CONFLICTING DOCTRINES SUMMARIZED. 153

Chancellor

pear to be settled by the authorities. Kent (2 Comm. 591,) says that inn-keepers are responsible to as strict and severe an extent as common carriers, while, in another place (id. 593.) he limits their responsibility to losses occasioned otherwise than by inevitable casualty, or by superior force as robbery. Judge Story, in his work on Bailments, (sec. 472,) says, that inn-keepers are not responsible to the same extent as common carriers; that the loss of the goods of a guest, while at an inn, will be presumptive evidence of negligence on the part of the inn-keeper or of his domestics; but that he may, if he can, repel this presumption, by showing that there has been no negligence whatever, or that the loss is attributable to the personal negligence of the guest himself; or that it has been occasioned by inevitable casualty or by superior force. Thus, he continues, although a common carrier is liable for all losses occasioned by an armed mob, (not being public enemies,) an innkeeper is not (as it should seem) liable for such a loss. Neither is he liable (it should seem) for a loss by robbery and burglary by persons from without the inn. It will be observed that the commentator advances this latter doctrine with some degree of hesitation and doubt, and in language which implies that he did not himself consider it as settled. Sir William Jones, in his essay on Bailments, (p. 94,) says, it has long been holden that an inn-keeper is bound to restitution, if the trunks or parcels of his guests, committed to him either personally or through his agents, be damaged in his inn, or stolen out of it by any persons whatever; and yet, he says, (p. 96,) that it is competent for the inn-holder to repel the presumption of his

knavery or default, by proving that he took ordinary care, or that the force which occasioned the loss or damage was truly irresistible.

"It thus appears, that, while Judge Story leaves the point under consideration at loose ends, the other two distinguished commentators above cited are still more uncertain, as neither of them apparently agrees with himself; and from their opposing rules, it is difficult to determine to which side of the question they intended to adhere. The contradiction found in the writings of commentators, as well as the diversity which exists in the decisions on which their various statements are rested, seem to have sprung out of a departure from the principles on which the extraordinary liability of inn-keepers and common carriers is based, and from what appears to be an erroneous construction put upon the doctrine laid down by Lord Coke in Cayle's case (8 Rep. 32;).

"The reasoning of Coke is simply this: The innkeeper is bound by law to keep the goods of his guest safely; if he does not perform this obligation, the law which imposes on him the responsibility, declares him to be in default; but if the loss of the goods be ascribable to the fault of the guest, then the inn-keeper is excused, for the words of the writ are from the default of the inn-keeper or his servants. He makes no distinction between losses occasioned by superior force, by robbery by persons within the house and persons from without, by secret theft, or by an armed mob. On the other hand he apparently discountenances the distinction.

*

*

*

It seems, therefore, that the dictum of Mr. Justice Bayley, in Richmond vs. Smith, (8 Barn. & Cress, 9;)

CONFLICTING DOCTRINES SUMMARIZED. 155

is a concise and accurate summary of the doctrine of Cayle's case. 'It appears to me,' he says, 'that the inn-k eper's liability very closely resembles that of a carrier. He is prima facie liable for any loss not oc casioned by the act of God or the King's enemies; although he may be exonerated where the guest chooses to have the goods under his own care;' and although that dictum has been overruled in England by the subsequent decision in Dawson vs. Chamney, (5 Adlp. & Ellis, N. R, 164,) we think the dictum right and the decision wrong. Stephen, in his Commentaries, (2 Comm., 133,) says that an inn-keeper is responsible for the goods and chattles brought by any traveler to his inn, in the capacity of guest there, in every case where they are lost, damaged, stolen or taken by robbery, except when they are stolen by the traveler's own servant or companion, or from his own 'person, or from a room which he occupied as a mere guest, or entirely through his own gross negligence; and Mr. Chitty, in a note to Blackstone's Commentaries, (1 Comm., 430, note 22,) declares it to be long established law, that the inn-keeper is bound to make restitution, if the guest is robbed in his house by any person whatever; unless it should appear that he was robbed under circumstances like those which, as above seen, constitute admitted exceptions."

After referring to Mason vs. Thompson, (9 Pick., 280, 234;) and Grinnell vs. Cook, (3 Hill, 488;) the learned judge continues:

66 It thus appears that some courts as well as commentators are, at length, returning to the sound and healthy principle of the common law, which places the liability of inn-keepers and carriers on the same.

ground. And why should there be any distinction? We think that an inn keeper is bound to keep the property of his guests safe from burglars and robbers without, as well as from thieves within, his house."

THE PREVAILING DOCTRINE.

2

Edwards says: "He is responsible for goods stolen from his custody, or lost while in his custody; and he must respond for the damages where a guest in his house is robbed of money or goods." Judge Story, in his Commentaries, states the rule of liability for theft in peculiar terms, which show that he himself was not entirely free from doubt upon the subject. In the able opinion of Bennett, J., just referred to, the position of the learned commentator is freely discussed.3 Story evidently leaned toward the doctrine of holding inn-keepers liable as insurers of the prop erty of their guests, for he said: "And this seems to be the doctrine of the modern English and the better considered of the American cases. This doctrine will clearly make inn-keepers liable for losses by robbery or burglary by persons from without, and also for losses occasioned by rioters and mobs.”4

SCOPE OF INN-KEEPER'S LIABILITY.

A Pennsylvania judge recently gave the following opinion: "He (the inn-keeper) is bound to take all possible care of the goods, money and baggage of his guests, deposited in his house, or intrusted to the care of his family or servants; and he is responsible

SCOPE OF LIABILITY.

157

for their acts as well as for the acts of other guests. If the goods of the guests are damaged in the inn, or are stolen from it by the servants, or domestics, or by a stranger guest, he is bound to make restitution; for it is his duty to provide honest servants, and to exercise an exact vigilance over all persons coming into his house, as guests or otherwise. His responsibility extends to all his servants or domestics, and to all the moneys of his guests which are placed within the inn; and he is bound in every case to pay for them if stolen by a companion or servant of the guest." In a recent English case it was held that where property has been stolen from a guest, the inn-keeper is liable unless the guest has contributed by his own negligence to the loss.2

I

THE INN-KEEPER AN INSURER.

"Public policy imposes upon an inn-keeper a severe liability. The later and on the whole prevailing authorities made him an insurer of the property committed to his care, against everything but the act of God, or the public enemy, or the neglect or fraud of the owner of the property. He would then be liable I, Houser vs. Tully, 62 Penn. St., 92;

2, Filipowski vs. Merryweather, 2 F. & F., 285;

NOTE. For cases which hold the inn-keeper liable as an insurer and only exempt by act of God or the public enemy, see Mateer vs. Brown, 1 Cal., 221; Shaw vs. Bessey, 31 Me., 478; Norcross vs. Norcross, 53 Me., 163; Burrows vs. Teieber, 21 Md., 320; Mason vs. Thompson, 9 Pick., 280, 284; Manning vs. Wells, 9 Humph., 746; Thickstone vs. Howard, 8 Black., 535; Sasseen vs. Clark, 37 Ga., 242. For cases holding the contrary doctrine see Metcalf vs. Hess, 14 Ill., 129; Johnson vs. Richardson, 17 Ill., 302; Howth vs. Franklin, 20 Tex., 798; McDaniels vs. Robinson, 26 Vt., 316; Read vs. Amidon, 41 Vt., 15; Kisten vs. Hilderbrand, 9 B. Mon., 721; Woodward vs. Morse, 18 La. An., 156; Cutter vs. Rumsey, 30 Mich., 259; Merritt vs. Claghorn, 23 Vt.,