posit his money, hired a room at the inn, which he had no intention of occupying,50 A neighbor or friend who comes to an inn on the social invitation of the innkeeper, to be entertained gratuitously, is not a guest; for, not paying for what he receives, he is entertained by the keeper of the inn purely in his private, and not in his public, capacity. Of course, one who goes to an inn merely to call upon a guest does not by so doing become a guest himself. 52

The transient, resorting to the inn as such (when accepted by the innkeeper), is none the less a guest though the entertainment he receives is limited to a single meal, or even if an unexpected alteration of his plans might result in his ultimately receiving no entertainment at all. Though no one is an innkeeper unless he holds himself out to furnish lodging, it is not essential that a person must take lodgings in order that he may be a guest." Nor need one be entertained at an inn any definite length of time to make

extraordinary rule of liability which was originally adopted from considerations of public policy to protect travelers and wayfarers, not merely from the negligence, but the dishonesty, of innkeepers and their servants, to be extended to such persons? Then, for a like reason, it would protect a thief who takes a room at an inn and improves the opportunity thus given to en ter the rooms and steal the goods of guests and boarders."

50 W., the keeper of a gambling house, closed his night's business at 2 o'clock a. m., having a sum of money upon his person, and, not being ready to retire for the night, and not wishing to carry his money upon his person at that time of the night, visited an inn, for the purpose of depositing his money for safe-keeping; found the inn in charge of a night clerk; inquired if he could have lodging for the night; was told that he could; stated that he did not desire to go to his room at that time, but wished to leave some money with the clerk, and would return in about half an hour. The clerk told him he would reserve a good room for him. He did not register his name. It was not upon any book of the inn. No room was assigned him. He left his package of money with the clerk, received a check for it, and departed. He returned in about three hours to have a room assigned him and retire for the balance of the morning. The clerk had absconded with the money. Held, W. was not a guest of the inn at the time he deposited his money with the clerk, and the innkeeper was not liable for its loss. Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32, 4 N. E. 398, 58 Am. Rep. 785. A person engaging and paying for a room at a hotel does not thereby become a guest, when he has no intention of occupying the room. Bunn v. Johnson, 77 Mo. App. 596.

51 Anonymous, 1 Rolle, Abr. 3 Pl. 4; Southcote v. Stanley, 1 H. & N. (Eng.) 247; Bac. Abr. "Inns and Innkeepers"; 5 Comyn, Dig. "Action on Case for Negligence," B, 2.

52 Gastenhofer v. Clair, 10 Daly (N. Y.) 265, 266. Cf. Kopper v. Willis, 9 Daly (N. Y.) 460; Bennet v. Mellor, 5 Term R. (Eng.) 273. 53 Orchard v. Bush [1898] 2 Q. B. 284; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560.

54 Overstreet v. Moser, 88 Mo. App. 72; Kopper v. Willis, 9 Daly (N. Y.) 460.

56

him a guest." Thus, even the purchasing of liquor has been held sufficient, under some circumstances, to make one the guest of the innkeeper; for it is not the nature or amount of entertainment, but the character under which the person receives it, which determines the relation of the parties.

To make one a guest, the entertainment must be given by the innkeeper in his capacity as the keeper of an inn."

Thus, if for pay the innkeeper agreed to furnish a banquet for a society, members of the society attending the banquet are not guests of the innkeeper, for he is here not strictly an innkeeper, but a club caterer, and the two employments, as to their nature and attendant responsibility, are separate and distinct.

58

The authorities seem to be divided on the question whether the transient must be personally entertained at the inn, in order to be a guest. The point is generally raised in connection with the innkeeper's responsibility for loss of, or damage to, a horse sent to the inn by a person who does not himself resort to the inn. It would seem, though there are cases to the contrary," that if a person was not personally entertained at the inn and never intended to be, then he does not become a guest merely by sending his horse to the inn to be cared for. If, however, a person intends to become a guest at the inn, and sends his horse there in advance (the horse being accepted on that understanding by the innkeeper), then the owner of the horse, it seems, would become a guest (in so far, at least,

60

55 Kopper v. Willis, 9 Daly (N. Y.) 460, 465.

56 McDonald v. Edgerton, 5 Barb. (N. Y.) 560, 562; Fitch v. Casler, 17 Hun (N. Y.) 126, 127. See, also, Bennet v. Mellor, 5 T. R. (Eng.) 273. For comments on this last case, see Strauss v. County Hotel & Wine Co., 12 Q. B. Div. (Eng.) 27; McDonald v. Edgerton, 5 Barb. (N. Y.) 560; Kopper v. Willis, 9 Daly (N. Y.) 460, 465; McDaniels v. Robinson, 26 Vt. 316, 332, 62 Am. Dec. 574.

57 Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762; Fitch v. Casler, 17 Hun (N. Y.) 126 (ball held at the inn in both of these cases, and persons attending ball held not to be guests, even though they bought liquor at the inn).

58 AMEY v. WINCHESTER, 68 N. H. 447, 39 Atl. 487, 39 L. R. A. 760, 73 Am. St. Rep. 614, Dobie Cas. Bailments and Carriers, 153.

59 See Russell v. Fogan, 7 Houst. (Del.) 389, 8 Atl. 258; Yorke v. Grenaugh, 2 Ld. Raym. (Eng.) 866; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471. It is said that the basis of this liability is the compensation received by the innkeeper for keeping the horse. So that as to inanimate goods, for the keeping of which no compensation is charged, this alone would not create the relation of innkeeper and guest. As to this last, see McDaniels

v. Robinson, 28 Vt. 387, 67 Am. Dec. 720.

60 Healey v. Gray, 68 Me. 489, 28 Am. Rep. 80; Neale v. Crocker, 8 U. C.

C. P. (Can.) 224; Ingallsbee v. Wood, 33 N. Y. 577, 88 Am. Dec. 409.

as the innkeeper's responsibility for the horse is concerned) from the time that the horse is accepted.1

Consent of the Innkeeper

62

The third element in the definition of a guest is acceptance as such by the innkeeper. The latter has the power to refuse to accept any person as a guest, and upon such refusal such person does not, and cannot, become a guest." The innkeeper is liable, as we shall see, when he refuses, without lawful excuse, to accept a person as a guest; " but his refusal, though wrongful, is none the less effective in preventing the establishing of the relation of innkeeper and guest. The innkeeper thus has the power, but not the right, to determine who his guests shall be.

Not even a transient, patronizing the inn as such, can make himself a guest without the innkeeper's consent. Of course, that consent may be given either by the innkeeper himself or by an agent or servant intrusted with the duty of receiving and rejecting travelers. Frequently there is no formal bargain, and there need be none; for the acceptance of a person as a guest will readily be implied from appropriate acts, as where he calls for refreshment which is furnished to him by a servant who has the discretion either to give or to withhold it. Again, when the porter of an inn is sent to the station for that purpose, the porter, merely by assuming control of a traveler's baggage, may accept him as a guest.**

61 See Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. See, also, Coykendall v. Eaton, 55 Barb. (N. Y.) 188. For an interesting case in this connection, see Brewer v. Caswell, 132 Ga. 563, 64 S. E. 674, 23 L. R. A. (N. S.) 1107, 131 Am. St. Rep. 216, 16 Ann. Cas. 936. See Flint v. Illinois Hotel Co., 149 Ill. App. 404, where the innkeeper was held liable as such for goods sent in advance by an intending guest, who actually became a guest.

62 Bird v. Bird, 1 And. (Eng.) 29; White's Case, 2 Dyer (Eng.) 158b. Both of these cases arose in the sixteenth century. See, also, Gastenhofer v. Clair, 10 Daly (N. Y.) 265, 266; Strauss v. County Hotel & Wine Co., 12 Q. B. Div. (Eng.) 27. See, also, cases cited in note 37.

63 Post, § 94.

64 Gastenhofer v. Clair, 10 Daly (N. Y.) 265.

65 Sasseen v. Clark, 37 Ga. 242; Coskery v. Nagle, 83 Ga. 696, 10 S. E. 491, 6 L. R. A. 483, 20 Am. St. Rep. 333; Dickinson v. Winchester, 4 Cush. (Mass.) 114, 50 Am. Dec. 760; Richards v. London, etc., Ry. Co., 7 C. B. (Eng.) 839, 62 E. C. L. 839. See, also, Strauss v. County, etc., Co., 12 Q. B. D. (Eng.) 27. Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113, 105 Am. St. Rep. 930, 2 Ann. Cas. 345. In these last two cases the person, after he had delivered his baggage to the porter, decided not to become a guest at the inn and received no entertainment there. In both cases it was held that he had not become a guest. There was a similar holding in Baker v. Bailey, 103 Ark. 12, 145 S. W. 532, 39 L. R. A. (N. S.) 1085, where one sent his baggage to a hotel and then went to the hotel merely to write letters and wait for a train.

No one, however, can become a guest until he has first given the innkeeper an opportunity, either in person or through an authorized representative, to receive or to reject him. Only after the innkeeper has elected to receive him is a person entitled to the privileges of a guest. Accordingly, a man cannot make himself a guest merely by slipping into the dining room of a hotel and ordering a dinner of a waiter who has no discretion whatever, and who brings what is ordered under the belief that the person who gives the order is in the dining room by permission of the innkeeper."" In such case, the act of the waiter is in no sense equivalent to an acceptance by the innkeeper, but is rather a mechanical act performed on the false supposition that the person has already been accepted as a guest by the innkeeper.

Special Agreement

The guest does not lose that character merely by making an arrangement for a definite time, or at definite rates, provided he still remains a transient."7

Neither the length of his stay nor any agreement he may make as to the price of board is sufficient in itself to deprive a person of his character as a guest, provided that he still fulfills the definition of a guest.68 A transient who enters an inn as a guest does not cease to be a guest, provided he remain a transient, by agreeing to remain a given time, or by ascertaining the price that will be charged, or by paying in advance for the entertainment." Thus, a guest for a single night might make a special contract as to the price to be paid for his lodging, without in any way affecting his character as a guest.

Whether a person is a guest, then, depends upon his fulfilling the three elements of the definition. A special contract, though, might show conclusively, and is always evidence to prove, that one

66 Gastenhofer v. Clair, 10 Daly (N. Y.) 265.

67 LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148; Moon v. Yarian, 147 Ill. App. 383; Magee v. Pacific Imp. Co., 98 Cal. 678, 33 Pac. 772, 35 Am. St. Rep. 199; Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, 42 L. R. A. (N. S.) 122; Norcross v. Norcross, 53 Me. 169; Hancock v. Rand, 94 N. Y. 1, 46 Am. Rep. 112; Lima v. Dwinelle, 7 Alb. Law J. (N. Y.) 44; Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417; Hall v. Pike, 100 Mass. 495; Walling v. Potter, 35 Conn. 183, 185; Richmond v. Smith, 8 Barn. & C. (Eng.) 9, 11; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416; Parker v. Flint, 12 Mod. (Eng.) 254, 255; Allen v. Smith, 12 C. B. N. S. (Eng.) 638.

68 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Shoecraft v. Bailey, 25 Iowa, 553.

69 Ross v. Mellin, 36 Minn. 421, 32 N. W. 172; Jalie v. Cardinal, 35 Wis.

or more of these elements is lacking, thereby establishing that the person is not a guest. Thus, where the person agrees, in consideration of a special rate, to remain at the inn an extended period of time, this could negative the idea of his being a transient; or the special agreement might show that, even when his stay is very short, the person is not to patronize the inn as such, but for other purposes. A guest, then, is a (1) transient (2) who patronizes the inn as such (3) with the consent of the innkeeper; and all the surrounding facts and circumstances that are relevant, including the special agreement where there is one, are to be taken into consideration in solving this question of fact.

It is clear, from what has been said, that the same establishment may have a double character, being both a boarding house and an inn. Thus, it would be an inn as to transients patronizing it; while as to those living there as residents, under special contracts showing them not to be transients, it would be a mere boarding house. Under such circumstances, the keeper of the inn would be liable, as an innkeeper to his guests, as a boarding house keeper to his boarders.

70

DURATION OF THE RELATION

92. The relation of innkeeper and guest begins when the guest is accepted as such, and continues until it is terminated in one of the ways subsequently to be considered.

71

When a transient applies to the innkeeper for entertainment and is accepted by the latter, he immediately becomes a guest. Some of the cases contain expressions to the effect that "taking the room is the decisive act to create the relation;" 72 but it is clear, from what has already been said in discussing who are guests, that it is by no means essential that one be assigned a room in order to create the relation." The relation dates from the innkeeper's ac

To Cromwell v. Stephens, 2 Daly (N. Y.) 15; Seward v. Seymour, Anthon Law Stud. (N. Y.) 51; LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148.

71 Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Ross v. Mellin, 36 Minn. 421, 32 N. W. 172; Healey v. Gray, 68 Me. 489, 28 Am. Rep. 80.

72 McDaniels v. Robinson, 26 Vt. 316, 324, 62 Am. Dec. 574. And see, as giving color to this view, Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32, 4 N. E. 398, 58 Am. Rep. 785.

73 Since merely buying liquor has, as we have seen, been held sufficient to make one a guest. Kopper v. Willis, 9 Daly (N. Y.) 460; McDonald v. Edgerton, 5 Barb. (N. Y.) 560; Fitch v. Casler, 17 Hun (N. Y.) 126, 127; Atkinson v. Sellers, 5 C. B. N. S. (Eng.) 442, 448; Bennet v. Mellor, 5 Term R.

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