§ 913. The keeper of a lodging or boarding house is not an innkeeper, as we have already seen.5 He is only liable in virtue of the special contract he makes with each lodger, and is not bound to furnish entertainment and lodging to any person who may come. One material distinction between the two is in respect to the care which they are respectively bound to take of the goods of the guest. The innkeeper, as we have seen, is bound to the utmost diligence. But in respect of boarding-house keepers, after some doubt and diversity of opinion, it has been decided that there is no obligation to take care of the goods of the boarders, and therefore that, without misfeasance, the keeper of the house is not liable for the loss or theft of the same.6 The ground of the distinction between the two classes is said to be this, that the wayfaring guest of an inn has no means of knowing the neighborhood, or the character of those he may meet at the inn; and that it was therefore thought right to cast that duty upon the host. But the boarder, not being a traveller, has ample means of learning the character of the place before engaging lodgings, and must therefore assume the duty.1
1 Armistead v. Wilde, 17 Q. B. 261; 6 Eng. Law & Eq. 349. 2 See Simon v. Miller, 7 La. An. 360.
3 Dickinson v. Winchester, 4 Cush. 114.
4 Adams v. Clem, 41 Ga. 65 (1870). 5 Ante, § 74-1.
6 Holder v. Soulby, 8 C. B. (n. s.) 254 (1860).
§ 914. It was doubtful until recently, also, whether a boarding-house keeper were liable for the goods of lodgers lost through the negligence of servants;2 but it follows from the above that, when the goods are not directly in his charge, he cannot be, except for misfeasances done under his authority. So far, however, as he sustains the strict relation of bailee to his lodgers, as in furnishing proper entertainment, he must of course be liable for the defaults of his servants; and this must be regardless of their negligence.3
1 Ibid., per Erie, C. J.
2 Dansey v. Richardson, 3 El. & B. 144.
3 It is sometimes said that boarding-house keepers may be liable for keeping untrustworthy servants, as in Dansey v. Richardson, 3 El. & B. 144; and it is important to explain the consistency of the doctrine with that of the text. So far as the entertainment of the lodgers is concerned, there is no difficulty. This is a case of bailment; and the keeper of such a house is bound to exercise due diligence in providing servants for the purpose. But what the doctrine means, in connection with the text, as to the care of the lodger's goods, is not so readily answered. The explanation, however, is doubtless this: The baggage and goods of a boarder are for most of the time in his sole custody; and the keeper of the house has no control over them, or even possession of them except as they are in his house. When the goods of the boarder are not given into his special charge, he is not a bailee of them. The case is not like that of the goods of the guest of an inn; for such an one, as a traveller and stranger, needs the utmost protection. Nor is it like the case of baggage taken by a passenger into a railway coach; for loss of which the English courts hold the railway company liable. (See Carriers of Passengers, post.) This is a favor to the company, since they are bound to take charge of baggage if requested. Indeed, they do not lose control over it when it is with the passenger. If too bulky, or in the way, they can, and often do, insist on removing it. Moreover, the point that a boarding-house keeper is not as such a bailee of the boarders' goods has been so decided. Holder v. Soulby, 8 C. B. (n. s.) 254 (1860).
But the keeper of a boarding-house is at times a bailee of baggage and goods. Upon the arrival of his boarders he is bound to take their property into the house, and while doing so he is a bailee for hire; for the price of board and entertainment covers this service. He is now in the same situation in respect of the goods as when he is furnishing entertainment at the table. He must have competent servants; and if loss or injury occur through their nnskilfulness, he is answerable. So, too, if the keeper of the house should assume to direct a servant to change the position of the goods of a boarder after they were put into the latter's possession, he would again become a bailee, and render himself liable for his servant's defaults. In such cases as these, the doctrine of the boarding-house keeper's liability for failure to keep competent servants undoubtedly extends to the goods of the lodgers.
This will explain one of the observations in Dansey v. Richardson, supra. In that case it appeared that the plaintiff, with her goods, had been received as a boarder in the defendant's house, nothing being said as to the care to be taken of the goods; and that a servant of the defendant, going out of a short errand for her, had left the front door ajar, through which a thief had entered and stolen the goods; for which theft the action was brought. Mr. Justice Erie, who presided at the trial, after the main instruction to the jury, remarked, in effect, that if the defendant had taken the requisite care to have none but trustworthy servants, one such act of negligence would not render him liable. When the case came on for decision in banc (on a motion for a new trial), the learned judge said that this observation had been made as simply explanatory of the main direction that there would be no liability for the particular act of negligence in question; though there might be liability if the evidence proved other grounds for charging the defendant. That is, if the jury should find, for instance, that the defendant had taken in charge the article stolen, then she might be liable for the act of her servant in facilitating the theft.
It might be interesting to inquire what degree of diligence the defendant would be answerable for in such cases. The plaintiff was about to remove from the house at the time, so that the defendant would have been under no obligation to assume charge of the goods; and it would have been simply a case of gratuitous interference, for which the defendant must have been liable for at least gross negligence, and possibly for less than that if the interference were wholly unwarranted.
Another point in Dansey v. Richardson in seeming conflict with the text was explained in Holder v. Soulby, supra. It seems to have been understood by the reporters of the former case, and by counsel for the defendant in the latter, that, notwithstanding the diversity of opinion in Dansey v. Richardson, the court had agreed that, while a boarding-house keeper was not bound to such a high degree of diligence in respect of his boarders' goods as an innkeeper, he was still bound to take due and proper care of them, - i.e., such care as a prudent man would take of his own. But the point was unanimously decided several years later in Holder v. Soulby, that the keeper of a boarding-house is under no responsibility in regard to keeping the goods of a boarder; and Dansey v. Richardson was thus explained by Erie, C. J. (who had since the case last named been transferred to and made Chief Justice of the Common Pleas): "In Dansey v. Richardson the proposition came to be conceded that a boarding-house keeper was bound to take a certain degree of care of the goods of a guest; and the contention on the part of the defendant was, that, even if the law imposed on her the obligation to take su«h a reasonable degree of care of the goods of her guests as a prudent owner might reasonably be expected to take of his own property, still there was an entire absence of evidence to show that she had been guilty of a breach of it. The whole tenor of my judgment in that case is distinctly to the effect that there is no such liability cast upon the keeper of a boarding-house, and that it would be an unreasonable thing to make a person responsible for the safety of goods which are never intrusted to his custody at all; and I am strongly opposed to the imposition of such a liability upon a lodging-house keeper. The other judges who differed from me in the case of Dansey o. Richardson [there was an equal division of the court] were only taking up the proposition which was assumed there, but was not the proposition in dispute in the case. But, assuming that there was some such duty cast upon the defendant, they say there was no evidence of a breach of it."
In the case from which the above extract is made, it appeared that a stranger had been admitted by the occupier of the house to view the apartments of a lodger who was then absent, and that the stranger improved the opportunity to steal certain property of the lodger. But the keeper of the house was held not to be liable for the theft, the judges declaring that this was not a misfeasance.
In this country the question of the liability of the occupier of a lodging-house for the care of his lodgers' goods does not appear to have directly arisen. The question has usually been, whether the defendant was an innkeeper, or the plaintiff a guest of an inn; though there have been dicta that boarding-house keepers are liable for losses arising from want of due care. See Chamberlain v. Masterson, 26 Ala. 371; Lyon v. Smith, Morris (Iowa), 184; Kisten v. Hildebrand, 9 B. Mon. 73; Manning v. Wells, 9 Humph. 74G; Bonner v. Wellburn, 7 Ga. 296; Berkshire Woollen Co. v. Proctor, 7 Cush. 423; Carpenter v. Taylor, 1 Hilton, 193; Dickerson v. Rogers, 4 Humph. 179; McDaniel v. Robinson, 26 Vt. 316; Hall v. Pike, 100 Mass. 495 (1868); Story on Bailm. §§ 475-477.
It is well settled also by Calye's case, 8 Coke, 32, and the cases supra, that a boarder even at an inn cannot make the innkeeper responsible for the loss of his goods.