Opinion of the Court, per PORTER, J.

must resort for information, if not accessaries to the injury, would ordinarily be in the interest of the innkeeper. The sufferer would be deprived, by the very wrong of which he complained, of the means of remaining to ascertain and enforce his rights, and redress would be well-nigh hopeless, but for the rule of law casting the loss on the party entrusted with the custody of the property, and paid for keeping it safely.

The considerations of public policy in which the rule had its origin, forbid any relaxation of its rigor. The number of travelers was few, when this custom was established for their protection. The growth of commerce, and increased facilities of communication, have so multiplied the class for whose security it was designed, that its abrogation would be the removal of a safeguard against fraud, in which almost every citizen has an immediate interest. The rule is in the highest degree remedial. No public interest would be promoted, by changing the legal effect of the implied contract between the host and the guest, and relieving the former from his common law liability. Innkeepers, like carriers and other insurers, at times find their contracts burdensome; but in the profits they derive from the public, and the privileges accorded to them by the law, they find an ample and liberal compensation. The vocation would be still more profitable, if coupled with new immunities; but we are not at liberty to discard the settled rules of the common law, founded on reasons which still operate in all their original force. Open robbery and violence, it is true, are less frequent as civilization advances; but the devices of fraud multiply with the increase of intelligence, and the temptations which spring from opportunity, keep pace with the growth and diffusion of wealth. The great body of those engaged in this, as in other vocations, are men of character and worth; but the calling is open to all, and the existing rule of protection should therefore be steadily maintained. It extends to every case, and secures the highest vigilance on the part of the innkeeper, by making him responsible for the property of his guest. The traveler is entitled to claim entire security for

Opinion of the Court, per PORTER, J.

his goods, as against the landlord, who fixes his own measure of compensation, and holds the property in pledge for the payment of his charges against the owner.

In cases of loss, either the innkeeper or the guest must be the sufferer; and the common law furnishes the solution of the question, on which of them it should properly fall. In the case of Cross v. Andrews, the rule was tersely stated by the court. "The defendant, if he will keep an inn, ought, at his peril, to keep safely his guests' goods." (Croke's Eliz., 622.) He must guard them against the incendiary, the burglar and the thief; and he is equally bound to respond for their loss, whether caused by his own negligence, or by the depredations of knaves and marauders, within or without the curtilage.

This doctrine is too well settled in the English courts, to be shaken by the exceptional case on which the appellant relies. (Calye's case, 8 Coke, 32; Cross v. Andrews, Croke's Eliz., 622; Richmond v. Smith, 8 Barnw. & Cress., 803; Cashill v. Wright, 37 Eng. Law and Eq., 175).

In the courts of this State, it has always been held that the innkeeper, like the carrier, is, by the common law, an insurer. (Purvis v. Coleman, 21 N. Y., 111, 112, 117; Wells v. Steam Navigation Co., 2 Comst., 204, 209; Gile v. Libby, 36 Barb., 70, 74; Ingallsbee v. Wood, id., 458; Washburn v. Jones, 14 id., 193, 195; McDonald v. Edgerton, 5 id., 564; Taylor v. Monnot, 4 Duer, 117; Stanton v. Leland, 4 E. D. Smith, 94; Grinnell v. Cook, 3 Hill, 488; Piper v. Many, 21 Wend., 282, 284; Clute v. Wiggins, 14 Johns., 175).

The rule, as recognized by us, is sanctioned by the leading authorities in the other States. (1 Pars. on Cont., 623; 1 Smith's Lead. Cas., Hare & Wallace's ed., 307; Shaw v. Berry, 31 Maine, 478; Sibley v. Aldrich, 33 N. H., 533; Berkshire Woolen Co. v. Proctor, 7 Cush., 427; Mason v. Thompson, 9 Pick., 280; Towson v. Havre de Grace Bank, 6 Harr. & Johns., 47; Thickston v. Howard, 8 Blackf., 535, 537; Kisten v. Hildebrand, 9 B. Monr., 72).

A shade of doubt has, at times, been thrown over the question, by the unguarded language of elementary writers,

Opinion of the Court, per PORTER, J.

and especially by the suggestion of Judge STORY, in his treatise on the law of bailments, that the innkeeper could exonerate himself from liability by proving that he was not guilty of actual negligence; and this view seems to have been adopted in two of the Vermont and one of the English cases. (Story on Bailments, sec. 472; Dawson v. Champney, 8 Adolphus & Ellis, N. S., 164; Merrit v. Claghorn, 23 Vt., 177; McDaniels v. Robinson, 28 id., 337). The doctrine of these cases is opposed to the general current of English and American authority, and evidently had its origin in a misapprehension of the rule as stated by the judges in Calye's case. It is true that the liability of the innkeeper, by the custom of the realm, was not unlimited and absolute, and that the loss of the goods of the guest was merely presumptive evidence of the default of the landlord. But this presumption could only be repelled, by proof that the loss was attributable to the negligence or fraud of the guest, or to the act of God or the public enemy. No degree of diligence or vigilance on the part of the innkeeper, could absolve him from his common law obligation for the loss of his guest, unless traceable to one of these exceptional causes. (Shaw v. Berry, 31 Maine, 478; Sibley v. Aldrich, 33 N. H., 553.) The rule is salutary, and should be steadily and firmly upheld, subject to the statutory regulations for the protection of hotel proprietors from fraud and negligence on the part of their guests.

We are of opinion that the judgment should be affirmed, on the ground that the testator was an insurer of the property committed to his charge, and that its loss has not been traced to either of the causes recognized as creating an exception to the general rule of liability.

It is proper to remark, that if the law were otherwise, and the innkeeper were responsible only for actual negligence, it would not avail the defendant on the appeal papers in the present case, as they come to us from the court below. The findings of the referee are not embodied in the case, as required by the existing practice; and on reference to the record prefixed to the case, it appears that the defendant

Opinion of the Court, per PORTER, J.

failed to repel by proof the conceded presumption of negli gence. (Bissell v. Hamlin, 20 N. Y., 519; Grant v. Morse, 22 id., 323.)

The judgment should be affirmed, with costs.

All the judges concurred in the opinion of PORTER, J., except DENIO, Ch. J., who delivered a dissenting opinion, in which BROWN, J., concurred.

Judgment affirmed.

Statement of case.

Aff936 Bart. 452

HOMER INGALLSBEE, Appellant, v. LUCY A. WOOD, Administratrix of John P. Wood, Respondent.

The liability of an innkeeper as an insurer, presupposes the relation of host and guest.

He is not responsible, except as an ordinary bailee for hire, for the safe-keeping of a horse left at the inn stable for the night, by one who is neither a lodger nor a guest.

Held, that in such a case, the innkeeper was not liable for the loss of the horse, by a fire which consumed the stable, the proprietor being free from negligence. The case of Mason v. Thompson (9 Pick., 280), disapproved.

APPEAL from the Supreme Court. The action was by the plaintiff, as assignee of his father and brother, to recover the value of a horse and harness, left by the brother with the intestate, who was an innkeeper, the property having been burned with the defendant's barn.

The cause was tried before Judge POTTER, at the Washington Circuit, and evidence was given tending to establish the following facts:

The plaintiff's brother resided with his father. He had been recently married, and his wife still continued to reside with her mother, near the defendant's inn. He had been in the habit of leaving his horse, without charge, under the defendant's shed, when he visited his wife at his mother-inlaw's, Mrs. Allen. On Sunday, the 1st of April, 1860, he made one of these visits, and left his horse in the morning under the defendant's shed. In the afternoon, having determined to remain over night at Mrs. Allen's, he went to the inn and directed the bar-tender to have the horse put in the stable and fed. This was accordingly done. He bought nothing at the defendant's, and neither stopped nor proposed to stop at the house. He lodged and took his meals with his wife at the residence of her mother. During the night a fire occurred, by which he lost his horse and harness, and the defendant lost his barn, without fault on the part of either.

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