On Rehearing. With some reluctance I concur in reversing and remanding this cause on the ground that the evidence was insufficient to sustain the negligence found in favor of plaintiff. I do not agree with the original opinion directing the trial court in the event the evidence is the same on another trial to direct a verdict in favor of defendant.
The jury found on ample evidence that plaintiffs' jewelry was stolen from the room of defendant which plaintiffs were occupying as paid guests. Defendant had the means of entering the room. Five keys suitable to unlock the door were in the custody of defendant's employees. Defendant failed to show the actual location of each of these keys at the relevant time. There was no evidence that it could not make such showing.
An innkeeper is not an insurer of the safety of a guest's property. Howth v. Franklin, 20 Tex. 798; Hadley v. Upshaw, 27 Tex. 547, 86 Am.Dec. 654; Oriental Hotel Co. v. Faust, 38 Tex. Civ. App. 573, 86 S.W. 373; Case Sons Cutlery Co. v. Canode, Tex. Civ. App. 205 S.W. 350; Dallas Hotel Co. v. Davison, Tex.Com.App., 23 S.W.2d 708.
The law in regard to the liability of the innkeeper for the loss of a guest's property has not been changed by any decision subsequent to Howth v. Franklin and Hadley v. Upshaw.
Under these two cases if the guest's property is lost or stolen on the premises of the innkeeper, a prima facie case of negligence is established. The loss or theft being established, in order for the innkeeper to free himself from liability, it is incumbent on him to show that the high degree of care arising from the relationship was exercised to prevent the loss. The loss by theft being shown the burden of proceeding with the evidence is upon the innkeeper.
Much has been said as to Art. 4592, R.S. 1925. It is my view that Art. 4592 has only one effect. Such is as follows: if the hotel keeper is unable to show that he exercised the degree of care required by the relationship but does show a compliance with the conditions of Art. 4592, the maximum liability is fifty dollars, unless the guest bring himself within the proviso. If the guest is able to establish negligence or wrongdoing on the part of the innkeeper, then the innkeeper is liable for the entire loss.
In order to make out a case for full damages, the innkeeper having met the conditions prescribed by Art. 4592, the guest may not rely on the presumption arising from the loss but must affirmatively show negligence. However to recover the fifty dollars he may rely on the presumed negligence, that is the failure of the innkeeper to show freedom from negligence in all degrees.
In the submission of this case it was assumed that defendant had complied with the conditions of Art. 4592. If the above construction of that article be correct, then defendant failing to show freedom from negligence, it was liable for fifty dollars or in any event it was a question for the jury. Defendant's servants had the only keys in their possession suitable to unlock the door under the existing conditions. Defendant failed to introduce proof although available to it that one of its employees did not make the entry; failed to show the actual location of the emergency keys in its possession at the relevant time.
In Hadley v. Upshaw, supra, the charge was: They (innkeepers) are held liable for the value of such articles lost or stolen in the tavern unless it is made to appear that the loss did not result from any want of care, or neglect, or any insufficiency of means of protection, on the part of defendants but in fact resulted from the neglect or carelessness of the plaintiff himself or by some other means for which the defendant was not responsible.
As to this portion of the charge the opinion states:
"The first paragraph of the charge of the court stated with great accuracy the general principle in respect to the liability of inn-keepers for the loss of the goods of their guests."
It is not thought that the Supreme Court has ever receded from the holding made in this case.
In the case of Dallas Hotel Co. v. Davison, supra, the proposition is reiterated that *Page 758 to hold an innkeeper liable negligence must be shown. There is nothing new or novel in the proposition. In the case of a passenger the carrier is not an insurer of safety. Negligence must be shown. The unexplained collision of two trains would be sufficient prima facie to establish negligence. Mexican Central R. Co. v. Lauricella, 87 Tex. 277,28 S.W. 277, 47 Am. St. Rep. 103.
As stated in Dallas Hotel Co. v. Davison, Art. 4592 placed no additional burdens on the hotel keeper. It was passed to an extent to relieve him of burdens. If he cannot obtain evidence to show he exercised the high degree of care required by law, in event of compliance with Art. 4592 and the guest's non-compliance, unless the guest affirmatively shows negligence or wrong doing, fifty dollars is the maximum amount of liability.
Justice McGILL authorizes me to state that he agrees with the views herein stated. It is ordered that the motions for rehearing filed by the respective parties be overruled. It is further ordered that that portion of the original opinion directing the court in the event the evidence be the same on the re-trial to instruct a verdict in favor of defendant be withdrawn.