Frewen v. Page

Braley, J. The only reference to the evidence in the record is the “ statement of facts ” from which it appears, that the plaintiffs, who are husband and wife, were accepted as guest? at the Hotel Langham managed and kept by the defendant George H. Page, and the question, whether they had been properly registered as required by St. 1918, c.259, § 5, has been answered in the affirmative by the jury. A finding would have been warranted that while in bed in a room assigned to them to which they had been escorted and given a key, three employees of the defendant entered, followed by the defendant with a police officer, and, although ordered to leave the hotel, the plaintiffs refused compliance with the order. And evidence was offered “ of an assault, of false imprisonment, and slander, all incidental to the plaintiffs’ right to the quiet enjoyment of their room, but the defendant offered evidence to dispute this.” We assume that this summary refers to what took place after the defendant came in, arid that the jury could find that he acted as the proprietor in control of the hotel, and the employees and police officer were present at his direction and solicitation. The action is in tort or contract. But, at the plaintiffs’ election by order of the court, on motion of the defendants, the cases were submitted to the jury on the counts in contract, and general verdicts were returned for the plaintiffs. The jury having specially found that the plaintiffs had duly registered, they were rightly in occupation. The defendants’ fifth and sixth requests, that if the plaintiffs were violating the law — 503 — in occupying a room without having been properly registered “ they are precluded from recovering for any injury suffered while in the room,” and the defendant was "justified in entering the room for the purpose of learning whether the law had been complied with and if the occupants refused to assist him in his inquiry he is justified in assuming that their presence is unlawful and can use any reasonable means to remove them,” are no longer material. See St. 1918, c. 259, § 5. The questions raised by the seventh request, whether the defendant was “ responsible for the acts of the police officer done by the police officer while in the performance of his lawful duty,” and “that the police officer was acting within the scope of his lawful duty in entering the room ... to investigate into the right of their presence there,” were for the jury under suitable instructions. Mason v. Jacot, 235 Mass. 521. The eighth request that if the defendant had no intention of frightening the plaintiffs but merely went to the room to ascertain whether they “had a right to be there,” he was not responsible “ for her fright or the consequent injury to her health;” is not supported by any legal presumption. The defendant was not justified in assuming that the plaintiffs were not registered. The hotel registry disclosed their names,"and he could not for this reason intrude upon their privacy. Sampson v. Henry, 11 Pick. 379, 387. It is necessary however to ascertain the respective rights of the parties upon which the defendant’s remaining requests must rest. The defendant urges that consequential damages for breach of contract are limited to such damages as were within the contemplation of the parties at the time of entering into the agreement. But it was held in Dickinson v. Winchester, 4 Cush. 114, 121; 50 Am. Dec. 760, that a plaintiff who had lost a trunk and its contents while a guest at the defendant’s hotel could declare in case or assumpsit. “ The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise.” Vannah v. Hart Private Hospital, 228 Mass. 132. Norcross v. Norcross, 53 Maine, 116. The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse and unjustifiable interference, whether exerted by the defendant or his servants, or those under his control or acting under his orders. — 504 — The plaintiffs having duly registered and been put in possession of a room for their exclusive use had the right of occupation for all lawful purposes until vacated, subject only to the access of the defendant at reasonable times and in a proper manner for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated, controlling emergency. Commonwealth v. Power, 7 Met. 596, 601. Holden v. Carraher, 195 Mass. 392. DeWolf v. Ford, 193 N. Y. 397. Lehnen v. E. J. Hines & Co. 88 Kans. 58. If, without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in damages if excessive force or coercion or intimidation, was used, or his conduct toward the plaintiffs was abusive, insulting, and wanting in ordinary respect and decency. And his tenth request, that, if as owner of the hotel he entered the room “ for the purpose of inspecting the same and seeing that the rules of the hotel and all statutory regulations were complied with then he was acting within the scope of his legal right and was not a trespasser,” is not supported by the record. The judge’s instructions are not stated, and it must be inferred as against the excepting party, that they were correct and sufficient. Khron v. Brock, 144 Mass. 516, 519. The jury could find that after entering the room he engaged in the wrongful acts charged without justification or excuse. See Holden v. Carraher, 195 Mass. 392. The general law is well settled. The guest is entitled to respectful and considerate treatment at the hands of the innkeeper and his employees and servants, and this right created an implied obligation that neither the innkeeper nor his servants will abuse or insult the guest, or engage in any conduct or speech which may unreasonably subject him to physical discomfort or distress of mind or imperil his safety. Lehnen v. E. J. Hines & Co. 88 Kans. 58. DeWolf v. Ford, 193 N. Y. 397. Morningstar v. Lafayette Hotel Co. 211 N. Y. 465. McHugh v. Schlosser, 159 Penn. St. 480. 14 R. C. L. Innkeepers, § 11, and notes. And he can recover damages for injury to his feelings resulting from the humiliation to which he has been subjected. Clancy v. Barker, 71 Neb. 83. Aaron v. Ward, 203 N. Y. 151. DeWolf v. Ford, 193 N. Y. 397, 401. Head v. Georgia Pacific Railroad, 79 Ga. 358. — 505 — The plaintiffs are not shown to have annoyed or disturbed other .guests, or to have improperly demeaned themselves, or to have violated any rules of the hotel, and under suitable instructions the .jury on conflicting evidence could find the defendant had been guilty of assault, false imprisonment and slander, by “ words .spoken . . . imputing a crime.” It follows that the plaintiffs’ four requests, that if they were unlawfully restrained of their liberty the defendant is liable in damages, and if he incited, encouraged, or countenanced the presence and acts of the officer he is liable therefor, and that damages may be assessed for humiliation and injury to the plaintiff’s feelings, as well as for unwarranted disturbance of his right of privacy and exclusive use of the room for himself and wife, and that even if the entry of the defendant arose from some mistake made by him or his agents “ in his records ” such mistake would not amount to a justification, were unexceptionable. The defendant’s ninth request that if the plaintiff suffered no physical injury “ she cannot recover for mental suffering,” was properly denied. As we have said he could not treat the plaintiffs with contumely by the use of insolent language concerning them, specifically set forth in the declaration, and referred to, and characterized in the record as “slander,” which the jury could say caused the plaintiffs not only physical’ annoyance and discomfort, but also worry and distress of mind. DeWolf v. Ford, 193 N. Y. 397, 401. The defendant’s duty in this respect is analogous to that of a common carrier of passengers. Commonwealth v. Power, 7 Met. 596, 601. Jackson v. Old Colony Street Railway, 206 Mass. 477, 485. Gorman v. Southern Pacific Co. 97 Cal. 1. In uttering incriminating words in the presence of his servants, and the police officer, the defendant violated his contractual obligation to the plaintiffs as guests, of courtesy and respectful treatment, and freedom from humiliation, contempt and ridicule arising from slanderous verbal attacks. We are^ therefore of opinion that the cases come within the doctrine of Bryant v. Rich, 106 Mass. 180, and kindred decisions, and the plaintiffs can recover in contract, as fully as if they had sued in tort. The final request, that they “could not recover on their counts in contract for any damages resulting from words spoken, the slander, false imprisonment, assault and battery or for the humilia — 506 — tian, but could only recover for the value of the room,” even when read in connection with the special answers of the jury to questions propounded by the defendant and submitted ‘ at his request, is covered by what has been said, and the defendant having failed to show reversible error the exceptions should be overruled. So ordered.