Kalo and Sullivan v. Wm. Penn Co. , 86 Pa. Super. 359 ( 1925 )

Argued May 6, 1925. These actions in trespass arose out of the same occurrences and were tried together.

The plaintiffs alleged that they were guests in the defendant's hotel, occupying separate beds in room No. 1066; that during the night of September 26, 1920, or the early morning of September 27th, two of defendant's house detectives unlocked the door to their room, and entered, asserting that plaintiffs had men in their room. They called plaintiffs vile names and searched their room but found no men there. Plaintiffs were employed as models in a fashion show by a local department store and next day learned that complaint had been made to the store by the manager of the hotel regarding their conduct the night before. They went to see the manager of the hotel and he informed them that the detectives had reported in writing that three men had been found in their room. About three o'clock in the morning of September 29th, their room was again unlocked and invaded by two of defendant's house detectives, who used plaintiffs roughly, swore at them and again accused them of having men in the room. Plaintiffs telephoned for the assistant manager in charge of the hotel at night and complained of the acts and intrusion of defendant's agents. They averred that these acts of defendant's employees, who, it was admitted, were acting within the scope of their authority, had injured and humiliated them and completely unnerved them, resulting in the illness of one of them, Miss Kalo.

Defendant's witnesses denied these charges and told an entirely different story, which, if believed, satisfactorily explained their presence in the plaintiff's room on the two occasions complained of; but apparently the jury did not believe them and accepted the version of the plaintiffs as true. And in the consideration of this appeal all disputed questions of fact must be resolved in favor of the plaintiffs.

We have, therefore, the case of a hotel, bound to care for and protect its guests, not only disregarding this duty, but actually through its own agents making a wanton and outrageous attack and intrusion upon their privacy at night, coupled with a baseless charge of misconduct and unchastity such as would justify their exclusion from the hotel; giving a false report of the result of this "raid," which was communicated to their guests' employer; and then committing the outrage a second time with added incidents of violence and insult. A jury, so finding the facts, would be justified in allowing the guests punitive damages, and the court below was bound so to instruct the jury in these actions. We do not think too great emphasis was laid on the subject by the learned trial judge in his charge. In fact, if the plaintiffs' story of the occurrences was accepted as true, we can scarcely conceive of a verdict which did not include some allowance by way of punitive damages. The sixth assignment of error is overruled.

Defendant complains of the court's refusal to withdraw a juror and continue the case, because of certain remarks of the plaintiffs' counsel in addressing the jury. The expression complained of is italicized: "Mr. Sheaf" — one of the defendant's detectives — "went up there to find men in the room and would have his hand behind his back." The meaning of this statement is not so clear to us nor its impropriety so apparent, as to require us to reverse the action of the court below, which in refusing defendant's motion said: "The court declines to withdraw a juror and continue the case, but the court will say to the jury that unless there is evidence to explain that remark, it cannot have any weight and should not be considered by them." The seventh assignment is overruled.

The other assignments relate to the exclusion of evidence and the refusal of a new trial. We see no valid objection to the testimony of Miss Sullivan, in explanation of why she did not leave the hotel immediately after the second intrusion [1]; and we can discover no possible relevance to these cases in what the hotel manager may have complained to the department store with respect to some model, other than the plaintiffs, having burnt a hole in some hotel furniture [2]. The witness, Boehrer, testified clearly and positively that the two plaintiffs had come into the hotel on the morning of September 29th between two and three o'clock in company with another woman and Edgar Kaufmann. Mr. Kaufmann having then testified in rebuttal that he was not present at the time, but in New York, Boehrer was recalled and asked whether that was the Mr. Kaufmann he meant. On plaintiff's objection the question was excluded. Then he was asked "was the man you named as Edgar Kaufmann the man who was just on the stand," to which he answered "He was not." This cured the error, if any, in excluding the prior question. It was of no relevancy — and certainly not surrebuttal, — what relation the man he referred to was to the witness who had just left the stand, [3 and 4].

While the verdicts were large, we are not prepared to hold that, in the circumstances here present, they were so excessive as to shock the sense of justice or manifest a clear abuse of discretion of the lower court in refusing to set them aside, and thus require a new trial from an appellate court: Scott v. Adams Exp. Co., 257 Pa. 25; Gail v. Phila., 273 Pa. 275. The defendant's case was not helped by the innuendoes and insinuations directed against the plaintiffs by its witnesses when on the stand. The jury might have gathered from this evidence an intimation that the actions complained about, though not actually occurring, would have been justified, and regarded it as adding insult to injury, with a corresponding allowance in damages.

The assignments are all overruled and the judgments affirmed.