grounds are given for this holding. Thus, the sleeping car company does not, like an innkeeper, undertake to serve the traveling public indiscriminately, but only a certain limited class-those who have already paid their fare, and are provided with a firstclass ticket, entitling them to ride to a particular place." The innkeeper, as we shall see, is obliged to receive and care for the goods of the traveler which he may choose to take with him upon the journey; while the sleeping car company is not bound to care for the goods of the traveler and notoriously refuses to do so.28 Again, the innkeeper's liability had its origin in the fact that the traveler was often compelled to resort to the inn for necessary protection. But the traveler is not thus compelled to resort to the sleeping car; he may remain in the ordinary car, and the legal duty of protection is owed to him by the carrier.20

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Again, it is the policy of the law to keep within its technical limits rather than to extend the rigorous and unusual liability of the innkeeper. There are cases, however, that refuse to accept the cumulative force of these reasons, and hold the sleeping car company an innkeeper and liable accordingly. Though not a carrier itself, either private or common, the close relation between the sleeping car and the train of which it is a part renders it more convenient to discuss the rights and duties of sleeping car companies under the subject of carriers.31

The weight of authority also holds that steamship companies are not innkeepers. Even though a room on the boat be given.

82

293; Whicher v. Boston & A. R. Co., 176 Mass. 275, 57 N. E. 601, 79 Am. St. Rep. 314; Pullman Palace Car Co. v. Smith, 73 Ill. 360, 24 Am. Rep. 258; LEWIS v. NEW YORK CENT. SLEEPING CAR CO., 143 Mass. 267, 273, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 481, 43 Am. Rep. 102; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574; Pullman Palace Car Co. v. Gaylord, 6 Ky. Law Rep. 279; Welch v. Pullman Palace Car Co., 16 Abb. Prac. N. S. (N. Y.) 352; Pullman Car Co. v. Gardner, 3 Penny. (Pa.) 78; Tracy v. Pullman Palace Car Co., 67 How. Prac. (N. Y.) 154. But see, contra, Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325.

27 Welch v. Pullman Palace Car Co., 16 Abb. Prac. N. S. (N. Y.) 352, 357. But that they are bound to receive any one who applies for a berth, see NEVIN v. PULLMAN PALACE CAR CO., 106 Ill. 222, 46 Am. Rep. 688, Dobie Cas. Bailments and Carriers, 297.

28 Pullman Palace Car Co. v. Smith, 73 Ill. 360, 24 Am. Rep. 258. 29 Pullman Palace Car Co. v. Smith, 73 Ill. 360, 24 Am. Rep. 258.

30 Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325; Lise v. Pullman, etc., Co., 1 Quebec Super. Ct. 9. 31 See post, § 165.

32 Clark v. Burns, 118 Mass. 275, 19 Am. Rep. 456; The Crystal Palace v. Vanderpool, 16 B. Mon. (Ky.) 302; Adams v. New Jersey Steamboat Co., 151

into the control of the passenger, this is merely incidental to the carriage, and the rights and duties of the steamboat owner can best be worked out along the line of his real occupation as a carrier. As they are usually common carriers, however, their liability as such for the goods of the passenger given into their charge is fully as great as, and, according to many courts, even greater than, the corresponding liability of the innkeeper.

License as Innkeeper 33

34

An innkeeper cannot set up his failure to procure a license as a defense to his technical innkeeping liability. The mere possession of a license does not make one an innkeeper at common law, nor does the lack of it prevent him from being one. It is his holding out and business that fix the status of a party in this respect. A license, as a matter between him and the state or municipality, saves the innkeeper from the penalty of pursuing that calling without a license; 35 but the want of it does not save him from his exceptional liability to his guests.

WHO ARE GUESTS

91. A guest is a transient, who patronizes the inn as such, with the consent of the innkeeper.

It is as important to determine who are guests as it is to decide who are innkeepers; for, as the exceptional liabilities, which will be subsequently discussed, are imposed only on those who are strictly innkeepers, so these liabilities exist solely in favor of those whose legal relation is that of guests, and not in favor of

N. Y. 163, 45 N. E. 369, 34 L. R. A. 682, 56 Am. St. Rep. 616; McKee v. Owen, 15 Mich. 115, decided by a divided court.

33 The right to keep an inn was not a franchise at common law and required no license. Rex v. Collins, Palmer (Eng.) 367, 373; Overseers of Poor of Town of Crown Point v. Warner, 3 Hill (N. Y.) 150. Inns are public places of entertainment and have been made the subject of frequent statutory regulation. White v. Holman, 44 Or. 180, 74 Pac. 933, 1 Ann. Cas. 843; Bostick v. State, 47 Ark. 126, 14 S. W. 476. Mr. Beale collects the American statutes in an appendix to Beale, Innkeepers, pp. 307-534.

34 Norcross v. Norcross, 53 Me. 163; State v. Wynne, 8 N. C. 451; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642.

35 State v. Johnson, 65 Me. 362. It is held that the innkeeper failing to take out the statutory license cannot recover compensation for entertainment he has furnished. Randall v. Tuell, 89 Me. 443, 36 Atl. 910, 38 L. R. A. 143. Nor has he any lien on the guest's goods. Stanwood v. Woodward, 38 Me.

86

boarders, or other persons resorting to the inn. He alone, then, can hold the innkeeper to his rigorous liability who is technically a guest. That the plaintiff is not a guest is therefore always a defense to the strict liability as an innkeeper for loss or damage to the goods.

It is clear that the definition of "guest" involves three elements, which require separate treatment in the order named: First, a transient; second, patronizing the inn as such; third, consent of the innkeeper.37

Transients

As only transients can become guests, the single most important element, in determining who are guests, is that they first must be transients.88 Other terms are also used by the courts, such

86 See Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663; Ingalsbee v. Wood, 36 Barb. (N. Y.) 452, 455; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405; Miles v. International Hotel Co., 167 Ill. App. 440; Ticehurst v. Beinbrink, 72 Misc. Rep. 365, 129 N. Y. Supp. 838.

37 As we proceed with the discussion of the subject, the inadequacy of the following definitions of a guest will become apparent: Every one who is received into an inn and has entertainment there, for which the innkeeper has compensation by way of remuneration or reward for his services, is a guest. Comegys, C. J., in Russell v. Fagan, 7 Houst. (Del.) 389, 8 Atl. 258, 260. A guest is one who comes without any bargain for time, remains without one, and may go when he pleases. 2 Pars. Cont. 151. A guest is one who patronizes an inn as such. Walling v. Potter, 35 Conn. 183. Any one away from home, receiving accommodations at an inn as a traveler, is a guest, and entitled to hold the innkeeper responsible as such. Wintermute v. Clark, 5 Sandf. (N. Y.) 242, 247, adopted in Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, 6 L. R. A. 809, 26 Am. St. Rep. 325. Guests are those who are bona fide (really) traveling, and make the use of an inn, and not mere neighbors and friends who visit the house occasionally. Tidswell, Innkeepers' Legal Guide, 1. A guest is "a stranger who comes from a distance and takes his lodgings at a place." Webst. Dict. See, also, a valuable article in 14 Cent. Law J. 206; Hall v. Pike, 100 Mass. 495; Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Hancock v. Rand, 17 Hun (N. Y.) 279; Phillips v. Henson, 30 Moak, Eng. R. 19; Thompson v. Ward, L. R. 6 C. P. (Eng.) 327; Bradley v. Baylis, 8 Q. B. Div. (Eng.) 195; Ness v. Stephenson, 9 Q. B. Div. (Eng.) 245; Hickman v. Thomas, 16 Ala. 666; Ullman v. State, 1 Tex. App. 220, 28 Am. Rep. 405; Dickerson v. Rogers, 4 Humph. (Tenn.) 179, 40 Am. Dec. 642; LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148. See, too, the following recent cases on the general subject of who are guests: R. L. Polk & Co. v. Melenbacker, 136 Mich. 611, 99 N. W. 867; CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149; Pettit v. Thomas, 103 Ark. 593, 158 S. W. 501, 42 L. R. A. (N. S.) 122; Ticehurst v. Beinbrink, 72 Misc. Rep. 365, 129 N. Y. Supp. 838; Vigeant v. Nelson, 140 Ill. App. 644; De Lapp v. Van Closter, 136 Mo. App. 475, 118 S. W. 120.

88 FAY V. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16

40

as "traveler," " or "wayfarer"; " but their meaning is essentially the same. No entirely satisfactory definition of a transient seems to have been formulated, but the term is opposed to the notion of residing in a place, and carries with it nothing that is in any marked degree permanent. It rather conveys the idea of a mere temporary sojourner, the period of whose stay is brief or uncertain. +1

One who has his permanent abode in the inn falls without the transient category, so that, whatever may be his relation to the keeper of the inn, he is not a guest. So, too, a railroad conductor, running on regular trips between fixed termini, who staid at each end of his route at a hotel in a room which he rented by the month, is not a transient.48 But officers of the army and navy and soldiers L. R. A. 188, 27 Am. St. Rep. 188, Dobie Cas. Bailments and Carriers, 146; Jalie v. Cardinal, 35 Wis. 118; Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242; Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688; Neal v. Wilcox, 49 N. C. 146, 67 Am. Dec. 266; Horner v. Harvey, 3 N. M. (Johns.) 197, 5 Pac. 329; Russell v. Fagan, 7 Houst. (Del.) 389, 8 Atl. 258; Clute v. Wiggins, 14 Johns. (N. Y.) 175, 7 Am. Dec. 448; Beale v. Posey, 72 Ala. 323; Burgess v. Clements, 4 Maule & S. (Eng.) 306. See, also, Burdock v. Chicago Hotel Co., 172 Ill. App. 185.

39 Beale v. Morris, Cro. Jac. (Eng.) 224; Thompson v. Lacy, 3 B. & Ald. (Eng.) 283.

40 Calye's Case, 8 Coke (Eng.) 32, “wayfaring men."

41 CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149; Shoecraft v. Bailey, 25 Iowa, 553; Moore v. Long Beach Development Co., 87 Cal. 483, 26 Pac. 92, 22 Am. St. Rep. 265. Notwithstanding one who sues for lost baggage may have paid for his lodging by the week, yet, if he has not established a permanent abode and has done nothing to divest himself of his status as a traveler, he is a "guest" within the meaning of the law and may hold the owner of his lodging house to the liability of an innkeeper. Moon v. Yarian, 147 Ill. App. 383.

42 Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859, 46 L. R. A. 319, 73 Am. St. Rep. 886; Haff v. Adams, 6 Ariz. 395, 59 Pac. 111; Johnson v. Reynolds, 3 Kan. 257; Ewart v. Stark, 8 Rich. (S. C.) 423. The fact that an hotel has a rule to charge a guest a less rate per diem by the week than by the day, and that, if a guest had been there longer than a week, he got the benefit of the rule, does not show that one who had been at the hotel more than a week was a "boarder," rather than a "guest," it not being shown that he had any notice of the rule, or any knowledge of the charges, or that any arrangement for a permanent stay had been made. Magee v. Pacific Imp. Co., 98 Cal. 678, 33 Pac. 772, 35 Am. St. Rep. 199. Plaintiff registered at a hotel and secured a room, which she occupied a number of months, and then moved to another room in the same hotel. During the time of her stay at the hotel, she was absent for about three weeks at one time, during which time the room was reserved for her and the rent paid by her. During the entire period of her absence and the time of her stay at the hotel it was her only place of residence. Held, that her status was that of a lodger, and not a guest at an inn. Gray v. Drexel Arms Hotel, 146 Ill. App. 604.

48 Horner v. Harvey, 3 N. M. (Johns.) 197, 5 Pac. 329.

and sailors, who have no permanent residence which they can call home, but who are "liable to the call of their superiors at any moment," may well be regarded as transients when stopping at public inns or hotels.**

46

A townsman or neighbor may be a traveler, and therefore a guest at an inn, as well as one who comes from a distance.** If he resides permanently at an inn, his relation to the innkeeper is that of a boarder; but if he resides away from it, whether far or near, and comes to it for entertainment in the rôle of a traveler, and receives it as such, he is subjected to all the duties of a guest, and entitled to all the rights and privileges of one." In short, any one receiving entertainment for hire at an inn as a transient with the innkeeper's consent, is a guest, and is entitled to hold the innkeeper responsible as such.

Patronizing the Inn as Such

48

The second requisite of the guest is that he must patronize the inn as an inn; that is, he must resort to it for the legitimate purposes and entertainment that characterize the inn. Thus one who went to a hotel with a prostitute, whom he fraudulently registered as his wife, for the purpose of sexual intercourse, is not a guest.** Nor is one who, in order to secure a safe place to de

44 Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112, a leading case. See, also, Metzger v. Schnabel, 23 Misc. Rep. 698, 52 N. Y. Supp. 105 (involving a foreign army officer temporarily in this country).

45 Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242; Walling v. Potter, 35 Conn. 183.

46 See Meacham v. Galloway, 102 Tenn. 415, 52 S. W. 859, 46 L. R. A. 319, 73 Am. St. Rep. 886; Haff v. Adams, 6 Ariz. 395, 59 Pac. 111.

47 The cases are numerous where persons obviously living near by were held guests, thus: A driver of cattle along the road, in Hilton v. Adams, 71 Me. 19. One who came with a horse and wagon to attend the trial of a case brought against him by the innkeeper, in Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560. One who came to market, in Bennet v. Mellor, 5 Term R. (Eng.) 273. So, it does not appear that the party was a traveler in Farnworth v. Packwood, 1 Starkie (Eng.) 249. See, also, McDonald v. Edgerton, 5 Barb. (N. Y.) 560; Parker v. Flint, 12 Mod. (Eng.) 254 (case 455); Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112; Orchard v. Bush [1898] 2 Q. B. (Eng.) 284.

48 Toub v. Schmidt, 60 Hun, 409, 15 N. Y. Supp. 616; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560; Lynar v. Mossop, 36 Q. B. U. C. (Can.) 230. See, also, Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085.

49 Curtis v. Murphy, 63 Wis. 4, 22 N. W. 825, 53 Am. Rep. 242. In this case Cole, C. J., said that "while the definition of a guest has been somewhat extended beyond its original meaning, it does not include every one who goes to an inn for convenience to accomplish some purpose. If a man and woman go together to, or meet by concert at, an inn or hotel in the town or city where they reside, and take a room for no other purpose than to have illicit intercourse, can it be that the law protects them as guests? Is the