Fuller v. Sweet.

ing through him during the tenancy from liability to the first landlord. Rogers v. Pitcher, 6 Taunt. 202; Williams v. Bartholomew, 1 B. & P. 326; Doe d. Plevin v. Brown, 7 A. & E. 447; Cornish v. Searell, 8 B. & C. 471.

That question arose and was decided in this State in Byrne ▼. Beeson, 1 Doug. 179, where an attornment to a stranger was held void as against public policy.

When defendant made his arrangement with Carroll, he was in possession in privity and full recognition of the title of the remaining undivided half not owned by himself, as belonging to his co-tenant, whoever that co-tenant was. He was bound under the statutes to account to him, either absolutely or on demand. C. L., § 4308. There had been no ouster made or attempted, and the arrangement with Carroll was made on the assumption that he had succeeded to one-half of the Ball title. Defendant having taken and retained possession in this way, and never having sought to change it, there can be no foundation for the attornment to Carroll, without evidence that he held that title, and therefore no consideration for the promise to pay rent to him. Under such circumstances Carroll could stand in no better position than defendant. The finding that defendant had been in possession, claiming and admitting his responsibility as a tenant in common since 1846, threw upon plaintiffs the burden of showing that his possession was in privity with them or their predecessors in the title.

This not appearing, there could be no ground of recovery; and the other questions presented become immaterial. Upon the finding there is no error to the prejudice of the plaintiffs, and the judgment must be affirmed, with costs.

The other justices concurred.

Judgment affirmed.

Cutler v. Bonney.

CUTLER V. Bonney.

(80 Mich. 259.)

Innkeeper - liability of.

An innkeeper is not liable to his guests for property destroyed without his negligence by accidental fire.

Hulett v. Swift, 33 N. Y. 571, disapproved. (See note, p. 130.)

A

CTION brought by Stephen Cutler and another against Zoroaster Bonney and another, to recover for horses, wagon and goods destroyed by fire in the barn of defendants, who were innkeepers. Sufficient facts appear in the opinion. Defendants had judgment below.

Andrew T. McReynolds, for plaintiffs.

Norris, Blair & Kingsley, for defendants.

CAMPBELL, J. Plaintiffs brought suit to recover the value of certain horses, a wagon, and some goods destroyed by fire in the barn of defendants, who were innkeepers. It is found by the court that there was no fault or negligence in defendants or their servants, the fire which destroyed the barn and its contents having been either accidental or incidental, and taking from an alley or public way outside. No question arises upon any thing except the obligation of innkeepers to respond to their guests for property thus destroyed without negligence. It is admitted that the property was in the custody of defendants in that capacity.

It is unfortunate that upon this subject there is some confusion, arising from the loose dicta in which many courts have indulged, when dealing with cases involving the liability of innkeepers. It is unsafe to give any force to such remarks beyond the analogies of the cases in which they are found. Upon all questions not decided by recognized and accepted precedents, we can only rest upon the ancient maxims of the common law.

In order to hold a bailee liable for that which is in no respect to be imputed either to his own negligence, or to that of persons for

Cutler v. Bonney.

whom he is responsible, there should be found clear authority. The common law has declared this liability against one class of bailees, and has made common carriers responsible for all losses not caused by public enemies, or some casualty in no way arising out of human action. It is claimed by plaintiffs that in this respect common carriers and innkeepers stand on precisely the same footing; and it is not claimed that defendants can be made liable in the present case on any narrower ground.

There are many cases in which it has been said by judges that the liability is not distinguishable. Most of these have been collected in the notes of Mr. Holmes to the last edition of Kent's Com

mentaries.2 Kent, 596. But, except in the decisions to be especially referred to hereafter, there is nothing in the facts of any authority which we have discovered, which called for any such remark, or which would justify the enforcement of a liability for such a loss as the present.

With one or two exceptions the cases referred to have arisen from thefts or unexplained losses of property, while it was within the legal custody or protection of the innkeeper. The rule actually applied in all of these cases has been that all such losses were presumably due to the neglect of the innkeeper. Generally, and perhaps universally, he has been held to an absolute responsibility for all thefts from within, or unexplained, whether committed by guests, servants, or strangers. But he has quite as uniformly been discharged, by any negligence of the guest conducing to the injury, and he has not been held for acts done by the servants of guests, or by those whom they have admitted into their rooms. And in many cases he has been held discharged where the guest has exercised any special control over his property. The general principle seems to be that the innkeeper guarantees the good conduct of all persons whom he admits under his roof, provided his guests are themзelves guilty of no negligence to forfeit the guarantee.

Beyond this, we have found no decided case anywhere. We have found no decision holding innkeepers liable for losses by purely accidental casualties, or from riots, or acts of force from without, such as have been from the beginning excepted by the text writers. These writers, or at least such of them as are of recognized authority, have drawn a line between carriers and innkeepers, resting on the distinction between absolute and qualified responsibility. And none of the accepted writers have found any authority for disro

Cutler v. Bonney.

garding this distinction. The two classes of bailees have been kept carefully separate.

Judge STORY makes this very clear in his Treatise on Bailments, § 472, where he refers to authorities which we think sustain him. Dawson v. Chamney, 5 Q. B. 164, is directly in point, and the language of the older decisions there referred to excludes the extreme measure of liability. Chancellor Kent is equally explicit that the liability does not extend to robbery or inevitable casualty. 2 Kent's Com. 593. The Roman law, to which both of them refer, included fire under this head. The French law excludes liability for wrongs from without. Ferriere Dic., "Aubergistes;" Story on Bailm., § 465. But all the modern authorities profess to take their departure from Calye's Case, 8 Co. 32. The case declares that the original writ quoted in it, and found in Fitzherbert's N. B. 94 B., contains the whole ground of the common law. Analyzing the writ, the fourth heading is made to refer to the ground of liability as the default of the innkeeper, "by which it appears that the innholder shall not be charged, unless there be a default in him or his servants, in the well and safe-keeping and custody of their guests, goods and chattels within his common inn." The language in Fitzherbert is "so that by the default of them, the innkeepers or their servants, no damage may come in any manner to their guests. Among the defenses given by Saunders is that "defendant may show that his house was broken open, and a forcible robbery of them committed by thieves." 2 Saund. Pl. & E. 217. And the liability of keepers for the acts of others is put by Blackstone on the ground that they were bound to prevent misconduct by those under their control. 1 Bl. 430. Accidental fire stands on

quite as strong grounds of exemption as other mishaps.

The common law has in some things been modified by decisions, but it is contrary to law to follow dicta made in cases calling for no departure from the old law. It would be a manifest innovation to create a liability where no possible default exists, and to sustain such an innovation, there ought to be both reason and authority. We cannot object to follow settled law on our own views of what policy ought to make it. But we are not prepared to assume there is any policy which will compel persons who are in no wise in fault to respond in damages, where the law is not clear against them. And the authorities directly in point on losses by fire are not numerous, and do not, in our judgment, call for any such consequences. VOL. XVIII. - 17

The doctrine imposing such a liability may be said to rest entirely on what was said by Justice PORTER in Hulett v. Swift, 33 N. Y. 571. In that case the subject is discussed at some length, and with much ability. But no foundation is shown there for the doctrine asserted, beyond remarks which are confessedly opposed to the text-books, and which were foreign to what was actually decided in the cases where they are found. The whole opinion of the learned judge is open to the same criticism; as he himself declares the point discussed did not really arise, inasmuch as no proof was introduced changing the presumption raised by law against the lefendant. The opinion was not unanimous, and the dissent of Judge DENIO would detract much from its force, even if it had been pertinent to the facts.

Opposed to this is the case of Merritt v. Claghorn, 23 Vt. 177, in which Judge REDFIELD, delivering the opinion of the court, reached the conclusion that where there was no negligence there was no responsibility for loss by fire. This opinion is an able one, and was not given beyond the facts. It has been both approved and criticised, but no occasion has heretofore arisen to consider its correctness upon similar facts. Vance v. Throckmorton, 5 Bush (Ky.), 42, is to the same effect, but there, too, the decision might have rested on other grounds, and its authority is therefore diminished.

We regard the decision in Vermont as reasonable, and as within the fair meaning of the common-law rule. We think the Circuit Court was right in taking the same view.

The judgment must be affirmed, with costs.
The other justices concurred.

Judgment affirmed.

NOTE.-It is said in 2 Kent's Com. 594: "An innkeeper, like a common carrier, is an insurer of the goods of his guests and he can only limit his liability by express agreement or notice."

By the Roman law the innkeeper was liable for the goods of his guests unless torn from him by inevitable accident or superior force. See Doorman v. Jenkins, 2 Ad. & E. 256; 2 Kent's Com. 494; Whart. on Neg., § 665; and fire which could not have been avoided by the innkeeper's diligence was included under the head of "inevitable accident." Whart. on Neg., § 678.

Mr. Addison in his learned and accurate treatise on Torts (Vol. 1, § 684), says: "By a public edict of the Roman prætor it was ordained that if shipmasters and carriers, innkeepers and stablekeepers did not restore what they had received to keep safe he would give judgment aga.L.st them. The construction put upon this edict was, not that the shipmaster, carrier or innkeeper was bound to deliver the goods safe at all events; but that he was bound to deliver