I respectfully dissent from the conclusion reached by the majority of this Court.
I have some doubt whether a bailment for hire was shown by the evidence, but I do not think that the question was properly presented to the trial court by defendant and, therefore, refrain from a discussion of that assignment of error. But the record raises a question whether the goods of plaintiff were lost through fault on his part.
Under the common law an innkeeper was an insurer of the goods of his guests, but this liability could be *Page 482 limited by express agreement or notice to the guest.Cunningham v. Bucky, 42 W. Va. 671, 26 S.E. 442. The rule has been modified by statute so that innkeepers are now required "to take every reasonable precaution to protect the persons and property of their guests." Code, 16-6-22. If the loss is occasioned by an act of God, the public enemy, or through thefault of the guest, the innkeeper is not liable. Cunningham v.Bucky, supra. In this case the evidence of the parking lot attendant tended to show that Weisman's negligence caused the loss of the goods. Weisman knew that his goods were protected only by the fragile glass windows of his automobile, and that the vehicle was parked upon an open lot in a populous community. The parking lot attendant, Mullens, testified, in substance, that he informed Weisman that the parking lot was not protected by an attendant after nine-thirty or ten o'clock at night, and that Weisman then informed Mullens that he, Weisman, would return and get his automobile. This conversation is denied by Weisman, but his denial does not foreclose the right of the defendant to present the theory that the loss was occasioned by negligence on the part of Weisman. Cunningham v.Bucky, supra; Elcox v. Hill, 98 U.S. 218, 25 L. Ed. 103; 28 Am.Jur. 108; 2 Williston on Contracts 1988. A guest cannot recover for the loss of his goods if he fails to exercise the ordinary care a reasonably prudent man would exercise in the existing circumstances. Beale on Innkeepers, Section 223.
If the evidence of the parking lot attendant is true, Weisman failed to exercise ordinary care in this instance. He could have removed his goods from the automobile at nine-thirty, or he could have taken other measures to protect his goods at that time. Of course, the question of a guest's negligence or contributory negligence is a question for the jury. Defendant endeavored to submit this question to the jury by its instruction No. 2, reading as follows:
"The Court instructs the jury that if you believe from the evidence in this case that the Holley *Page 483 Hotel Company, prior to, on and during the nighttime of the 11th day of December, 1944, provided, free to its guests, an automobile parking lot in the rear of its hotel building, and that the plaintiff left in his automobile parked on said lot in the nighttime of said 11th day of December, 1944, valuable merchandise; and if you shall further believe from all the evidence in this case that the plaintiff on said occasion did not exercise that degree of care for the protection of his said merchandise that a prudent man may reasonably be expected to exercise in such circumstances, and that such lack of care on the part of the plaintiff contributed to the loss of his merchandise; Then you shall find for the defendant."
This instruction was refused. It is my opinion that the refusal to give defendant's instruction No. 2 constituted error. In my view the foregoing instruction states a correct principle of law with reference to the loss of goods of a guest of an inn or hotel occasioned by his negligence. The evidence of the attendant at the parking lot is a sufficient factual basis for giving defendant's instruction No. 2.
For the reason herein stated I would reverse the judgment of the trial court.