. entertainment the liability of. receiving/only such guest's or boarders- ás .may enter into a special contrack with him. But if the keeper of such house does' not enter into a special contract, with the g'úest, furnishing him á memorandum thereof in print or in writing, limiting his liability, the common law intervenes, and from that, the'measure of his liability must be ascertained. — Lanier v. Youngblood, 73 Ala. 587.

In Doyle v. Walker, 26 U. C. J. B. 502, it was held, as the common law on the subject, that the innkeeper has the light and the sole right to select the apartment for a guest, and,- if he finds it expedient, to change the apartment and assign the guest another, without becoming a trespasser in making the change. If, having the necessary convenience-, he refuses to afford reasonable accommodations, he is liable to an action for damages. — 16 Am. & Eng. Ency. Law (2d Ed.) 524, 525.

The plaintiff in this case, the appellee here, sued the defendants, who are appellants, to recover damages for the alleged reason that he was put out of the room to which he had been assigned by defendants in their hotel, and was .refused proper accommodations in said hotel. The jury found -for defendants,- and the court, on motion of the pláintiff, set aside the verdict and granted a new trial. The grounds of the motion were: “1. Because the verdict was not supported by the evidence, as applied to the law as charged by the court. 2. Because the jury in rendition of the verdict, ignored the Iuav as chargecl by the court. 3. Because the verdict is not supported by the evidence.”

The well established rule in this court, as to granting new trials is, “that this court will not revise a judgment granting the motion, unless the evidence plainly and palpably supports the verdict.” — Merrll v. Brantley, 133 Ala. 537, 31 South. 847; Smith v. Tomibigbee R. R. Co., 141 Ala. 332, 37 South. 389.

The theory of the plaintiff relied on for a recovery is clearly stated in the complaint, upon which, issue being taken, the case avrs tried. The plaintiff’s .eAudence tended to support the complaint, but. the evidence of the defendants was-not- entirely consonant therewith. In some of its more important phases, it conflicted, and different inferences might Lave been Avell drawn therefrom; It would be useless to review the evidence- Q-n each side, to do which would require time and labor. We have carefully read the evidence- in consultation, and conclude that while it might jusiify, yet it does not “plainly and palpably .support the verdict,” without which condition, we cannot consistently with the ■rule of the court above announced reverse the -judgment ■granting the motion for -a new trial.

Under the averments of the complaint, the defendant was not liable, if he offered plaintiff proper accommodations in lieu .of the room previously assigned to him.

The ruling on the motion for a new 'trial must be affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.