PROPERTY IN GUEST'S ROOM.

163

stolen in the night, it was held the inn-keeper was liable for the loss.' If a traveler, upon arriving at an inn, place his loaded wagon under an open shed, not appurtenant to the inn, and near the highway, and make no request of the inn-keeper to take it into custody, it was held the inn-keeper was not liable if the same or its contents were stolen.'

PROPERTY IN GUEST'S ROOM.

A guest's room in the hotel is not his dwelling, but it is the house of the inn-keeper, the guest having merely the temporary use of the room while at the inn. The legal possession of the room is in the hotel keeper and he must answer for loss of goods in the room by theft.3 Where plaintiff, a guest at defendant's inn, had some $500, in money, and a gold watch and chain stolen from his room at night, and he did not lock or bolt his door on retiring, and no notice was shown as to fastening doors or as to depositing such property for safe keeping with the inn-keeper, it was held the guest was not necessarily negligent and could recover. The court said: "The entire room is safe for the guest if he comply with the rules of the inn. The deposit of anything in it is a deposit with the landlord — a delivery to him; unless therefore notified that he must not leave it in that room it is not negligence to do so." Where a guest retired to bed at night, after bolting his door, and was robbed of a pocket-book, watch and diamond pin which he was in he habit of wearing, the inn-keeper was held liable,

4

I, Clute vs. Wiggins, 14 Johns., 175;

2,

Albin vs. Presby, 8 N. H., 409;

3, Rodgers vs. People 86 N. Y., 360;

4,

Murchison vs. Sergent, 69 Georgia, 206; 47 Am. Rep., 754;

but was allowed to give evidence that the guest was intoxicated at the time as bearing upon the question of contributory negligence.'

PROPERTY LOST BY GUEST'S SERVANT.

If a servant is robbed of his master's money or goods while he is a guest at an inn, his master, the owner of the gods, may obtain action against the innkeeper.2

1, Walsh vs. Porterfield, 6 W. N. Cas., 149, Sup. Ct. Penna.; 2, Townsen vs. Havre de Grace Bank, (Md.,) 6 Hous. & J.,

47;

FIRES IN HOTELS.

165

CHAPTER VIII.

FIRES IN HOTELS.

The frequency of conflagrations in which the public inns are involved often gives rise to some interesting legal questions regarding the liability of innkeepers in case of any loss happening to the guests by such means.

DISTINCTION BETWEEN LOSSES BY THEFT AND

FIRE.

In the preceding chapter regarding the inn-keeper's responsibility for thefts we have seen that the better considered cases and the later text writers favor the doctrine of holding the publican to an insurance liability; but there are cases which seem to make a distinction between his liability from a loss happening from theft, and one occurring from a conflagration, even though the inn keeper be as free from negligence in the one case as in the other. Therefore, the consideration of his liability in case of fire is made the subject of a separate chapter, although many of the authorities cited in the preceding chapter are doubtless in point where a loss by fire is under dis cussion.

INN-KEEPER NOT LIABLE IN SOME STATES FOR FIRES.

In some States the doctrine of holding him liable as an insurer of the property of his guest which may

be infra hospitum at the time of loss is strongly condemned, and the courts refuse to recognize such a rule. Thus, in a case where the horses and property of the plaintiff had been destroyed by a supposed incendiary fire at the defendant's inn, without fault or negligence on defendant's part, the court on appeal held that upon no authority previously decided was the defendant liable for the loss of such property, and that no principle of reason, or policy of justice required any such rule.' The doctrine of this case was afterwards approved in Michigan, where a case arose involving the inn-keeper's liability for a horse, wagon and some goods destroyed in his barn by fire which originated either through accident or incendiarism, without fault on the part of the inn-keeper. The court held the inn-keeper not to be liable, distinguishing between his liability and that of a common carrier, and criticising Justice Porter's opinion in the New York case of Hulett vs. Swift (33 N. Y., 571).

ATTEMPTED

DISTINCTION BETWEEN CARRIERS
AND INN-KEEPERS.

The judge who delivered the opinion of the court in the case just referred to, went on to say that it was claimed that common carriers and inn-keepers stand on precisely the same footing, and that with one or two exceptions the cases referred to in support of that doctrine had arisen from thefts or unexplained losses of property while it was within the legal custody and protection of the inn-keeper, and the general rule applied had been that all such losses were presumably due to the neglect of the inn-keeper. Beyond this no Merritt vs. Claghorn, 23 Vt., 177; Cutler vs. Bonney, 30 Mich., 259;

I,

2,

DOCTRINE OF THE CIVIL LAW.

167

decided case had been found, holding inn-keepers liable for any losses from purely accidental casualties, or from riots, or acts of force from without, such as have always been excepted by the best writers, who drew a line between carriers and inn-keepers.'

THE CIVIL LAW DOCTRINE OF FATAL DAMAGE.

The Roman law made the inn-keeper liable for his guest's baggage unless he could exonerate himself by showing that the loss or injury occurred by reason of an inevitable casualty, or act of Providence, which being satisfactorily proven, relieved him from all responsibility. This rule has been followed in a Kentucky case where the court considered the question whether the destruction of a hotel by fire was such a casualty as an inn-keeper would be responsible for unless it be shown to have been caused by the negligence of himself or those under him, and said: "The destruction of the hotel by fire is not satisfactorily accounted for. Mrs. Vance and her daughter seemed to apprehend that it was by incendiary act of a former servant of theirs, who was then in the city, and who had, as they believed, on former occasions, attempted to fire their dwelling, whilst one or both of the landlords seemed to think it likely that it took fire by pouring down the dumb-waiter, made of plank and not lined with tin, ashes from the upper stories; but however this may be, it was a most disastrous casualty, both to the lessees and owners of the hotel; and nothing in the case shows it was from negligence, unless the want of metallic lining in the flue or dumbwaiter should be so determined. But no attempt was Culter vs. Bonney, supra;

I,