each other Webster deines a traveler as one who travels in any way.' Distance is not material. A town-man or neighbor may be a traveler, and therefore a guest at an inn, as well as he who comes from a distance, or from a foreign country. If he resides at the inn, his relation to the innkeeper is that of a boarder; but if he resides away from it, whether far or near, and comes to it for entertain inent as a traveler, and receives it as such, paying the customary rates, we know of no reason why he should not be subjected to all the duties of a guest, and entitled to all the rights and privileges of one. In short, any one away from home, receiving accommodations at an inn as a traveler, is a guest, and entitled to hold the innkeeper responsible as such.” This, we think, is a correct definition of the word "guest," and we adopt the same. Berkshire Woolen Co. v. Proctor (1851), 7 Cush. (Mass.) 417: In the latter case, the guest made an arrangement as to the price to be paid per week, and it was held that this did not take away his character as a traveler and guest. See, also, Hall v. Pike (1868), 100 Mass. 495; Norcross v. Norcross (1865), 53 Me. 163; Pinkerton v. Woodward (1867), 33 Cal. 557; and a valuable article in 14 Cent. Law J. 206; Hancock v. Rand (1879), 17 Hun (N. Y.) 279. In Dunbier v. Day (1882), 12 Neb. 597, this Court held that an innkeeper was bound to take all possible care for the safety and security of the goods, money, etc., of his guests while in his house. And if the goods or money of a guest be stolen from the inn, through no fault or neglect of the guest, nor by a companion guest, and there is no evidence to show how it was done, or by whom, the innkeeper is liable for the loss. think, is a correct statement of the law. This, we A “lodger” is defined by Bouvier to be "One who inhabits a portion of a house of which another has the general possession and custody. There is some confusion in the decisions, arising mainly from the want of a clear definition of what constitutes a "guest" as distinguished from a mere "lodger." Generally, however, a lodger is one who, for the time being, has his home at his lodging-place: Phillips v. Evans (1876), 64 Mo. 17. The rule, under the decisions, is not of universal application, but nearly so: Phillips v. Henson (1877), 30 Moak, Eng. R. 19; Thompson v. Ward (1871), L. R. 6 C. P. 327; Bradley v. Baylis (1881), L. R. 8 Q. B. Div. 195; Ness v. Stephenson (1882), L. R. 9 Q. B. Div. 245; Hickman v. Thomas (1849), 16 Ala. 666; Ullman v. State (1876), 1 Tex. App. 220. It will be seen that the engagement of the sleeping-car company, so far as it goes, is exactly the same as the duties assumed by an innkeeper. A passenger, on entering a sleepingcar as a guest,—because that is what he is in fact,―necessarily must take his ordinary wearing apparel with him, and some articles for convenience, comfort, or necessity. The articles, when placed in the care of the company's employes, are infra hospitium, and are at the company's risk. The liability of innkeepers is imposed from considerations of public policy, as a means of protecting travelers against the negligence and dishonest practices of the innkeeper and his servants. Occasionally, no doubt, the innkeeper is subjected to losses without any fault on his part. This, however, is one of the burdens pertaining to the business, and the courts have deemed it necessary to enforce this wholesome rigor to insure the security of travelers. Besides, where loss is sustained, neither party being in fault, it must be borne by one of them, and it is no more unjust to place it on the innkeeper than on the guest. The liabilities incident to the business are to be considered in fixing the charges for the service: Mason v. Thompson (1830), 9 Pick. (Mass.) 283. Except in the matter of furnishing meals, there seems to be no essential difference between the accommodation at an inn and those on a sleeping-car, except that the latter are necessarily on a smaller scale than at an inn. In both cases, the porter meets the traveler at the door, and takes whatever portable articles he may have with him. He waits upon him and the other passengers in the car so long as they remain therein. The traveler is not required to sit in his seat during the day, but may, if he so desires, go forward into the other cars on the train, and at stations may go out on the platform. A passenger in a sleeping-car need not avail himself of these privileges, but the fact that he may do so, and that many persons actually do avail themselves of the same, is well known to every traveler and to the company, and is a circumstance in If it is said that it would be unjust to hold the company to the same liability as an innkeeper, because thieves the case. might take one or more berths in a car, and at the first oppor tunity leave the car, carrying what articles they could steal before leaving, the same is true of an innkeeper. Thieves, in the garb of respectable people, may take rooms at an inn, and afterwards steal what they can, and escape, yet no one would contend that the innkeeper would not be responsible for the property so stolen, and this, whether it is stolen at night or in the day-time; yet in many of the large inns of this country, at least, there are numerous doors for ingress and egress, while in a sleeping-car there are but two. Were meals served on a sleeping-car, no one would contend that it differed from an inn in its accommodations. In this State, meals are furnished on the through trains, and a passenger need not leave the train from the time of entering it until he reaches the end of the line. This, however, does not appear to have been the case on the railway in question. But the fact that meals are taken at designated stations on the line of the road, instead of on the train itself, does not change the character of the service rendered. So far as such services are rendered, they are the same in kind as those furnished by an innkeeper; and the security of travelers, and as a means of protecting them, not only against the negligence but also against the dishonest practices, of the agents or employes of the sleeping-car company, requires that the company, so far as it renders service as an innkeeper, shall be subject to like liabilities and obligations. The judgment is therefore affirmed. The other judges concur. The decision in the principal case, by which a sleeping car company is made liable, as an innkeeper, for the goods of a traveler or passenger, stands alone among the many authorities to be found upon the question of the liability of these companies, all the previous cases having shown that sleeping cars are not inns, nor their owners innkeepers. Such being the case, it is proposed in this annotation to show what an VOL. XXXVIII.—17. inn is, and who is an innkeeper; the differences that exist between the keeper of a common inn and the owner of one of these companies; also, to consider whether such companies can properly be subjected to the stringent liabilities attaching to innkeepers, or whether they are not to be considered in the light of ordinary bailees for hire, and therefore liable for ordinary negligence, in not keeping a reasonable watch over the passenger, and his personal belongings, while he is asleep; and further, to examine the question of liability of steamboat owners as innkeepers. An Inn, as defined by BAYLEY, J., in Thompson v. Lacy (1820), 3 Barn. & Ald. 286, is a "house where the traveler is furnished with everything he has occasion for while on his way," and by BEST, J., in the same case, as, a house, the holder of which holds out that he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of accommodation provided, and who come in a situation in which they are fit to be received." In Wintermute v. Clarke (1851), 5 Sandf. (N. Y.) 247, OAKLEY, C. J., said it was "a public house of entertainment for all who chose to visit it, which is the true definition of an inn.” Chancellor KENT, in his Commentaries (Vol. II, p. 595), defines it thus: "It must be a house kept open publicly for the lodging and entertainment of travelers in general, for a reasonable compensation.” “If a person," the same learned writer goes on to say, "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." The various definitions are thus treated by the Court in Bonner v. Welburn (1849), 7 Ga. 307: The leading ideas which pervade them all, are, that inns are houses for the entertainment of all travelers. * * For the entertainment of all travelers, at all times and seasons, who may properly apply, and behave with decency; and that as guests for a brief period, and not as lodgers or boarders, by contract, by a season." Mr. Justice STORY, in his work on Bailments (475), thus defines an innkeeper: "The keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation." In Kisten v. Hilderbrand (1848), 9 B. Mon. (Ky.) 72, Chief Justice MARSHALL defined an innkeeper as, “a person who makes it his business to entertain travelers and passengers, and provide lodging and entertainment for them, their horses and attendants"; and further; after stating that they are liable as such although they have no provision for horses; says: "It must be his business to entertain travelers and passengers." See to the same effect Southwood v. Myers (1868), 3 Bush. (Ky.) 681. The case of Bonner v. Welburn, (supra,) went so far as to hold that, a hotel at a watering place, where there was a medical spring, open during the summer and fall for the accommodation of visitors resorting thither for their health or pleasure, was not an inn or house of entertainment, but was in the nature of a boarding-house. From the above it is clear that, in order to render a person liable as an innkeeper, he must keep a common inn, for the lodging and entertainment of the public generally and indiscriminately; and that, he must make such his business. This view is further supported by Lyon v. Smith (1843), 1 Morris (Iowa) 184, in which case MASON, C. J., said: "To be subject to the same responsibilities attaching to innkeepers, a person must make tavern keeping, to some extent, a regular business, a means of livelihool. He should hold himself out to the world as an innkeeper. It is not necessary that he should have a sign, ***provided he has in any other manner authorized the general understanding that his was a public house, where strangers had a right to require accommodation." And further, by Carter v. Hobbs (1863), 12 Mich., 56, where it is distinctly laid down that the party must act in the capacity of an innkeeper, that the relationship of inn keeper and guest must exist; in short, he must keep an inn. To the same effect, Howth v. Franklin (1858), 20 Tenn. 798; Ingalshie v. Wood (1862), 36 Barb. (N. Y.) 462; Walling v. Potter (1868), 35 Conn. 183; 5. C. 9 AMER, LAW REGISTER 618. See also Carpenter v. Taylor (1856), 1 Hilt. (N. Y.) 193; where the Court held that, in or der to charge a party as an "innkeeper," the premises must be kept as an inn for the accommodation of travelers. The opinion of the Court in Cromwell v. Stephens (1867), 2 Daly (N. Y.) 15, further shows that, in order to render a person liable as an innkeeper, meals must be furnished. In this case DALY, P. J., says: "A mere lodging house, in which no provision is made for supply. ing lodgers with their meals, wants one of the essential requisites of an inn." The duties cast upon an innkeeper are such, that, in pursuing his daily business he is bound, not only to lodge, but also, to feed his guest, and to receive and care for his goods; and further, unless otherwise provided by statute, his liability is unrestricted in amount; so he cannot select his guests, but is bound to lodge and entertain all who apply in a proper manner, in return for which he has a lien upon the property of the guest for his charges. Moreover, an innkeeper is an insurer of the safety of his guest's goods: Mason v. Thomp son (1830), 9 Pick. (Mass.) 283; Berkshire Woolen Co. v. Proctor (1851), 7 Cush. (Mass.) 417; Dunbar v. Day (1882), 12 Neb. 597; in which case it was said that, it seems to be the fair result of all the cases, that the innkeeper is responsible for all the property of every kind which the traveler finds it convenient to have about him as traveler. a Now all these duties cannot fairly be said to attach to a sleeping-car company, and especially to such, as the one in the principal case, where there was no provision made to feed the passengers on board, although if such provision were made it might more reasonably be urged that such companies were liable as innkeepers. Yet in the opinion, MAXWELL, J., says, "Except in the matter of furnishing meals, there seems to be no essential difference between the accommodation at an inn and those on a sleeping car, except that the latter are necessarily on a smaller scale than at an inn." It is however manifest, that there are very material differences between the two, for a person occupying a berth in a sleeping car cannot protect his per on and goods by bolt and lock from the thief; and these distinctions are perhaps nowhere better shown, than by BROWN, J., in Blum v. Southern Pullman Palace Car Co. (1876), 1 Flipp. (U. S. Crt. Rp., W. D. Tenn.) 500, wherein it was sought to hold the defendants liable as innkeepers for money stolen from out of the pas senger's waistcoat pocket which he had placed under his pillow on retiring for the night. Holding the company not liable as innkeepers the learned judge said: "There are good reasons for not extending such liability to the proprietors of a sleeping car. Ist. The peculiar circumstances of sleeping cars are such as to render it almost impossible for the company, even with the most careful watch, to protect the occupants of berths from being plundered by the occupants of adjoining sections. All the berths open upon a common aisle, and are secured only by a curtain, behind which a hand may be slipped from an adjoining or lower Lerth with scarcely a prossibility of detection. 2d. As a compensation for his extraordinary liability, the innkeeper has a lien upon the goods of his guests for the price of their entertainment. know of no instance where the proprietor of a sleeping car has even asserted I |