[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 131 Action by Laura I. Jackson against Karl Steinberg, doing business as Arthur Hotel, for money had and received. From an adverse judgment, defendant appeals.
REVERSED. The plaintiff in this case is Mrs. Laura I. Jackson. The defendant is Karl Steinberg, who is engaged in the *Page 132 hotel business in Portland under the assumed business name of Arthur Hotel. Mrs. Jackson was employed by defendant as a chambermaid in his hotel.
The facts of the controversy are not disputed. Plaintiff entered defendant's employ on October 13, 1946. In describing her duties, she testified:
"Well, where a guest checks out we are supposed to change the linen and dust and clean up the room, leave clean towels, and arrange the furniture like it should be, and take out anything that doesn't belong in there. Q. What do you do with that you take out? A. If it is of any value we take it to the desk clerk; if it isn't of any value we put it in the garbage."
On December 30, 1946, while cleaning one of the guest rooms, she found eight one-hundred-dollar bills, United States currency, concealed under the paper lining of a dresser drawer. The bills were stacked neatly, and her attention was drawn to them only by reason of their bulk having made a slight bulge in the lining. She removed the bills and delivered them immediately to the manager of the hotel, in order that they might be restored to the true owner, if he could be found, and subject to her claims as finder. When she entered defendant's employ, she had installed new paper linings in all dresser drawers in the guest rooms under her care, and the bills were not in this particular drawer at that time.
The hotel, during the period in question, was much patronized by seamen, some of whom, after being paid off in the Port of Portland, brought considerable sums of money with them into the hotel, usually in bills of large denominations. Defendant made an unsuccessful effort to discover the owner of the bills, by communicating, or attempting to communicate, by mail, with *Page 133 each of the persons who had occupied this particular room from mid-October through December 31, 1946. Plaintiff then demanded of defendant that he return the money to her as finder, but he refused. She then, on July 10, 1947, filed this action in the District Court for Multnomah County, to recover the sum of $800 of defendant as money had and received. Defendant's affirmative defense was that, as an innkeeper, he is required, both at common law and by the Oregon statute, to hold the bills as bailee for the rightful owner.
Plaintiff had judgment in the District Court. On appeal to the Circuit Court, the case was, by stipulation, tried by the court without a jury. Defendant appeals from an adverse judgment.
Defendant's theory, and the basis of his assignments of error, is that the bills constitute mislaid property, presumed to have been left in the room by a former guest of the hotel, and that, as innkeeper, he is entitled to custody of the bills and bound to hold them as bailee for the true owner. Plaintiff, on the other hand, claims the right to the possession of the bills as treasure trove, as against all persons but the true owner.
Lost property is defined as that with the possession of which the owner has involuntarily parted, through neglect, carelessness, or inadvertence. 34 Am. Jur., Lost Property, section 2. It is property which the owner has unwittingly suffered to pass out of his possession, and of the whereabouts of which he has no knowledge. Anno., 9 A.L.R. 1388, 1392.
Mislaid property is that which the owner has voluntarily and intentionally laid down in a place where he can again resort to it, and then has forgotten where *Page 134 he laid it. 34 Am. Jur., Lost Property, section 3; Cohen v.Manufacturers Safe Deposit Co., 271 A.D. 428,65 N.Y.S.2d 791, 792.
Abandoned property is that of which the owner has relinquished all right, title, claim, and possession, with the intention of not reclaiming it or resuming its ownership, possession or enjoyment. Foulke v. N.Y. Consolidated R. Co.,228 N.Y. 269, 127 N.E. 237, 9 A.L.R. 1384, 1386; Erickson v.Sinykin, 223 Minn. 232, 26 N.W.2d 172, 170 A.L.R. 697, 704; Bouvier Law Dict., title "Abandonment".
"Treasure trove consists essentially of articles of gold and silver, intentionally hidden for safety in the earth or in some secret place, the owner being unknown." Brown: Personal Property, § 13. The foregoing is a modern definition, sufficient for the purposes of the present discussion. Another is: "Money or coin, gold, silver, plate, or bullion found hidden in the earth or other private place, the owner thereof being unknown." Black, Law Dict. For other definitions, see Chitty, Prerogatives of the Crown, 152; 3 Coke, Inst., 132; I Bl. Comm., 295; 34 Am. Jur., Lost Property, section 4. Cf. Martin: Treasure Trove and the British Museum, 20 Law Quar. Rev. 27, 29, 32.
From the manner in which the bills in the instant case were carefully concealed beneath the paper lining of the drawer, it must be presumed that the concealment was effected intentionally and deliberately. The bills, therefore, cannot be regarded as abandoned property. Kuykendall v. Fisher, 61 W. Va. 87, 100, 8 L.R.A. (N.S.) 94, 56 S.E. 48, 11 Ann. Cas. 700.
With regard to plaintiff's contention that the bills constituted treasure trove, it has been held that the law of treasure trove has been merged with that of *Page 135 lost goods generally, at least so far as respects the rights of the finder. Danielson v. Roberts, 44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am. St. Rep. 627; Weeks v. Hackett, 104 Me. 264, 71 A. 858, 19 L.R.A. (N.S.) 1201, 129 Am. St. Rep. 390, 15 Ann. Cas. 1156; Vickery v. Hardin, 77 Ind. App. 558,133 N.E. 922; 36 C.J.S., Finding Lost Goods, section 5; 34 Am. Jur., Lost Property, section 4. Treasure trove, it is said, may, in our commercial age, include the paper representatives of gold and silver. Huthmacher v. Harris's Adm'rs., 38 Pa. St. 491, 80 Am. Dec. 502, 503.
The natural assumption is that the person who concealed the bills in the case at bar was a guest of the hotel. Their considerable value, and the manner of their concealment, indicate that the person who concealed them did so for purposes of security, and with the intention of reclaiming them. They were, therefore, to be classified not as lost, but as misplaced or forgotten property (Anno., 9 A.L.R. 1388, 1390), and the defendant, as occupier of the premises where they were found, had the right and duty to take them into his possession and to hold them as a gratuitous bailee for the true owner. 34 Am. Jur., Lost Property, section 7; McAvoy v. Medina, 93 Mass. (11 Allen) 548, 549, 87 Am. Dec. 733; Kincaid v. Eaton, 98 Mass. 139, 141, 93 Am. Dec. 142; Sovern v. Yoran, 16 Or. 269, 274, 20 P. 100, 8 Am. St. Rep. 293; Heddle v. Bank of Hamilton, 17 B.C. 306, 6 B.R.C. 256, 259; Foulke v. N.Y. Consolidated R. Co., supra (228 N.Y. 269, 127 N.E. 237, 9 A.L.R. 1384, 1386, 1387); Silcott v.Louisville Trust Co., 205 Ky. 234, 265 S.W. 612, 613, 43 A.L.R. 28; State ex rel. v. Buzard, 235 Mo. App. 636, 144 S.W.2d 847,849; Norris v. Camp, (C.C.A. 10) 144 F.2d 1, 3; 34 Am. Jur., Lost Property, section 6. *Page 136
The decisive feature of the present case is the fact that plaintiff was an employee or servant of the owner or occupant of the premises, and that, in discovering the bills and turning them over to her employer, she was simply performing the duties of her employment. She was allowed to enter the guest room solely in order to do her work as chambermaid, and she was expressly instructed to take to the desk clerk any mislaid or forgotten property which she might discover. It is true that, in the United States, the courts have tended to accede to the claims of servants to the custody of articles found by them during the course of their employment, where the articles are, in a legal sense, lost property. 34 Am. Jur., Lost Property, section 10. InHamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664, a servant in a hotel found a roll of bank notes in the public parlor. It was held that, as the money was found on the floor of a room common to all classes of persons, there was no presumption that it was the property of a guest, and that, when the true owner was not found, the plaintiff was entitled to recover it from the innkeeper, to whom she had delivered it. In the case at bar, however, the bills were not lost property.
An interesting and instructive case, McDowell v. Ulster Bank, is discussed in a leading article in 33 Irish Law Times, p. 225 (also noted in 60 Alb. L.J. 346). Plaintiff was a porter in a bank in Belfast. While sweeping out the bank's premises after closing time, he found, under one of the tables provided for the use of customers, a parcel containing notes of the value of 25 pounds. He handed them to the bank manager. The owner was not found, and plaintiff claimed the notes as his property. On his claim being rejected, he brought an action against the bank to *Page 137 recover the value of the notes. The lower court held against him. On appeal, the decision was affirmed, on the ground that the possession of the servant is the possession of the master. The court said, in part, as follows:
"I do not decide this case on the ground laid down by Lord Russell in Sharman's case. I decide it on the ground of the relation of master and servant, and that it was by reason of the existence of that relationship and in the performance of the duties of that service that the plaintiff acquired possession of this property. I conceive that it is the duty of the porter of the Bank, who acts as caretaker, to pick up matters of this description, and to hand them over to the Bank. I hold that the possession of the servant of the Bank was the possession of the Bank itself, and that, therefore, the element is wanting which would give the title to the servant as against the master. * * *" McDowell v. Ulster Bank, supra.
On this branch of the case, the terse comment of a distinguished textwriter will suffice to express our own view:
"In those cases where servants are hired to clean up premises it seems that it might well be held that in finding things in the course of such cleaning the found property should belong to the master on this ground alone." Aigler: Rights of Finders, 21 Mich. L. Rev. 664, 681 (footnote).
In finding for plaintiff herein, the circuit court judge held that his decision should be governed by Danielson v. Roberts, supra (44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am. St. Rep. 627) and Roberson v. Ellis, 58 Or. 219, 114 P. 100, 35 L.R.A. (N.S.) 979. The present case may be distinguished from those cases, however. In the Danielson case, the plaintiffs *Page 138 were employed merely to clean out an old chickenhouse, in the process of which work they found buried treasure. In theRoberson case, the plaintiff was employed merely to remove from a warehouse certain goods and rubbish, and, while doing so, found some concealed gold coins. The finding of the treasure was, in neither case, within the scope of the employment of the finders. As stated in the Roberson case:
"The handling of the property of other people, not connected with the defendant [the owner of the premises], was not in the line of the plaintiff's employment, and would neither impose responsibility nor confer privilege upon the defendant."
In the present case, on the contrary, the search for mislaid or forgotten property was expressly within the scope of plaintiff's employment, and the delivery thereof to her employer was a part of her admitted duty.
The position of the defendant in the case at bar is fortified by the fact that, as an innkeeper, he is under common law and statutory obligations in respect of the found bills.
"When a guest gives up his room, pays his bill, and leaves an inn without an intention of returning, the innkeeper's liability as such for the effects of the former guest left in his charge ceases, and he is liable thereafter merely as an ordinary bailee, either gratuitous or for hire, depending upon the circumstances." 28 Am. Jur., Innkeepers, section 94.
Our statute (section 55-203, O.C.L.A.), in effect when the facts of this case transpired, provides that, when baggage or property of a guest is suffered to remain in an inn or hotel after the relation of guest and innkeeper has ended, the innkeeper may, at his option, hold such property at the risk of such former guest. *Page 139
Where money is found in an inn on the floor of a room common to the public, there being no circumstances pointing to its loss by a guest, the finder, even if an employee of the innkeeper, is entitled to hold the money as bailee for the true owner. Hamaker v. Blanchard, supra (90 Pa. 377, 35 Am. Rep. 664, 665). It would seem that, as to articles voluntarily concealed by a guest, the very act of concealment would indicate that such articles have not been placed "in the protection of the house" (Brown: Personal Property, section 14), and so, while the articles remain concealed, the innkeeper ordinarily would not have the responsibility of a bailee therefor. Upon their discovery by the innkeeper or his servant, however, the innkeeper's responsibility and duty as bailee for the owner becomes fixed.
In Flax v. Monticello Realty Co., 185 Va. 474,39 S.E.2d 308, a hotel chambermaid found a diamond brooch, wrapped in tissue paper, concealed in a crevice in the margin of the mattress of a bed in one of the guest rooms. Thinking that the brooch belonged to the then occupant of the room, the maid placed it upon the bureau. There the guest found it, and laid claim to it as finder. He did, however, deposit it with the hotel manager in order that inquiry might be made to discover the owner. As the owner was not discovered, the guest demanded return of the brooch, and, on being refused, he brought an action in detinue against the hotel proprietor. Held, that an innkeeper is in direct and continued control of his guest rooms, which are to be considered as private rooms; that the brooch was unquestionably to be classified as mislaid and forgotten property; and that the innkeeper occupied the position of bailee for the true owner of the chattel. *Page 140
The plaintiff in the present case is to be commended for her honesty and fair dealing throughout the transaction. Under our view of the law, however, we have no alternative other than to reverse the judgment of the lower court. It will be reversed accordingly.
ON RESPONDENT'S PETITION FOR REHEARING.