made to show that this flue had been recently erected or that a metallic lining had ever been in it, or if so, that it had been recently taken out; and, so far as appears, it may be presumed that this flue or dumbwaiter had been in use since the first erection of the house, in its then condition, and that no previous casualty had occurred from such use. The Prætor's edict in the Roman law, declaring that if shipmasters, inn-keepers and stable keepers did not restore what they had received to keep, he would give judgment against them, was construed to mean that the bailees were liable in every case of loss or damage, although happening without default on their part, unless it happened by what was called a fatal damage; but losses 'by fire, burglary and robbery, seem to have been deemed losses by fatal damages, as well as those by shipwreck, by lightning, by pirates, and by superior force. We think this but a reasonable doctrine; and though prima facie, the landlord should be held liable to restore the baggage of his guest, yet when he shows its destruction by fire, this should be regarded as exonerating him from liability unless it be made to appear that he, or those for whose comfort he is responsible, by negligence caused the fire or failed to extinguish it."

In speaking of this edict of the Roman Prætor, referred to in the foregoing opinion, Mr. Addison says: "The construction put upon this edict was, not that shipmaster, carrier or inn-keeper was bound to deliver the goods safe at all events; but that he was bound to deliver them unless prevented by a fatale damnum, or a loss by what was termed the decree of

I, Vance vs Trockmorton, 5 Bush, 41;

INSURANCE AGAINST FIRES.

169

fate or order of destiny, such as a loss by lightning, or an earthquake, or a sudden inundation that would not have been foreseen, and that no human care or skill could have provided against or avoided; or an inevitable attack by pirates and hostile forces, the enemies of the State. The spirit of this edict has been universally adopted by the jurisprudence of continental Europe, and was introduced at an early day into our common law. * * * This extended responsibility of the inn-keeper, which makes him an insurer of the goods against loss by robbery, does not extend to losses occasioned by an accidental fire, nor to damage or injury to the goods which is the result of accident." The English courts have held a similar doctrine, but this case is commented upon unfavorably in this country.3

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2

THE INN-KEEPER AN INSURER AGAINST FIRES.

The reader observes that the foregoing opinion of Mr. Addison is based upon the civil law. An equally good authority says. "Fire, which could not have been avoided by the inn-keeper's diligence, is, by the Roman law, a defence; and so it has been held in this country, but the tendency of authority among us is to deny the validity of such a defence." The leading case on the subject arose in this State, and was decided in 1865. The action was against the executor of a deceased inn-keeper to recover the value of property destroyed in his room while plaintiff's servant was a guest at the inn. The court held that the inn

I,

2,

3,

4,

Addison on Torts, Vol. I., § 684;

Dawson vs. Chamney, 5 Q. B. (N. S.), 164;

Mateer vs. Brown, 1 Cal., 225; and see Grinnell vs. Cook, 3 Hill, 488;

Wharton on Negligence, § 678;

keeper was liable for the loss of the goods of a guest by a fire the origin of which was unknown, the guest being free from negligence, and laid down the general proposition that by common law inn-keepers are insurers of the property of their guests against a loss happening by fire.' Mr. Schouler says there has been an obvious reluctance, in the few recent cases, to pressing the inn-keeper as the virtual insurer of the property of his guests in the house at the time of an accidental fire."

STATUTORY LIMITATION OF LIABILITY.

The doctrine of Hulett vs. Swift, (supra,) caused the legislature to enact a statute limiting the innkeeper's liability in case of loss by fire at the next session held after the rendering of that decision, which reads as follows:

SECTION 1. No inn-keeper shall be liable for the loss or destruction by fire of property received by him from a guest, stored or being within the knowledge of such guest in a barn or other outbuilding, where it shall appear that such loss or destruction was the work of an incendiary, and occurred without the fault or negligence of such inn-keeper.

§ 2. No animal belonging to a guest and destroyed by fire while on the premises of any inn-keeper, shall be deemed of greater value than $300, unless an agreement shall be proved between such guest and inn-keeper that a higher estimate shall be made of the same. [Chapter 658 of the laws of of 1866.]

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2.

INN-KEEPER'S BURDEN OF PROOF.

It was held that under this statute the burden is

Hulett vs. Swift, 33 N. Y., 571;

Schouler on Bailments, 265;

EVIDENCE OF INCENDIARISM.

171

upon the inn-keeper to show that the fire was the work of an incendiary, and also to show absence of negligence on his part, in order to claim the benefit of the act, and this will not excuse him from liability if there were any precedent negligence on his part.'

EVIDENCE OF INCENDIARISM AND NEGLIGENCE.

In the case just referred to it appeared that evidence was given tending to show that the fire was the work of an incendiary; that it was set in the hay loft, and that kerosene was spread on the barn floor which caused the fire to spread. Plaintiff also showed that defendant's hostler was smoking in the barn that night, which might have caused the fire. It appeared that the barn doors were fastened, but that a window in the hay loft over a lane in the rear of the barn was left open, and that a pile of boards were there, so placed that any person could easily climb upon them and gain access to the hay loft by the window, and that soon after the commencement of the fire two unrecognized persons were seen to run out of the alley. Defendant offered to show that the same night on which the fire in question occurred an attempt was made to fire a building within forty rods of defendant's barn, where the buildings were close and compact, and that kerosene, paper and other combustibles were used in that attempt, but this was not allowed to be proven on the ground of its immateriality. Upon appeal the court said that the omission on the part of a bailee to use due care in protecting the property entrusted to him subjects him to liability for loss or injury resulting from such omission, and he is not exempt from responsibility, although the goods had been Faucett vs. Nichols, 64 N. Y., 377;

I,

lost by a third person's felony, if this negligence furnished the opportunity and occasion for the commission of such a felony. Continuing, Andrews, J., remarked: "It must be admitted that the fact that the window of the hay loft was kept open, and that the barn was accessible from the alley, is not very strong evidence of negligence. The crime of incendiarism is much less frequent than theft or robbery, and is prompted, ordinarily, by different motives. But we cannot say that the fact proved furnished no evidence upon the question of negligence. Negligence is usually a question of fact and not of law. The jury understood the condition and location of the premises, and as practical men could judge whether proper care required the defendant to keep the window of the loft closed, as a protection against incendiaries, who might from wantonness, revenge or other motive, upon opportunity offered, set fire to the premises. I am of opinion, therefore, that the question of the defendant's negligence was a question of fact and not of law, and was properly submitted to the jury, and that negligence on the part of an inn-keeper in omitting precautions which a reasonable and prudent man. ought to take to guard against an incendiary fire, is such negligence as will deprive him of the benefit of the statute. The loss or destruction of the property of the guest does not in that case occur without the inn-keeper's fault or negligence. Negligence which precedes and facilitates the commission of the crime, is as much within the statute as the negligence or omission to protect or remove the property of the guest after the fire had commenced. The character