(dissenting):
I am. unable to agree with the other members of the court that ■ the judgment aj)pealed from should be affirmed. At the trial tha >■ z complaint was dismissed, on defendants’ motion, without taking any evidence,, and, therefore, whether or not-the" ruling were correct must be determined in the same way as if the defendants had demurred to the complaint upon the ground that it did not state facts sufficient to. constitute a cause of action.
The complaint alleges that the defendants are engaged' in managing and controlling a hotel for the entertainment of guests for hire; “ that on the fifth day of June, 1905, this plaintiff in company with her daughter and her brother, one George L. Gatlin, called at said hotel and applied for rooms, giving their true and proper names . -and stating the relationship of each to the other; that the plaintiff and her said brother and daughter were thereupon received as guests of said hotel and this plaintiff assigned to a room therein accordingly; that thereafter and about one o’clock in the morning of the nekt day, while plaintiff was occupying the room so assigned to her, o.ne of the servants, employees and agents of the defendants, while in (his) regular employment at said hotel;, forced his way into the said room of this plaintiff, without her consent,'and against, her protest, while "she was undressed and without clothing except her nightdress, and addressed to her and in her presence and in the presence of her said brother, and another person,, vile and insulting language, . and. accused her of being a disreputable person and addressed to her words imputing that. she was guilty of improper and immoral conduct, and insulted her in many other ways * * * and; fur*813therinore ordered her to leave said hotel, and threatened to publish-her name in the- daily papers as a disreputable person.”
I think the complaint states a cause of- action. It ■ alleges the breach of an implied contract,- entered into when -the plaintiff became a guest at the hotel, which was that "tho defendants would treat her properly, furnish her with lodging and food and protect her, so far as reasonably could be done, against insult and injury.
It is true that in Oalye's Case (1 Smith L. 0. [8th Am. ed.] 249, 252, cited in the opinion of Mr Justice Ing-raham, the English courts held that an innkeeper was- liable for the personal property of a guest, but not. for an injury to his' person, but this case was decided over three hundred years ago. The law,.if anything, isaprogressive science, and it has been the boast of the members, ■of the legal profession that it not.only keeps abreast, but is ahead of the varying changes which are constantly being made for the comfort and improvement of. human society. For this- reason I do not think a rule which was applied three hundred years ago in determining whether an innkeeper was liable, considering the advancement that has since been made and the changes that have taken place in the mode of living, is decisive of- the question. The precise question here presented has' not heretofore arisen in this State, so far as I have been able to discover; but it has, to some extent at least, in some of the other States. (Rommel v. Schambacher, 120 Penn. St. 579; Curran v. Olson, 88 Minn. 307; Mastad v. Swedish Brethren 83 id. 40; Overstreet,v. Moser, 88 Mo. App. 72; Clancy v. Barker, 71 Neb. 83; 98 N. W. Rep. 440; 22 Cyc. 1080.)
The rtile to be applied to innkeepers, so far as the treatment of a guest is concerned, is analogous to the one applied to common carriers. A common carrier is hable to a passenger for an injury to his feelings caused by insulting language of an employee. This liability is .put upon the ground that such acts constitute a breach of its contract which obligates it not only to transport the passenger, but to accord to him respectful and courteous -treatment and protect him from insult from strangers and its own employees. (Palmerz v. Manhattan R. Co., 133 N. Y. 261; Gillespie v. Brooklyn Heights R. R. Co., 178 id. 347, and cases there cited; Busch v. Interborough Rapid Transit Co., 187 id. 388; The words of Judge Story *814- in ' Chamberlain v. Chandler (3 Mason, 242), while uséd with reference to the- liability of- a common carrier, are, as it seems to me; equally applicable to the proprietor of a hotel. He says, referring to ■‘the sontract: It is a, stipulation not'for toleration merely,-but for . respectful- treatment,dor that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that promptitude which administers aid to ■ ■ distress." In respect to- females it proceeds ye.t farther, it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness and against that wanton . disregard of the feelings which aggravates every evil and endeavors by the excitement of terror and cool malignity nf conduct to inflict .' " torture upon susceptible minds. *.. * * It is intimated that all • these acts, though wrong in morals, are yet acts which the law does not punish ; that if the person is untouched, if the acts do not amount to an assault and battery, they are not to be redressed ; the law looks . on them as unworthy-of its cognizance; the master is at 'liberty to inflict ■ the most severe mental sufferings in the . most tyrannical ' maimer, and' yet if he withholds a blow,' the victim may be crushed by his unkindness; he commits nothing within the reach of civil jurisprudence. My opinion is that the law. involves no such absurdity.\ It is', rational and just. It -gives compensation, for mental sufferings,, occasioned by acts of "wanton ■ ■ injustice- ■ equally whether they operate by way off direct or of consequential injuries.” To hold that the- proprietor of a hotel is. liable if - s.i lady’s .handbag be stolen from her room while she is a. guest, but he is not liable if one of. his employees, by hi§ direction, . -invades tlie privacy of her' .room against her protest, when she is disrobed and in the act of retiring, arid uses vile, and insulting language to her, is to my mind abhorrent. It is but another way of .. asserting that the law is powerless to punish -the grossest, outrage.. ...: It is generally supposed tvlien one. as a.guest, is assigned to k- room -in a hotel, that insures hiin the -privacy of his home so long as lie pays the price. charged for the room, conforms Ids conduct-to the rules of the house and behaves himself properly. It is .not true, as I understand the law, that the proprietor of a- hotel or his servants has the right, without tlie consent of a guest, at any time to enter his room. This is not the law, and if it is it ought not. to be, *815because it is against good morals and the general law of decency, and whenever the proprietor of an inn, either himself or by his servants, commits such acts, he is liable in. damages. The damage to be awarded is, of course, compensatory — that is, the damage, to the humiliation, injury to the feelings, which one suffers by having the privacy of her room invaded, and being addressed in insulting and abusive language. .This, of course, does not include an injury to the character, and I do not understand that the complaint is drafted on that theory, but is to recover for the breach of an implied contract, and to that extent it states a cause of action.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
Judgment affirmed, with costs.