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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 176 An innkeeper is an insurer of the safety of the property of his guest, brought infra hospitium. He is liable for its loss, whether by burglary, theft, fire or negligence, unless it arises from the neglect or misconduct of the guest, the act of God or the public enemies. His liability extends to wearing apparel, jewelry, money, and even to the horses, wheat, butter and other articles of bulk belonging to the guest, if received by the innkeeper into his care and within his place of entertainment. This is the rule of the common-law, enforced in the days of Lord COKE, and long prior, and ever since, as well in England as in this State. (Hulett v. Swift, 33 N.Y.R., 371, and numerous cases there referred to.) The rule is severe, but not unjust, as considered with reference to the rights of the guest as well as the landlord. The landlord can and does fix his compensation for entertainment furnished and risks encountered. The guest must accept his terms, or seek another inn. The landlord employs and controls the servants. He is secured in the payment of his charges by a lien on the property of his guest within his premises, which he may detain for his board and lodging. If a loss occur, the guest can seldom obtain any proof in respect to the manner of it. The servants are interested for their employer, and unless their care will preserve him from loss they are indifferent to the interests of the guest. The liability of the landlord protects the guest and his property when asleep or temporarily absent. *Page 179
The character of our hotel-keepers of the present day, in localities where gentlemen and ladies resort who can afford to pay liberal prices for their entertainment, is above any suspicion of complicity with their servants or others to betray the confidence of their guests. The rule of public policy does not, however, admit of any just relaxation. Robbery and theft still occur, as in the present case, from the depravity of servants, even at the most fashionable and first-class hotels. Nor can a different rule be held for inns or hotels of the class referred to, and those which offer entertainment for the traveler in less refined circumstances or situations. The rule must be uniform, and applicable to protect the rights of the guest whose narrow means compel him to resort to an inn of a different class from that kept by the defendants.
There are many reasons of public policy which forbid the rule applicable to common carriers from being incorporated into the law affecting inn or hotel-keepers, limiting the liability for the loss of money to sums necessary for traveling expenses. Some of them are referred to above, and others are mentioned inHulett v. Swift (supra). The innkeeper in that case was held to be bound to prove that the loss of the goods of his guest by fire did not occur by his negligence; that is, he was liable for the loss, unless he could prove that the fire was the act of God, or occurring from some cause not within his control. It was there said that "the considerations of public policy in which the rule had its origin, forbid any relaxation of its rigor."
The rigorous rule of the common law has been to some extent modified in this State by statute. The proprietor of a hotel may now provide a safe, to be kept at the office, and notify his guests of the fact, and that they may deposit their money, jewels or ornaments therein, by posting a notice in the room of the guest; and his neglect to deposit such articles, relieves the proprietor from liability for loss. (Sess L., 1855, ch. 421, p. 774.)
The defendants fully complied with this law. They provided an iron safe which was kept at the office, and posted *Page 180 the notices thereof conspicuously, as the law required. The plaintiff, on his part, complied with the condition which the law imposed on him, if he desired to continue the liability of the landlord. He delivered his money, which he had previously carried upon his person, put up in a sealed envelope, with his name written thereon, to a servant in the office, who had access to the key of the safe, and appeared to be in a position of confidence with his employers. On inquiry, the plaintiff stated that the package contained money. No further question was asked. No objection was made to the sufficiency of the label or mark. He saw the servant open the safe and deposit therein his package.
The defendants, acting under the provisions of the statute, invited the plaintiff to repose in them a confidence, which by the rules of the common-law he was not required to do, in order to enjoy the protection of their responsibility. The defendants were thus in possession, and secure against any loss as to the package, or its contents, if they exercised due vigilance. Certainly, they must see to it, that the key should be intrusted only to safe hands. They had taken from the plaintiff every opportunity for care or vigilance on his part. They had received him as a guest, and had received his money for safe-keeping, without any objection. Clearly, their liability for the loss of the money became then as great as it was at common-law, and before the act of 1855. Greater liability is not necessary for the plaintiff's case, nor need greater be stated.
If the act of 1855 has had any effect upon the nature of the liability of the proprietor of a hotel, it is to create him a special bailee, by an implied contract, to safely keep and return, when he receives the money, jewels etc., of his guest for deposit in his iron safe. The proof then rests upon him to establish, that the loss occurred by the act of God, public enemies, or the neglect or misconduct of the owner. He is relieved from guarding the money and valuables belonging to the occupants of 250 rooms of his large hotel; a liability of great and uncertain dimensions, which is reduced by this *Page 181 act to the vigilance and scrutiny required as to the custody of the key, and the right delivery of the various parcels.
The defendants have no cause of complaint against the plaintiff, as to the manner of the deposit. He answered every question asked of him to the satisfaction of the agent, to whom the defendants intrusted the receipt of the package. The agent did not ask him how much money the package contained, nor to put any other label on it than the name of the owner, which had been already indorsed. The defendants having received the package without any objection in these respects, and having placed it within the safe, or caused it to be placed there, are estopped from objecting that the plaintiff did not communicate the contents, or properly label the package. Nor can it be said, that the agent was not authorized to receive the package, nor to commit the defendants to any liability, beyond the amount of money required for the traveling expenses of the plaintiff. It does not appear that the defendants ever gave the agent any instructions in this respect, and the jury have found the fact against the defendants, as to the agent's authority specially. If the servant was not authorized, it may well be asked, why was he permitted to be within the office, and to open the iron safe, and deposit a package therein? It was either culpable negligence of the defendants, in permitting the servant to occupy an apparently responsible position in the office, obtain the key, and open the safe, or being voluntarily intrusted with it, was such an act as warranted the belief, that he was authorized by them. Either alternative was quite sufficient to make them chargeable with having conferred the necessary authority on the servant.
It is said that the question of contributing negligence on the part of the plaintiff ought to have been submitted to the jury. Such a defence would be a good one, if it existed, and the inquiry ought to have been submitted if there was any evidence to warrant it. But I am wholly at a loss to discover the slightest evidence to raise the question; nor has the learned counsel for the defendants mentioned any upon his points. *Page 182
The defendants had the plaintiff's money in their iron safe, under lock and key, and the key in their possession. It is impossible to perceive what contributing negligence of the plaintiff could have reached it. If there was any question of negligence affecting the question of liability, it was that of the defendants in suffering the key of the safe to get into the hands of their dishonest servant on the morning after receiving the package.
A few exceptions of minor importance were taken by the defendants during the trial, which are found upon the points of their counsel, which I will proceed to notice, although the judgment is against the defendants, and no appeal has been taken by them, and, in my opinion, they are not entitled to consideration for that reason.
The judge was asked, at the close of the trial, to instruct the jury, "that if the plaintiff's relation of material facts is contradicted in one or more important particulars, about which he cannot be deemed simply mistaken, his evidence is not entitled to credit." The judge instructed them that they were authorized, in that case, to disbelieve the plaintiff's whole statement, but were not bound to do so.
The request was not correct. The mere fact that his evidence was contradicted, as to any fact or facts, as to which he could not be simply mistaken, was not conclusive as to the falsity of the evidence as to those facts. The jury might have believed the evidence, although contradicted. The jury must believe the evidence to be willfully false, in some particular, before they are authorized to discredit the whole evidence of a witness. This element of falsity is wanting in the request, and the judge might properly have refused to give the direction. What he did say, was as favorable as was authorized by the law.
The plaintiff called three witnesses who proved that they were acquainted with him, and had sold him goods, saw him on the 20th of April, the day of his arrival in the city of New York, and had known him in a business way as a merchant for several years. The evidence was taken under objection *Page 183 and exception by the defendants. The testimony was not very material, and could not have had any material effect. Perhaps it had the effect of challenging the defendants to make any inquiries they might wish to, concerning the plaintiff and his history, of persons who knew him, he being a stranger from a distant State.
The plaintiff was introduced as a witness on his own behalf, and cross-examined at great length, touching the route traveled by him in coming to New York, his dress, baggage, associates, dealings and business, from which it appeared that he had brought no baggage, and had made no change of his under clothing for several days — circumstances which might lead to doubts in the minds of the jury whether the plaintiff had the amount of money alleged to have been lost. The plaintiff afterward introduced evidence showing that he was in the possession of large sums of the kind of money alleged to have been lost immediately prior to his depositing the lost package with the defendants. An exception was taken to the admission of this evidence. It was admissible to rebut the inferences liable to be drawn from the plaintiff's cross-examination, and it also tended to show that the plaintiff had the money which he alleged that he had lost. It was in issue whether the plaintiff had the money in his possession at the time and place alleged; and the evidence tended to prove the fact.
The defendants sought to prove what had been put into the safe the evening before the alleged loss, and what was seen to be in the safe when examining for the package of the plaintiff; also, what was not in the safe that was there the evening before; all of which was excluded, and the defendants excepted. This evidence was clearly not admissible. No material fact could be established by the evidence sought. Proof that the defendants were not negligent is no defence. (Piper v. Manny, 21 Wend., 283.)
There is nothing in any of the exceptions available to work a new trial, if they had been brought before this court by an appeal on the part of the defendants. There was a judgment entered against them, from which they might have appealed, *Page 184 Not having done so, they must be deemed to have waived all exceptions, except those as to which they have prevailed below.
The judgment of the General Term, modifying the verdict of the jury, must be reversed, and judgment entered for the plaintiff for the whole amount of the verdict of the jury, with costs.