case a mere bailee, and responsible accordingly." One may be an innkeeper without being a bath-house keeper, or he may be a bathhouse keeper without being an innkeeper, or the same person may engage in both employments, without incurring the liability of an innkeeper in transactions falling within his employment as the keeper of a bath-house. In like manner, a livery stable keeper may also be a common carrier of passengers; but by so doing he does not become responsible in the one capacity for liabilities incurred in the other. This does not apply to bathrooms attached to or kept within hotels, but to separate buildings, erected upon the seashore, and used solely as places in which those who bathe in the sea change their garments, and leave their clothes and other valuables. while so bathing.

Exceptions to Innkeeper's Extraordinary Liability-Goods for Show or for Sale

A well-defined exception to the innkeeper's extraordinary liability exists when the guest applies for a room for the purpose of displaying goods for show or for sale." Thus, when the guest takes to his room, not merely goods for safe-keeping and articles for his personal use, but merchandise, such as watches and jewelry, for the purpose of show or sale, he is then using the inn, not only as an inn, but also as a showroom or salesroom. It is accordingly not contemplated that the exceptional responsibility imposed on the innkeeper by the common law should be stretched to cover such

cases.

The guest here, by becoming an active seller or exhibitor, and inviting the public to come and go in the room in which the goods. are exhibited, materially increases the risk of their loss, and the innkeeper is therefore, as to such goods, properly absolved from his special liability."

Same-Goods in Exclusive Possession of Guest

An innkeeper may be relieved from responsibility by showing that the guest whose goods have been lost or injured took them

76 Tombler v. Koelling, 60 Ark. 62, 28 S. W. 795, 27 L. R. A. 502, 46 Am. St. Rep. 146; Bird v. Everard, 4 Misc. Rep. 104, 23 N. Y. Supp. 1008.

77 2 Kent, Comm. 596; Story, Bailm. § 476; Fisher v. Kelsey, 121 U. S. 383, 7 Sup. Ct. 929, 30 L. Ed. 930, affirming (C. C.) 16 Fed. 71; Myers v. Cottrill, 5 Biss. 465, Fed. Cas. No. 9,985; Burgess v. Clements, 4 Maule & S. (Eng.) 306; Mowers v. Fethers, 61 N. Y. 34, 19 Am. Rep. 244; Becker v. Haynes (C. C.) 29 Fed. 441. Nor is the rule changed by the fact that the guest sleeps in the room with the articles. Myers v. Cottrill, supra. But for personal goods of the guest (not for show or sale) in the same room the innkeeper is liable as such.

78 Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555; Carter v. Hobbs, 12 Mich. 52, 83 Am. Dec. 762; Farnsworth v. Packwood, 1 Starkie (Eng.) 249.

into his exclusive custody; for the innkeeper's responsibility is coextensive only with his control of the goods." The rule is, of course, the same when the guest intrusts his goods to another guest or inmate, or excludes the innkeeper completely from control of the goods by any special arrangement inconsistent with such control.81

80

As we have already seen, however, it is not necessary, in order to impose liability on the innkeeper as such, that the goods be actually delivered to the innkeeper, so that a bailment is created. All that the law requires is that they be in his general control.82 A strong showing must therefore be made as to the guest's exclusive custody, in order that the innkeeper may escape from his high responsibility; and a large measure of personal control over the goods may be exercised by the guest, provided it be not exclusive of the innkeeper's general control, without abating the latter's liability. Thus the retention of needed money or valuables on the person of the guest is not ordinarily such exclusive possession as will excuse the innkeeper,83 nor is the fact that the guest directs his goods to be kept in a certain part of the inn, or that he ordered them taken for his personal use to his bedroom.85

84

SAME-SAME-LIMITATION OF THE INNKEEPER'S

LIABILITY

98. The liability of the innkeeper as to the goods of the guest may be limited:

(a) By contract.

(b) By statutes, which usually limit his liability:

(1) In some states, for losses above a certain amount.

(2) In a great many states, on his giving notice, for goods not delivered to the innkeeper to be put in his safe.

79 Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327; Weisenger v. Taylor, 1 Bush (Ky.) 275, 276, 89 Am. Dec. 626.

80 Sneider v. Geiss, 1 Yeates (Pa.) 34; Houser v. Tully, 62 Pa. 92, 1 Am. Rep. 390.

81 Vance v. Throckmorton, 5 Bush (Ky.) 41, 96 Am. Dec. 327.

82 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; Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560; Burrows v. Trieber, 21 Md. 320, 83 Am. Dec. 590.

83 Jalie v. Cardinal, 35 Wis. 118; Smith v. Wilson, 36 Minn. 334, 31 N. W. 176, 1 Am. St. Rep. 669.

84 Fuller v. Coats, 18 Ohio St. 343; Packard v. Northcraft, 2 Metc. (Ky.) 439. 85 Fuller v. Coats, 18 Ohio St. 343; Epps v. Hinds, 27 Miss. 657, 61 Am. Dec. 528; Shaw v. Ray, 1 Cr. & Dix, C. C. (Ireland) 84.

By Contract

86

The exceptional liability of the innkeeper, like that of the common carrier may, no doubt, be restricted, in a measure at least, by an express contract with the guest. Though there are few cases on the subject, it would seem that such contracts should be valid, provided they do not contravene a sound public policy. On principle, he should be permitted to reduce his liability by express contract to that of an ordinary bailee for hire.87 But, by virtue of his public profession and calling, he would hardly be permitted, if the analogy of the common carrier counts for anything, to exempt himself from the consequences of his negligence; and surely he could not contract away his liability arising out of his own fraud or active wrongdoing. Nor could he thus relieve himself from all responsibility for the acts of his servants.

The innkeeper, though, cannot reduce his liability, on the theory of an implied contract, by merely posting notices in a room, even though the guest occupy the room.88 Nor could he limit his responsibility by a mere printed heading in the register of an inn, even though the guest sign this register, unless the attention of the guest is directed to such heading or notice and he indicates his assent thereto.89

86 On this point, Mr. Schouler says: "The right of mitigating this responsibility by special contract with the particular guest receives, thus far, but slight attention from our courts; yet, if analogies can serve us, they tend plainly to the conclusion that any innkeeper may make a qualified or limited acceptance of his guest's property, though not, in America at least, to the extent of divesting himself of all responsibility for the acts of servants, fellow lodgers, or others about the inn, nor certainly so as to excuse misconduct or the want of ordinary care on his own part." Schouler, Bailm. (2d Ed.) § 309. The right is also recognized by Kent (2 Comm. 594), Van Zile (Bailm. & Carr. § 372), and Goddard (Bailm. & Carr. § 186). Mr. Beale, however (Beale, Innkeepers, § 211), seems to question the right; and though the question was not involved in Lane v. Cotton, 1 Salk. (Eng.) 17, Holt, C. J., said that innkeepers are "bound to keep, safely, and answer all neglects of those that act under them; and so they would be, though they expressly caution against it."

87 See the following cases, bearing on the right of the innkeeper thus to limit his liability by contract: Sanders v. Spencer, 3 Dyer (Eng.) 266b; Richmond v. Smith, 8 B. & C. (Eng.) 9, 15 E. C. L. 144; Van Wyck v. Howard, 12 How. Prac. (N. Y.) 147; Fuller v. Coats, 18 Ohio St. 343; McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657.

88 Bodwell v. Bragg, 29 Iowa, 232. And see Burbank v. Chapin, 140 Mass. 123, 2 N. E. 934.

89 Remaley v. Leland, 29 N. Y. Super. Ct. 358; Bernstein v. Sweeny, 33 N. Y. Super. Ct. 271; Olson v. Crossman, 31 Minn. 222, 17 N. W. 375. And see Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754.

We have already seen that the guest must conform to the regulations of the innkeeper, provided these are reasonable and are brought to the actual notice of the guest." This, however, is not on the theory of an implied contract, but rather on the score that the failure of the guest to comply with the regulations, resulting in loss or injury as to the goods, constitutes such contributory negligence on his part as to bar a recovery against the innkeeper.

Though it is sometimes said that an innkeeper's liability may be limited by custom,"1 yet this can be true only on the theory of an implied contract. Therefore a guest is not bound by a custom of which he was ignorant, for his assent thereto cannot properly be presumed."

By Statute-Losses Above a Certain Amount

93

By statutes in a few states, the liability of innkeepers is limited to a specific amount, or to such things as is usual and prudent for a guest to retain on his person or in his room, or to such goods as are needed by the guest for present use." These statutes simply prescribe a maximum, either in money or in restrictive classes of goods, beyond which the innkeeper's liability does not extend. Same-Posting Notices Requiring Delivery of Certain Property to Innkeeper

In most states, the statutes limiting the responsibility of the innkeeper provide that an innkeeper may avoid liability as such for the loss of goods not intrusted to his special care by posting notices, in the manner prescribed by the statutes, stating that he has a safe for the deposit of money and valuables and will not be responsible for goods falling within these classes unless they are deposited

90 Ante, p. 273.

91 Albin v. Presby, 8 N. H. 408, 29 Am. Dec. 679.

92 Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417. When the proprietor of an hotel employs a servant to receive and keep the property of guests while at meals, his liability for the default of this servant in the custody of property so received is not affected by the fact that he has also provided a check room for the safe-keeping of such property. Labold v. Southern Hotel Co., 54 Mo. App. 567.

98 See Rev. Laws Mass. 1902, c. 102, § 10: Pub. Acts Mich. 1905, No. 42, § 1; Stimson, Am. St. Law, § 4392; Civ. Code Cal. § 1859. The subject of statutory limitations on the innkeeper's liability by statute is admirably discussed in Beale, Innkeepers, c. 31, on which the above treatment is largely based. In an appendix to this work, the statutes of the various states affecting innkeepers are reproduced in full.

94 Such statutes are frequently qualifications of statutes of the type discussed below. See, for example, Starr & C. Ann. St. Ill. 1896, c. 71, par. 2; Code Iowa 1897, § 3138.

3 See Rev. St. Me. 1903, c. 29, § 5; Stimson, Am. St. Law, § 4392.

with him." As these statutes differ greatly in their wording, and in the construction placed on them by the courts of the various states, the particular statute and the decisions construing it should always be consulted. A few general observations on these statutes, however, may not be amiss.

Such statutes, being in derogation of the common law, must be strictly construed." The requirements of the particular statute as to the posting of the notice (such as the nature of the notice, type in which it is to be printed, method of posting, etc.) must be strictly complied with by the innkeeper, or he cannot claim the exemption or limitation granted by the statute." Thus, by the better rule (though there are cases to the contrary)," even actual notice to the guest is not sufficient if the required statutory notice has not been posted.1 Again, when the statute requires the innkeeper to have a safe or vault for the deposit of valuables, the innkeeper must provide one or else no advantage accrues to him from the statute.2

Under most of the statutes, even if the innkeeper has complied with all the statutory provisions, the innkeeper is not relieved of all liability as to goods not deposited with him. He is not an insurer as to such goods, however, but is liable for loss or damage only as an ordinary bailee for hire; that is, when such loss or damage is due to his negligence or that of his servants. But the effect. of such statutes, it is usually held, is to place upon the guest the burden of proving such negligence. For goods deposited with the innkeeper he remains responsible, just as at common law."

96 For specimens of these statutes, see Code Ala. 1896, §§ 2541, 2542; Rev. Code Del. 1852, amended 1893, p. 409 (14 Del. Laws, c. 417, p. 390, § 1); Comp. St. Ky. 1894, § 2176; Rev. Laws Minn. 1905, § 2810. See, also, 1 Stim. Am., St. Law, § 4392.

97 Ramaley v. Leland, 43 N. Y. 539, 3 Am. Rep. 728; LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Briggs v. Toad, 28 Misc. Rep. 208, 59 N. Y. Supp. 23.

98 Porter v. Gilkey, 57 Mo. 235 (size of type); CHAMBERLAIN v. WEST, 37 Minn. 54, 33 N. W. 114, Dobie Cas. Bailments and Carriers, 59; Olson v. Crossman, 31 Minn. 222, 17 N. W. 375; LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Beale v. Posey, 72 Ala. 323; Spice v. Bacon, 36 Law T. N. S. (Eng.) 896, 2 Ex. D. 463.

99 Purvis v. Coleman, 21 N. Y. 111. Cf. Shultz v. Wall, 134 Pa. 262, 19 Atl. 742, 8 L. R. A. 97, 19 Am. St. Rep. 686.

1 Batterson v. Vogel, 8 Mo. App. 24; LANIER v. YOUNGBLOOD, 73 Ala. 587, Dobie Cas. Bailments and Carriers, 162; Porter v. Gilkey, 57 Mo. 235. 2 Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772.

8 Medewar v. Hotel Co., [1891] 2 Q. B. (Eng.) 11, 64 L. T. 851; Faucett v. Nichols, 4 Thomp. & C. (N. Y.) 597; Beale v. Posey, 72 Ala. 323, 331.

4 Elcox v. Hill, 98 U. S. 218, 25 L. Ed. 103; Burnham v. Young, 72 Me. 273. Wilkins v. Earle, 44 N. Y. 172, 4 Am. Rep. 655. The same is true, though the deposit is not made, if this is waived by the innkeeper. Friedman v. Breslin, 169 N. Y. 574, 61 N. E. 1129.