SECTION 2.-LIABILITY FOR LOSS OF GOODS OF GUEST

(a) AT COMMON LAW

JOHNSON v. RICHARDSON et al.

(Supreme Court of Illinois, 1855. 17 Ill. 302, 63 Am. Dec. 369.) SKINNER, J. This was an action on the case by Richardson and Hopkins against Johnson. One Brush, who was a copartner of the plaintiffs below, having in his possession $434 of the partnership money, in company with one Thompson arrived by railroad late in the night at Springfield, and put up at the hotel of the defendant.

Thompson, in the presence of Brush, deposited with the clerk of the hotel a package of three thousand dollars, which he was conveying for other persons, and the same was placed in an iron safe kept in the office of the hotel for such purposes.

After supper Brush and Thompson were put into one room to lodge, Brush having the $434 in his pocket. They found a good lock on the door and locked it, leaving the key in the lock on the inside, and the room was apparently safe against entry by thieves. In the morning the door was found open and Brush's money stolen, but Thompson's

was not.

No special notice was given as to the keeping of valuables, nor touching liability for loss. The cause was tried by jury, a verdict found against the defendant for $286, and judgment was rendered thereon. The defendant asked for two instructions which the court refused to give, and upon these instructions the only questions of law involved in the case arise. * * *

The second instruction refused assumes the law to be that if the defendant kept an iron safe for the deposit and safe-keeping of money of his guests, and Brush knew the fact, but chose himself to keep the money, the defendant as innkeeper is not liable for the loss.

The general doctrine deducible from the authorities, ancient and modern, is that keepers of public inns are bound well and safely to keep the property of their guests accompanying them at the inn; and in case such property is lost or injured, the innkeeper can only absolve himself from liability by showing that the loss or injury occurred without any fault whatever on his part; or by the fault of the guest, his companions or servants; or by superior force; and the burden of proof to exonerate the innkeeper is upon him, for in the first instance the law will attribute the loss or injury to his default.

These rules, though seemingly hard on innkeepers, are founded on considerations of public utility, and deemed essential to insure a high. degree of security to travelers and strangers, who of necessity must trust to and confide in the honesty and vigilance of the innkeeper and those in his employ. * * * Some of the cases hold innkeepers liable in regard to the property of the guest at the inn to the same extent as common carriers are in reference to goods committed to them for transportation; that is, for all loss or injury not the result of inevitable accident. But it is not necessary in this case to extend the doctrine relating to the liability of innkeepers beyond the limit of universal recognition. **

*

In this case the money is shown to have been stolen, and it being the duty of the innkeeper to keep honest and faithful servants, and to use every practical guard against thieves, prima facie the law holds him responsible for the loss, for from the nature of the case the guest cannot be presumed to have the means of proving who is the guilty party, nor of establishing the fact of delinquency on the part of the innkeeper.

Every traveler must carry with him more or less money, and it would be unreasonable to limit him to a sufficient amount for immediate use. His journey may be long, and its exigencies may require a much larger sum than the amount in this case. Strangers are usually compelled to rely wholly on their money for living and transportation, and without money their condition would be such as none would willingly hazard.

To compel them to place their money in the custody of the innkeeper, his clerk or servant, would create new perils in traveling, and place the guest at the mercy of the publican, honest or dishonest, and he would be likely to know nothing of the character of the person into whose keeping he might chance to fall.

If the traveler is compelled to give his money over for safe-keeping on his arrival at a hotel, what proof could he be expected to retain of the fact, or of the amount? And how practically unavailing would be the remedies of the law in case of the dishonesty of those to whom the surrender must be made. Such a rule we think not only inconvenient, but unreasonable and impracticable.

We do not intimate an opinion that innkeepers are responsible in all cases of loss of their guests' property; the guest may unnecessarily expose his money to danger or unnecessarily carry with him large sums, which no prudent man would do in a country where exchange can be readily obtained.

In this case, the sum was not unreasonably large to carry about the traveler's person, and we cannot hold that he was at fault in not depositing it with the innkeeper.

Judgment affirmed.

HOLDER v. SOULBY.

(Court of Common Pleas, 1860. 8 C. B. [N. S.] 254, 98 E. C. L. 254, 141

Eng. Repr. 1163.)

This was an action against a lodging house keeper (not the keeper of an inn or hotel) for the negligent loss of a lodger's goods. Certain goods of plaintiff, who was about to quit his rooms, had been stolen by a stranger, who in plaintiff's absence was permitted by defendant to enter the rooms for the purpose of viewing them.

ERLE, C. J. I am of opinion that our judgment in this case should be for the defendant. In the first count the plaintiff claims to be entitled to recover on the mere relation of lodger with the landlord, and assumes that the law creates a duty on the part of the latter to take due and proper care of his lodger's goods. To ascertain whether there is any such duty created by the law, we must look for authorities. Now, it is clear that no case or treatise or judge has ever affirmed that proposition. On the contrary, in the first resolution in Calye's Case, 8 Co. Rep. 32, shows that the liability for the safe-keeping of the

property of a guest is restricted entirely to the case of an innkeeper keeping a common inn, and the wayfaring traveler using the inn as a wayfarer; and the judges have distinctly laid down the rule that a mere lodging-house keeper is not liable for the loss of his lodger's goods, even though they are stolen by a member of his own household; much less if they are taken by a stranger. The reason why the law makes an innkeeper liable for the loss of his guest's goods in olden times was, that the wayfaring guest has no means of knowing the neighborhood or the characters of those he may meet with at the inn. It was therefore thought right to cast that duty on the host. Knowing that this is one of the liabilities he incurs, the innkeeper can make such charges for the entertainment of his guests as will compensate him for the risk; and it may be observed that, unless the law cast upon him this burthen, a dishonest innkeeper might be tempted to take advantage of a wealthy traveler. None of these reasons can apply to the case of a lodging house keeper; and the law has never been so laid down. Although it has not been contended that there is any absolute duty on the part of the keeper of a lodging house to take care of a lodger's goods, it is said that it is his duty to take such due and proper care of them as a prudent owner might reasonably be expected to take of his own goods, and that the defendant has failed in the performance of this duty on the present occasion. I am most particularly averse from affirming for the first time the proposition that a lodging house keeper has a duty cast upon him by law to take care of his lodgers' goods. I foresee great difficulties in so holding; and I think it would be casting upon him an undefined responsibility which would be most inconvenient. Considering that lodgers consist of persons of all classes the highest as well as the lowest-one can hardly exaggerate the mischief which would ensue from holding that the lodging house keeper was responsible for the safety of his lodger's goods. It would be impossible to lay down any definite test of this liability; each case must be left to the discretion or the caprice of the jury. The habits of a lodging house keeper must vary according to the situation of the premises, and a variety of other circumstances. At watering places, for instance, it would be exceedingly inconvenient if the doors were kept locked all day. So, in seaport towns, where lodgers come suddenly and depart at short notice, the duty contended for here would be most preposterously onerous. If, on the other hand, the law is that the lodger must take care of his own goods, it only imposes upon him the same care that he is bound to take as he walks the streets. He may always secure his valuables by carrying them about Iwith him, or by placing them specially in the custody of the keeper of the house. Calye's Case is fons juris upon this subject, and is a direct authority against the plaintiff. Then, again, in Dansey v. Richardson, 3 Ellis & Blackburn, 144, 118 Eng. Repr. 1095, the proposition came to be conceded, that a boarding house keeper was bound to take a certain degree of care of the goods of a guest; and the contention on the part of the defendant was that, even if the law imposed on her the obligation to take such a reasonable degree of care of the goods of her guests as a prudent owner might reasonably be expected to take of his own property, still there was an entire absence of evidence to show that she had been guilty of a breach of it. The whole tenor of my judgment in that case is distinctly to the effect that there is no such liability cast upon the keeper of a boarding house,

and that it would be an unreasonable thing to make a person responsible for the safety of goods which are never intrusted to his custody at all; and I am strongly opposed to the imposition of such a liability upon a lodging house keeper. Judgment for the defendant.2

* * *

(b). UNDER MODERN STATUTES

As has just been seen, the common law rigorously held the innkeeper to a very high degree of responsibility for the safekeeping of the goods of his guest. Under more primitive conditions, the possibility of collusion between innkeepers and thieves was great. Under the present more stable conditions, it does not seem necessary that so severe a rule as that of the common law govern keepers of hotels. If the common-law rule prevailed today, we should probably find more cases in which it would prove a means of defrauding the innkeeper than in which it would be found to give a necessary protection to honest guests. Legislatures have therefore passed statutes, of which the following, though varying from other statutes in a number of details, is fairly typical:

"The liability of the keeper of any inn, whether individual, partnership or corporation, for loss of or injury to personal property of his guest, shall be that of a depository for hire: Provided, however, that in no case shall such liability exceed the sum of two hundred fifty dollars; and in case of the loss of a trunk or chest, and its contents, it shall not exceed the sum of one hundred fifty dollars; in case of the loss of a valise, portmanteau, grip, telescope or dress suit case, and contents, it shall not exceed the sum of fifty dollars; and in case of the loss of a box, bundle, or package, and contents, it shall not exceed the sum of ten dollars: And provided further, that nothing in this act shall prohibit an innkeeper from assuming a greater liability than the sum of two hundred fifty dollars for the personal effects of his guest: Provided, said undertaking and agreement shall be in writing, stating the kind of personal property received and the value thereof, the kind and extent of the liability of said innkeeper, which said agreement shall be signed by said guests and said innkeeper or his clerk: And provided further, that nothing contained in this section shall preclude any remedy now existing for the enforcement of the hotel keeper's or innkeeper's lien.

"No innkeeper, whether individual, partnership or corporation, who constantly has in his inn a metal safe or suitable vault in good order, and fit for the custody of money, bank notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers and bullion, and who keeps on the doors of the sleeping rooms used by his guests suitable locks and bolts, and on the transoms and windows of said rooms suitable fastenings, and who keeps a copy of

2 The concurring opinions of Byles and Keating, JJ., are omitted.

this section printed in distinct type constantly and conspicuously suspended in the office and in the ladies' parlor or sitting room, barroom, washroom and in five other conspicuous places in said inn, shall be liable unless such guest has offered to deliver the same to such innkeeper for custody in such metal safe or vault, and such. innkeeper has refused or omitted to take it and deposit it in such safe or vault for custody, and to give such guest a receipt therefor: Provided, however, that the keeper of any inn shall not be obliged to receive from any one guest for deposit in such safe or vault, any property hereinbefore described exceeding a total value of two hundred fifty dollars, except under special agreement as hereinbefore provided, and shall not be liable for any excess of such property whether received or not, but every innkeeper shall be liable for any loss of the above enumerated articles of a guest in his inn, caused by the theft or negligence of the innkeeper or any of his servants." 3

SECTION 3.-RIGHTS OF THE INNKEEPER

It would seem almost to go without saying that the innkeeper is entitled, where he has an express contract with the guest, to the contract price of the entertainment provided, and that, where there is no express contract, the innkeeper may recover from the guest the reasonable value of such entertainment. One of the most important means of compelling the guest to pay for his entertainment is the enforcement of the usual statutory lien of the innkeeper upon the baggage of the guest. As has already been indicated, this lien is not usually given by statute to any person not an innkeeper.

The following is typical of state statutes on this subject:

"Every hotel proprietor shall have a lien upon all the baggage and effects brought into said hotel by his guests for any and all proper charges due him from such guests for hotel accommodations, and said hotel proprietor shall have the right to detain such baggage and effects until the amount of such charges shall have been fully. paid, and unless such charges shall have been paid within sixty days. from the time when the same accrued, said hotel proprietor shall have the right to sell such baggage and effects at public auction after giving ten days' notice of the time and place of such sale, by publication of such notice in a newspaper of general circulation in the county in which said hotel is situated, and also by mailing, ten days before such sale, a copy of such notice addressed to such guest at his post office address (if known to said hotel proprietor, and if not known, then to his place of residence registered by said guest in the register of such hotel); and after satisfying such lien out of the proceeds of such sale, together with any costs that may have been incurred in enforcing said lien, the residue of said proceeds of sale, if any, shall, within six months after such sale, on demand, be

3 Howell's Ann. St. Mich. 1912, §§ 4202, 4203.