House v. Davis

86 So. 849, 124 Miss. 485

• Court: Mississippi Supreme Court
• Decided: October 15, 1920
• Docket: No. 21413
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

I. W. Davis Avas plaintiff beloAV, and brought suit against the Edwards House, a hotel corporation, for the loss of a suit case and contents of the value of one hundred fifty dollars, alleging that on the 17th day of September, 1919, he arrived in Jackson, and upon leaving-the railroad station., at the request of the porter of the EdAvards House, said porter being its duly authorized agent for said purpose, delivered to the porter the suit case and contents, and plaintiff proceeded to the EdAvards House to become its guest, and that after registering he made a request for Ms suit case, and that the hotel failed .and refused to return the same to him. Suit Avas filed in a justice of the peace court, and a judgment rendered for one hundred fifty dollars, from Avhick there Avas an appeal to the circuit court, where the cause Avas tried aneAv, resulting in a peremptory instruction for the plaintiff as to liability and direction to assess his damage at the fair value of the suit case and contents at the time of such loss. Upon this instruction the verdict Avas returned for one hundred fifty dollars, and judgment entered thereon for said amount. From Avliich judgment this appeal is prosecuted.

The plaintiff testified that he reached, Jackson from Vicksburg about two o’clock in the afternoon, and turned his suit case over to the porter of the hotel; that he did not register as soon as he Avent in the hotel, and after he had been in the hotel a little Avhile the manager said to him, “If you want a room here to-night you had better get your name in the pot;” that he did not register until about four o’clock in the afternoon, and Avhen he registered that he decided not to go up to his room at that time, but that he noticed his suit case Avas in the hotel, and that he went to his room about seven o’clock, and when he started to go up to his room discovered that his suit case Avas missing; that search Avas made for it, but it Avas not found; that the suit case Avas valued at fifty dollars, and the clothing, etc., was valued at one hundred dollars. He also on cross-examination stated that he had a bottle of Sazerac, Avhich is an intoxicating liquor, in his suit case.

The manager and clerk of the hotel testified that Avhen Mr. Davis came into the hotel he did not register, and, •according to the clerk, avIio claims to have registered him, he registered at or Avithin a feAV minutes of six o’clock in the afternoon, and that Avhen he registered he called for his suit case, AA’hicli Avas missing and could not be found; that the suit case was placed near or against the AArall, which had a sign indicating that the hotel Avas not responsible for baggage left there, but that the sign at the time of the search had been turned to the wall. The hotel admitted through its Avitnesses that the porter Avas authorized to receive baggage for the hotel from prospective guests and customers. They also testified that they had a place to keep baggage on the check system, which they used for persons desiring to leave baggage .with them for safe-keeping, and that if baggage was left at this place it could not be obtained except on surrender of the check.

The proof shows that Mr. Davis was a traveling man, and frequently stopped at the Edwards House as a guest, and the proof further shows that Mr. Davis took dinner at the hotel that evening, but that the hotel is on the European plan, and they furnish meals at the cafe to the public, whether they are guests at the hotel or not. The proof also shows that guests taking meals at the cafe may, if they desire, have the meals charged to their room, and that the cafe and hotel are run by the same corporation.

The contentions of the hotel are: That at the time the baggage ivas lost the relations of hotel and guest did not exist between Davis and the hotel, for the reason that he liad not registered, and, further, that the hotel was only liable for a grip or suit case to the amount of twenty-five dollars under section 2067, Hemingway’s Code (chapter 137, Laws of 1912), which reads as follows:

“The liability of the innkeeper of any inn, whether individual, partnership or corporation, for the loss of or fin jury to personal property placed by his guests under his care other than that described in the preceding section shall be that of a depository for hire. Provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and contents; twenty-five dollars for each valise and contents, and five dollars for each box, bundle or package and contents so placed under his care, unless he shall have consented in writing with such guest to assume a greater liability; except that nothing herein shall prevent any guest of any hotel or inn from recovering at common inw the actual value of the contents of any trunk, valise, box or package which, after being given into the care or custody of the hotel or innkeeper or placed in the rooms of a hotel or inn, shall be lost by or through theft, or the negligence, carelessness or omission of any hotel or innkeeper or his servant or employee, and not by or through the carelessness, negligence, or omission of such guest.”

That under this section its liability is that of depository for hire. And that its liability in any event should not exceed the sum of twenty-five dollars. It also contends that under section 2141, Hemingway’s Code (chapter 189, Laws of 1918), there was no property in the suit case, for the reason that it was used in violating the provisions of sections 1 and 2 of tile act prohibiting any person or corporation from transporting or delivering into this state, or in any manner or by any means whatsoever, intoxicating liquors, whether intended for personal use or other-vise, etc. And that it'shall be unlawful for any person, firm, or corporation to receive or accept, directly or indirectly, or to have, control or possess in this state, or for any person to personally transport or to bring into this state or from place to place in this state any liquors mentioned in section .1 of this act, whether intended for personal use or otherwise, etc. And that under section 5 of said chapter it is provided:

“That no property rights of any kind shall exist in the liquors mentioned in section 1 of this act or . . . prohibited by the laws of this state to be manufactured, sold, bartered, or otherwise disposed of, . . . or in any fixtures, furniture or vehicles, conveyances, boats or vessels when said property is kept or used for the purpose of violating any law of this state or of the United States, or in any apparatus or appliance under or Avhicli may be used for the purpose of distilling or manufacturing any intoxicating liquors, and in all such cases, the liquors, hitters or drinks, as aforesaid, and the said property herein named, except vehicles, conveyances or boats, may be seized by the sheriff or any other laAvful officer of the state and destroyed and rendered useless by him Avithout any formal order of any court, and may be searched or seized under the laves of this state,” etc.

And that, inasmuch as the suit case contained a bottle of intoxicating liquors, ■ forbidden to be possessed or brought into the state by the laAV of the state, no property right existed in the suit case, and that the hotel was not liable for the value of the suit case, regardless of whether its loss was occasioned by its negligence or that of its servant, or from theft of otherAAdse.

We Avill first dispose of the assignment that the court erred in rendering judgment for the value of the suit case because it contained a bottle of intoxicating liquors. The language of section 5 'with reference to property rights is as follows:

“That no property rights of any kind' shall exist in liquors mentioned in section 1 of this act, or in any other liquors, liquids, hitters or drinks prohibited by the laws of this state to be manufactured, sold, bartered, or otherwise disposed of in this state, or any fixtures, furniture or vehicles, conveyances, boats or vessels when said property is kept or used for the purpose of violating any law of this state or of the United States,” etc.

We do not think that a suit case comes within the terms and intent and purview of the statute. Statutes denuding property of property rights or denying property in an article to a citizen can only be taken away as an incident to the punishment of crime and as a part of a crime; and, unless property is forfeited or destroyed because of the taint of crime and as a part of a judgment punishing for a crime, or in an ancillary proceeding in the enforcement of the criminal law, it may not be done except on compensation being made under the constitutional provision. This character of statute is highly penal and drastic, and the terms will not be extended by construction to embrace property not clearly within the terms and purview of the statute. A careful reading of the section convinced us that it was not the purpose of the legislature to make the statute apply to the facts of the present case. If the statute were given an extended interpretation beyond its plain terms, there Avould be great danger of rendering it unconstitutional; and, w-here a statute is enacted, the courts will, if possible, construe it in a manner to make it consistent Avith the principles of the Constitution. We, therefore, think the assignment of error as to this matter not Avell taken.

We wfill next notice the contention that the recovery should be limited to tAventy-five dollars under section 2067, Hemingwray’s Code (chapter 137, Laws of 1912). Under the terms of this act, set out abové, it is provided:

“Except that nothing herein shall prevent any guest of any hotel or inn from recovering at common law the actual value of the' contents of any trunk, valise, box or package which, after being given into the care or custody of the hotel or innkeeper or placed in the rooms of the hotel or inn, shall be lost by or through theft, or the negligence, carelessness or omission of any hotel or innkeeper or his servant or employee, and not by or through the carelessness, negligence or omission of such guest.”

The facts in the present case show that the suit case ivas turned over to the authorized agent of the hotel, and if the relation of innkeeper and guest was established within a reasonable time after the suit case was so placed, its loss must be attributed to the hotel or its employee’s negligence in not placing it in a safe place for keeping. If the relation of hotel and guest existed at the time of the disappearance of the suit case, then the plaintiff’s right of action comes within the exception of the statute, and he may recover full value therefor. And if the plaintiff’s testimony be taken as true, this relation did exist at the time of the loss.

We next come to the question as to whether the peremptory instruction should have been given as to liability and for the actual value of the suit case and its contents. Of course, if the testimony of the plaintiff be true, and if it is not contradicted by other evidence, the instruction would be correct, but after a careful consideration of the evidence we think this evidence is disputed, and that the dispute should Have been refered to the jury for determination under appropriate instructions. The clerk testifies distinctly that when the plaintiff registered he looked around immediately, and said his suit case was missing, and that search failed to find it. According to the evidence of the clerk and the manager of the hotel the plaintiff declined to register when he first entered the hotel, though his attention was directed thereto by the manager, if lie desired to secure a room. And it appears from this testimony that the plaintiff was then uncertain whether he would become a guest of the hotel or not. We think if the testimony of the employees of the hotel be taken as true, and the suit case was removed from the hotel prior to the plaintiff’s becoming a guest thereof, that a different rule of liability would exist; and, inasmuch as the hotel had through its employees solicited the custody of the suit case, in the absence of the relation of guest and hotel keeper being established, it would be liable as an accommodation bailee., which would be a different degree of liability from that of innkeeper. If the liability is to be determined by the rules' governing bailee for accommodation, the peremptory instruction as to the liability would be clearly improper. We think the matter in dispute should have been submitted to the jury with law applicable to the contention of each side embodied in proper instructions.

For the error.indicated, the judgment will be reversed, and the cause remanded.

Reversed and remanded.