Notices by innkeeper offering to

The omission of the guest to leave valuable articles with the innkeeper, or to fasten his door on retiring to rest, is not take charge of necessarily such negligence as disentitles him to recover.

valuables.

Day v. Bather.

Nor

does a printed notice by the innkeeper, that if such precautions are neglected, he will not hold himself responsible in case of loss, per se, relieve him from or limit his liability. (a) To incorporate the notice with the contract, it must be brought home to the mind of the guest, or at least to his knowledge, before he enters and takes possession of his room, (b) as in the case of warranty after sale, which is invalid because without consideration. (c)

In the case of Day v. Bather, the defendant, an innkeeper, entered into an arrangement with her ostler, by which the ostler was to have the profit of the stables, paying no rent, but providing hay, corn, &c., and supplying not only the guests in the inn, but residents in the town, whose horses he was allowed to take care of. The plaintiff, who had no knowledge of this arrangement, arrived at the defendant's inn with his horse and gig, which were taken to the stable, and the plaintiff became a "guest." He subsequently left, saying that he should not be back till the following Monday, and requested that his horse should be attended to. He did not return for a fortnight, and in the meantime, the ostler (for the purpose, as he said, of exercising the horse) drove it out, when it took fright at a locomotive steam engine, and was injured. It was held that the relation of innkeeper and guest subsisted between the defendant and the plaintiff, and consequently the former was liable for the injury done to the horse, for the plaintiff went to the defendant's inn, was received there as a guest, and his horse was taken in the usual way, so that any private arrangement between the innkeeper and her ostler could not be taken into consideration.

(a) Morgan v. Ravey, 30 L. J. Ex. 131.

(b) Ibid, per Wylde, B.

(c) Roscorla v. Thomas, 3 Q. B. 234, 11 L. J., N. S., Q. B. 214; and see Cross on Lien; and post, page 113.

CHAPTER VIII.

The Innkeeper's Liability as a Bailee

(continued).

WHERE THE GUEST HIMSELF TAKES CHARGE OF THE GOODS page
WHERE GUEST GUILTY OF NEGLIGENCE

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103

WHAT AMOUNTS TO CONTRIBUTORY NEGLIGENCE BY THE GUEST
INNKEEPER MAY BE RELIEVED BY OFFERING TO SECURE THE
GOODS.....

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105

INNKEEPER CANNOT MAKE THE GUEST TAKE CARE OF HIS OWN
GOODS...

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UNLESS KEPT IN A ROOM USED FOR OTHER PURPOSES THAN AS
AN INN

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OPPENHEIM V. WHITE LION HOTEL COMPANY

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NOT LOCKING A DOOR AFTER BEING WARNED IS NEGLIGENCE BY
A GUEST

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THE PERSON RESPONSIBLE FOR THE GOODS NEED NOT BE THE

IF the guest take the goods exclusively under his own care, where or place them under the care of some other person in the "guest" aninn, (a) the innkeeper will not be liable. (b) So where a care of the goods.

(a) Sneider v. Geiss, 1 Yeates, 34. (b) Armistead v. White, 17 Q. B. 261; Read v. Amidon, 41 Vt. 15; Fuller v. Coats, 18 Ohio St. 343, and see Seymour v. Cook, 53 Barb. 452; Burgess v. Clements, 4 M. & S. 306; Stephenson v. N. Y. & H. Railway Co., 2 Duer 341; Farnworth v. Packwood, 1 Stark. 249.

dertakes the

guest, on being told that there was no room in the house, said he would shift for himself, the innkeeper was held to be discharged from liability. (a) So if a guest desire the innkeeper to put his horse out to pasture, the liability of the innkeeper ceases, since the house is no longer infra hospitium; but it is otherwise if the latter put him out of his own accord. (b) In the former case if the landlord be guilty of negligence, then an action will lie; (c) but it is thought by Story, (d) in his work on the Law of Bailments, that this rule requires qualification; "for if it is the common custom of the country (as it is in the summer season in the interior towns of America) to put horses in such a case to pasture, the implied consent of the owner may be fairly presumed, if he knows the custom. And the common usage of the country must have great weight in all such cases. In the country towns of America, it is very common to leave chaises and carriages under open sheds all night, at inns, and also to leave the stable doors open or unlocked. Under such circumstances, if a horse or chaise should be stolen, it would deserve consideration how far the innkeeper would be liable, as the traveller might be presumed to consent to the ordinary custom."

But simply ordering goods to be placed in a particular room, is not such a taking under his own care, as to absolve the innkeeper from liability. In the case of Richmond v. Smith (e) a traveller went to an inn, and desired to have his luggage taken into the commercial room to which he resorted, and whence it was stolen. It was held that the innkeeper was responsible, although he proved, that according to the usual practice of his house the luggage would have been deposited in the guest's bedroom, and not in the commercial room, if no order had been given respecting it. On motion for a new trial, on the ground of misdirection, it was remarked by Lord Tenterden, C.J., that if it had been intended by the defendant not to be responsible, unless his guests chose to have their goods placed in their bedrooms, or some other place selected by him, he should have said so.

(a) White's Case, Dyer, 1586; see also Lovett v. Hobbs, 2 Show. 127; Batson v. Donovan, 4 B. & Ald. 32.

(b) Roll. Abr. 4 Pl. 3, 4; Hawley v. Smith, 25 Wend. 642.

(c) Roll. Abr. 4. Pl. 5.

(d) Story on Bailments, 8th Ed. 426.

(e) 8 B. & C. 9; 2 M. & R. 235.

If, however, the guest is guilty of gross negligence, in If guest guilty of negligence consequence of which his goods are lost, the innkeeper will the innkeeper not be liable; (a) and it has been held that gross negligence is not liable. need not be shown, but if the guest has by his own neglect or imprudence exposed his goods, and they are lost or damaged in consequence, the innkeeper will not be liable. (b) In an action against an innkeeper for the loss of money contained in a portmanteau, it was held that the jury were warranted in finding that the plaintiff had been guilty of gross negligence, in treating the portmanteau and its contents as mere baggage, and concealing the fact that it contained money. (c) It has also been held that if a boarder at an hotel does not take such care of his watch as a person of ordinary prudence should take, the innkeeper will not be responsible for its loss. (d)

In the case of Armistead v. White (e) the plaintiff, a commercial traveller, whilst a guest at an inn, placed his gig box in the commercial room, as was the practice with travellers frequenting the inn. The box contained money, and was allowed to remain in the commercial room in the night time during the plaintiff's three days stay at the inn. The lock of the box was a very insecure one and could be opened without a key by pushing back the bolt. On two or three occasions the plaintiff opened the box in the room and counted the money it contained in the presence of several persons. It was held that the jury were properly directed, that gross negligence on the part of the plaintiff would relieve the innkeeper from his common law liability, and that on the above evidence the jury were warranted in finding that the plaintiff had been guilty of gross negligence, and the defendant, therefore, entitled to the verdict on a plea of not guilty. "If," said Lord Campbell, "on hearing the appeal, the judge had said, that in all cases the box should be taken to the bedroom, that would be a misdirection, but he did not so direct the jury. I may add that it is questionable whether the direction was not too favourable for the plaintiff, for I doubt whether, in order to get rid of the innkeeper's

(a) Armistead v. White, 29 L. J., Q. B. 524,'17 Q.B. 261. (b) Fowler v. Dorlon, 24 Barb. 384.

(c) Ibid.

(d) Chamberlain v. Masterson, 26 Ala. 371.

(e) 29 L. J., Q. B. 524.

liability, there must be 'crassa negligentia' on the part of the guest." (a)

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The question as to the amount of negligence was finally settled in the case of Cashill v. Wright. (b) In this case the plaintiff brought his action to recover damages for the loss of a watch and some sovereigns supposed to have been stolen from his bedroom in the defendant's inn, where he was a guest. The defendant set up, in defence, certain acts of the plaintiff alleged to have been negligent, and to have occasioned or contributed to the loss. At the trial, before the learned recorder of Manchester, the jury were directed that the defence failed unless they thought that the plaintiff had been guilty of gross negligence, and on motion for new trial this was held to be a misdirection. 'It does not appear," said Erle, J. (in delivering judgment), "that there was any information given to the jury as to what they were to understand by gross negligence. If they were told to understand by gross negligence the absence of that ordinary care which, under the circumstances, a prudent man ought to have taken, as seems to have been the meaning What amounts given to gross negligence in some of the cases cited ; (c) the to contributory direction as to the degree of negligence might not have been negligence by objectionable. But the legal meaning of gross negligence is, greater negligence than the absence of such ordinary care. It is such a degree of negligence as excludes the loosest degree of care, and is said to amount to dolus. We think that the rule of law, resulting from all the authorities is, that in a case like the present the goods remain under the charge of the innkeeper, and the protection of the inn, so as to make the innkeeper liable as for breach of duty; unless the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances.'

guest.

A guest is not bound to deposit any valuable articles,

(a) See also the case of Fowler v. Dorlon, 24 Barb. 384.

(b) 6 Ellis & Bla. 898.

(c) Duff v. Budd, 3 Br. & B. 177; Wylde v. Pickford, 8 M. & W. 443-460, 1; Hinton v. Dibdin, 2 Q. B. 646-661; Wilson v. Brett, 11 M. & W. 113; Austin v. Manchester, &c. Railway Co., 10 C. B. 454, 474; Grill v. Gen. Iron Screw Colliery Co., L. Rep. 1 C. P. 600, affirmed L. Rep. 3 C. P. 476; Doorman v. Jenkins, 4 N. & M. 170; and see Campbell on Negligence, p. 11.