Driskill Hotel Co. v. Anderson , 1929 Tex. App. LEXIS 803 ( 1929 )

MeCLENDON, C. j.

Anderson sued Dris-kill Hotel Company for $78 alleged to have been stolen from Anderson’s room while he was a guest of the Driskill Hotel. The judgment was for Anderson upon a special issue verdict. The hotel company has appealed.

Two grounds for reversal are urged by appellant: (1) That the evidence will not support the judgment, because no affirmative act of negligence on defendant’s part was shown, and it conclusively appears that Anderson was a boarder and not a guest at the hotel. (2) That the third jury finding, to the effect that Anderson was negligent in failing to use the means and precautions available to prevent the loss of the money, entitled defendant to judgment.

Upon the first issue the evidence shows that Anderson had been a resident of Austin for a number of years, and had been living in different hotels. He had lived at the Driskill about a year prior to the loss at issue; his arrangements being that he was given a lower rate than that of a transient guest, but the rate charged roomers, and paid his bills usually once each month, “while transient guests paid each day, or at the end of each week.”

In Kieffer v. Keough (Tex. Civ. App.) 188 S. W. 44, the Galveston Court gives an extended review of the authorities, showing the modern trend of decision to abrogate the early common-law distinction between a guest and a boarder. In that case it was held that the relation of hotel or innkeeper and guest arose where the proprietor rented furnished rooms by the day, week, or month, furnishing the occupants with bell boy service, lights, water, heat, and attended to having laundry sent out, returned, paid for, and charged to the guests of the respective rooms. The proprietor also had some unfurnished rooms, which he rented when tenants could be secured. There was a fixed rate for each class of accommodation by the da$r, week, or month for furnished rooms, and a rate for unfurnished rooms. The plaintiff in that case rented an unfurnished room and paid' therefor the regular rate. The Supreme Court refused a writ of error, which we consider an approval of the conclusion reached. The facts in that case are, if anything, stronger than those in the case at bar as supporting the relation of boarder under the earlier holdings. We regard the decision as controlling here, and overrule appellant’s first contention.

We overrule the second contention, on the ground that there was no pleading to support the defense of contributory negligence. It is true that pleadings in a justice court may be oral, and much.latitude is indulged in support of their sufficiency. Nevertheless the holdings of our appellate courts appear to be that there must be some pleading to support an issue which is essential to a decision, and such pleading must be evidenced at least by some notation or memorandum thereof in the record. Southwestern Portland Cement Co. v. Havard Co. (Tex. Civ. App.) 155 S. W. 656; Atnip v. Hinkle (Tex. Civ. App.) 258 S. W. 860. The only record of any pleading whatever on behalf of defendant is the following notation from the justice court’s docket: “Defendant plead general demurrer and general denial orally.” If the judgment had been for the defendant, we might perhaps assume in support of the judgment an oral plea of contributory negligence, from the fact that that issue was submitted to the jury. We have here, however, a case in which the trial court disregarded the finding of the jury on contributory negligence, with no explanation in the record as to the ground on which he disregarded it. The record being' entirely silent as to any pleading which would support the finding, and some pleading being necessary to its support, we conclude that appellant, upon whom rests the burden of showing an erroneous ruling, has failed to do so in this regard. The trial court’s judgment is affirmed.

Affirmed.