1 1 Roll. Abr. 24, pl. 31.
2 Kent v. Shuckard, 2 B. & Ad. 803; Mason v. Thompson, 9 Pick. 283; Berkshire Woollen Co. v. Proctor, 7 Cush. 417. In Dawson v. Chamneyy 5 Q. B. 164, it is held that the innkeeper may show that the loss was not occasioned by his own negligence or the negligence of his servants. Merritt v. Claghorn, 23 Vt. 177; Metcalf v. Hess, 14 I11. 129. But see contra, Shaw v. Berry, 31 Me. 478; Thickstun v. Howard, 8 Blackf. 535; Manning v. Wells, 9 Humph. 746; Mateer v. Brown, 1 Cal. 221; Sibley v. Aldrich, 33 N. H. 553.
3 Calye's Case, 8 Co. 32; Com. Dig. Action on the Case for Negligence, B. 1, 2; Grinnell v. Cook, 3 Hill, 486; Mason v. Thompson, 9 Pick. 280.
4 Berkshire Woollen Co. v. Proctor, 7 Cush. 417; Armistead v. Wilde, 17 Q. B. 261; 6 Eng. Law & Eq. 349; Kent v. Shuckard, 2 B. & Ad. 803.
5 Ibid.; Mason v. Thompson, 9 Pick. 283; Clute v. Wiggins, 14 Johns. 175; Piper v. Manny, 21 Wend. 282; Richmond v. Smith, 8 B. & C. 9; 2 Kent, Comm. 594; Bennett v. Mellor, 5 T. R. 273; Jones v. Tyler, 3 Nev. & Man. 576; s. c. 1 Ad. & El. 522.
6 Armistead v. Wilde, 17 Q. B. 261; 6 Eng. Law & Eq. 349; Cashill v. Wright, 37 ib. 175; 6 El. & B. 891.
7 Calye's Case, 8 Co. 32; Story on Bailm. § 482; 2 Kent, Comm. 592-594; Burgess v. Clements, 4 M. & S. 306; s. c. 1 Stark. 251; Farnworth v. Packwood, 1 Stark. 249; Sneider v. Geiss, 1 Yeates, 34; Richmond v. Smith, 8 B. & C. 9; Cohen v. Frost, 2 Duer, 341.
§ 909. The weight of authority seems to be, notwithstanding some respectable adjudications to the contrary,1 that an innkeeper is liable at common law for theft, or a loss by fire, although the same occur without his negligence, unless the negligence of the guest conduces to the loss; in other words, that his liability is closely analogous to that of a common carrier.2 And the case of Dawson v. Chamney,3 so generally relied upon as establishing the doctrine that he is not liable if he can prove that the loss occurred without his negligence, has been repeatedly condemned in the modern English and American cases.4 On the other hand, the innkeeper is not liable if the goods be lost through the negligence of the guest, which, as some say, must amount to gross negligence;5 but if that be the proper term to use in such cases, it would not mean such a degree of negligence as excludes the loosest degree of care, amounting to dolus, but it is sufficient as laid down in a recent case,6 if " the negligence of the guest occasions the loss in such a way as that the loss would not have happened if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances." In other words, if the negligence of the plaintiff directly contributes to the loss, he cannot recover, according to the familiar doctrine in many other classes of cases.1
1 Merritt v. Claghorn, 23 Vt. 177; McDaniels v. Robinson, 26 Vt. 316; Laird v. Eichold, 10 Ind. 212; Metcalf v. Hess, 14 I11. 129; Johnson v. Richardson, 17 I11. 302; Kisten v. Hildebrand, 9 B. Monr. 72; Howth v. Franklin, 20 Tex. 798.
2 As to robbery, Lord Campbell, in Dansey v. Richardson, 3 El. & B. 168, says that is ** vis major, which, according to the better opinion, would excuse even an innkeeper, although not a common carrier."
3 5 Q. B. 164.
4 See Morgan v. Ravey, 6 H. & N. 277; Day v. Bather, 2 H. & C. 14; Mateer v. Brown, 1 Cal. 221; Shaw v. Berry, 31 Me. 478; Hulett v. Swift, 42 Barb. 230; 33 N. Y. 571; Sibley v. Aldrich, 33 N. H. 553; Washburn v. Jones, 14 Barb. 193; Norcross v. Norcross, 53 Me. 163; Gile v. Libby, 36 Barb. 70; Thickstun v. Howard, 8 Blackf. 535; Holder v. Soulby, 8 C. B. (n. s.) 254; Houser p. Tully, 62 Penn. St. 93.
5 Armistead v. Wilde, 17 Q. B. 261; 6 Eng. Law & Eq. 319. But this case really goes no further than to hold that gross negligence of the guest would exonerate the landlord, without saying that no less degree of negligence would have the same effect.
6 Cashill p. Wright, 6 El. & B. 891 (1856). In this case it was held to be erroneous to tell the jury to find for the plaintiff unless there had been "gross negligence" on his part, without defining what constitutes gross negligence in such cases. See 37 Eng. Law & Eq. 175.
§ 910. Innkeepers are liable in like manner for the defaults and frauds of their servants2 and their guests;8 but only for such losses as occur to the traveller while he is their guest.4 So, also, innkeepers are ordinarily liable only for the goods which are brought within the inn, or the buildings appurtenant thereto.5 But it is not necessary that the goods belonging to the guest should be put specially in the charge of the innkeeper; for if they be in his house, they are under his implied care, whether he be ignorant of such fact or not; and if they be stolen, he is responsible.6 If, therefore, goods be stolen from the chamber of a guest, the innkeeper is liable, although he receive no notice that they were placed there.7 So, also, where money was stolen from the saddle-bags of a guest, it was held, that the innkeeper was responsible, although he was not informed that they contained money.1 And, in another case, the innkeeper was held to be responsible for bags of grain stolen from the loaded sleigh of a guest, which had been placed in an outhouse appurtenant to the inn, with closed doors.2
1 Fowler v. Dorlon, 24 Barb. 384. Where a guest takes his goods from his own room and from the ordinary care of the innkeeper, and puts them in a place in the inn not designated by the innkeeper, and a hazardous place, the innkeeper is not liable. Fuller v. Coats, 18 Ohio St. 843 (1868). In this case the plaintiff, coming down to breakfast, hung his overcoat in the hall, on one of the hooks placed there, instead of leaving it at the coat-room and taking a check. The coat was stolen, and the innkeeper was held not liable, sed quaere.
2 Houser v. Tully, 62 Penn. St. 93 (1869).