ceptance, and that is the decisive factor. Its inception has nothing essentially to do with the receipt of any specific form of entertainment. The request for entertainment at the inn may be, and in fact often is, implied from the conduct of the intending guest, and he may be received as a guest in the same way. The personal assent of the innkeeper to receiving the guest, as we have seen, is not necessary; it may be given by an employé or agent authorized to do so."

The relation of innkeeper and guest, once established, continues until terminated in one of the ways later to be discussed.75 The mere temporary absence of the guest from the inn, however, does not terminate the relation; 76 while the mere lapse of time in no way affects it, provided only that the guest still retains his character as a transient."

RIGHTS AND DUTIES OF INNKEEPER-IN GENERAL

93. The duties of the innkeeper consist primarily of— (a) The duty to receive guests.

(b) The duty to care for the comfort and safety of the guest. (c) The duty to care for the goods of the guest.

The rights of the innkeeper turn chiefly about his compensation and his lien on the goods of the guest to secure that compensation.

Analysis

The rights and duties of the innkeeper will be considered according to the following analysis:

(a) The duty to receive guests.

(b) The duty to care for the comfort and safety of the guest. (c) The liability for the goods of the guest.

(1) The nature of the liability.

(2) For what goods liable.

(3) Limitation of the liability.

(Eng.) 273.

See, also, cases cited in notes 53 and 54, holding persons guests who did not take lodgings.

74 Gastenhofer v. Clair, 10 Daly (N. Y.) 265; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657. See cases cited in notes 64, 65.

75 Post, § 104.

76 Brown Hotel Co. v. Burckhardt, 13 Colo. App. 59, 56 Pac. 188; Hays v. Turner, 23 Iowa, 214; Day v. Bother, 2 H. & C. (Eng.) 14.

77 Jalie v. Cardinal, 35 Wis. 118. See, also, cases cited in notes 67 and 68.

(i) Nature and extent of the lien.

(ii) Waiver of the lien.

(iii) Enforcement of the lien.

(e) The liability of the innkeeper as an ordinary bailee. (1) As an ordinary bailee for hire.

(2) As a gratuitous bailee.

In General

The innkeeper has been defined and distinguished from those whose occupations seem to lie closest to him. Attention has also been directed to the question of who is a guest, and it has been seen that the innkeeper is technically such only as to one who is his guest. We next proceed to discuss the nature and extent of the rights and duties implied by law as inhering in the relation of innkeeper and guest, and this discussion turns about the analysis given above. This discussion forms naturally the most important part of the law of innkeepers.

SAME THE DUTY TO RECEIVE GUESTS

94. The innkeeper is bound, provided he has accommodations for them, to receive as guests all proper persons who come to his inn, and who are able and willing to pay for their entertainment.

In General

The innkeeper by holding out his house as a public place to which travelers may resort thereby surrenders some of the rights which he would otherwise have over it." He, according to Lord Holt, "has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King's subjects that will employ him." " By becoming, in a sense, a public servant, the innkeeper acquires certain unique

78 The ground upon which these restrictions are imposed is that persons engaged in this vocation are in some sense servants of the public, and in conducting their business they exercise a privilege conferred upon them by the public, and they have secured to them by the law certain privileges and rights which are not enjoyed by the members of the public generally. Bowlin v. Lyon, 67 Iowa, 536, 25 N. W. 766, 56 Am. Rep. 355. And cf. Beale v. Posey, 72 Ala. 323, 330; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969.

79 Lane v. Cotton, 12 Mod. (Eng.) 472.

80

privileges, and owes to the public unique duties. Holding out the inn as a public place of entertainment for travelers, he cannot refuse to serve proper persons who come under that character, in a proper manner, and at suitable times, so long as he has the means of accommodation for them.8 Subject to the limitations about to be discussed, as was said in a leading English case: 81 "The innkeeper is not to select his guests. He has no right to say to one, You shall come into my inn, and to another, You shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." The innkeeper, therefore, holding himself out to serve the public indifferently, must, in the absence of a good excuse, live up to his holding out.

This duty to receive as guests all proper persons who apply is imposed by law, and for any violation of it by the innkeeper there are remedies both criminal and civil. For a wrongful refusal to receive a person as a guest, it is held that the innkeeper may be indicted and held criminally liable.82 The person whom he wrongfully declined to receive may bring a civil action s against the innkeeper and recover such damages as he suffered in consequence of the wrong. In exceptional cases, even punitive damages may sometimes be recovered

84

Excuses for Refusal to Receive Guests

83

Of course, the innkeeper's duty is commensurate with his facilities and he is not liable for refusal to accept a guest, when

80 Cornell v. Huber, 102 App. Div. 293, 92 N. Y. Supp. 434; Willis v. McMahon, 89 Cal. 156, 26 Pac. 649; Watkins v. Cope, 84 N. J. Law, 143, 86 Atl. 545; Kirkman v. Shawcross, 6 Term R. (Eng.) 14, 17; Rex v. Ivens, 7 Car. & P. (Eng.) 213. That he cannot refuse accommodation to an infant or a married woman traveling alone, see Watson v. Cross, 2 Duv. (Ky.) 147. An innkeeper is not bound to receive and keep horses or other property of a person who is neither a traveler nor a guest. Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663.

81 Rex v. Ivens, 7 Car. & P. (Eng.) 213.

82 Commonwealth v. Mitchell, 2 Pars. Eq. Cas. (Pa.) 431; Id., 1 Phila. (Pa.) 63; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416; Rex v. Ivens, 7 Car. & P. (Eng.) 213. See admirable summing up of Coleridge, J., in this last case.

83 Watson v. Cross, 2 Duv. (Ky.) 147, 148; Hawthorn v. Hammond, 1 Car. & K. (Eng.) 404; Cornell v. Huber, 102 App. Div. 293, 92 N. Y. Supp. 434; Willis v. McMahon, 89 Cal. 156, 26 Pac. 649; McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 574, 39 Am. St. Rep. 699. The last two cases cited are also interesting as to the elements of damages recoverable against the innkeeper. See, also, on that subject, Malin & Browder v. McCutcheon, 33 Tex. Civ. App. 387, 76 S. W. 586.

84 McCarthy v. Niskern, 22 Minn. 90 (person turned away with abusive and insulting language).

86

his inn is full and his accommodations are exhausted." Again, he is not obliged to receive one who is not able and willing to pay for his entertainment, and such payment may be demanded in advance.87 Even his public profession does not demand that he make the inn a common receptacle for all comers, regardless of their character and condition. And, by virtue of his duty properly to care for and protect his guests, it is imperative that certain persons should be excluded from the inn. The innkeeper violates no duty, unless the one he declined to receive was a proper person.

89

Accordingly it has been held that the innkeeper is justified in refusing to receive one who is drunk,ss or disorderly, or suffering from a contagious disease," or filthy," persons of evil reputation," thieves or common brawlers,93 persons coming to the inn for an illegal purpose," and prizefighters, who violate the criminal laws against prizefighting. But it has been held that an innkeeper cannot refuse to accept a person because he lives in the same town, if he is a traveler," one whose costume is uncon

95

85 Browne v. Brandt, [1902] 1 K. B. (Eng.) 696, 71 L. J. K. B. 367. Gordon v. Sieber, 25 Q. B. D. (Eng.) 491. Commonwealth v. Mitchell, 2 Pars. Eq. Cas. (Pa.) 431; Id., 1 Phila. (Pa.) 63.

86 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Thompson v. Lacy, 3 Barn. & Ald. (Eng.) 283, 286; Watson v. Cross, 2 Duv. (Ky.) 147; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663. The price of accommodation need not be tendered unless it is demanded or the refusal to receive is on that ground. Rex v. Ivens, 7 Car. & P. (Eng.) 213. But see Fell v. Knight, 8 Mees. & W. (Eng.) 269, 276. 87 Bac. Abr. "Inns and Innkeepers," C; Beale, Innkeepers, § 244; Mulliner v. Florence, 3 Q. B. D. (Eng.) 484, 47 L. J. Q. B. 700; Fell v. Knight, 8 M. & W. (Eng.) 276.

88 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Rex v. Ivens, 7 Car. & P. (Eng.) 213.

89 Beale v. Posey, 72 Ala. 323; Goodenow v. Travis, 3 Johns. (N. Y.) 427. * Beale, Innkeepers, § 93; Levy v. Corey, 1 City Ct. R. Supp. (N. Y.) 57. 91 State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573; Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209.

92 Goodenow v. Travis, 3 Johns (N. Y.) 427.

93 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; Bac. Abr. "Inns," A; 1 Hawk. P. C. c. 78, § 1.

94 Markham v. Brown, 8 N. H. 523, 528, 31 Am. Dec. 209.

95 NELSON v. BOLDT (C. C.) 180 Fed. 779, Dobie Cas. Bailments and Carriers, 155, an interesting case, in which "Bat" Nelson, a notorious prize fighter, was ejected from the Bellevue Stratford Hotel in Philadelphia and was denied a recovery.

96 In such cases, the fact that the person presenting himself is an inhabitant is important only in so far as it may tend to prove that he is not a transient. See note 45 for cases in which such townsmen were held to be guests. The note to Walling v. Potter, 9 Am. Law Reg. (N. S.) 618, to the

ventional, but decent," or a married woman or infant traveling alone. Nor can he refuse to receive a militiaman, because other men wearing the same uniform have conducted themselves improperly in the inn."

The question whether an innkeeper, in this country, can legally refuse to accept a negro has caused much comment.1 Such refusal has been justified on the ground that an innkeeper can exclude persons who will be objectionable to his guests, or subject them to annoyance. Mr. Beale says that this is too broad and "that it is not likely, however, that the law would permit an innkeeper to tender his house for the use only of members of a certain race or to persons of a certain color." The question is complicated further by state statutes forbidding race distinctions in hotels, by "civil rights acts," both state and federal, and by the fact that it would not be unnatural to expect different holdings on the general question in different parts of the country. Duty to Receive the Goods of the Guest

4

As an incident of the innkeeper's duty to receive the guest, he must also receive into the inn the goods of the latter. If this were not true, the right of the guest to demand that he be received might prove a very futile one, and particularly was this true of the early times when the inn was a haven of refuge for the traveler. If the goods are dangerous in themselves, or would be a

effect that the innkeeper need not receive a townsman, is not supported by reason or authority.

97 Reg. v. Sprague, 63 J. P. (Eng.) 233.

98 Watson v. Cross, 2 Duv. (Ky.) 147.

99 Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634.

1 See Beale, Innkeepers, §§ 65, 92; Stephenson, Race Distinctions in American Law, p. 124.

2 See State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573.

3 Beale, Innkeepers, § 65.

4 For references to the codes of particular states which have passed such statutes, and for citations to cases construing such state statutes and upholding their constitutionality, see 7 Cyc. "Civil Rights," pp. 165-167.

5 See, on this subject, 7 Cyc. "Civil Rights," pp. 163-165. The leading case on this subject is, of course, the Civil Rights Cases, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835. Here the first and second sections of the celebrated Civil Rights Act of March 1, 1875 (18 Stat. 335, c. 114 [U. S. Comp. St. 1901, p. 1260]), were declared unconstitutional by the United States Supreme Court, as being authorized neither by the thirteenth nor fourteenth amendments to the United States Constitution.

• Beale, Innkeepers, § 68; ROBINS & CO. v. GRAY, [1895] 2 Q. B. (Eng.) 501, Dobie Cas. Bailments and Carriers, 164; Threfall v. Borwick, L. R. 10 Q. B. (Eng.) 210; Mulliner v. Florence, 3 Q. B. D. (Eng.) 484; 17 Halsbury, Laws of England, pp. 307, 308.