JOHN PINKERTON v. ROBERT B. WOODWARD, 33 Cal. 557

By the Court, Rhodes, J.: The definition of an inn, given by Mr. Justice Bayley, in Thompson v. Lacy, 3 B. and Aid. 286, as “ a house where a traveller is furnished with everything which he has occasion for while on his way,” is comprehensive enough to include every description of an inn; but a house that does not fill the full measure of this definition may be an inn. It probably would not now be regarded as essential to an inn that wine or spirituous or malt liquors should be provided for the guests.

At an inn of the greatest completeness entertainment is furnished for the traveller’s horse as well as for the traveller, but it has long since been held that this was not essential to give character to the house as an inn. (See Thompson v. Lacy, supra; 2 Kent, 595; 1 Smith Lead. Cases, notes to Coggs v. Bernard; Sto. on Bail. Sec. 475; Kisten v. Hildebrand, 9 B. Mon. 74.) In Wintermute v. Clarke, 5 Sandf. 247, an inn is defined as a public house of entertainment for all who choose to visit it.

The defendant insists that the “ What Cheer House ” was a lodging house and not an inn; because, as he says, the eating department was distinct from the lodging department. It appears that in the basement of the “What Cheer House,” and connected with it by a stairway, there was a restaurant, which was conducted by the defendant and two other persons jointly, and that the three shared the profits.

Where a person, by the means usually employed in that business, holds himself out to the world as an innkeeper, and in that capacity, is accustomed to receive travellers as his guests, and solicits a continuance of their patronage, and a traveller relying on such representations goes to the house to receive such entertainment as he has occasion for, the relation of innkeeper and guest is created, and the innkeeper cannot be heard to say that his professions were false, and that he was not in fact an innkeeper.

The rules regulating the respective rights, duties and responsibilities of innkeeper and guest have their origin in considerations of public policy, and were designed mainly for the protection and security of travellers and their property.

They would afford the traveller but poor security if, before venturing to intrust his property to one who by his agents, cards, bills, advertisements, sign, and all the means by which publicity and notoriety can be given to his business, represents himself as an innkeeper, he is required to inquire of the employes as to their interest in the establishment, or take notice of the agencies or means by which the several departments are conducted.

The same considerations of public policy that dictated those rules demand that the innkeeper should be held to the responsibilities which, by his representations, he induced his guest to believe he would assume. We think the jury were fully warranted by the evidence in finding that the “ What Cheer House ” was an inn, and that the defendant was an innkeeper; and the Court correctly instructed the jury in respect to those facts. II. Very little need be said upon the question whether the plaintiff and his assignors were guests at the defendant’s inn.

A traveller who enters an inn as a guest does not cease to be a guest by proposing to remain a given number of days, or by ascertaining the price that will be charged for Ms entertainment, or by paying in advance for a part or the whole of the entertainment, or paying for what he has occasion for, as his wants are supplied. We see no reason why the innkeeper may not require payment in advance or why the guest may not pay in advance for lodgings for a part or all the time he intends to remain as a guest at the inn.

There can be no doubt from the evidence that the plaintiff and his assignors went to the “ What Cheer House ” as travellers and intended to have left for Hew York on the day the robbery was committed. HI. Did the defendant receive the coin and gold dust as a bailee without hire, or in the character of innkeeper ? In Matter v. Brown, 1 Cal. 221, it is held that that was a question of fact, and the question was directed to he submitted to the jury. It was shown, beyond all controversy, that the gold dust was taken to the inn several days after the plaintiff arrived there as a guest.

If that circumstance would have relieved the defendant of responsibility as an innkeeper, the question would not have been directed to be submitted to the jury, for it would be useless to find that he received it as innkeeper unless he could be held responsible in that capacity. That case is authority that the innkeeper may be held responsible for the property of the guest, placed under his care, after the owner of the property has become a guest at the inn.

Two of the guests, in this case, deposited their gold dust with the defendant on their arrival at the hotel, and the others—the plaintiff and Walker —made their deposits after they had been at the hotel ten days. Ho reason is perceived why the responsibility of the innkeeper, for the safe keeping of his guests’ property should be limited to such property as the guest may have in his immediate possession at the moment of his arrival at the inn.

The relation of innkeeper and guest, out of which springs the responsibility, is the same, whether the guest’s baggage is conveyed to the inn with him, or at a subsequent time; or whether he then has in his possession or afterwards procures the money, clothing, etc., that he may need on his journey.

The guests of the house were requested not to leave money or articles of value in their rooms, but to deposit the same for safe keeping in a safe at the office, and there is nothing in the case to show that the deposits were made by the guests or received by the innkeeper for any other reason or purpose than in pursuance of such request, and the better to enable the innkeeper to give that care and security to the property which are required of him by law. In Needles v. Howard, 1 E. D. Smith, 55, and Stanton v. Leland, 4 E. D.

Smith, 94, the material questions arising upon this point were very fully considered and the conclusion reached was adverse to the position of the defendant. The instruction requested by the defendant on this point was liable to the objection stated by the Court as the ground of its refusal, that it was likely to mislead the jury. The kind of bailment denominated in the instruction “ ordinary bailment,” is not defined or in any way distinguished from that bailment which arises when a guest places his property in the custody of an innkeeper in the customary mode. IV".

The fourth point as stated by the defendant is, “ Was the money, etc., lost by a forcible robbery, without fault, carelessness, negligence, or connivance of defendant, his servants or guests ?” We think the jury were justified in answering the question in the negative, because of the neglect of the defendant’s clerk to turn on the safe the combination lock. But under this point counsel have discussed the question whether an innkeeper is an insurer of the property of his guest, committed to his care. The authorities do not agree upon this question.

Some of the cases hold that the innkeeper is not responsible when the loss was occasioned by inevitable casualty, by irresistible force, by superior force, or by robbery or burglary, committed by persons from without the inn; and some go even further and hold that the presumption of negligence may be rebutted, by showing that there was no negligence in point of fact on his part, or that of his servants. But the preponderating weight of authority, from the time of the decision in Calye’e Case, 8 Coke, 82, to the present time, is in favor of the rule that he is liable as an insurer.

The rule is thus stated in 1 Pars, on Cont. 628 : “ Public policy imposes upon an innkeeper a severe liability. The later, and on the whole, prevailing, authorities make him an insurer of the property committed to his care, against everything but the act of God, or the public enemy, or the neglect or fraud of the. owner of the property. He would then be liable for a loss occasioned by his own servants, by other guests, by robbery or burglary from without the house, or by rioters or mobs.” The rule is carried to the same extent in Maker v. Brown, 1 Cal. 221.

We deem it unnecessary at this time to enter upon a review of the cases, or to recapitulate the argument or reasons in support of the rule, as this has very fully been done in Shaw v. Berry, 31 Maine, 478; Sibley v. Aldrich, 33 N. H. 553; Hulet v. Swift, 42 Barb. 249, S. C.; and 33 N. Y. 571. (See, also, Grinnell v. Cook, 3 Hill, 485; Thickstone v. Howard, 8 Blackf. 535 ; Piper v. Manny, 21 Wend. 282; Mason v. Thompson, 9 Pick. 280.) V. The fifth point is that the defendant is not liable for an amount beyond what is sufficient for the reasonable travelling expenses of the plaintiff and his assignors.

The gold dust was not money, any more than are bank bills, or Government stocks or securities; but it was so readily convertible into money at San Francisco that for the purposes of this question it may be treated as money. The doctrine of Mateer v. Brown is opposed to the limited liability contended for. It would be altogether impracticable for the Court to lay down any rules for determining what would be reasonable travelling expenses. One person might choose to make the trip in the cheapest manner, and another might indulge in the most lavish expenditures.

The contingencies to which the party might be subject on his journey could not be anticipated, nor the expenses, calculated with any certainty. -But if the innkeeper is authorized in any case to supervise the expenditures of. his guest there was nothing of that character manifested here. The notice to the guests was that the innkeeper would not hold himself responsible for their money or articles of value unless they were deposited in the safe at the office.

There was no limit indicated as to the amount or value that might be deposited; and it appears that at the time the safe was robbed it contained money and gold dust, deposited by guests, of about the amount of thirty thousand dollars. These deposits were being made every day, and entries thereof were made in a book kept for that purpose. The evidence shows that the receipt and entry of such deposits was a part of the regular and usual business of the hotel.

The plan was devised and carried on, not only for the innkeeper’s protection, but to induce travellers to patronize the hotel, by offering them greater security for their property. After having thus offered, as an innkeeper, to take charge of the money of his guests, and having received it on deposit and placed it where such property was usually kept, he cannot avoid responsibility for its loss, by saying that the guest deposited too much money.

It is too late to raise the objection that the amount of money was larger than the guest might -need for his reasonable expenses after the money deposited according to the rules of the inn has been stolen, even admitting that the objection would be good before the deposit was made.

Several of the cases cited by the defendant support the position that the innkeeper is not responsible for everything that the guest may choose to bring to the inn; but we apprehend that he would not have been relieved of responsibility in any of those cases had the property at his request been committed to his special care and custody. In Calye’s Case it was resolved that “ if one brings a bag or chest, etc., of evidences into the inn, or obligations, deeds, or other specialities, and by default of the innkeeper they are taken away, the innkeeper shall answer for them.” The language of Mr.

Chancellor Kent is equally strong: “ The responsiMlity 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.” (2 Kent, 593.) There are many cases in which it is held that his responsibility extends to money and chattels other than such as are provided by the guest for his necessary or convenient use while travelling. In Clute v. Wiggins, 14 Johns. 175,. the guest recovered for certain bags of wheat and barley. In Piper v. Manny, 21 Wend. 282, the recovery was for a tub of butter. In Snider v.

Geiss, 1 Yeates, 34, the innkeeper was held liable for two hundred and thirty Spanish milled dollars. In Hulett v. Swift, 33 N. Y. 571, the plaintiff recovered the value of his horses, wagon and a load of buckskin goods. In Townson v. Havre de Grace Bank, 6 Har. & John. 47, the property in controversy was one thousand dollars, in bank bills. In Mateer v. Brown, the amount deposited was five thousand five hundred dollars, in gold dust. The doctrine laid down in Purvis v. Coleman, 21 N. Y. 112, applies with very decided force to the question here.

A sum of money, four hundred sovereigns, was stolen from the plaintiff’s trunk, which was in a room in the hotel, assigned to the plaintiff. ¡Notice, in fact, had been given to the plaintiff, on his arrival, that the defendants had provided a safé for the deposit of the valuables of their guests, and that they would not be liable for their loss, unless they were deposited in the safe.

The Court declared that “ at common law the defendants were liable for all losses of the property of their guests infra hospitium,” excepting, of course, those occasioned by the act of God or the public enemy, or the neglect-or fraud of the guest; but that the Legislature had modified this strict liability at common law, by enacting that if tl-iA nrnnriAtrh- nf a. hnt.Al should furnish a safe at the other valuables of his guests, and should notify them thereof by posting notices in the rooms occupied by his guests, he should not be liable for any loss of money or valuables, etc., if the guests should neglect to deposit the same in such safe. keeping of the money and The Court affirmed the judgment for the defendants on two grounds. 1st, that the actual notice was sufficient under the statute without proof of the constructive notices, by posting the notice in the room of the guest; and 2d, that the guest having received the notice in fact, and failing to comply with it, was guilty of negligence, and must bear the loss.

A majority of the Court concurred on the first ground, and the whole Court concurred on the second ground. One purpose of the Act, it was held, was to enable the host to relieve himself of his common law liability—that is, of liability for the loss of the money or the valuables of the guest who neglected compliance with the notice. That was the main object of the Act, although it was at the same time intended to provide for the security of the guest. That was precisely the purpose of the notice in this case, which was given to the guests by posting the rules of the house in the rooms occupied by them.

The statute of Hew York was, in truth, only declaratory of the law in such cases, except only in respect to constructive notice, which is made equivalent to actual notice. In passing upon the second ground, it was held that, when the notice in fact was given, independently of the statute, the innkeeper would not be responsible for the loss when the guest neglected to comply with the requirements of the notice. It necessarily follows that he would have been responsible for the loss had the guest made the deposit in compliance with the notice.

The statute, then, conferred upon him no right or privilege but that of imparting notice by posting the same in the manner therein prescribed, and neither added to nor diminished the responsibility that he would have incurred had he received the money on deposit, in pursuance of a notice in fact, and in the course of the usual and customary business of the hotel. Ho thing is said in that case as to their being an excess of money beyond what was needed for travelling expenses and personal use, but if there is anything in the point it was obvious, from the amount of money involved.

The authorities cited by the defendant throw some light on the question. Thus in Orange County Bank v. Brown, 9 Wend. 85, the plaintiff sought to recover from a common carrier for the loss of eleven thousand dollars, which the plaintiff’s agent was conveying in his trunk. He stated to the officers of the boat that the trunk was valuable, but not that it containd money. He placed the trunk in the office, as he was directed by the clerk, and it was stolen from that place. Mr.

Justice Helson, in delivering the opinion of the Court, said: “ How upon the ground that the defendants in this case have received no compensation or reward from the plaintiffs or any other person for the transportation or risk of the money, and that they were deprived of such reward by the unfair dealing of the agent of the plaintiffs with the defendants, I am of opinion that the plaintiffs cannot recover, and that they were properly nonsuited on the trial.” Miles v. Cattle, 19 Com. L.

R., 333, cited in that case, was decided on the same ground—that the defendant was entitled to compensation for the transportation and risk of the money, but it was carried among the baggage of the passengers without informing the defendants. The same principle was applied in Pardee v. Drew, 25 Wend. 459, when the attempt was made to have merchandise transported as baggage, without disclosing its presence. See also Hawkins v. Hoffman, 6 Hill, 588, where the same doctrine is announced. It was held— Mr.

Justice Bronson delivering the opinion—that the contract to convey the baggage of the passenger was implied from the usual course of business, and that the price paid for fare is considered as a compensation for carrying the baggage;- but that baggage did not include money or merchandise.

In respect to innkeepers, none of the eases in which the grounds of the liability is considered, hold that he is entitled to any separate compensation for the care of the guest’s property, and as he is not entitled to separate compensation on account of the property, we cannot see how he can complain that the guest has in his trunk or has deposited in the safe more money than was reasonable for his travelling expenses. His implied contract covers it all, whatever it may be. Berk shire Woolen Co. v. Proctor, 7 Cushing, 423, is decisive, as authority, of this question.

The sum of five hundred dollars was stolen from the trunk of the plaintiff’s agent, which was in a room occupied by him in the defendant’s hotel. This question was fully considered by the Court, and it was held that “ the responsibility of innkeepers for the safety of the goods and chattels and money of their guests is founded on the great principle of public utility, and is not restricted to any pai’ticular or limited amount of goods or money.” Here there is no ground for saying that the guest manifested a lack of care, for he placed his money where the innkeeper assured him it would be safe.

He, as innkeeper, notified his guest to deposit his money in the safe and he received it as an innkeeper in the usual course of his business, and he must respond as an innkeeper for its loss. Wilkins v. Earle, 4 Am. Law Reg., New Series, 742, is cited by the defendant, as very cogent authority in support of his position. The decision may be sustained, perhaps, upon the ground upon which it was placed, but some of the views advanced we think are unsound and are not supported by the authorities cited.

The plaintiff, in compliance with a general notice from the innkeeper, delivered to the clerk, to be deposited in the safe, a sealed package marked only with his name, and in reply to an inquiry as to what it contained, replied merely “ Money.” The notice required the property deposited to be “ properly labelled,” and the clerk informed the plaintiff" that they made their guests describe their property before redelivery.

The Court considered that the case resolved itself into the question, “Whether the plaintiff by depositing in the safe of the defendants the package, which he delivered to the clerk, under the circumstances under which he so deposited it, and with no more notice of its value than was given in his conversation with such clerk at the time of such delivery, was not guilty of such negligence or did not so violate the implied condition of the liability of defendants as to exempt them entirely therefrom ?” and both branches of the inquiry were answered in the affirmative.

The neglect on the part of the plaintiff was in failing to disclose the amount of money in the package, but we shall not consider whether that omission was in violation of the notice, or the spirit of the Act in relation to innkeepers. The Court, after citing many cases, still feeling a doubt as to the extent of the liability of innkeepers, endeavors to determine the point by the cases relating to carriers of passengers, they being considered by the Court as analogous in principle.

But, as we have already remarked, the analogy fails because the carrier of passengers. is under the implied obligation to carry with the passengers, without extra compensation, only his baggage; and that, as it is held, does not include money, except what is necessary for travel-ling expenses, and some cases hold that even that cannot be properly included as baggage.

The carrier has a right to demand compensation for conveying property that is not baggage, and by custom the charge depends on the value as well as the weight or bulk, and it would be a fraud upon him to attempt to saddle him with the risk, without giving him the compensation for transporting it. If the passenger chooses to carry a large amount of money he assumes the risk of its own loss.

The Court, evidently appreciating the hardship of the case, as other Courts have done—and there is equal hardship, whether the loss falls on the host or the guest—were of the opinion that the innkeeper is held liable for clothing, ornaments of the person, including a reasonable amount of jewelry, and sufficient money to pay the travelling and other reasonable daily expenses of the guest, and that beyond those things he is not liable, unless he has voluntarily and knowingly undertaken the care and custody of them.

If any argument can legitimately be drawn from the cases of passenger carriers, in support of the limitation of the liability of an innkeeper, the latter must surely be held liable "for what, as against the forum, is regarded as the baggage of the passenger. The cases cited by the Court include as baggage a watch, article^ of jewelry, a gun and the tools of a trade, if carried in a trunk, and generally everything destined for the personal use, convenience, and even instruction and amusement of a passenger.

Suppose two travellers on their way to the same destination, the one having in liis possession a watch, jewelry and some other of the articles above mentiomed, and the other having the money with which he intends to purchase articles similar to those possessed by his comrade, and both are robbed at an inn. We are unable to see why the innkeeper should not be responsible to the latter as well as the former. How can it make any difference in Ms liability because the one chooses to wear his gold “ specimen ” in the form of a pin, and the other carries Ms in his purse ?

Both are entitled to the same care and protection, and any attempt to discriminate between the liability of the innkeeper for these respective cases leads to inconsistencies if not to absurdities. This case was decided at about the same time as Hulett v. Swift, 33 New York, 571, though neither case is referred to in the other; but we prefer to follow the higher, and, in our opinion, the better authority. VI. It is claimed that the Court erred in ordering that fifteen hundred dollars of the judgment be paid in gold coin. The verdict is general.

The amount deposited by Walker, there can be no doubt, constituted a part of the gross sum of the verdict. That amount is alleged in the complaint to have been deposited in gold coin. The answer admits that he deposited a purse containing gold coin, but cannot state the amount, and denies that it exceeded one thousand dollars in value. This is an admission that the money deposited was gold coin.

The Specific Contract Act provides that in an action against, any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff, whether the same be by default or after verdict, may be made payable in the same kind of money or currency so received by such person.” The kind of money received by defendant not being in issue, and he having received the Same in a fiduciary capacity, it was proper for the Court, upon a verdict for the amount of money, to order judgment in the kind of money received by him. VII.

The value of the gold dust at its highest market value, and the "coin, do not equal the verdict by the sum of one hundred and thirty-one dollars and twenty cents. It is claimed by the plaintiff that this is accounted for by interest allowed by the jury, by way of damages. But the sum does not tally with the interest on the value of the gold dust and the coin nor on the coin or gold dust alone. The jury were not instructed that they could allow interest, and there is. nothing that indicates that they have done so. The verdict is excessive in the amount mentioned.

Judgment reversed and cause remanded for a new trial, unless plaintiff within twenty days after receiving written notice that the remittitur is filed in the Court below, release one hundred and thirty-one dollars and twenty cents of the judgment, and if such release is filed then the judgment shall stand affirmed.