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sustained, and plaintiff declined either to , where the plaintiff was seeking to recovef elect or plead further, the petition was dis- damages from several defendants for injuries missed, and plaintiff appeals. Affirmed. caused to the wall of his storehouse and car

E. E. Rice, of Irvine, Kelly Kash, of Lex- riage factory by water flowing from the ington, John W. Walker, of Irvine, and W. L sewer and waste pipe into which the defendKash, of Jackson, for appellant.

ants were · turning their waste water. It Robert H. Winn, of Mt. Sterling, B. R. was also applied in the case of Ky. Lumber Jouett, of Winchester, John A. Judy, of Mt. Co. v. Hinkle, 13 Ky. Law Rep. 173, where Sterling, Riddell & shumate, of Irvine, and the owner sued two lumber companies for J. M. Stevenson, of Winchester, for appellees. injuries to bis mill and dam, which injuries

were alleged to have been caused by their CLAY, J. C. R. Watson brought this suit floating their logs down the river and negliagainst the Pyramid Oil Company, the Rex gently permitting them to lodge against the Oil & Gas Company, the A. & B. Pipe Line dam. The rule is peculiarly applicable to the Company, the Bald Rock Oil Company, the pollution of a stream. In Willard v. Red Old Dominion Oil Company, the Eastern Gulf Bank Oil Co., 151 Ill. App. 433, the court Oil Company, the National Refining Com

said: pany, the Southwestern Petroleum Company, "A person polluting a water course is liable the Cumberland Pipe Line Company, the Co- in damages only for his own act, and not for lumbia Oil Company, and the Great Northern that of any others who may contribute to the Refining Company, to recover damages for injury. If others have contributed his deposit injury to his land located on the waters of must be separated by means of the best proof Miller's creek. It was charged in the peti- the nature of the case affords and his liability tion that the several defendants permitted ascertained accordingly.” large quantities of crude oil and other deleterious liquids and substances to be placed

A well-considered case is that of Farley v. along the banks of Big Sinking creek and Crystal Coal & Coke Co., 83 W. Va. 595, 102 its tributaries, from which places they were S. E. 265, 9 A. L. R. 933, where the plaintifr carried by the usual rains into the stream sued six different coal companies for pollutand deposited upon the lands of plaintiff. ing the tributaries of the Blue Stone river The petition also averred that after the oil and injuring his land. After overruling Day and other substances were placed in the v. Louisville Coal & Coke Co., 60 W. Va. 27, stream they became so mixed and intermin- 53 S. E. 776, 10 L. R. A. (N. S.) 167, which gled that it was not possible to determine held that when the negligent acts of two or how much thereof was placed in the stream more persons, though acting independently by each of the defendants, and prayed judg- of each other, concurrently result in injury ment against all of the defendants in the to the property of another, they are liable sum of $5,400. The several defendants filed either jointly or separately, the court said: demurrers and motions to elect. After the

"There is no joint liability nor liability for demurrers were sustained, the court gave entire damages when the tort-feasors act inplaintiff the right to elect against which de- dependently, without concert, collusion, or comfendant he would proceed. Having declined mon design, and the injury to the plaintiff is to elect or plead further, the petition was consequential only, or remotely resulting, as dismissed, and plaintiff appeals.

contradistinguished from direct and immediate." It is not alleged in the petition that the several defendants, in polluting the stream The principle is supported, not only by the and injuring plaintiff's land, acted in concert great weight of authority, but by sound reaor in pursuit of a common design. On the son, for, if the rule were otherwise, à defendcontrary, it is apparent from the petition ant who had contributed to the injury in the that each of the defendants acted separately slightest degree would be liable for all the and independently of the others. It has damage caused by the wrongful acts of all long been the settled rule in this and other the others with whom he did not act in constates that where several persons act sepa- cert, and would have no remedy against rately and independently, and not in concert, them, because no contribution can be enone of them is not liable for all the damage forced between joint tort-feasors. occasioned by their separate torts, but each As the allegations of the petition were not is liable only for the damage done by his own sufficient to make out a case of joint liability, act, to which rule no exception is created by it follows that the court did not err in sus. the difficulty or impossibility of separating taining the motion to elect and in dismissing the damage. The rule was applied in the the petition upon plaintiff's failure to comply case of Bonte v. Postel, 109 Ky. 64, 58 S. W. with the order. 536, 22 Ky. Law Rep. 583, 51 L. R. A. 187, Judgment affirmed,

(248 S.W.)

mortified and humiliated by the words and conduct of the proprietors of the hotel, ap

RAIDER v. DIXIE INN et al.

1923.)

9-May eject

(Court of Appeals of Kentucky. March 6, pellant, Raider, brought this action to recover damages in the sum of $5,000. Appellees answered, and denied the averments of the obnoxious petition in so far as such averments set forth harsh or improper conduct on the part of the proprietors of the hotel, but admitted that they had required appellant to vacate her room and to leave the hotel, and gave as their reason for so doing that she was a woman of bad character, recently an inmate of a house of prostitution in the city of Richmond, and had been such for many

1. Innkeepers guests.

A guest who has been admitted to an inn may thereafter be excluded therefrom by the innkeeper for refusal to pay his bill, or because he is obnoxious to the other guests by his own fault, or is a person of general bad reputation, since the innkeeper may refuse to entertain objectionable characters if to do so would injure his business and place himself or his guests in a hazardous, uncomfortable, or dan-years next before she came to the Inn, and gerous situation. was in said city a notoriously immoral character, but that appellees did not know her when she applied for entertainment at their hotel, but immediately upon learning who she was and her manner of life had moved her belongings out of the room into the lobby of the hotel, and kindly, quietly, and respectfully asked her to leave; that they had in their hotel several ladies of good reputation who were embarrassed by the presence of appellant in the hotel and who declined to associate with her and were about to withdraw from the hotel if she continued to lodge there; that appellant had not been of good behavior since she had become a patron of the hotel. Appellant moved to strike certain of the affirmative averments from the answer, but, without waiving this motion, filed an amended petition in which she set forth substantially the same facts which she had in her original petition, adding the following paragraph:

2. Innkeepers 9-Petition held not to show manner of exercising right to exclude guest was unlawful.

A petition which admitted that defendant innkeepers had a right to exclude plaintiff as a guest from their inn, and alleged that when she was not present they took charge of her room and placed her belongings in the lobby, where they were accessible to her, and when she came in they told her they had taken charge

of her room, but gave no reason for doing so, held not to show defendants employed unlawful means to exclude plaintiff from the inn.

3. Pleading8 (3)-Allegations plaintiff was insulted in removal from inn are conclusions.

In a petition which admitted defendant innkeepers had a right to exclude plaintiff from their inn, averments that they removed her therefrom in an improper manner and were unduly disrespectful and insulting are merely conclusions of the pleader and insufficient when not supported by the statement of facts found elsewhere in the petition.

Appeal from Circuit Court, Madison County.

Action by Thelma Raider against the Dixie Inn and others. Judgment for defendants after demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

R. C. Oldham, of Louisville, for appellant. A. R. Burnam, Jr., of Richmond, for appellees.

"Plaintiff says that she is advised that these defendants (the Dixie Inn) had a legal right to remove her, and that she does not question that right, but that she was removed as a guest for hire from said Dixie Inn at a time that was improper and in a manner that was unduly disrespectful and insulting, and that she was greatly mortified and humiliated thereby, and suffered indignity because of the wrongful manner in which she was removed from said Dixie Inn as herein set out and complained of."

To the petition as amended the appellees demurred generally. is the court sustained, and, on the failure of appellant to further plead, dismissed her petition, and she appeals.

[1] As a general rule a guest who has been admitted to an inn may afterwards be excluded therefrom by the innkeeper if the guest refuse to pay his bill, or if he becomes obnoxious to the guests by his own fault, is a person of general bad reputation, or has ceased to be a traveler by becoming a resident. 22 Cyc. p. 1075; 14 R. C. L. 505. It appears, therefore, fully settled that an innkeeper may lawfully refuse to entertain objectionable characters, if to do so is calculated to injure his business or to place For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SAMPSON, C. J. Appellant, Thelma Raider, applied to the Dixie Inn, at Richmond, for entertainment, and paid her board and lodging for a week in advance, saying that her home was in Estill county and she had come to Richmond, at the expense of her mother, to take treatments from a physician. At the end of the week she paid in advance for another week, and so on until the end of a month, when she went down town, and on returning was informed by the proprietor and his wife, who are appellees in this case, that she no longer had a room at that hotel, and remarked to her that no explanation was due her as to why they had requested or forced her removal. Alleging that she was

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himself, business, or guests in a hazardous, uncomfortable, or dangerous situation. The innkeeper need not accept any one as a guest who is calculated to and will injure his business. State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573. A prize fighter who has been guilty of law breaking may be excluded. Nelson v. Boldt (C. C.) 180 Fed. 779. Neither is an innkeeper required to entertain a card shark (Watkins v. Cope, 84 N. J. Law, 143, 86 Atl. 545); a thief (Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209); persons of bad reputation or those who are under suspicion (Goodenow v. Travis, 3 Johns. [N. Y.] 427; State v. Steele, supra); drunken and disorderly persons (Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634); one who commits a trespass by breaking in the door (Goodenow v. Travis, supra); one who is filthy or who subjects the guests to annoyance (Pidgeon v. Legge, 5 Week. Rep. 649; see Morningstar v. Hotel Co., 211 N. Y. 465, 105 N. E. 656, 52 L. R. A. [N. S.] 740, and the notes thereto attached).

[2] It therefore appears that the managers of the Dixie Inn had the right to exclude appellant from their hotel upon several grounds without becoming liable therefor, unless the means employed to remove her were unlawful. The petition admits as much by its averment saying:

"She [appellant] is advised that these defendants [appellees] had a legal right to remove her, and that she did not question that right."

The petition as amended did not state a cause of action in favor of appellant against appellees, and the trial court properly sustained a general demurrer thereto. Judgment affirmed.

PHARRIS v. COMMONWEALTH.

(Court of Appeals of Kentucky. March 2, 1923.)

1. Homicide 305-Evidence insufficient to justify submission of question of conspiracy.

On a trial for murder, evidence held insufficient to justify the court in submitting the question of conspiracy between defendant and others to kill deceased.

2. Criminal law 427 (5)—Conspiracy cannot be established by suspicion or by showing natural or reasonable relations and associations.

Conspiracy may be shown by circumstances from which a jury may infer its existence, and,

when the circumstances reasonably lead to that inference, it is for the jury to determine whether it did or did not exist, but a conspiracy cannot be established by suspicion, and relations and associations between the parties which are natural and reasonable according to their habits and modes of life do not constitute evidence of conspiracy.

3. Criminal law 427 (2)-Statements of alleged conspirators in defendant's absence inadmissible, when conspiracy not established.

[3] The averments of the petition as amended "that appellees removed appellant from the hotel in an improper manner and were unduly disrespectful and insulting" are mere conclusions of the pleader, and are not supported by the statement of facts found elsewhere in the petition.

It being conceded that appellees had the right to remove appellant from the hotel, the only remaining question is: Did they do so in a proper manner, or did they employ unlawful means to exclude her? The averments of the petition show she was not present at the time they took charge of her room and placed her belongings in the lobby of the hotel, where they were easily accessible to her; that when she came in they quiet-5. ly told her that they had taken charge of her room, but gave no reason for doing so. We must believe from the averments of the petition that very little was said, and that the whole proceeding was very quiet and orderly. As they had a right to exclude her from the hotel, they were guilty of no wrong in telling her so, even though there were other persons present in the lobby at the time they gave her such information, which is denied.

Incriminating statements made by defendant's alleged coconspirators, not in his presence, were inadmissible, where there was no sufficient evidence to establish the conspiracy. 4. Criminal law 407 (1)-Statements in defendant's presence with his accompanying action or speech held admissible.

Statements made by others in defendant's presence and hearing, tending to connect him with the crime charged, with his accompanying action or speech, were competent.

Criminal law 427 (4) - Acts and statements of alleged conspirators admissible to establish conspiracy.

Evidence of acts and statements of defendant's alleged coconspirators before the homicide charged were properly admitted for the purpose of showing the existence of a conspiracy, but, where such evidence as a whole was not sufficient to show the existence of a conspiracy, it should have been excluded at the conclusion of the evidence.

6. Criminal law 741 (1)-Case submitted to jury when there are facts from which guilt can be deduced.

evidence from which guilt of accused can reaWhere there are any facts introduced in sonably be deduced, the case should be submitted to the jury under appropriate instructions, though a conviction based on the evidence would be regarded as flagrantly against it.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S.W.) 7. Homicide Ca 268-Evidence held sufficient The deceased was living on a farm that be to make question for jury.

longed to his mother-in-law or her sister. In Evidence on a trial for murder held suffi- the early part of the summer some trouble had cient to authorize submission of the case to occurred between Louise Booher and Linder, the jury.

resulting in the former causing a warrant to 8. Homicide am 315–Finding of guilt under in.be issued for his arrest. Before the trial struction on theory of conspiracy not tanta- one of the neighbors undertook to settle the mount to acquittal on theory that defendant differences between the two, but the Booher alone was concerned in the crime.

woman was unwilling to settle unless Linder Where the charge submitted two hypotheses would move off the place at once. The cause of guilt, one on the theory of conspiracy, and of the difficulty and the merits of their rethe other independent of conspiracy, a convic- spective claims out of which it arose are not tion based on the conspiracy instruction was disclosed in this record. At any rate, the not tantamount to an acquittal under the in- parties were unable to compose their differstruction authorizing a conviction, if defendant alone was concerned in the killing, there being ences, and the case proceeded to a trial, in no sufficient evidence of conspiracy.

which Linder was fined $2.50. Thereafter there seems to have been no further breach

until in the autumn, when Linder started to Appeal from Circuit Court, Cumberland

pull the fodder from some corn that he had County.

cultivated. That fact was reported to Louise Otis Pharris was convicted of murder, and Booher and Louisa Pharris and, according to he appeals. Reversed.

the proof, they both became indignant, not P. Sandidge, of Burkesville, for appellant. witness who testified to their indignation

because they wanted the fodder, but, as the Chas I. Dawson, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen., for the common said, because they thought the corn was not

suficiently mature to pull the blades withwealth.

out damaging it. The same witness said

that one of these women threatened to go to MOORMAN, J. Otis Pharris, Louisa Phar- the deceased's place.with two men who were ris, Louise Booher, Claude Willen, and Grady living at her house, and take the fodder by Linder were jointly indicted in the Cumber-force. It is the theory of the commonwealth land circuit court for the murder of Gran- that the trouble occurring between Louise ville Linder. On the separate trial of Otis Booher and decedent in the early part of the Pharris he was convicted, and his punish- summer engendered such bitterness on the ment fixed at confinement in the penitentiary part of those who were indicted as to culfor life. He contends on this appeal that the minate in a conspiracy to kill Linder, and court erred in instructing the jury, in ad- that the murder was committed pursuant mitting incompetent evidence, and in refus- thereto. ing to instruct the jury to return a verdict In addition to the threat just referred to, of not guilty at the conclusion of the com- the commonwealth introduced evidence of monwealth's evidence.

conversations occurring between Louisa PharThe decedent was the husband of Grady ris, Louise Booher, and appellant, in which Linder, the stepfather of Claude Willen, the they manifested indignation at the manner in son-in-law of Louise Boober, and a brother- which Linder had treated them. There was in-law of appellant, Otis Pharris. Louisa also testimony showing that Otis Pharris Pharris is a twin sister of Louise Booher. was seen two or three times, only a few days Linder was killed on a Tuesday in Septem- before the killing, between the place where he ber, 1921, presumably about 11 o'clock in the lived and the place where the deceased lived, morning, while engaged in pulling the fodder the two places being about five miles apart. from some standing corn in a field near his One witness testified that appellant said on residence. He was found late that evening one occasion, perhaps shortly after the trial by some neighbors where he had fallen on of the case in which the deceased was fined, receiving a load of shot discharged at the that deceased ought to be killed, and it aphands of an assassin, who had concealed pears that on the day following the assassihimself in the weeds a few steps from the nation appellant visited one of his neighbors place where deceased was working. At the for the purpose of finding out whether the place where the assassin had been concealed, neighbor would testify to having seen him there were found two shotgun shells, one of on the previous day. This neighbor said that which had been discharged. There were also Pharris offered him any amount of money if found near that place the tracks of a man, he would testify that he had seen Pharris at apparently made by a No. 7 or 8 shoe, some his home on the Tuesday that the killing ocbarefoot tracks, and the indentation of what curred. Claude Willen was then staying seemed to be the heel of a woman's shoe. with his grandmother, and the evidence These constituted the only clues found at the shows that all of those indicted, except appoint of the assassination.

pellant, were at home on the day that the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

killing occurred. It appears from the testi-, seem to be only a few incidents in the record mony of his codefendants that appellant was which would lead to a suspicion that she also at home that morning, but one witness, participated in the alleged conspiracy. Is who was einployed there, testified that ap- this suspicion sufficient evidence of the expellant was not at home until about noon. istence of a conspiracy to take the case to The proof shows that several months before the jury? We think not, even under the the homicide Louise Booher had bought some well-established rule that slight evidence of a loaded shells from a merchant in the neigh- conspiracy will sustain a finding of its existborhood; that the shells were for 20 and 16 ence. It has been repeatedly held by this gauge guns. She admitted buying the shells, court that a conspiracy may be shown by cirbut in her testimony accounted for their use. cumstances from which a jury may infer its Pharris' shotgun was introduced in evidence, existence, and that, when the circumstances and, while it is a 16 gauge gun, it was shown are reasonably inducive of that inference, it that a 20 gauge shell could be fired from it. is for the jury to determine whether it did Some effort was made to prove that unusual or did not exist. Gambrell v. Commonmarks were made on a 20 gauge shell when wealth, 130 Ky. 513, 113 S. W. 476; Pace v. fired from it, similar to those on the dis- Commonwealth, 170 Ky. 561, 186 S. W. 142; charged shell found near the point where the Morgan v. Commonwealth, 188 Ky. 458, 222 assassination occurred.

S. W. 910; Anderson v. Commonwealth, 196 There are other circumstances introduced Ky. 30, 244 S. W. 315. It is equally well setin the evidence which, according to the com- tled under the authorities just cited that monwealth's claim, tend to establish a con- "conspiracies cannot be established by a mere spiracy. They are, however, so insignificant suspicion,” and that relationships and associthat we deem it unnecessary to refer to them ations between the parties which are natural in this opinion. Two hypotheses of guilt and reasonable according to their habits and were included in the instructions, the first modes of life do not constitute evidence of a relating to the guilt of accused independent conspiracy. With these rules in mind, we of a conspiracy, and the second authorizing have examined the evidence for the commona conviction if the murder was committed wealth, and, drawing from it every incrimipursuant to a conspiracy formed by appellant nating inference that a reasonable interpreta. and those indicted with him. The conviction tion will permit, we are yet unable to arrive was based on the conspiratory instruction. It at the conclusion that there was sufficient is earnestly insisted that the giving of that evidence of a conspiracy to submit the quesinstruction was error.

tion to a jury. In that view of its effect it [1, 2] From a careful examination of the is our duty to hold that the instruction on record, we have been unable to find any evi- conspiracy should not have been given. dence that could be said to indicate that [3-5] From the conclusion just stated, it Claude Willen or Grady Linder at any time follows that the trial court erred in refusing entered into a conspiracy to murder the de- to exclude from the consideration of the ceased. Moreover, there is no circumstance jury the incriminating statements of appelor fact disclosed in the record from which it lant's alleged coconspirators, not made in could be inferred that Louisa Pharris was a his presence. Any statement made by them party to any such conspiracy. Louise Booher in his presence and hearing that tended did buy some shells several months before to connect him with the crime, with his acthe killing, but, as we have remarked, she companying action or speech, would be comaccounted on the trial for the disposition of petent, but the statements not made in his them, and, aside from that fact, her act in pur- presence are inadmissible. It may be furchasing the shells is as consistent with non- ther observed that the court properly admitparticipance in a conspiracy to murder de ted evidence of the acts of, and statements ceased as it is with the theory that she made by, appellant's coconspirators before bought them for the purpose of contributing the killing of Linder, for the purpose of to that occurrence. Eliminating that circum- showing the existence of a conspiracy, but stance, there seems to be nothing left upon this testimony the court should have excludwhich the commonwealth can sustain its ed at the conclusion of all the evidence, on contention as to her except that she had the ground that it was not suflicient to show some difficulty with Linder in the early part the existence of a conspiracy, and was thereof the summer and undoubtedly spoke harsh- fore incompetent. Anderson v. Commonly of him, and also indicated to one witness, wealth, supra. Had these statements, when at the time that Linder started to pull the considered with other evidence, been suffifodder, that she expected to take some men cient to warrant the submission of the quesup to Linder's place and take the fodder by tion of conspiracy to the jury, it would have force. No evidence was introduced connect- been proper to overrule the motion to exing her, or for that matter Pharris, with the clude them from the evidence. But since, as footprints that were found at the place we have concluded, they were not sufficient where the assassin awaited his opportunity to establish the conspiracy, they should have to kill Linder. At most, therefore, there been excluded from the consideration of the

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