the employer is the owner of the article or subject with which the labor is incorporated; and, in the other case, the workman is the owner. The principle is still the same. Res perit domino. (d)

Mr. Justice Story (e) subdivides this head of Locatio into 1. Locatio operis faciendi, or hire of labor and services. 2. Locatio custodia, or receiving goods on deposit for hire. He includes under the last head, agisters of cattle, warehousemen, and wharfingers; and to these may be added, a class of bailees known in this country by the term of forwarding men, or merchants. They are all responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business

and duty of carriers be attached to their other character. (ƒ) * 592 * But INNKEEPERS form an exception to the general rule, and they are held responsible to as strict and severe an extent as common carriers; and the principle was taken from the Roman law, and adopted into modern jurisprudence. (a)

(3.) The responsibility of an INKKEEPER for the horse or goods of his guest, whom he receives and accommodates for hire, has been a point of much discussion in the books. In general, he is responsible at common law for the acts of his domestics, and for thefts, and is bound to take all due care of the goods and baggage of his guests deposited in his house, or intrusted to the care of his family or servants, without subtraction or loss, day and night. He is said to be chargeable on the ground of the profit which he receives for entertaining his guests. (b) The custody of the goods of his guest is part and parcel of the contract to feed, lodge, and accommodate the guest for a suitable reward. (c)

(d) Story's Com. § 438.

(e) Ibid. § 422.

(f) Cailiff v. Danvers, Peake N. P. 114. Finucane v. Small, 1 Esp. N. P. 315. Garside v. Trent Navigation Co. 4 Term. Rep. 581. Sidaways v. Todd, 2 Starkie N. P. 400. Platt v. Hibbard, 7 Cowen, 497. Brown v. Dennison, 2 Wendell, 593. Schmidt v. Blood, 9 Wendell, 268. Streeter v. Horlock, 1 Bing. 34. Roberts v. Turner, 12 Johns. 232. Story's Com. §§ 442-456.

(a) Dig. 4, 9. The edict of the prætor included shipmasters, innkeepers, and stablekeepers in the same severe but wise and wholesome responsibility. See infra, vol. iii. p. 7, note a, where the edict is specially noticed. Mr. Justice Story has given a general view of the responsibility of innkeepers in the civil law and in the law of those nations of Europe which have adopted it. Story on Bailments, §§ 464–469.

(b) Morse v. Slue, 1 Vent. 238. Lane v. Cotton, 12 Mod. 483, 487. Towson v. Havre-de-Grace Bank, 6 Harr. & Johns. 47.

(c) Holt C. J. 12 Mod. 487. Grinnell v. Cook, 3 Hill, 485. An innkeeper cannot lawfully refuse to receive guests to the extent of his reasonable accommodations; nor

In Calye's case, (d) it was decided, upon the authority of the original writ in the register, (and which Lord Coke said was the ground of the common law on the subject,) that if a guest came to an inn, and directed that his horse be put to pasture, and the horse was stolen, the innkeeper was not responsible, in his character of innkeeper for the loss of the horse. However, it was agreed in that case, that if the owner had not directed that the horse be put to pasture, and the innkeeper had done it of his own accord, he would be responsible.

Perhaps this rule might admit of some limitations; for if the putting the traveller's horse to pasture in the summer season, or leaving the carriage in an open shed in the street, be the usual custom, as it is in many parts of * this country, the * 593 consent or direction of the owner to that effect might be fairly presumed (a)

It was laid down in the same case in Coke, that the innkeeper

can he impose unreasonable terms upon them. Bennett v. Mellor, 5 Term Rep. 274. Thompson v. Lacy, 3 B. & Ald. 285. Hawthorn v. Hammond, 1 Carr. & Kir. 404. And as a compensation for the innkeeper's responsibility, the better opinion is, that he has a lien on all the goods of his guest at the inn, for all his expenses there. Story on Bailments, § 476. Lord Kenyon and Ashhurst J., in Kirkman v. Shawcross, 6 Term Rep. 14. Grinnell v. Cook, supra.1 But the innkeeper is not responsible in that character for goods left in his custody, unless the owner be his guest, by either having been there, or intending to go there, in that capacity. He must be either actually or constructively the innkeeper's guest. Idem.2

(d) & Co. 32.

(a) Story's Com. § 478. If the traveller directs his horse to be put into the stable, and says nothing about his gig, and it be left in the highway with other carriages, and is stolen, the innkeeper has been held liable, under the implied promise to take the gig infra hospitium. Jones v. Tyler, 3 Nev. & Mann. 576. 1 Adol. & Ell. 522 S. C. This was carrying the protection of the inn sufficiently far.

1 Peet v. McGraw, 25 Wendell, 653. An innkeeper's lien extends to goods brought to his inn by a guest, though they belong to a third party, provided they are such as a person. might ordinarily travel with. Snead v. Watkins, 37 Eng. L. & Eq. 384. And where several persons travel together and put up at one inn, the goods of one cannot be detained for the board for all. Clayton v. Butterfield, 10 Rich. Law (S. C.) 300.

2 Purchasing liquor at an inn is sufficient to constitute one a guest. McDonald v. Edgerton, 5 Barb. (N. Y.) 560. In Dickinson v. Winchester, 4 Cush. 114, it was held that, where an innkeeper engaged to take travellers "free," from the station to his hotel, and had made arrangements with hackmen for that purpose, he was liable for a trunk lost on the way. The relation of innkeeper and guest ceases when the latter has paid his bill and leaves the house with the declared intention of not returning. Wintermute v. Clark, 5 Sandf. (N. Y.) 242. See a learned examination of this subject in McDaniels v. Robinson, 26 Vermont, 316 and note per Redfield C. J. McDaniels v. Robinson, 2 Wms. (28 Vermont) 387.

was bound absolutely to keep safe the goods of his guest deposited within the inn, and whether the guest acquainted the innkeeper that the goods were there, or did not; and that he would in every event be bound to pay for the goods if stolen, unless they were stolen by a servant or companion of the guest. The responsibility of the innkeeper extends to all his servants and domestics, and to all the movable goods and chattels and moneys of his guest which are placed within the inn, (infra hospitium ;) but it does not extend to trespasses committed upon the person of the guest, nor does it extend to loss occasioned by inevitable causalty, or by superior force, as robbery. (b) It is no excuse for the innkeeper, that he was, at the time the goods of his guest were lost, sick or insane, for he is bound to provide careful servants. (c) In Bennett v. Mellor, (d) the responsibility of innkeepers was laid down with great strictness, and even with severity. The plaintiff's servant came to an inn to deposit some goods for a week. The proposal was rejected, and the servant sat down in the inn as a guest, with the goods placed behind him, and very shortly thereafter they were stolen. It was held, that the innkeeper was liable for the goods; for the servant was entitled to protection for his goods during the time he continued in the inn as a guest. It was not necessary that the goods should have been in the special keeping

of the innkeeper, in order to make him liable; if they be in * 594 the inn, that is sufficient to charge him. It is not necessary to prove negligence in the innkeeper; for it his duty to provide honest servants, according to the confidence reposed in him by the public; (a) and he ought to answer civilly for their

(b) Calye's case, ub sup. Morse v. Slue, 1 Vent. 190, 238. Kent v. Shuckard, 2 Barn. & Adol. 803. Story's Com. §§ 471-473. But from the case of Mason v. Thompson, and from the dictum of Bailey J., in Richmond v. Smith, 8 Barn. & Cress. 9, it would seem that innkeepers were responsible, like common carriers, for robbery and burglary. Story on Bailments, § 472. If a horse, chaise, and harness be delivered to an innkeeper, the payment for the horse includes a compensation for keeping the chaise and harness, and he is liable as an innkeeper for the loss of them. Mason v. Thompson, 9 Pick. 280. This last case was questioned and overruled in Grinnell v. Cook, 3 Hill, 485, so far as it went to hold the innkeeper in that character responsible for the goods of a person who was not at the inn, and did not intend to go there as a guest, and therefore was no guest.

(c) Calye's case, ub sup. Cross v. Andrews, Cro. Eliz. 622.

(d) 5 Term Rep. 274.

(a) If the goods of a guest be deposited in a public inn, and be lost or injured, the primâ facie presumption is, that the loss was occasioned by the negligence of the inn

acts, even if they should rob the guests who sleep under his roof. An innkeeper, like a common carrier, is an insurer of the goods of his guests, and he can only limit his liability by express agreement or notice. (b) Rigorous as this law may seem, and hard as it may actually be in some instances, it is, as Sir William Jones observes, founded on the principle of public utility, to which all private considerations ought to yield. Travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innkeepers; and it would be almost impossible for them, in any given case, to make out proof of fraud or negligence in the landlord. The Roman prætor held innkeepers responsible for the goods of their guests, on the same principle of public utility. It was necessary, says Ulpian, in commenting on the edict of the prætor, to confide largely in the honesty of such men; and if they were not held very strictly to their duty, they might yield to the temptation to commit a breach of trust. They were bound to answer for all losses and damages hap pening even without their default, unless they were fatal losses, occurring from vis major or irresistible force. (c)

The responsibility of inkeepers, to the full extent of the English law, has been recognized in the courts of justice in this country. (d) Thus, in Quinton v. Courtney, (e) the innkeeper was held liable for money stolen out of the saddle-bags of the guest, which he had delivered to the servant without informing him, or his master, that there was money in them.2 And in Clute

keeper or his servants, but the presumption may be rebutted. Dawson v. Chamney, 5 Adol. & Ell. N. S. 164.1

(b) Richmond v. Smith, 8 Barn. & Cress. 9.

(c) Dig. 4, 9, 1, 3. Jones on Bailment, 95, 96. (d) Mason v. Thompson, 9 Pick. 280

(e) 1 Hayw. (N. C.) 40.

1 See, also, Merritt v. Claghorn, 23 Vermont, 177; Metcalf v. Hess, 14 Ill. 129; Kisten v. Hildebrand, 9 B. Mon. 72; McDaniels v. Robinson, 26 Vermont, 316; Laird r. Eichold, 10 Ind. 212. But a stricter liability was imposed in Shaw v. Berry, 31 Maine, 478. Mateer v. Brown, 1 Cal. 221. Sibley v. Aldrich, 33 N. Hamp. 533, where the subject is examined at length. Negligence or the part of the guest will discharge the innkeeper. Armistead v. White, 6 Eng. L. & Eq. 349. Chamberlain v. Masterson, 26 Ala. 371. Gross negligence on the part of the guest need not be shown. Fowler v. Dorlon, 24 Barb. (N. Y.) 384. In Cashill v. Wright, 37 Eng. L. & Eq. 175, the negligence on the part of the guest was defined to be such, that the loss would not have happened, if the guest had used the ordinary care that a prudent man might be reasonably expected to have taken under the circumstances.

2 In Simon v. Miller, 7 Louis. Ann. 360, it was held that an innkeeper is responsible only for usual and ordinary baggage, and not for unknown treasure belonging to the traveller,

595

*

*

v. Wiggins, (f) the innkeeper was held responsible for a theft of bags of grain in a loaded sleigh of a guest which

had been placed for the night in a wagon or out-house appurtenant to the inn, with fastened doors. The sleigh was deemed infra hospitium, and the innkeeper liable, without any negligence being proved against him.

Under so extended a responsibility, it becomes very important that the nature of inns and guests, and the persons to whom the description applies, should be precisely understood.

Common inns were declared in Calye's case to be instituted for passengers and wayfaring men, and that a neighbor, who was no traveller, and lodged at the inn as a friend, at the request of the innkeeper, was not a guest whose goods would be under special protection. A house merely for lodging strangers for a season, who came to a watering-place, and furnishing hay and stable-room for their horses, and selling beer to them and to no one else, has been held not to be a public inn. (a) It must be a house kept open publicly for the lodging and entertainment of travellers in general, for a reasonable compensation. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment for the public at large indiscriminately, it is not a common inn. (b) In Thompson v. Lacy, (c) (f) 14 Johns. 175. Newson v. Axon, 1 McCord, 509, and Piper v. Manny, 21 Wendell, 282, contain a recognition of the same principle.

(a) Parkhurst v. Foster, 1 Salk. 387. Carth. 417, S. C.

(b) Entertaining strangers occasionally for compensation, does not make a person an innkeeper. The State v. Matthews, 2 Dev. & Bat. 424.

(c) 3 Barn. & Adol. 283.

and in Pope v. Hall, 14 Louis. Ann. 324, and Profilet v. Same, 14 Louis. Ann. 524, it was held that this degree of responsibility could not be narrowed, as to articles suitable to be carried about the person, or kept in the room for personal use, by a notice that the innkeeper would only be responsible for things left in the office safe. See, also, Mateer v. Brown, 1 Cal. 221. But this relaxation of the innkeeper's liability was not admitted in Berkshire Woollen Co. v. Proctor, 7 Cush. 417. In Pettigrew v. Barnum, 11 Ind. 434, it was held that an innkeeper is responsible for the guest's baggage only, and that that term does not include merchandise or other valuables, such as silver knives, forks, and spoons. By a recent statute of New York, (Laws of 1855, ch. 421,) a proprietor of a hotel may limit his responsibility as to money, jewels, and ornaments, belonging to his guests, by posting in their rooms a notice, that he has provided a safe for the safe-keeping of money, jewels, and ornaments; and if the guest neglect to deposit his money, jewels, or ornaments in the safe, the proprietor of the hotel is not responsible for loss by theft or otherwise. In Purvis v. Coleman, 1 Bosw. 321, and S. C. 21 N. Y. 111, it was held that personal notice to the guest, without the posting mentioned in the statute, sufficed to exonerate the innkeeper. In that case, negligence on the part of the guest was found by the jury, and part of the court put their judgment exclusively on that ground. See, also, Packard v. Worthcraft, 2 Met. (Ky.) 439.