The evidence in this case, under the law as laid down to the jury, would have warranted a verdict either way; consequently, the court committed no error in its refusal to set aside the verdict as contrary to evidence; and the only questions in the cqse arise upon the instructions.
" If innkeepers, "like common carriers, assume the responsibility of insurers, and are liable for all losses, except such as happen from inevitable accident, without the intervention of man, or from public enemies, then the law was wrongly given to the jury; but if they are only primé facie responsible for a loss occasioned by the death of an animal while in their possession, then the instructions given were substantially correct.
It is a harsh rule which makes a person in any case respon-l sible for a loss which has occurred without any fault of his, ] and it can only be justified upon grounds of public policy, and 1 in consideration of the numerous opportunities afforded by the « nature of his business, for fraudulent combination and clandestine dealing, to the injury of the owner of the property. The rule ought not to be extended beyond the reason in which it originated. An innkeeper can have no motive to destroy the animal of his guest, and there is not the same reason for holding him responsible at all events for such a loss, as there would be a common carrier, or even an innkeeper for the loss of goods which had disappeared from his possession; because in the latter case, he may have converted the goods to his own use, while in the former, he could gain nothing by the death of the animal. Accordingly, a distinction is made in the law books between the liability of innkeepers and common carriers, particularly for losses occasioned by the death of animals. Hill v. Owen, 5 Blackf. 323.
It is laid down in Calye’s case, Coke’s Rep. part 8, 33: “ That the innholder shall not be charged, unless there be default in him or his servants, in the well and safe keeping and custody of their guest’s goods and chattels within his common inn.”
This is a leading case upon the liability of innkeepers, and, although there is apparently some conflict in the authorities, yet, 8tory in his Commentaries on Bailments, sect. 472, states the law on this subject as follows: “Innkeepers are not responsible to the same extent as common carriers. The loss of the goods of a guest while at an inn, will be presumptive evidence of negligence on the part of the innkeeper or of his domesfics. But lie may, if he can, repel this presumption, by showing that there has been no negligence whatsoever; or that the loss is attributable to the personal negligence of the guest himself; or that it has been occasioned by inevitable accident, or by superior force.”
The cases of Burgess v. Clements, 4 M. & S. 306 ; and of Dawson v. Chamney, 5 Adolphus & Ellis, 165, fully sustain the law as laid down by Story.
The authorities all agree that an innkeeper is bound to look to the safe keeping of every person’s goods who comes to his inn as a guest, and that in case of loss, negligence is to be ipiputed to him, unless it affirmatively appear, that the loss is not attributable to any fault or want of care by him or his servants.
In cases where the loss is occasioned by the death of an animal, the requirements of public policy are. fully answered by holding the innkeeper primd facie liable for the loss, leaving him to exonerate himself, if he can, by showing that the death was in no manner occasioned by a want of proper care and attention on his part.
In this case, the evidence was such as to warrant the jury in finding that the mare came to her death by disease, or from her own viciousness, without any fault on the part of the innkeeper in taking care of her; and under such circumstances, he ought not to be held liable, and such was, in substance, the law as given to the jury.
Judgment affirmed.