robbers has always been included in the undertaking of the innkeeper; and at all times the innkeeper has been held absolutely liable for loss from theft. In the leading case on the subject, Cayle's Case, it was resolved 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 guest's goods and chattels within his common inn; for the innkeeper is bound in law to keep them safe without any stealing or purloining." No trace can be found in the reports or abridgements of any different doctrine until the case of Richmond v. Smith.3 In that case, however, for the first time in a judicial decision, the court likened the innkeeper to the common carrier; and Mr. Justice Bayley used language which seemed to carry his responsibility for loss as far as that of the common carrier. "It appears to me that an innkeeper's liability very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God or the king's enemies; although he may be exonerated where the guest chooses to have his goods under his own care." Although this case was questioned afterward 4 it has been affirmed since. It is probable, therefore, that in England to-day the innkeeper is liable for all loss,

1 Alabama.-Lanier V. Youngblood, 73 Ala. 587 (1883).

Illinois.-Johnson V. Richardson, 17 Ill. 302, 63 Am. Dec. 369 (1855).

Minnesota.-Lusk v. Belote, 22 Minn. 468 (1876).

New York.-Wise V. Hoffman House, 28 N. Y. Misc. 225, 59 N. Y. Supp. 38 (1899).

Ohio.-Gast v. Gooding, 1 Ohio Dec. 315 (1849).

Pennsylvania. Shultz v. Wall, 134 Pa. St. 262, 19 Atl. 742, 19 Am. St. Rep. 686, 8 L. R. A. 97 (1890).

South Carolina.-Newton V. Axon, 1 McCord, 509, 10 Am. Dec. 685 (1821).

Vermont.-McDaniels v. Robinson, 26 Vt. 316, 62 Am. Dec. 574 (1854).

England.-Cayle's Case, 8 Coke, 63 (1574). Contra, Baker v. Dessauer, 49 Ind. 28 (1874).

28 Coke, 63 (1574).
38 B. & C. 9 (1828).

4 Dawson v. Channey, 5 Q. B. 164 (1843).

5 Morgan v. Ravey, 6 H. & N. 265 (1861).

except what is caused by act of God, or the king's enemies.1

§ 965. Conflict in the American authorities.

In perhaps a majority of the American jurisdictions the court has clearly imposed upon the innkeeper a liability analogous to that of the common carrier.2 The rule as commonly stated in these jurisdictions is that the innkeeper is liable for the goods of the guest lost in the inn, unless the loss has been by act of God or of a public enemy or by fault of the owner or its own qualities. The extent and reason of this doctrine are well expressed by Mr. Justice Wilde in Mason v. Thompson: 3 "Nothing is better settled than the general principle that innkeepers are chargeable for the goods of their guests lost from their inns. This liability is imposed upon them for considerations of public policy." However, in several jurisdictions a much less stringent rule is laid down, the innkeeper being held liable for loss of goods in the inn only if he is negligent personally, or by his servants. "It is a harsh

1 Day v. Bather, 2 H. & C. 14 (1863).

2 California.-Matere v. Brown, 1 Cal. 221, 52 Am. Dec. 303 (1850). Delaware.-Russell v. Fagan, 7 Houst. 389, 8 Atl. 258 (1886).

Maine.-Shaw v. Berry, 31 Me. 478, 52 Am. Dec. 628 (1850); Norcross v. Norcross, 53 Me. 163 (1865).

Nebraska.-Dunbier v. Day, 12 Neb. 596, 12 N. W. 109, 41 Am. Rep. 772 (1882).

New Hampshire.-Sibley v. Aldrich, 33 N. H. 553, 66 Am. Dec. 745 (1856).

New York.-Hulett v. Swift, 33 N. Y. 371, 88 Am. Dec. 405 (1865);

4

Lucia v. Omel, 53 N. Y. App. Div. 641, 66 N. Y. Supp. 1136 (1900).

Ohio. Gast v. Gooding, 1 Ohio Dec. 315 (1849).

West Virginia.-Cunningham v. Bucky, 42 W. Va. 671, 26 S. E. 442, 35 L. R. A. 850, 57 Am. St. Rep. 876 (1896).

39 Pick. (Mass.) 280, 20 Am. Dec. 471 (1830).

4 Illinois.-Johnson v. Richardson, 17 Ill. 302, 63 Am. Dec. 369 (1855).

Indiana.-Baker v. Dessaner, 49 Ind. 28 (1874).

rule," said Judge Trumbull in Metcalf v. Hess,1 which makes a person in any case responsible for a loss which has occurred without any fault of his." Thus in jurisdictions which hold the innkeeper liable only for negligence or breach of undertaking, he is not responsible where the goods were lost by accidental fire.

§ 966. Insurance liability not extended to persons. Strange as it may seem this law that holds the common carrier of goods as an insurer of them does not extend to the public carrier of passengers, who is liable only for negligence. This distinction is the one that has been recognized and acted upon for nearly a century. The courts have always insisted that there was a difference, founded upon substantial reasons, between the liability of the common carrier of goods and the common carrier of passengers. The former was held to warrant the safe carriage of the goods, except against loss or damage from the act of God or the public enemy; but the latter was held to contract only for due and proper care in the carriage of passengers. The same applies to innkeeping; the innkeeper is at most responsible for proper care in the protection of his guest whereas he is liable as an insurer of the belongings of the guest within his inn.

3

Grace Bank, 6 Har. & J. 47, 14 Am.
Dec. 254 (1823).

Michigan.-Cutler v. Bonney, 30 Mich. 259, 18 Am. Rep. 127 (1874).

Teras.-Houth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218 (1858). Vermont.-Howe Machine Co. v. Pease, 49 Vt. 477 (1877).

114 Ill. 129 (1852). Minnesota.-Smith v. St. Paul City Ry. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550 (1884). Missouri.-Feary v. Metropoli

tan St. Ry. Co., 162 Mo. 75, 62 S. W. 452 (1901).

New York.-McPadden v. New York Cent. Ry. Co., 44 N. Y. 478, 4 Am. Rep. 705 (1871).

Tennessee.-Railroad Co. v. Kuhn, 107 Tenn. 106, 64 S. W. 202 (1901).

Virginia.-Norfolk & W. Ry. Co. v. Marshall, 90 Va. 836, 20 S. E. 823 (1894).

3 Alabama.-West v. Thomas, 97 Ala. 622, 11 So. 768 (1892).

New York. Stott v. Churchill,

§ 967. Responsibility for animate chattels.

Upon similar principles animate property has often been distinguished from other chattels. This was brought out in one of the early American cases,' where the carrier of slaves was held not to be liable as an insurer of them. As Chief Justice Marshall said of such carriage: "The carrier has not, and cannot have, the same absolute control over him, that he has over inanimate matter. In the nature of things, and in his character, he resembles a passenger, not a package of goods." There has been some tendency to apply this law to the carriage of animals, but it has not gone so far except in one jurisdiction as to deny that the carrier of animals is a carrier of goods. The property is peculiar however because it is animate and the carrier has therefore in the most extreme degree the recognized excuse that a common carrier has whensoever the inherent vice of the goods itself contributes to the loss. As Judge Denio said in one leading case 2 dealing with the transportation of animals: "They may die of fright, or by refusing to eat, or they may, notwithstanding every precaution, destroy themselves in attempting to break away from the fastenings, by which they are secured in the vehicle used to transport them, or they may kill each other."

15 N. Y. Misc. 80, 36 N. Y. Supp. 476 (1895).

Tennessee.-Weeks v. McNulty, 101 Tenn. 495, 48 S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693 (1898).

England. Sandys v. Florence, 47 L. I. C. P. 598 (1878).

1 Boyce v. Anderson, 2 Pet. (U. S.) 150, 7 L. ed. 379 (1829).

2 Penn v. Buffalo & E. R. R. Co., 49 N. Y. 204, 10 Am. Rep. 355 (1872).

In Michigan the taking of animals is not considered common carriage at all, see Michigan So. R. R. Co. v. McDonough, 21 Mich. 165, 4 Am. Rep. 466 (1870).

But elsewhere in the United States it is held common carriage, see Kansas Pacific Ry. Co. V. Nichols, 9 Kan. 235, 12 Am. Rep. 494 (1872).

See citations in § 256, supra.

Topic B. Abnormal Liability Rigidly Confined

§ 968. The service must be public.

The extraordinary liability as an insurer now under discussion is confined to the case where the service that is being rendered, whether by the carrier or the innkeeper, is public in character. Thus one who is merely a private carrier or simply a boarding-house keeper 2 is never held liable as an insurer. It is usually said that unless the business is affected with a public interest there is no public policy calling for the insurance liability, and only those who have undertaken to serve the public can be held to this extraordinary liability. But what is nearer the truth is that the insurance liability is so extreme that the courts

1 See particularly:

United States.-Lamb v. Parkman, 1 Sprague, 343 (1857).

Arkansas. Shinn v. Cotton, 52 Ark. 90, 12 S. W. 157 (1889).

Georgia. Self v. Dunn, 42 Ga. 528, 5 Am. Rep. 544 (1871).

Louisiana. Flautt v. Lashley, 36 La. Ann. 106 (1884).

Michigan.-Allis v. Voight, 90 Mich. 125, 51 N. W. 190 (1892). Mississippi.-Harrison v. Roy, 39 Miss. 396 (1860).

New Hampshire.-Faucher v. Wilson, 68 N. H. 338, 28 Atl. 1002, 39 L. R. A. 431 (1895).

V.

South Carolina.-Littlejohn Jones, 2 McMull, 366, 39 Am. Dec. 132 (1842).

Texas.-Chevallier v. Straham, 2 Tex. 115, 47 Am. Dec. 639 (1847). Vermont.-Beckwith v. Frisbie, 32 Vt. 559 (1860).

England.-Tadhunter v. Buckley, 7 L. T. (N. S.) 273 (1862).

Canada-Roussel v. Aumais, Rap. Jud. Quebec, 18 C.S. 474 (1900).