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Opinion of the Court.

does not say so, nor does it give any definition of the term "depositary for hire." Further, there seems to be nothing elsewhere in the statute or common law of this state that meets the situation, and no authority whatever is cited by counsel for plaintiff in error upon this phase of the subject.

Upon investigation we have found that several of the states have statutes, which describe depositaries for hire as persons with whom goods are left on storage for a consideration, and which define the extent of their duties for the preservation of the property stored, as the exercise of at least ordinary care.

On further examination, we have found that in more than two-thirds of the states of the Union, laws have been passed regulating the liability of innkeepers for the property of their guests, and with few exceptions they have practically preserved the common law rule with reference to ordinary baggage and wearing apparel. Only two of the states, viz., California and Michigan, have statutes similar to that of Ohio. Georgia has a statute declaring an innkeeper to be a depositary for hire, but it also provides that he is bound to extraordinary diligence in preserving the property of his guests, and that in case of loss, presumption of the want of proper diligence on his part arises. The statutes of North Carolina make the innkeeper liable for negligence, but also provide that the proof of loss of the baggage of his guests, except in case of damage or destruction by fire, shall be prima facie evidence of negligence on his part.

Opinion of the Court.

Without going further into detail, it may safely be said, therefore, that very few states have enacted laws changing the common law liability of innkeepers, so far as the ordinary baggage and wearing apparel of their guests are concerned. However, there seems to be a dearth of decisions under the statutes above referred to, bearing directly upon the question under consideration.

The term "ordinary care" is of a flexible nature, and adapts itself to the particular circumstances under which it is to be applied. It depends upon the relation existing between the parties in interest, as well as the business in which they may be engaged, and varies with the peculiar phase of every situation. As frequently stated, conduct which would be ordinary care in one condition of affairs, might be considered gross negligence in another. C. C. & C. R. R. Co. v. Terry, 8 Ohio St., 570, 581; Grand Trunk Ry. Co. v. Ives, 144 U. S., 408, 417; 6 Words and Phrases, 5035 ct scq. The reasons that led up to the adoption of the stringent common law rule for the protection of the traveling public in earlier times, are not altogether wanting in principle at the present day. There is as much occasion for travel now as then, and in fact the amount of travel is immeasurably greater to-day than many years ago. It is also as necessary for the traveling public of the present to receive food and shelter, and protection for such personal effects as their needs and comforts may require, as it ever was. While such protection may be pro

Opinion of the Court.

vided to a certain extent by laws with reference to the custody of the money, jewelry and other valuables of guests, nevertheless they are practically as helpless to protect themselves from the loss of their personal effects as ever. These are necessarily left in their rooms when they are out of the hotel for business or other purposes; and when the door has been locked and the key handed in at the office, their power of self-protection is at an end, the entire control and supervision of their property having been turned over to the innkeeper. And if, upon their return at the end of the day, they find that their goods have been taken away, it is obvious that they will have practically no means whatever of knowing or proving the cause of their loss. It would seem to be just, therefore, that upon proof of such a state of facts, the innkeeper should at least be called upon for an explanation, he having been placed in full charge of the property, and being in receipt of a valuable consideration for its safe custody.

Bearing in mind, therefore, the strict construction that is to be applied to such statutes, and there being nothing in the one under consideration which changes the well-established rule of the common law, that proof of such loss of his ordinary baggage and wearing apparel by a guest makes out a prima facie case, we think it clear that the rule is still in force, and that the charge of the court in that regard was correct.

Other errors are alleged, but upon consideration of the whole record, we do not deem them

Syllabus.

prejudicial. It follows, therefore, that the judgment of the circuit court should be affirmed, and it is so ordered.

Judgment affirmed.

DAVIS, C. J., SPEAR, SHAUCK, JOHNSON and DONAHUE, JJ., concur.

GOFF ET AL. v. GATES ET AL., COMMISSIONERS. GATES ET AL., COMMISSIONERS, V. GRANGER.

Act of legislature that fails to repeal in terms an existing statuteHeld to repeal former statute by implication, when-Section 2, of act of May 10, 1910, in conflict with Section 6926, General Code-Law of constructing, repairing, and improving public roads.

1. An act of the legislature that fails to repeal in terms an existing statute on the same subject-matter must be held to repeal the former statute by implication if the later act is in direct conflict with the former, or if the subsequent act revises the whole subject-matter of the former act and is evidently intended as a substitute for it.

2. Section 2 of the act of the general assembly, passed May 10, 1910, entitled: "An act to provide for the laying out, construction, repair, or improvement of any public road or any part thereof, and for the straightening, widening, or altering, and draining of the same by the county commissioners," is in direct conflict with Section 6926, General Code, and, therefore, repeals said section of the General Code by implication.

3. The act of the general assembly of May 10, 1910, completely revises the whole subject-matter covered by Sections 6926 to 6956, General Code, inclusive, and is evidently intended as a substitute for these sections, and, therefore, repeals the same by implication.

(Nos. 13376 and 13375-Decided November 26, 1912.)

Statement of the Case.

ERROR to the Circuit Court of Morrow county.

On the 28th day of February, 1911, a petition was presented to the board of county commissioners of Morrow county, praying said board to improve a public road by grading and macadamizing the same. Webb Goff and Elzy Williams filed a petition in the common pleas court of Morrow county seeking to enjoin the board of commissioners from further proceedings under the petition filed with it and from levying any assessment against their property lying and being within one mile of the proposed improvement for and on account of the same, for the reason among others that a majority of the landowners within one mile on either side, end or terminus of said improvement and affected thereby, had not signed the petition asking that such improvement be made. Issue was joined by answer and reply, and the common pleas court, at its April term, 1911, dismissed the petition of plaintiff and dissolved the temporary injunction theretofore allowed. Appeal was taken to the circuit court of Morrow county, and that court, at its December term, 1911, also found for the defendants and dismissed the plaintiffs' petition. This proceeding in error is now prosecuted to reverse this judgment of the circuit court.

In the case of GATES ET AL. v. GRANGER, No. 13375, a similar petition was presented to the board of county commissioners of Morrow county, on the 6th day of February, 1911, praying said board of county commissioners to improve an

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