an ordinary bailee for hire and not responsible for the losses which are not the result of his negligence or that of his servants.100 They do not regard the innkeeper as having any greater liability than other bailees.

The first class, however, do not release the innkeeper from responsibility until he has shown that the loss resulted from an act of God, the guest, or his servants, or a public enemy. In these cases the ancient liability of innkeepers is preserved, from a time when public policy demanded extreme measures to protect travelers from robbery and theft and injury.

When the law of innkeepers was forming, England was infested with robbers, and inns were frequently the resort at which highwaymen gathered. Under the difficulties in the way of bringing home collusion with these gentry, and the all too easy means at the hands of conspirators to obtain great gain from those who were compelled to put up at the inns, public policy demanded that the innkeeper should be held absolutely responsible for the goods of his guest, except where loss occurred through the means before enumerated.

That such a condition of affairs does not exist today is apparent. Where hotels thrive we have no highwaymen. The innkeepers, for the sake of the reputations of their inns, do their utmost to prevent loss to their guests. It would seem that such stringent rules would be unnecessary at the present time to secure the guest from loss. But the prevailing view seems to be that the rule should not be relaxed. "It is true," a New York court remarks, "that the days of violence, which in early times required this protection to the traveler, have passed away. It is not

100 Same cases.

certain, however, that we are less exposed to fraud. We may have grown wiser and better than our fathers. It is to be hoped that we have. It may be, however, a change of manners rather than a change of morals. The day of the two-handed sword has gone by; that of sleight of hand and finesse have come in." 101 Practically, the guest in our modern hotels is at the mercy of the innkeeper. The latter may be a corporation or an individual, but the guest seldom, if ever, sees him. The guest is surrounded by persons hardly one of whom he knows. His room has keys in unknown hands; it may be entered without his knowledge and at times when he can have no means of knowing or proving who entered. Some of his belongings may be taken charge of at the station and never brought within his sight or control during his stay. The innkeeper holds himself out to furnish a place where the guest may rest in safety and undertakes to care for his goods. Under such circumstances, it seems not too much to demand the highest responsibility. The circumstances and liability are similar to those of common carriers.

Like the common carrier the losses from liability for which the innkeeper is relieved are the acts of God or public enemy, 102 acts of the guest himself

...

101 Wilkin v. Earle, 44 N. Y. 172, 4 Am. Rep. 655. The court goes on to say that a guest "is now required to place his money and his valuables in the actual custody of his host, as a condition of a protection of his money and jewels. . . . . The guest is quite in the power of the host, and, unless the ancient rule is maintained, the danger to the public will be great. I see nothing in the present condition of society or mode of doing business that calls for a relaxation."

102 While the cases all support this exception in their dicta, yet it may be said that no case can be found as illustrating the principle. Possibly because it is too well understood or apparent. The law of common carriers, on the other hand, contains numerous illustrations.

which are the proximate cause of the loss,103 or acts of servants or companions of the guest, or losses which result from the inherent nature of the goods themselves.105 In this connection it has been held that if a guest leaves the door to his room unlocked, this is not such an act as will relieve the innkeeper, 106 nor failing to leave valuables with the innkeeper and keeping them with one, when ignorant of any custom or regulation of the inn requiring them to be left with the innkeeper,107 nor neglecting to state the amount of money or valuables contained in the baggage deposited with the innkeeper,108 nor becoming intoxicated.109

But, while the liability of the innkeeper is like that of the common carrier in degree, because of the same character of control over the goods, yet in so far as concerns to what goods the liability extends a marked difference exists. At the common law, the rule was established that the innkeeper was liable for all the goods and chattels "bona et catella"-of the guest

103 Coskery v. Nagle, 83 Ga. 696, 20 Am. St. Rep. 333; Fuller v. Coats, 18 Ohio St. 343; Kisten v. Hildebrand, 9 B. Mon. 73, 48 Am. Dec. 416; Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560; Bowell v. De Wald, 2 Ind. App. 303, 50 Am. St. Rep. 240, 28 N. E. 430; Kelsey v. Berry, 42 Ill. 469; Schultz v. Wall, 134 Pa. St. 262, 19 Am. St. Rep. 686, 19 Atl. 742; Jalie v. Cardinal, 35 Wis. 118.

104 Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369; Schultz v. Wall, 134 Pa. St. 262, 19 Am. St. Rep. 686, 19 Atl. 742; O'Brien v. Vaill, 22 Fla. 627, 1 Am. St. Rep. 219, 1 South. 137; Kisten v. Hildebrand, 9 B. Mon. 74, 48 Am. Dec. 416.

105 Howe Machine Co. v. Pease, 49 Vt. 484.

106 Calye's Case, 8 Coke, 32; Murchison v. Sergent, 69 Ga. 207, 47 Am. Rep. 754.

107 Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369.

108 Rubenstein v. Cruikshanks, 54 Mich. 199, 52 Am. Rep. 806, 19 N. W. 954; Coskery v. Nagle, 83 Ga. 696, 20 Am. St. Rep. 333; Shoecraft v. Bailey, 25 Iowa, 553.

109 Rubenstein v. Cruikshanks, 54 Mich. 199, 52 Am. Rep. 806, 19 N. W. 954.

which were brought infra hospitium, whether clothes, jewelry, animals, or valuables.110 This is the rule adopted by most of the courts of this country that have had occasion to speak upon the subject,111 but repudiated by Maryland courts,112 and in Louisiana by statute 113

The common carrier is liable only for the loss of what is technically known as baggage, or those articles or goods which are reasonably necessary to a traveler while on his journey,114 and to this liability, but no more, the courts of Maryland and statutes of Louisiana hold the innkeeper, drawing the comparison between the two. But there seems to be a difference between these two public agents which calls for a different rule in one than in the other. A common carrier offers to carry the passenger and his baggage only; for other goods he may charge extra. An innkeeper's offer is to receive and accommodate the traveler with what he brings with him, whether he is a foot passenger with his goods on his back or a traveling merchant with money to make his purchases, or a farmer coming to market with his produce, or a traveling man with his samples.115 As in the case of the termination of the relation it would seem that custom

110 Calye's Case, 8 Coke, 32. See Kent v. Shuckard, 2 Barn. & Ald. 803.

111 Dunbier v. Day, 12 Neb. 596, 41 Am. Rep. 772, 12 N. W. 109; Clute v. Wiggins, 14 Johns. 175, 7 Am. Dec. 448; Jalie v. Cardinal, 35 Wis. 118; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405; Houser v. Tully, 62 Pa. St. 92, 1 Am. Rep. 390; Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Smith v. Wilson, 36 Minn. 334, 1 Am. St. Rep. 669, 31 N. W. 176; Kellogg v. Sweeney, 1 Lans. 397; Taylor v. Monnot, 1 Abb. Pr. 325.

112 Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212; Giles v. Fauntleroy, 13 Ind. 126.

113 Simon v. Miller, 7 La. Ann. 360.

114 Ante, sec. 112.

115 Pettigrew v. Barnum, 11 Md. 434, 69 Am. Dec. 212, note.

116

as to what kinds of goods were received and provided for should govern this question. But under the strict rule of responsibility the innkeeper is not liable for goods which a guest exhibits in his room for sale, except for the exercise of ordinary care. Again, this liability extends to all goods, whether the guest deposits them with the innkeeper or not, or whether he notifies him of their presence in the hotel or not.117 Where no notice has been given to the innkeeper or his servants, the goods must be infra hospitium or within the limits where it is customary to receive goods of guests. 118 If the goods are placed in custody of one who has apparent authority to receive them,119 or placed where the innkeeper or his servants have designated,120 the innkeeper is responsible, though they are not, strictly speaking, infra hospitium. The rigors of the rule making the innkeeper responsible for goods whose presence within his house has not been made known to him, and for valuables and goods which are not technically "baggage," have been abated in many states by statute. It is a rule of com

116 Myers v. Cottrill, 5 Biss. 465, Fed. Cas. No. 9985; Fisher v. Kelsey, 121 U. S. 383, 7 Sup. Ct. Rep. 929.

117 Rubenstein v. Cruikshanks, 54 Mich. 199, 52 Am. Rep. 806, 19 N. W. 954; Norcross v. Norcross, 53 Me. 163; Shoecraft v. Bartley, 25 Iowa, 553; Jalie v. Cardinal, 35 Wis. 118; Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590; Rockwell v. Proctor, 39 Ga. 107; Packard v. Northcroft, 2 Met. (Ky.) 442.

118 Epps v. Hinds, 27 Miss. 657, 61 Am. Dec. 528; Mason v. Thompson, 9 Pick. 280, 20 Am. Dec. 471.

119 Curtis v. Murphy, 63 Wis. 4, 53 Am. Rep. 242, 22 N. W. 825; Houser v. Tully, 62 Pa. St. 92, 1 Am. Rep. 390; Lasseen v. Clark, 37 Ga. 242; Coykendall v. Eaton, 37 How. Pr. 438; Dickinson v. Winchester, 4 Cush. 114, 50 Am. Dec. 760; Buckle v. Probasco, 58 Mo. App. 49.

120 Cohen v. Manuel, 91 Me. 274, 64 Am. St. Rep. 225, 39 Atl. 1030; Clute v. Wiggins, 14 Johns. 175, 7 Am. Dec. 448; Piper v. Manny, 21 Wend. 282; Mason v. Thompson, 9 Pick. 280, 20 Am. Dec. 471.