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Art. 3. Lunatics.

the last writer further says (p. 117): "Nothing could present to the depraved mind a stronger temptation to simulate insanity for purposes of mischief and revenge than a rule of law which would give full immunity in case the deception proved successful * . But it does not follow that the responsibility of persons mentally incompetent should be coextensive in any respects with that of other persons. * * * The aggravation of motive would consequently be wholly wanting. While, therefore, the sane person might justly be compelled to pay damages proportioned to the malignity of his motives, the insane person would make full reparation if he were required to meet the actual damages which the injured party had suffered in person or estate, leaving wholly out of view any aggravation which malice might have supplied."

Persons bereft entirely of reason - unconscious agents, lunatics, and very young children are not responsible for their negligence, and cannot have contributory negligence imputed to them. Hale on Torts, 463.

If exemplary damages are sought on account of intent or malice of the defendant, insanity is a good answer to that claim, as an insane person has no will or malice, and the measure of damages is compensation for the actual loss. Krom v. Schoonmaker, 3 Barb. 647.

Authorities upon this point are collated in Jewell v. Colby, 66 N. H. 399; Erwin's Cases on Torts, 66.

In Williams v. Hays, 143 N. Y. 442, authorities as to liability of lunatics for torts are fully considered, and collated, resulting in the holding that an insane person is liable for his torts the same as one who is sane, except in those cases in which malice, and, therefore, intention is a necessary ingredient; and there is no distinction between torts of nonfeasance and of misfeasance, so that an insane person is liable for injuries caused by his tortious negligence and so far as this liability is concerned, is held to the same degree of care and diligence as a person of sound mind. On subsequent appeal in the same case, 157 N. Y. 541, the language of the court is considered and commented on at page 546, Haight, J., in the prevailing opinion, saying: "Whether a lunatic or a person mentally incapacitated should be held responsible in all instances for his nonfeasance or failure to act, we will not stop to consider."

Art. 4. Drunkards.

ARTICLE IV.

DRUNKARDS.

Drunkenness is no excuse for a tort. It will be presumed that a man knows if he gets drunk he will be liable to commit acts which will be liable to produce injury to other people. Piggard on Torts, §§ 216, 217, cited Hale on Torts, 100.

That tort was committed in a drunken state is no excuse. It is conceivable, however, that the fact might have influence on the award of damages, either to aggravate or mitigate them, according to the nature of the case and the circumstances. Cooley on Torts, 31.

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Of the rule that drunkenness in general does not excuse crime, Bishop (512) says: "But in principle the same rule would seem to apply to torts, namely, that being drunk is not a general defense, but it may be available where the tort is of a particular sort requiring a special intent. Drunkenness has been adjudged to be no mitigation in an action for slander. On the other hand, the fact that one is drunk or a drunkard does not justify another in even negligently injuring him; and, if known to the other, it may call for special care arising from the particular danger. Intoxication, therefore, may be matter for the consideration of the jury."

Perhaps delirium tremens may be a defense, for it is a species of insanity, and like other insanity must affect responsibility of acts civilly and criminally. Hale, 100, citing O'Brien v. People, 48 Barb. 275.

In Gates v. Meredith, 7 Ind. 440, it was held that insanity, though caused by drunkenness, could preclude responsibility for what otherwise would be slander. "Slander must be malicious. An idiot or lunatic, no matter from what cause he became so, cannot be guilty of malice. He may indulge the anger of the brute, but not the malice of one who knows better.'"

Where one commits a fraud upon an intoxicated person, the presumption is against good faith. "Whoever takes advantage of a

state of intoxication to deal with another must do so with the presumption against his good faith proportioned to the depth of mental obscurity caused by the condition; and the presumption is greatly strengthened if he himself has brought about or en

Art. 5. Innkeepers.

couraged the intoxication." Cooley, 604, citing Peck v. Carey, 27 N. Y. 9.

Intoxication per se does not establish contributory negligence, Newton v. Central Vermont R. R. Co., 80 Hun, 491, 62 St. Rep. 387, 30 N. Y. Supp. 488, affirmed in 151 N. Y. 624.

An employee's drunkenness or habitual intemperance, if known to the employer, will in proper circumstances be treated as negligence in the latter. Bishop, 514, citing Cleghorn v. New York Cent. R. R. Co., 56 N. Y. 44.

In Monk v. Town of New Utrecht, 104 N. Y. 552, an action against a town for negligence by commissioner of highways by reason of which plaintiff received injuries in falling down an embankment, it appears (opinion, p. 561), that the plaintiff was an inmate of an inebriate asylum and had left the asylum under a pledge that he would abstain from intoxicating drink during the day, and that he is described by every disinterested witness in the case as much intoxicated. This seems to have been regarded by the court rather as an additional reason why the plaintiff should have been nonsuited, as bearing on his contributory negligence, than by way of excuse, since judgment for nonsuit granted in the court below was affirmed.

ARTICLE V.

INNKEEPERS.

It is a well-settled rule, which has been in force from the earliest times, that every one who keeps a common inn is under a legal obligation to afford proper entertainment to all persons offering themselves as guests, unless he has a reason, good and sufficient in law, for not doing so. He is not bound to receive any who are not travelers or transients; or persons not in a fit condition to come to the inn, as where they are drunk, disorderly, or otherwise obnoxious, or are not able to pay the price of their entertainment. 16 Am. & Eng. Encyc. of Law, 524.

Although it has been sometimes considered that the liability of the innkeeper for loss or damage to the goods of guests depends upon the question of negligence, it is now more generally considered that the innkeeper's liability for failure to keep the goods of his guests safely arises independently of the question of negligence. The host is now held liable for damage to or loss of the

Art. 5. Innkeepers.

goods put in his custody, though he exercise the greatest diligence in the care of them, unless the loss occurred by the guest's negligence, or by vis major, inevitable accident, or the act of God. Bigelow, p. 331.

If the goods of the guest have been received into the care and keeping of the innkeeper, the question of negligence of the defendant or his servants has nothing to do with the case. Nelson, Ch. J., in Piper v. Manny, 21 Wend. 282, citing 5 T. R. 275.

An innkeeper is an insurer of the safety of the property of his guest, brought infra hospitium. He is liable for its loss, whether by burglary, theft, fire, or negligence, unless it arises from the neglect or misconduct of the guest, the act of God, or the public enemies. His liability extends to wearing apparel, jewelry, money, and even to the horses, wheat, butter, and other articles of bulk belonging to the guest, if received by the innkeeper into his care and within his place of entertainment. This is the rule of the common law, enforced in the day of Lord Coke, and long prior, and ever since, as well in England as in this State. (Hulett v. Swift, 33 N. Y. 371, and numerous cases there referred to.) Wilkins v. Earle, 44 N. Y. 172 (178).

The principle upon which innkeepers are charged by the common law, as insurers of the money or personal effects of their guests, originated in public policy. It was deemed to be a sound and necessary rule that this class of persons should be subject to a high degree of responsibility in cases where an extraordinary confidence is necessarily reposed in them, and where great temptation to fraud and danger of felony exists by reason of the peculiar relations of the parties. Adams v. N. J. Steamboat Co., 151 N. Y. 163, holding that the rigid rule of the common law between innkeeper and guest is applicable between a passenger steamboat company and passengers to whom it furnishes rooms and entertainment. That a distinction exists between the degree of responsibility resting upon the steamboat company for the personal effects of the passenger occupying a stateroom, and that resting upon a railroad company in respect to a passenger occupying a berth in a sleeping car.

Innkeepers are insurers of property of their guests notwithstanding chapter 421 of the Laws of 1855. The effect of that statute is to modify common-law liability, so that it does not extend to money, jewels, or ornaments not deposited in the safe

Art. 5. Innkeepers.

provided for that purpose, where the innkeeper has complied with the provisions of the act on his part. Wilkins v. Earl, 44 N. Y. 172.

Under the provisions of chapter 658, Laws of 1855, exempting an innkeeper from liability from loss by fire of property of a guest in a barn or outbuilding, where it shall appear that the loss was the work of an incendiary, and occurred without negligence on his part, the burden is on the innkeeper to show the fire was an incendiary one, and to show absence of negligence on his part. Faucett v. Nicolls, 64 N. Y. 377.

Under provisions of chapter 421, Laws of 1855, with reference to deposit of moneys, jewels, ornaments, etc., in hotel safe, the statutory exemption applies to all moneys, jewels, and ornaments, and applies to every guest where the guest has the time and an opportunity to make the deposit. His omission to do so is a neglect within the meaning of the statute, although no carelessness or imprudence is shown. Rosenplaenter v. Roessle, 54 N. Y. 262, distinguishing Bendetson v. French, 46 N. Y. 266. See also Hyatt v. Taylor, 42 N. Y. 258.

In Ramaley v. Leland, 43 N. Y. 539, it was held that the exemption under the statute is limited to the particular species of property named, and being in derogation of the common law, cannot be extended in its application by doubtful construction.

In Briggs v. Todd, 28 Misc. Rep. 208, 59 N. Y. Supp. 23, provisions of chapter 305, Laws of 1897, are strictly construed, and articles which were not jewels or ornaments, are held not within the exemption, and the hotel-keeper is liable for their value.

Barnett v. Walker, 39 Misc. Rep. 323, holds that under the Laws of 1899, chap. 380, which gives the keeper of a hotel a lien on the baggage of the guest, the innkeeper acquired no lien on a sewing machine brought upon his premises by a boarder, the legal right to the title and possession being in another person.

In Becker v. Warner, 90 Hun, 187, 35 N. Y. Supp. 739, and Bernstein v. Sweeney, 33 N. Y. Super. 271, held that a watch is neither a jewel nor ornament within the meaning of the statute exempting hotel-keepers.

Personal notice to the guest is the equivalent of a written or printed notice required by statute. Purvis v. Coleman, 21 N. Y. 111. But such notice must either be brought home to the guest