I respectfully dissent. In my opinion the evidence in the case presented a fact question for the jury as to whether the appellants — both the owners and lessee of this hotel — had reasonably complied with the requirements of the statute (7201, Pope's Digest) and whether any failure by them so to comply was negligence causing or contributing to the injuries complained of by appellees. I do not find any error in the lower court's instructions; and, in my opinion, the jury's finding of liability against appellants is binding on us. Since the cause is being remanded for new trial there is no necessity to discuss the question of excessiveness of the amount of the verdict.
ED. F. McFADDIN, Justice, dissenting.
I respectfully dissent from the majority in this case; and in the following numbered points, I itemize my dissent.
1. The Owners of the Building. These were the appellants, C. S. Williamson and Mary Frances Relyea. As regards these owners of the building, the case was submitted to the jury under an instruction (plaintiff's instruction No. 2) which permitted the jury to find the owners to have been guilty of negligence, if the jury found that the owners failed to supply ropes in the guest rooms under the provisions of 7201, Pope's Digest. I think it was error on the part of the trial court to measure the liability of the owners of the building by the said 7201, Pope's Digest. This section comes to us from Act 242 of 1913; and I think that this section applies to operators or lessees of a hotel, and not to the owner of a hotel building who leases the premises to another.
A brief study of Act 242 of 1913 will clarify this point:
Section 1 of Act 242 is now 7198, Pope's Digest; and requires that clean and fresh bed linens be furnished each room in the hotel, and says "and any proprietor, *Page 468 lessee, manager or agent of any inn or hotel" who fails to furnish such fresh bed linen shall be guilty of a misdemeanor.
Section 2 of Act 242 is now 7199, Pope's Digest, and makes it the duty of every hotel or innkeeper to have the windows screened; "and any proprietor, lessee, manager or agent of an inn or hotel" who fails to have the windows screened shall be guilty of a misdemeanor.
Section 3 of Act 242 is now 7200, Pope's Digest, and requires that all closets and toilets be kept clean and "any keeper, manager, agent or person in charge of the operation and conduct of any inn or hotel" who fails to keep the closets and toilets clean shall be guilty of a misdemeanor.
Section 4 of the Act 242 is now 7201, Pope's Digest, and makes it the duty of every person "operating any hotel or inn containing seven rooms or more two stories high or more" to have a certain rope of described length in each room, "and any proprietor, lessee or manager of any hotel or inn" who fails to have such rope in, each room (in the absence of proper fire escapes) shall be guilty of a misdemeanor. This 7201, Pope's Digest, is the section commonly referred to as the "rope section."
It will be observed that the words "proprietor, lessee, or manager" occur in 1, 2 and 4 of the said Act 242. Now, if title owner of the building is to be considered a proprietor under 7201, Pope's Digest (the rope section), then such owner would likewise have to be considered a proprietor under 7198, Pope's Digest (which refers to clean linens on the beds), and such construction would lead to the absurd result that the owner of a building leasing the same to another for hotel purposes would be expected to provide change of linens in each room, or else be guilty of a misdemeanor. Furthermore, if the owner of a building should be considered as the operator of the hotel under the rope section, then such owner would have to be considered "in charge of the operation" under 7200, Pope's Digest, and thereby be guilty of a misdemeanor if any toilet or closet *Page 469 should be unclean. This brief review of Act 242 of 1913 shows that the Legislature did not intend that the owner of a building would be liable as the proprietor or operator of the hotel under the rope section.
Since this case was submitted to the jury under an instruction which treated the owners of the building as though they were the proprietors or operators of the hotel, I think the case should be reversed as to the owners, Williamson and Relyea. The question of the liability of the owners of the building should have been submitted to the jury on the "public place" theory. The lessor of premises used for a "public or semi-public purpose," such as a public hall or hotel, has been held liable to persons rightfully there, for defects existing therein at the time of the demise. It is said that there is a duty upon all such persons to see that the premises are, at the time of the demise, safe for use by the public. Some authorities on this "public place theory" are: 32 Am. Juris. 533, "Landlord and Tenant," 667, and cases and annotations there cited; American Law Institute's Restatement of the Law, "Torts," 359; Colorado M. I. Co. v. Giacomini, 55 Colo. 540, 136 P. 1039, L.R.A. 1915B, 364 (an annotation following case in L.R.A.); annotations in 123 A.L.R. 878, "Landlord's Liability to Business Patron."
II. The Operator of the Hotel. I find no error in the instructions submitting to the jury the question of the liability of the defendant, Ford, who was actually operating the hotel. The majority says that the instruction concerning Ford's liability was "retrospective rather than prospective," and was in effect a peremptory instruction. I do not so consider the instruction. It is true that the instruction No. 2 was long, but it was not erroneous. I copy the concluding portion of the instruction:
"You are instructed that if . . . you further find that the defendants knew, or by the exercise of ordinary care should have known, that there were no fire escapes on the west side of the building and that there were no ropes for plaintiffs or anyone else using rooms *Page 470 on the west side of the 3rd floor to use in case of fire, provided you find that there were no fire escapes and no ropes in the rooms; and you find by a preponderance of the evidence that all of the defendants knew, or by the exercise of ordinary care should have known that just such injuries could occur as did occur to plaintiff and plaintiff's intestate, provided you find the they were injured, if suitable and workable methods were not furnished for the exit of persons renting rooms on the west side of the 3rd floor of this building in case of fire; and you further find by a preponderance of the evidence that all of the defendants knew, or by the exercise of ordinary care should have known, that in case of fire preventing the use of the stairway and elevator that the only possible exit from rooms on the west side of the 3rd floor would be by jumping out of the window, as plaintiff and plaintiff's intestate did, provided you find that plaintiff and plaintiff's intestate did jump from said window of the third floor of the hotel; and you further find that plaintiff and plaintiff's intestate were in the exercise of all of the care and precaution of any reasonable prudent person when they did jump from said window, and that plaintiff and plaintiff's intestate received burns and also were injured as a result of jumping from the window; you may consider the lack of having fire escapes, ropes or any other device for plaintiff and plaintiff's intestate to use, provided you find that nothing was furnished for their use, in passing upon whether or not defendants were guilty of negligence."
This instruction to the jury was, that, in considering the question of Ford's negligence, the jury could consider whether Ford, by the exercise of ordinary care, should have known that there was no fire escape on the west side of the building and no rope for the plaintiffs to use, and the jury could also consider whether Ford, by the exercise of ordinary care, should have known that, in case of fire, these rooms on the west side might be cut off from all exits in the building; and the jury could also consider whether Mr. and, Mrs. Adams exercised reasonable care in doing what they did after the fire broke out and all exits had been blocked. The instruction *Page 471 told the jury that it might consider these matters "in passing upon whether or not the defendants were guilty of negligence." As to Ford, this instruction was as "prospective" as could be, and I find no error therein.
III. Amount of the Verdicts. The verdicts in this case are large, but there is no necessity for one to consider this point, since the majority has reversed and remanded the entire case.
For the reasons stated, I most respectfully dissent; and I am authorized to state that Mr. Justice MILLWEE joins one in this dissent.