The third doctrine, that of prima facie liability, is, of course, the most favorable to the innkeeper, and permits him, as in the case of the ordinary bailee, to excuse himself by a simple showing that he was not guilty of negligence. It will readily be seen that this showing is much less onerous than is the superior force rule, for here the innkeeper is not obliged to show that the loss or injury was due to a force either inevitable or irresistible, but simply that he used due care to avert injury from the force. If he used due care in the premises, he is not liable, though the accident was not inevitable nor the force irresistible.28

Finally, in this connection, it might be observed that under all the doctrines a prima facie case is made out against the innkeeper by showing loss of, or injury to, the goods.29 The rules differ, then, in the showing that the innkeeper must make to offset the prima facie case thus made out. Under the rule of strict insurance, he must bring the case within a few arbitrary exceptions without regard to his own care or caution. The superior force rule requires him to show that the agency causing the loss or injury was irresistible or inevitable, regardless of its nature. The doctrine of prima facie liability requires only that he show the absence of negligence on his part, that is, that he exercised due care under the conditions of the particular case.

`Accidental Fires

Though the rule of strict insurance may seem to be most consistent with the theory on which an exceptional liability is imposed horn, 23 Vt. 177; Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Kisten v. Hildebrand, 9 B. Mon. (Ky.) 72, 48 Am. Dec. 416; Woodworth v. Morse, 18 La. Ann. 156; Cutler v. Bonney, 30 Mich. 259, 18 Am. Rep. 127. The cases are not clear in announcing the exact limits of the innkeeper's liability; and a great many fail to distinguish between the rule of superior force and the rule of prima facie liability, so that one rule is really laid down by the case which the court either fails to designate or designates inaccurately. See JOHNSON v. CHADBOURN FINANCE CO., supra.

28 This is often referred to as the rule of Calye's Case, 8 Coke (Eng.) 63, decided in 1574, holding "the innkeeper shall not be charged, unless there be a default in him or his servants in the well and safe keeping of the custody of their guest's goods and chattels within his common inn." See Edwards, Bailm. 406; Dawson v. Chamney, 5 Q. B. (Eng.) 164; METCALF v. HESS, 14 Ill. 129, Dobie Cas. Bailments and Carriers, 160; Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369; Laird v. Eichold, 10 Ind. 212, 71 Am. Dec. 323; Burnham v. Young, 72 Me. 273; Trieber v. Burrows, 27 Md. 130; Hulbert v. Hartman, 79 Ill. App. 289.

29 Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369; Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St. Rep. 444; Eden v. Drey, 75 Ill. App. 102; Sasseen v. Clark, 37 Ga. 242; Watt v. Kilbury, 53 Wash. 446, 102 Pac. 403.

on innkeepers, the rule seems hardly able to bear the test of reason in cases in which the goods of the guest are destroyed by an accidental fire, in no way due to the innkeeper's own negligence or that of his servants. In such cases, the courts have been unusually slow to apply the doctrine of strict insurance, when the innkeeper could not be held responsible under either of the other two rules.30 The contrary was held in New York, in Hulett v. Swift; 31 but it is worthy of note that a statute was passed soon after, exempting innkeepers from liability for such fires. And so, by statutes in a number of states, innkeepers are answerable to their guests, in case of loss or injury by fire, only when they fail to exercise ordinary and reasonable care in the custody of their baggage or other goods.

Loss by Robbery, Riots, and Theft

Much that has been said on the subject of accidental fires is applicable to cases of robbery or riot from without the inn, when the innkeeper is in no way at fault, though such cases have been rare in the courts.32

But this unwillingness to hold the innkeeper liable, on the part of courts claiming to uphold the doctrine of strict insurance, is not manifest where the theft is committed by some person, whether guest or servant, within the inn. Against such loss the innkeeper is expected to provide carefully, and both in the selection of his servants and in admitting guests to the inn he becomes in a measure responsible for their conduct. Accordingly, for such losses, the innkeeper is usually liable under all three of the rules, unless some fault can be traced to the guest whose goods were thus stolen.83

30 JOHNSON v. CHADBOURN FINANCE CO., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571, Dobie Cas. Bailments and Carriers, 159; Cutler v. Bonney, 30 Mich. 259, 18 Am. Rep. 127; Merritt v. Claghorn, 23 Vt. 177. And see Vance v. Throckmorton, 5 Bush (Ky.) 42, 96 Am. Dec. 327; Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244.

31 33 N. Y. 571, 88 Am. Dec. 405. See, also, FAY v. PACIFIC IMP. CO., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, Dobie Cas. Bailments and Carriers, 146; Pettit v. Thomas, 103 Ark. 593, 148 S. W. 501, 42 L. R. A. (N. S.) 122.

82 See Rev. Civ. Code La. art. 2939; Woodworth v. Morse, 18 La. Ann. 156. In most of the cases before the courts the evidence has tended to show negligence on the innkeeper's part, which is sufficient to hold the innkeeper liable under any of the rules. Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657; Woodward v. Birch, 4 Bush (Ky.) 510. And see Mateer v. Brown, 1 Cal. 221, 231, 52 Am. Dec. 303.

33 Woodworth v. Morse, 18 La. Ann. 156; Wies v. Hoffman House, 28 Misc. Rep. 225, 59 N. Y. Supp. 38; Shultz v. Wall, 134 Pa. 262, 19 Atl. 742, 8 L R. A. 97, 19 Am. St. Rep. 686; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec.

Act of God or the Public Enemy

No case seems to extend the innkeeper's liability beyond that of the common carrier and to hold him responsible for any loss or injury due, without fault on his part, either to an act of God or the public enemy. The meaning of the two terms will be fully explained under carriers of goods.

84

Inherent Nature of the Goods

Another well-recognized exception to the innkeeper's liability (even when he is held as an insurer) is in cases of loss or injury caused solely by the inherent nature of the goods.35 Thus, when fruits perish, or volatile liquids evaporate, or horses sicken and die, without fault on the part of the innkeeper, he is in no wise held responsible for such loss or damage, even by courts holding the doctrine of strict insurance. This is sometimes considered as falling under the act of God.

Public Authority

36

Nor would the innkeeper be liable, even under the doctrine of strict insurance, when the goods were taken from the inn by public authority. It is hardly necessary to point out the inconsistency of a system of law that ordered a person to surrender goods and then held him responsible for yielding to its mandate. Accordingly, when the goods of the guest are affected with contagious diseases, and are taken by public power and burned, or when they are seized in execution, attachment, or similar process, the innkeeper must surrender the goods, and incurs no responsibility by so doing.

Fault of Guest or His Servant or Companion

An innkeeper is not liable for the loss of the goods of the guest, when the loss is due to the fault or negligence of the guest himself, or that of his servants or companions.38 Thus an un

37

574; Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451.

84 Mason v. Thompson, 9 Pick. (Mass.) 283, 20 Am. Dec. 471; Richmond v. Smith, 8 B. & C. (Eng.) 9. But if the innkeeper is negligent in failing to protect the goods from the act of God, he is liable. Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555.

35 Howe Machine Co. v. Pease, 49 Vt. 477; METCALF v. HESS, 14 Ill. 129, Dobie Cas. Bailments and Carriers, 160.

36 This principle is applicable to bailments in general (as we have seen), and (as we shall see) even forms an exception to the rigid insuring liability of the common carrier of goods. See ante, § 16; post, p. 338.

87 Watson v. Loughran, 112 Ga. 837, 38 S. E. 82; Purvis v. Coleman, 21 N. Y. 111; Fowler v. Dorlon, 24 Barb. (N. Y.) 384; LANIER v. YOUNG

38 Houser v. Tully, 62 Pa. 92, 1 Am. Rep. 390; Calye's Case, 8 Coke (Eng.) 32.

40

necessary display of money or valuables, or leaving them where they would tempt thieves, may be such negligence." But failure to lock or bolt his door is not necessarily negligence on the part of the guest. It is evidence, however, from which a jury under varying circumstances either may or may not find the guest guilty of negligence. Nor is the innkeeper exonerated because a theft is committed by a fellow guest, with whom the owner of the stolen goods had consented to occupy the same room.*2

41

As usually invoked, the rule is simply an application of the great doctrine of contributory negligence. Accordingly, there

BLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451; Walsh v. Porterfield, 87 Pa. 376; Mason v. Thompson, 9 Pick. (Mass.) 280, 20 Am. Dec. 471; Berkshire Woolen Co. v. Proctor, 7 Cush. (Mass.) 417; Jalie v. Cardinal, 35 Wis. 118, 130; Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654; Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590; Elcox v. Hill, 98 U. S. 218, 25 L. Ed. 103; Morgan v. Ravey, 6 Hurl. & N. (Eng.) 265; Cashill v. Wright, 6 El. & Bl. (Eng.) 891; Oppenheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515. But see Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 52 Am. Rep. 806. An innkeeper is liable for the safe-keeping of the valise and box of a peddler, his guest, although he was not notified of the nature and value of their contents, and the peddler was too drunk to take proper care of it. Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N. W. 954, 52 Am. Rep. 806. Evidence of gross neglect of the owner of property, to exempt the innkeeper from liability for its loss, must be confined to the period while he was a guest at the innkeeper's house. Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590.

39 Cunningham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850, 57 Am. St. Rep. 878; Armistead v. Wilde, 17 Q. B. (Eng.) 261; Cashill v. Wright, 6 El. & Bl. (Eng.) 891. Whether or not this is negligence would depend on the circumstances of the particular case.

40 Fuller v. Coats, 18 Ohio St. 343; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; Buddenburg v. Benner, 1 Hilt. (N. Y.) 84; Classen v. Leopold, 2 Sweeney (N. Y.) 705; Gile v. Libby, 36 Barb. (N. Y.) 70; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754; Bohler v. Owens, 60 Ga. 185; LANIER v. YOUNGBLOOD, 73 Ala. 587, 594, Dobie Cas. Bailments and Carriers, 162; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451; Batterson v. Vogel, 10 Mo. App. 235; Profilet v. Hall, 14 La. Ann. 524; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896; Herbert v. Markwell, 45 Law T. N. S. (Eng.) 649; Morgan v. Ravey, 2 Fost. & F. (Eng.) 283, 6 Hurl. & N. 265; Oppenheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515; Mitchell v. Woods, 16 Law T. N. S. (Eng.) 676.

41 Bohler v. Owens, 60 Ga. 185; Spring v. Hager, 145 Mass. 186, 13 N. E. 479, 1 Am. St. Rep. 451; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754; Oppenheim v. Hotel Co., L. R. 6 C. P. (Eng.) 515; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896; Herbert v. Markwell, 45 Law T. N. S. (Eng.) 649.

42 Olson v. Crossman, 31 Minn. 222, 17 N. W. 375; Gile v. Libby, 36 Barb. (N. Y.) 70; Buddenburg v. Benner, 1 Hilt. (N. Y.) 84. If the fellow guest be the companion of the guest, and shares the room at the instance of the guest, then the innkeeper is not liable. See Calye's Case, 8 Coke (Eng.) 32; Horslow's Case, Y. B. 22 Hen. VI, 21, pl. 38.

43

must first be fault or negligence on the part of the guest, or some one whose conduct is chargeable to him, and next this must have contributed to the loss. Thus, when the guest gave detailed instructions to the innkeeper as to the method of caring for the goods, and loss occurs as a result of following such instructions, there can be no recovery."

46

45

The question of what acts on the part of the guest constitute negligence, and whether they contributed to the loss, is one of fact for the jury, to be determined by the facts of each case, unless both the facts and the inference to be drawn from the facts are so clear that the judge can take the question from the jury and decide it himself as a matter of law. The case probably most frequently before the courts is the guest's failure to lock or bolt the door of his room. It is impossible to say this is, or is not, negligent, without stating the facts of the individual case. Thus the value of the property kept in the room, knowledge of such value by persons about the inn, the character of such persons, the location of the room rendering unobserved access to it easy or difficult, and many other considerations, might enter into the problem. The same might be said as to a guest's publicly exhibiting his money or other valuables.48 In the absence of statute or unique circumstances, it is ordinarily held that the guest's retention of valuables in his possession, or the failure of the guest to inform the innkeeper of the value of a package deposited with him,5° is not of itself such negligence as will bar a recovery by the guest for loss of, or damage to, the goods.

48 LANIER v. YOUNGBLOOD, 73 Ala. 587, Doble Cas. Bailments and Carriers, 162; Armistead v. Wilde, 7 Q. B. (Eng.) 261.

44 Owens v. Geiger, 2 Mo. 39, 22 Am. Dec. 435.

45 Jefferson Hotel Co. v. Warren, 128 Fed. 565, 63 C. C. A. 193; Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654. The burden of proving this rests on the innkeeper. If, in spite of such negligence on the guest's part, the innkeeper might, by the exercise of reasonable care, still have averted the loss, the innkeeper is liable. Watson v. Loughran, 112 Ga. 837, 38 S. E. 82. As to what is contributory negligence on the part of the guest, see Eden v. Drey, 75 Ill. App. 102; Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St. Rep. 444.

46 LANIER V. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162.

47 See cases in notes 40 and 41

48 See cases cited in note 39.

49 Smith. v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754.

50 Baehr v. Downey, 133 Mich. 163, 94 N. W. 750, 103 Am. St. Rep. 444; Bowell v. De Wald, 2 Ind. App. 303, 28 N. E. 430, 50 Am. St. Rep. 240; Coskery v. Nagle, 83 Ga. 696, 10 S. E. 491, 6 L. R. A. 483, 20 Am. St. Rep. 333.