nuisance, clearly the innkeeper need not receive them. There must also be some reasonable limitations on the amount and value of the goods, but it seems that the innkeeper cannot refuse to receive the goods because they are not solely for the use of the traveler on the journey or do not come within the technical definition of baggage. Ordinarily the innkeeper cannot question the traveler's title to the goods before receiving them, unless he knew, or had good reason to believe, they were stolen.*

Duty to Receive Persons Coming to See the Guest

When there is any duty resting on the innkeeper to receive into the inn persons coming to see the guest, such duty springs from the right of the guest to have such persons admitted, and these persons have accordingly no basis of their own upon which they can claim admission to the inn. Thus the innkeeper should receive a stranger who comes to make a mere social call on the guest, at the previous request of the latter.10 The same is true. of one coming by previous engagement on a mission of business. with the guest.1 But the landlord may exclude unbidden solicitors who resort to the inn, seeking to obtain the patronage of the guest.12 Whether the innkeeper can discriminate in this last case, allowing certain persons the privilege and denying the same privilege to others, is not entirely clear. It would seem that he can thus discriminate, provided he does not thereby violate his duty to care properly for the comfort and welfare of the guest.1

11

SAME THE DUTY TO CARE FOR THE COMFORT AND SAFETY OF THE GUEST

95. The innkeeper must exercise reasonable care to provide for the comfort and safety of his guest.

See cases cited in preceding note.

8 ROBINS & CO. v. GRAY, [1895] 2 Q. B. (Eng.) 501, Dobie Cas. Bailments and Carriers, 164.

See, on this subject, Beale, Innkeepers, §§ 82-88.

10 Beale, Innkeepers, § 84. See, too, a qualification of such right in Commonwealth v. Mitchell, 2 Pars. Eq. Cas. (Pa.) 43; Id., 1 Phila. (Pa.) 63.

11 Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209; State v. Steele, 106 N. C. 766, 11 S. E. 478, 8 L. R. A. 516, 19 Am. St. Rep. 573.

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

13 This question is discussed in Beale, Innkeepers, § 87, 1 Wyman, Public Service Corporations, § 493, and Markham v. Brown, 8 N. H. 523, 31 Am. Dec. 209. An exception is found to the innkeeper's right thus to discriminate when it touches the travel of the guest, and it is held he cannot permit one line of stagecoaches to solicit the right to take away departing guests, and exIclude all other lines.

15

By virtue of the relation, the law imposes upon the innkeeper the duty of exercising reasonable care in looking after the comfort and safety of the guest. The innkeeper, however, is in no sense an insurer in this respect. This duty of the innkeeper is manifest along three practical lines. He must see to the (1) physical condition of the inn; (2) the food supplied to his guests; and the (3) safety of the guests from attack or similar harm. Thus (1) he must use ordinary care to see that elevators 1o are kept in good condition, and that proper protection against fire 17 and due precautions as to sanitation 18 are taken. With equal care, (2) he must look to the quantity and wholesomeness of the food served.1 The person of the guest should be (3) with like care protected from assault or attack by persons 20 in the inn, whether servants, other guests, or strangers. When the landlord has used ordinary care, he has fulfilled his duty and the guest has no right to demand more. Accordingly, in the matter of accommo

14 Hilton v. Adams, 71 Me. 19; Stott v. Churchill, 157 N. Y. 692, 51 N. E. 1094; Stringfellow v. Grunewald, 109 La. 187, 33 South. 190; Gilbert v. Hoffman, 66 Iowa, 205, 23 N. W. 632, 55 Am. Rep. 263; WEEKS v. MCNULTY, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693, Dobie Cas. Bailments and Carriers, 156; Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733, 97 Am. St. Rep. 517; Clancy v. Barker, 71 Neb. 83, 98 N. W. 440, 103 N. W. 446, 69 L. R. A. 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682.

15 WEEKS v. MCNULTY, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693, Dobie Cas. Bailments and Carriers, 156; Stringfellow v. Grunewald, 109 La. 187, 33 South. 190; Clancy v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69 L. R. A. 653.

16 Stott v. Churchill, 157 N. Y. 692, 51 N. E. 1094; Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945. Other cases as to defective premises are Morris v. Zimmerman, 138 App. Div. 114, 122 N. Y. Supp. 900 (fall of plaster); Hotel Ass'n of Omaha v. Walters, 23 Neb. 280, 36 N. W. 561 (defective railing); Burchmore v. Antlers Hotel Co., 54 Colo. 314, 130 Pac. 846 (defective chair), and Ritter v. Norman, 71 Wash. 563, 129 Pac. 103, 43 L. R. A. (N. S.) 657 (dark stairway).

17 WEEKS v. MCNULTY, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693, Dobie Cas. Bailments and Carriers, 156; Acton v. Reed, 101 App. Div. 507, 93 N. Y. Supp. 911.

18 Gilbert v. Hoffman, 66 Iowa, 205, 23 N. W. 632, 55 Am. Rep. 263; Patrick v. Springs, 154 N. C. 270, 70 S. E. 395, Ann. Cas. 1912A, 1209. There are statutes in many states on this point. For a case construing such a statute, see Hubbell v. Higgins, 148 Iowa, 36, 126 N. W. 914, Ann. Cas. 1912B, 822.

19 Stringfellow v. Grunewald, 109 La. 187, 33 South. 190; Atwater v. Sawyer, 76 Me. 539, 49 Am. Rep. 634.

20 Protection from other guests: Rommel. v. Schambacher, 120 Pa. 579, 11 Atl. 779, 6 Am. St. Rep. 732; Curran v. Olson, 88 Minn. 307, 92 N. W. 1124, 60 L. R. A. 733, 97 Am. St. Rep. 517. Protection from assaults by servants: Clancy v. Barker, 131 Fed. 161, 66 C. C. A. 469, 69 L. R. A. 653; Overstreet v. Moser, 88 Mo. App. 72.

dations, all the law demands is that they be reasonable and proper. The innkeeper is not bound to provide for a guest the precise room or rooms that the latter may select.21

SAME-LIABILITY FOR THE GOODS OF THE GUEST

96. At common law, by the weight of authority, the innkeeper is liable as an insurer of the guest's goods brought within the inn, unless the loss or damage was due to act of God, public enemy or fault of the guest. Many cases, however, hold the innkeeper prima facie responsible; but he can escape liability by showing that the loss or injury was due to inevitable accident or irresistible force. A third line of cases allow the innkeeper exemption from responsibility on his showing that he was guilty of no negligence.

The Nature of the Liability—The Three Theories

In a discussion of the liability of the innkeeper for the goods brought by the guest into the inn, it should be noted at the outset that this liability is not dependent upon the existence of a strict bailment relation.22 Indeed, there is no practical difference in the measure of the innkeeper's liability between the case when by a delivery a technical bailment is created, and the case when the possession of the goods still remains in the guest, provided, in the latter case, the goods may be said to be in the general control of the innkeeper and not in the exclusive custody of the guest. Accordingly the innkeeper's liability can be worked out independently of the subject of bailments and can be grounded in public policy and based on the general custom of the realm.28

24

There is grave conflict as to the extent of the innkeeper's exceptional liability for loss of, or injury to, the goods of the guest. Three rules have been suggested: (a) The rule of strict insurance; (b) the rule of superior force; (c) the rule of prima facie responsibility.

21 De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Fell v. Knight, 8 Mees. & W. (Eng.) 269. See, also, Reg. v. Sprague, 63 J. P. (Eng.) 233.

22 See Beale, Innkeepers, § 182, pointing out how this distinction was not made by many eminent writers and judges.

23 See opinion of Cochrane, J., in CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149.

24 These three rules are explained in SIBLEY v. ALDRICH, 33 N. H. 553, 66 Am. Dec. 745, Dobie Cas. Bailments and Carriers, 158.

By (a) the rule of strict insurance, the innkeeper, like the common carrier, is an insurer as to the goods, with certain exceptions, against either loss or injury. Under (b) the rule of superior force, the innkeeper is prima facie liable for all loss or injury; but he may exempt himself from liability by showing that such loss or injury was due either to inevitable accident or to irresistible force. The (c) rule of prima facie liability permits the innkeeper to escape responsibility for loss or injury by a simple showing on his part that he was guilty of no negligence.

The weight of authority, certainly if dicta are included, and particularly the older cases, would seem to favor the first rule, that of strict insurance; but the second rule, that of superior force, it is believed, best commends itself to sound reason and most closely conforms to the spirit of modern legislation.

Under (a) the doctrine of strict insurance, innkeepers are practically under the same liability as common carriers. They are insurers of the goods of their guests brought within the inn, and are liable for loss or injury, unless caused by the act of God, public enemy, act of the law, inherent nature of the goods, or the neglect or fault of the owner or his servants. This very strict liability, it is said, was necessary, in order to protect travelers against any collusion between the innkeeper or his servants on the one hand and thieves or robbers on the other, and to compel him to take care that no improper persons be admitted into his house. Upon proof of loss, the burden of bringing the case within the exceptions to his liability rests upon the innkeeper; and proof of the strictest care on his part avails him nothing, if it falls short of this. The innkeeper was absolutely responsible for loss or injury, unless he could show that it was due to one of the specific exceptions. In the absence of such a showing, proof even that no human effort could have averted such loss or injury did not help the innkeeper. Of course, in modern times there does not exist (as there formerly did) either the same necessity of resorting to an inn for protection against thieves and robbers, or even the same danger of collusion. between such lawless persons and the innkeeper. Those courts, however, that cling to the rigor of the old rule making the innkeeper an insurer insist that sufficient other conditions still exist to make the rule a salutary one of sound public policy.25

25 Among the earliest English cases holding the innkeeper an insurer are Richmond v. Smith (1828) 8 B. & C. 9, and Morgan v. Ravey (1861) 6 H. & N. 265. In 2 Kent, Comm. 574, it is said: "An innkeeper, like a common carrier, is an insurer of the goods of his guest." See, also, Lucia v. Omel, 53 App. Div. 641, 66 N. Y. Supp. 1136; Cunningham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850, 57 Am. St. Rep. 878; Pettit v. Thomas, 103 Ark.

The second rule, the doctrine of superior force, proceeds on the ground that the doctrine of strict insurance places on the innkeeper an unfair and unnecessarily severe responsibility. The superior force rule regards the innkeeper as essentially human, and therefore proclaims that he should not be held responsible for what it was impossible for him to prevent, whether the unpreventable loss or injury was due to divine or human, public or private, animate or inanimate, agencies. Thus Redfield, C. J.,20 said, as to the rule holding the innkeeper an insurer: "This may be too strongly expressed if applied to all cases of goods taken from the custody of the innkeeper. For it may be done by superior force, and without his fault, and still not the force of a public enemy." The essential fairness of the superior force rule (less severe than that of strict insurance, more severe than that of prima facie liability) lies in the fact that the innkeeper's exceptional calling is recognized by placing his responsibility higher than that of an ordinary bailee, while the rule refuses to make him responsible for conditions which it was impossible for him to control. Such a rule, if fairly enforced, affords little or no temptation to the innkeeper to relax his precautions as to the safety of the goods of his guest.27

593, 148 S. W. 501, 42 L. R. A. (N. S.) 122; CRAPO v. ROCKWELL, 48 Misc. Rep. 1, 94 N. Y. Supp. 1122, Dobie Cas. Bailments and Carriers, 149; LUSK v. BELOTE, 22 Minn. 468, Dobie Cas. Bailments and Carriers, 148; Shaw v. Berry, 31 Me. 479, 52 Am. Dec. 628; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405; SIBLEY v. ALDRICH, 33 N. H. 553, 66 Am. Dec. 745, Dobie Cas. Bailments and Carriers, 158; Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772; Morgan v. Ravey, 6 Hurl. & N. (Eng.) 265; Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663; Burgess v. Clements, 4 Maule & S. (Eng.) 306; Richmond v. Smith, 8 Barn. & C. (Eng.) 9; Kent v. Shuckard, 2 Barn. & Adol. (Eng.) 803; Armistead v. White, 6 Eng. Law & Eq. 349; Mateer v. Brown, 1 Cal. 221, 52 Am. Dec. 303; Norcross v. Norcross, 53 Me. 163; Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590; Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688; Thickstun v. Howard, 8 Blackf. (Ind.) 535, 537; Sasseen v. Clark, 37 Ga. 242; Purvis v. Coleman, 21 N. Y. 111, 112, 117; Gile v. Libby, 36 Barb. (N. Y.) 70, 74; Ingalsbee v. Wood, 36 Barb. (N. Y.) 452, 458; Washburn v. Jones, 14 Barb. (N. Y.) 193, 195; McDonald v. Edgerton, 5 Barb. (N. Y.) 560, 564; Taylor v. Monnot, 4 Duer (N. Y.) 116; Stanton v. Leland, 4 E. D. Smith (N. Y.) 88, 94; Piper v. Manny, 21 Wend. (N. Y.) 282, 284; Clute v. Wiggins, 14 Johns. (N. Y.) 175, 7 Am. Dec. 44; Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417, 427; Towson v. Havre-de-Grace Bank, 6 Har. & J. (Md.) 47, 14 Am. Dec. 254; 1 Smith, Lead. Cas. (Hare & W. Notes) 307; Fuller v. Coats, 18 Ohio St. 343, 349, 350 (and see Palace Hotel Co. v. Medart, 87 Ohio St. 130, 100 N. E. 317, Ann. Cas. 1913E, 860, as to qualification of the common-law rule by statute).

26 McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574.

27 JOHNSON v. CHADBOURN FINANCE CO., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571, Dobie Cas. Bailments and Carriers, 159; Merritt v. Clag