dissenting.
In this case I find myself unable to concur hi the majority opinion, which adheres to our former decision. While I concurred in that decision when it was rendered, on a reexamination of the question as presented on the rehearing, I am convinced that the defendant should not be held liable. The facts which are the basis of the. plaintiff’s cause of action, briefly stated, are as follows: The plaintiff, Michael F. Clancy and his wife, with their infant son Freeman, who was about six years old, were stopping at the Barker hotel in the. city of Omaha, and had been guests at the hotel for several days prior to the accident complained of. About 8: 30 o’clock of the evening of January 15, 1902, Freeman left his molher’s room and went down the elevator to the first floor of the hotel, as he says, “To get some ice water.’’ Reaching that floor, he passed by a room whore a boy of the name of Lacy, who was employed as a porter *94or bellboy at the hotel, was playing a harmonica; the door being ajar he entered this room, apparently to satisfy his childish curiosity; another boy, who sometimes ran the elevator, was also in the room; both of these employees seem to have been off duty at the time, and engaged in amusing themselves in a room not occupied by any of the guests of the house. As the Clancy boy entered the room, young Lacy said to him, apparently in jest, “See here, young fellow, if you touch anything, this is what you get,” at the same time pointing a pistol at him. The pistol was at that instant accidentally discharged, the ball striking the boy Freeman in the head, destroying one of his eyes and inflicting other injuries upon him which, however, did not prove fatal; and this action was brought by the father to recover damages alleged to have been sustained by him by reason of these facts.
The prevailing opinion does not place the right of recovery in this case on the ground of negligence or tort, for no negligence on the part of the defendants is alleged or proved; but bases such right solely on an alleged breach of the implied contract of an innkeeper that his guest shall be treated with due consideration for his comfort and safety; and so holds the proprietors of the hotel liable to both the father and his infant son for the damages sustained by them.
It must be conceded that, until recent years, the whole trend of authority supported and adhered to the common law rule that an innkeeper is not an insurer of the safety of his guest against injury, and that his obligation is limited to the exercise of reasonable care for the safety, comfort and entertainment of his visitor. Calye's case, 8 Rep. (4 Coke) 32; Sandys v. Florence, 47 L. J. C. P. 598; Weeks v. McNulty, 301 Tenn. 495; Curtis v. Dinneen, 4 Dak. 245; Sheffer v. Willoughby, 163 Ill. 518; Gilbert v. Hoffman, 66 Ia. 205; Overstreet v. Moser, 88 Mo. App. 72; Stanley v. Bircher, 78 Mo. 245; Stott v. Churchill, 15 Misc. (N. Y.) 80, 30 N. Y. Supp. 470; Sneed v. Moorehead, 70 Miss. 690. It is claimed, however, that the more recent *95cases have changed the rule, and to support this view we are referred, in the original opinion, to Rommel v. Schambacher, 120 Pa. St. 579. In that case it appears that on the evening of the 9th of August, 1881, the plaintiff-, William Rommel, a minor, entered the tavern of Jacob Scham-bacher, and there found one Edward Flanagan; they both became intoxicated on the liquor furnished them by Scham-bacher. While the plaintiff was standing outside of the bar, engaged in conversation with the defendant, Flanagan pinned a piece of paper to his back and set it on fire. The consequence was that Rommel’s clothes were soon in flames, and before they could be extinguished he was badly injured. On those facts it was held that the proprietor of a saloon is liable for injuries sustained by one Avho enters therein and becomes intoxicated, by reason of another, who also became intoxicated there, and who, in full view of the proprietor, attached a piece of paper to the former and set it on fire.
The sole ground of holding the proprietor liable Avas that he furnished the liquor which caused the intoxication of the two men, and allowed one of them, in his presence, to attach the paper to the other and set it on fire, when he could, and should, have prevented it. So it will be seen that there is nothing in the facts of that case, or in the matter actually decided, which supports the prevailing opinion.
Our attention is also called to the case of Commonwealth v. Power, 7 Met. (Mass.) 596, in which Shaw, O. J., said :
“An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound, to so regulate his house, as well Avitli regard to the peace and comfort of his guests, Avho there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and of course he has a right, and is bound, to exclude from his premises all disorderly persons, and all *96persons not conforming to regulations necessary and proper to such, quiet and good order.”
This language, it seems to me, comes far short of justifying the conclusion announced by the majority.
The case of Dickson v. Waldron, 135 Ind. 507, is also cited to sustain the prevailing opinion. The facts in that case were: George A. Diclcson and others Avere lessees and managers of the Park theater in the city of Indianapolis; Waldron came to the box office of the theater and applied for a 10-cent ticket, giving the ticket seller, one Joseph Gordon, a silver dollar, and receiving from him his ticket and only seventy cents in change; one John Dickson Avas in the box office at the time Avith the ticket seller, and Avas in charge of and conducting the theater for and on behalf of the lessees. Waldron demanded of the ticket seller the right change; an altercation ensued; and the janitor of the theater, Avho was also a special policeman, Avas ordered by Dickson, Avho had reached through the AvindoAV and grabbed Waldron and slapped him in the face, to arrest Waldron for a “vag.” The janitor thereupon struck Wal-dron, knocked him doAvn and beat him severely; some one interfered, and the janitor withdreAv; then Gordon came out of the ticket office and, in the presence of the manager, assaulted Waldron and beat him shamefully; thereafter the janitor arrested Waldron and took him to the police station. On these facts it Avas held, as in Rommel v. Schambacher, supra, that the proprietor of the theater Avas liable for the injuries sustained by Waldron.
In the foregoing eases, and in some others, the courts have made use of the expression, “The liability of an innkeeper is like that of a common carrier.” But it is no-Avhere held that the kind and extent of the liability of the innkeeper is the same as that of a. common carrier. All of the other cases referred to are actions where common carriers Avere sued for injuries to passengers while being transported.
Our attention was also called, on the rehearing, to the case of Curran v. Olson, 88 Minn. 307, as sustaining plain*97tiff’s contention. That was a case where a patron of a saloon fdl asleep in his chair and a third person poured alcohol, which was furnished by the bartender in charge of the defendant’s business, on the foot of the sleeper and set it on fire. The saloon keeper was held liable because the tort was committed in the presence and with the assent of his managing agent, when it was the duty and within the power of the agent to have prevented it. So, it seems to me, that in none of the cases to which our attention has been directed are the facts the same, or similar, to those in the case at bar, and I am of opinion that none of them fairly support the rule announced by the majority. On the other hand, I believe the great weight of authority to be with the defendants, and that the rule that an innkeeper is not an insurer of the safety of the person of his guest against injuries, and that his contract obligation is limited to the exercise of reasonable care for the safety, comfort and entertainment of his visitors, should be adhered, to. While my associates state that they do not intend to make the innkeeper an insurer of the safety of the guest, it seems clear to me that such is the effect of the prevailing opinion.
The case of Clancy v. Barker, 131 Fed. 161, which was an action for the infant Freeman Clancy, b3r the plaintiff herein, as his next friend, to recover for his injuries occasioned by the accident, which is the basis of this action, is commented on by the majority, and I take this occasion to revieAv it. It was there held by the United States circuit court of appeals that the defendants were not liable. The plaintiff’s contention there was the same as here, and Judge Sanborn, who wrote the prevailing opinion, said:
“The crucial question here, therefore, is whether or not an innkeeper is an insurer of the safety of the person of his guest while the latter remains in his hotel against the negligent and wilful acts of his servants, when they are acting without the course and without the actual or apparent scope of their employment. * * * Counsel for the plaintiff insists that the liability of the innkeepers should be extended in the case at bar even beyond that of *98common carriers, so that the defendants should he held liable for the injuries inflicted by the wilful or careless act of their servant when he was not acting within the course or scope of his employment. The argument in support of this contention is that common carriers are liable for the negligent or wilful acts of their servants to whom they intrust the care, custody, and control of the passengers they transport, and that the liability of innkeepers to their guests is similar to that of carriers to their passengers. There are many reasons, however, why this argument is not persuasive, and why it fails to demonstrate that an innkeeper insures the safety of the persons of his guests against injuries inflicted by his servants when they are not engaged in the discharge of their duties as employees. * * * There is a marked difference in the character of the contracts of carriage on a railroad or steamboat and of entertainment at an inn, and a wide difference in the relations of the parties to these contracts. In the former, the carrier takes and the passenger surrenders to him the control and dominion of his person, and the chief, nay, practically the only, occupation of both parties is the performance of the contract of carriage. For the time being all other occupations are subordinate to the transportation. The carrier regulates the movements of the passenger, assigns him his seat or berth, and determines when, how, and Avhere he shall ride, eat, and sleep, while the passenger submits to the rules, regulations, and directions of the carrier, and is transported in the manner the latter directs. The contract is that the passenger will surrender the direction and dominion of his person to the servants of the carrier, to be transported in the car, seat, or berth and in the manner in which they direct, and that the latter will take charge of and transport the person of the passenger safely. The logical and necessary result of this relation of the parties is that every servant of the carrier who is employed in assisting to transport -the passenger safely, (‘.very conductor, brakeman, and porter who is employed to assist in the trans*99portation, is constantly acting within the scope and coarse of his employment while he is upon the train or boat, because he is one of those selected by his master and placed in charge of the person of the passenger to safely transport him to his destination. Any negligent or wilful act of such a servant which inflicts injury upon the passenger is necessarily a breach of the master’s contract of safe carriage, and for it the latter must respond. But the contract of an innkeeper with Ms guest, and their relations to each other, are not of this character. The innkeeper does not take, nor does the guest surrender, the control or dominion of the latter’s person. The performance of the contract of entertainment is not the chief occupation of the parties, but it is subordinate to the ordinary business or pleasure of the guest. The innkeeper assigns a room to his guest, but neither he nor his servants direct him when or how he shall occupy it. * * * The agreement is not that the guest shall surrender the control of his person and action to the servants of the innkeeper, in order that he may be protected from injury and entertained. It is that the guest may retain the direction of his own action, that he may enjoy the entertainment offered, and that the innkeeper will exercise ordinary care to provide for his comfort and safety. * * * The natural and logical result of this relation of the parties is that when the servants are not engaged in the course or scope of their employment, although they may be present in the hotel, they are not performing their master’s contract, and he is not liable for their negligent or wilful acts.”
An examination of the cases involving the liability of common carriers, of owners of palace cars, of steamboats, and of theaters, cited in the prevailing opinion, discloses that the defendants’ servants in every case were acting within the course or scope of their employment, and none of them hold the defendants liable for the wilful or negligent acts of their employees beyond that scope. I am much impressed with the prevailing opinion of Judge *100Sanborn. The reasoning employed by him appears to be sound and is supported by the great weight of authority in both England and this country; and while I do not consider myself bound by that opinion, yet it seems to me to announce the better rule. I regret that different courts should arrive at different and inconsistent conclusions from the same facts, and practically in the same case.
Again, the supreme court of Dakota in Curtis v. Dinneen, supra, directly decided a similar question to the one presented in this case in accordance with the general rule, and in favor of the innkeeper. In that case the plaintiff, while a guest at the defendant’s hotel, was assaulted by the defendant’s husband, who was employed in and about the house, but not in the course of his employment. The court said:
“It is doubtless good legal doctrine that a master is liable to answer in a civil action for the tortious or wrongful act of his servant if done in the course of his employment in the master’s service, even though the master did not know of or authorize such act, or may have disapproved of or forbidden it. The act must be done in the execution of the authority given by the master and in pursuit of the master’s business, and must be within the scope of the servant’s employment, or, unless it be ratified by the master, he (the master) will not be liable therefor.”
And so it was held that an innkeeper is not liable for assault and battery committed on a guest by one of his servants, where the assault was not within the line of the servant’s duty, and was not advised or countenanced by the master.
In a still later case, Rahmel v. Lehndorff, 142 Cal. 681, the supreme court of California, in a well considered opinion, held that an assault by a waiter in a hotel on a guest is not within the scope of the waiter’s employment, or Avithin the real or supposed scope of his duties so as to render ibe innkeeper liable for the tort. An innkeeper is not bound to protect his guests from acts of violence of *101Ms servants, in the absence of negligence in employing a violent or disorderly person.
To my mind there are many other reasons why the contractual liability of innkeepers to their guests should not be held to be coextensive with, and the same as that of common carriers to their passengers. The agencies employed by common carriers to transport their passengers are extremely hazardous, and are not in any manner under the control of the passenger himself. They are used and controlled wholly by the servants of the carrier in transporting the passenger to his place of destination. During every moment of his journey he is in charge and under the control of the employees of the carrier, and so the carrier is held liable for the slightest negligence; while one who is the guest of the modern hotel or inn has the utmost freedom of movement; there is no danger or hazard connected with the business, and when a room is assigned to the guest it is his own to occupy or not, as he pleases; it is his domicile, from which he may exclude all intruders; and when, as in many cases, the guest lives constantly at the hotel, it is his home from which he may depart .and to which he may return at any time, and at all hours of both day and Right. Again, there are at all times other guests of the house with whom he necessarily is thrown in contact, and from whom he may possibly receive an injury; and it is believed that our former opinion goes to the extent of. holding the proprietor of the hotel liable for such injuries, Avithout any negligence on his part. The modern hotel is, to a certain extent, a public place. Any one may enter it for any lawful purpose, Avithout the consent of the proprietor, and leave it Avithout let or hindrance; and yet the effect of the prevailing opinion is that, for any injury inflicted by such a person to a guest of the house, the innkeeper Avould be liable, even if he had no reason to expect it, and could not in any way have prevented it. It seems clear to my mind that an ordinary nonhazardous and useful occupation should not be required to bear such an extraordinary burden.
*102Again, the thought intrudes itself, .that the person injured in this case was an infant of such tender years that the defendants had the right to expect that its parents, who in reality were their guests, would prevent him from entering the rooms of the servants or other guests, or getting into places of danger; in other words, from roaming about the hotel at will, and unattended. It can hardly he said that the proprietors, knowing that the child was with his mother, and under her immediate care and control, impliedly contracted to relieve her of that duty, assume it themselves, and insure him against injury while in their hotel.
After mature reflection and a careful examination of the authorities, I am of opinion that the defendants should not be held liable for the injury complained of.
For the foregoing reasons, it seems clear to me that our former opinion should be vacated, and tlu judgment of the district court should be affirmed.