[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 36 An inn-keeper at common law, has been said to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation. (5 Bacon Abr., [Inns, etc.], 228; Story on Bailments, § 475.) The person or persons undertaking this public employment were bound to take in and receive all travelers and wayfaring persons, and to entertain them for a reasonable compensation, if by any possibility they could be accommodated, and the inn-keeper was bound to guard the goods of his guests with proper diligence. (5 Term R., 274; 2 Barn. Ad., 285; 1 Carr. K. 404; 7 Carr. P., 213; 4 Exch., 367.) The common-law rule has been generally followed by the courts inthis country save so far as it has been modified by statute. The duties, rights and responsibilities of an inn-keeper are in most respects kindred to those of a common carrier, but in order to enforce the strict common-law liability of an inn-keeper, the technical relation of guest and inn-keeper must be established, *Page 38 and the question is whether it existed in the present case. I think it did not, for reasons now to be suggested.
It seems to be apparent from the nature of the duties and obligations of the keeper of a common or public inn, that he is not, in his capacity of inn-keeper, bound to receive or furnish accommodations for persons desirous of exposing their commodities for sale, or bound to permit his establishment to be made a depot for the propagation of horses.
He is doubtless bound to receive and entertain a strolling peddler, and securely guard his pack of trinkets if broughtinfra hospitium, so long as he remains a mere guest. So, also, would he be bound to receive and entertain a wayfarer, encumbered with a stallion, but under no obligation as an inn-keeper to allow his curtilage to be turned into an asylum for the breeding of horses. It is very manifest in this case that the sojourn of the plaintiff Eggner, with the horse, at the defendant's inn, was not that of an ordinary traveler. The purpose and object was entirely different, and the defendant, as an inn-keeper, was under no common-law obligation to receive and entertain the plaintiff Eggner and his horse for such a purpose, and where he is not bound to receive and entertain the person as his guest, the strict rule of common-law liability for the preservation of his property does not obtain. The obligation to respond for injury to property, depends upon his duty to receive and entertain as an inn-keeper, and they must stand or fall together. (Grennell v. Cook, 3 Hill, 485; Ingalsbee v. Wood, 36 Barb., 455; S.C., 33 N.Y., 577; Hulett v. Swift, id., 571.) The arrangement by which the plaintiff Eggner, with his horse, occupied the premises of the defendant two days in each week, was made beforehand, and was to continue during the season, for serving mares that should be brought to the inclosure. The stall that the horse was to occupy was selected, and some other conveniences incident to the business to be carried on were also provided for. The plaintiff Eggner was himself to groom and take care of the horse, and *Page 39 when occupying the stall selected for his accommodation he had it under a lock and key of his own. The price of oats for the horse and of meals for Eggner was fixed at prices less than charged ordinary travelers. Under this condition of facts it appears to me obvious that Eggner did not come for entertainment at the defendant's inn as an ordinary wayfarer, but under a special arrangement previously made. In such case the utmost limit of the defendant's liability was that of an ordinary bailee for hire.
The case of Washburn v. Jones (14 Barb., 193), has no analogy to this. There the defendant was made liable for negligence in fact in the construction of the stall, by reason of which the horse received the injury, and that liability would follow if he was to be regarded merely as an ordinary bailee.
In the case at bar, I think, there should be a new trial.
LOTT, Ch. C., and GRAY, C., concur.
EARL and DWIGHT, CC., dissent.
Judgment reversed, and new trial ordered.