sense of the severity of this rule appears in many of our decisions, and has resulted in various modifications by the statute law.1

§ 464. The law does not hold any bailee liable for losses caused by the public enemy; or for losses caused by the act of God, that is, by irresistible force, or by inevitable accident, under the action of natural forces. And hence, briefly, the innkeeper is not answerable for losses occasioned by superior force; not answerable, unless he has made an express contract assuming a liability not imposed upon him by law.2

§465. A guest cannot recover against an innkeeper for the loss of his goods, where his own negligence contributed to the loss. Slight omissions of care will not prevent his recovery. An omission to lock his door on retiring to rest, is not necessarily such negligence as will defeat his action; 3 and yet an omission of this kind, where the guest has also failed to deposit his money or his baggage in the place appointed, may be properly considered on the question of negligence; as it may,

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1 Ingallsbee v. Wood, 33 N. Y., 577; see 14 Albany Law Journal, 128. In Hulett v. Swift, supra, the plaintiff's horse, harness and wagon, çontaining goods of considerable value, were destroyed by fire in the night, while the same were in the defendant's custody as an innkeeper; the origin of the fire was not shown; and plaintiff recovered the value of the property. The decision was soon after followed by an act of legislation. Chapter 658, Laws of N. Y. of 1866.

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

2. No animal belonging to a guest and destroyed by fire while on the premises of any innkeeper, shall be deemed of greater value than $300, unless an agreement shall be proved between such guest and innkeeper that a higher estimate shall be made of the same.

See Cutler v. Bonney, 30 Mich., 259, holding that the innkeeper is not liable for losses by firo not caused by his negligence. In Ingallsbee v. Wood, supra the plaintiff's horse and wagon left at an inn, were burned up during the night; and no recovery was allowed, on the ground that neither the plaintiff nor his agent was a guest in the house, disapproving Mason v. Thompson, 9 Pick., 280.

2 Harmony v. Bingham, 12 N. Y., 99, 107; how far the act of God will excuse the performance of a contract, depends upon circumstances. In some cases, it simply varies the mode of the performance, without otherwise affecting the obligation of the contractor: Williams v. Vanderbilt, 28 N. Y., 217. The refusal or willful action of a third party, does not excuso performance: Blacksmith v. Fellows, 7 N. Y., 401, 415; S. C., 19 How. U. S., 366; 42 N. Y. 126.

3 Morgau v. Ravey, 6 H. and N., 265; Filipowski v. Merriweather, 2 F. and F., 285; Classon v. Leopold, 2 Sweeney, 703.

Wilson v. Halpin, 1 Daly, 493; Buddenburg v. Bonner, 1 Hilton, 84; Oppenheim v. White Lion Hotel, L. R., 6 C. P., 515.

and

where a considerable sum of money is left in a trunk in his room, the room is left unlocked, in disregard of the innkeeper's request. As a rule, the guest cannot recover where the loss happens through his failure to exercise ordinary or reasonable care on his part; or where, to express the same thing in other words, his want of ordinary care contributes to the loss.' There is nothing arbitrary in the rule. The guest is not allowed to recover damages resulting in part from his own negligence; or for a loss that would not have occurred, had he used the ordinary care which a prudent man may be reasonably expected to take, under the circumstances.2

§ 466. A reckless or foolish exposure of his money by the guest, increases the danger of loss by theft;3 and may become, in connection with other negligent omissions, contributory negligence, when the money is soon after lost by theft. So a guest may be guilty of contributory negligence, where he allows another person to exercise acts of ownership over his baggage, and leaves the landlord ignorant of his title; thus helping the fraudulent party to appropriate and carry off his property.5

It is not easy to give a definition of contributory negligence, broad enough to cover all cases likely to arise, and yet sufficiently specific to be of service. The guest cannot recover of the innkeeper, where he misleads him as to the value and contents of a package, and so throws him off his guard. There need not be an intention to mislead." His imprudent conduct conducing to the loss, or exposing his goods to peril, will defeat his recovery."

A guest can have no cause of action, where he does not confide his

1 Fowler v. Dorlon, 24 Barb., 334; Armistead v. White, 6 Law and Eq. Rep., 349; Chamberlain v. Masterson, 26 Ala., 371; Hadley v. Upshaw, 27 Texas, 547; Profilet v. Hall, 11 La. Ann., 324.

2 Cashill v. Wright, 6 Ellis and Black., 891; as to ground of the rule, see Brown v. Maxwell, 6 Hill, 592.

3 Armistead v. White, supra.

4 Burrows v. Treiber, 21 Md., 320. Kelsey v. Berry, 42 Ill., 469.

6 Without being directly adjudged, the proposition of the text is strongly sustained by analogy. Bendetson v. French, 46 N. Y., 266. A carrier receiving a trunk for transportation, has a right to assume and act upon the assumption that it contains only ordinary baggage: Richards v. Westcott, 2 Bosw., 589; 7 Bosw., 6.

▾ Following out the analogy, see Pardee v. Drew, 25 Wend., 462; The Great Northern R. Co. v. Shepherd, 14 Eng. Law and Eq., 367.

Fowler v. Dorlon, 24 Barb., 384; Fuller v. Coats, 18 Ohio St., 343; Houser v. Tully, 62 Pa. St., 92.

goods to the keeping of the innkeeper; and on the other hand, his failure to make a formal delivery of them, will not exonerate the innkeeper from responsibility for goods brought into his house or upon his premises in the usual, or in a reasonable manner. His duty to receive guests, with their luggage and goods, and provide for them, is affirmative; and hence an expression of preference by a guest for a given room as a place of deposit for his goods or baggage, or his knowledge of the situ ation or bad construction of the stables or stalls where his horses are placed, does not imply an agreement for their use, or render him chargeable for contributory negligence, in their use. The innkeeper is answerable for the fitness and sufficiency of his accommodations, for the custody and for the handling of the property, until it is redelivered to the guest on his departure.3

§ 467. Statutory modifications of the common law, affecting the liability of innkeepers, are to be found in England and in several of our States, designed for the protection of the innkeeper as well as the public. It is noticeable that these statutes do not introduce any new principles, unknown to the common law; and that they give the means of security to the guest as well as the innkeeper.

Under the English statute an innkeeper is not liable to make good any loss or injury to the goods or property of a guest, not being a horse or other live animal or any gear appertaining thereto or any carriage, to a greater amount than 307., except; 1, where such goods or property shall have been stolen, lost or injured through the willful act, default, or neglect of the innkeeper or any servant in his employ; 2, where such goods or property shall have been deposited expressly for safe custody with the innkeeper; with a proviso, that in case of such deposit it shall be lawful for the innkeeper, if he think fit, to require as a condition of his liability, that the goods or property shall be deposited in a box or other receptacle, fastened and scaled by the person depositing the same. default of the innkeeper preventing, or his refusal to accept a leposit of the goods or property of his guest, deprives the innkeeper of any benefit secured to him by the statute; so does his omission to post or exhibit a printed copy of the first section of the act in a conspicuous part of the

1 Sneider v. Geiss, 1 Yeates, 34; Honser v. Tully, supra.

Any

2 Treiber v. Burrows, 27 Md., 130; Epps v. Hinds, 27 Miss., 657; 37 Geo., 242.

3 Packard v. Northcroft, 2 Metc. (Ky.), 439; Dickerson v. Rodgers, 4 Humph. (Tenn.), 179; Metcalf v. Hess, 14 Ill., 129; Sibley v. Aldrich, 33 N. H., 553; Seymour v. Cook, 53 Barb., 451; Jordan v. Boone, 5 Rich. S. C., 528; 14 Barb., 193; 5 Blackf., 323; Dawson v. Chamney, 5 Q. B., 164; 13 L. J. Q. B., 33; Day v. Bather, 2 H. and C., 14.

hall or entrance to his house. The word inn includes any hotel, inn, tavern, or public house."

The New York statute on the subject is cast in a different mold; it is different in form, and does not apparently so much limit the innkeeper's liability. In terms, it applies only to the proprietors of hotels; while in its true intent, it applies equally to the keepers of all inns, taverns and public houses. It relieves the proprietor of a hotel from liability for any loss of money, jewels or ornaments, on certain terms; viz. when ho provides a safe in the office or in some convenient place for the safe keeping of such articles, and notifies his guest thereof, by posting a notice to that effect in the room or rooms occupied by such guest, in a conspicuous manner, and the guest neglects to deposit his money, jewels or ornaments in the safe so provided. The notice is in effect a request or invitation that these articles, specially named, be deposited in the safe. By a separate provision, the innkeeper is relieved from liability for property destroyed in a barn or outhouse by fire, where the loss is the work of an incendiary and accrues without fault or negligence on the part of the innkeeper.

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§ 468. The exemption under the statute of this State is limited to the particular species of property named, and being in derogation of the common law, it cannot be extended in its operation and effect by doubtful implication, so as to include property not fairly within the terms of the act; such as a watch and chain worn by a guest in the usual manner." The statute is to be enforced according to its terms; it covers money, without any qualification; large as well as small amounts; and jewelry, without qualification, in separate pieces, or done up in packages; and ornaments, not including ornamental things of use, like a gold pen and pencil case. The manifest intent of the statute is to enable the innkeeper to protect himself against losses of small and valuable parcels, that are capable of being deposited in a safe and are not actually worn as a part of one's apparel.

On arriving at a hotel the guest must for his own protection, deposit

126 and 27 Vict, c. 41. See copy of the statute, 3 Fisher's Digest, 4689; 2 Broom and Hadley's Com., 192; Spice v. Bacon, 16 Albany Law Journal, 385. 22 R. S., 945, 6th ed.

3 Ramaley v. Leland, 43 N. Y., 539; modifying S. C., 6 Robt., 358.

Hyatt v. Taylor, 42 N. Y., 258; S. C. below, 51 Barb., 632. The case arose under the statute of New Jersey, which is a transcript from the New York statute.

Wilkins v. Earle, 44 N. Y., 172, below S. C., 3 Robt., 352.

Bendetson v. French, 46 N. Y., 266; S. C. below, 44 Barb., 31.

'Gile v. Libby, 36 Barb., 70; 43 N. Y., 539.

the specified articles; he must comply with the terms of the statute:1 And in offering a package for deposit, he should state its contents. On his departure, the articles are to be surrendered to the guest, so that he may repack them; and the liability of the innkeeper attaches until the property is duly delivered, when the guest leaves the house."

The innkeeper's refusal to accept a deposit, duly tendered, will deprive him of the protection of the statute; and personal notice to the guest, without posting it as required by the statute, will give the proprietor of the house the protection of the law.3

§ 469. It was formerly considered a debatable question, whether common carriers and innkeepers may contract for a more restricted liability than the law inposes upon them in the absence of a special agreement; but the question has been long settled in their favor. It is agreed that they may make reasonable rules regulating the manner in which they will accept and keep or carry goods; such as requiring that the contents of packages delivered to a carrier shall be made known, and that goods delivered to an innkeeper shall be deposited in a particular room. This is no more than saying that the guest may take upon himself the care and custody of his goods, so as to relieve the innkeeper of his responsibility; and that the person who delivers property to a carrier, is bound to deal fairly and state frankly the contents of packages to be carried.5

§ 470. The responsibility of the innkeeper begins from the moment he receives a guest with his goods, and it ends when the relation between him and the guest is dissolved. The privileges and responsibilities of the innkeeper are reciprocal and dependent upon each other, as a duty upon a right. For his liability he has a lien on the goods intrusted to him. And where the law does not give him a lien on goods or property coming into his custody, it does not hold him liable as an innkeeper.7

§ 471. Innkeeper's duty to receive Guests. The keeper of a common inn is not at liberty to refuse to receive a guest, for whom he has room, either in the day time or at night; neither can he discharge himself

1 Rosenplaenter v. Roessle, 54 N. Y., 262.

2 Bendetson v. French, 44 Barb., 31; S. C., 46 N. Y., 266.

3 Purvis v. Coleman, 21 N. Y., 111.

4 Orange Co. Bank v. Brown, 9 Wend., 85, 114; Richmond v. Smith, 8 Barn. and Cress., 9; 4 Burr., 2301.

Stanton v. Leland, 4 E. D. Smith, 88. The rules must be reasonable: Johnson v. Richardson, 17 Ill., 302; 14 La. Ann., 324, 524; 7 Hill, 47; Nevins v. The Bay State S. Co., 4 Bosw., 225, 238.

6 BRONSON, J., in Griunell v. Cook, 3 Hill, 485, 490, 491.

7 Fox v. McGregor, 11 Barb., 41; Peet v. McGraw, 25 Wend., 653; 61 N. Y., 34.

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