On Rehearing. It is well understood that the general rule is that, to constitute a bailment, there must be an acceptance of possession of the property, which implies knowledge by the bailee that he takes and assumes possession, and his dominion must ordinarily be exclusive. But that principle is consistent with the further rule of law by which, when a certain relation is voluntarily assumed, acceptance of the possession of certain property may be construed to exist, though there is no actual knowledge of the items of such property. This is illustrated by the principle which holds an innkeeper to the relation of a bailee of certain goods of his guest, though he knows nothing of the existence of such property in fact, and his "duties must be measured by the analogies of the law applicable to other species of bailments." Chamberlain v. Masterson, 26 Ala. 371.
There are different degrees of duty by a bailee. An innkeeper, and a boarding house keeper, or warehouseman, are not subject by common law to the same amount of care. But the difference is in the degree of care, and not in the principles of law which are controlling in determining whether there is a bailment.
It is said not to be necessary that the property of the guest be placed in the special keeping of the innkeeper, or that he be given *Page 464 exclusive possession or complete dominion over it. For, unless the guest assumes the exclusive control and dominion of the property, it is deemed to be within the custody of the innkeeper so as to render him responsible therefor when it is in the room of the guest or some place about the premises under the control of the manager. 32 Corpus Juris, 557.
When truly analyzed, we think this case hinges upon whether the plaintiff did or did not have, at the time of the loss, exclusive control and dominion of the trunk. We stated the facts bearing on that inquiry in our opinion in this case, and held, in substance, that, since the elevator and hallway were under the dominion of the defendant, and that it should be contemplated that in moving into an apartment by a tenant, it would be necessary to transport his goods to the proper floor by the elevator operated by defendant and leave them or some of them temporarily in the hall, not under the observation of the owner, the defendant owed a duty of ordinary care to see that its servants or others did not dispose of, destroy, or injure them. We cannot recede from that position and cannot agree with counsel that, if the owner or her agent is in the apartment, not observing the trunk in the hall, it must be regarded as still under her exclusive control in the sense of this rule.
The lease contains a clause to the effect that the personal property of the tenant placed in the leased premises or appurtenances thereto are at the risk of such tenant, without liability of the lessor for any act of negligence of any person in or about the building. This lease was dated November 25th, and the undisputed evidence is that plaintiff moved into the apartment on November 28th, and on that day lost her trunk, but that she did not sign the lease until several days after she moved in. Plaintiff did testify that the lease was the only agreement she had with defendant, but in the same connection said that, before going into the apartment, Mr. or Mrs. Meeds went down for her and made arrangements for her to occupy it, including the amount to be paid. She was not present when this arrangement was made, and its details are not shown, other than that the amount to be paid was agreed on. She says she knew nothing of any lease, nor that one was contemplated, until after she moved in the house and lost her trunk. There is no evidence that there was any understanding up to that time that the lessor should be freed from such liability, or that such a clause would be in a lease to be executed later. When the lease was executed, the cause of action had accrued. So that the question is, What effect did such clause have upon a cause of action which had then accrued?
We do not differ with the principle asserted in the cases cited by appellant's counsel that, if such had been the verbal contract when she lost her trunk, the subsequent execution of a lease such as they then contemplated was in the nature of a confirmation of the verbal contract. But when there was no verbal contract to that effect, there was nothing in that respect to confirm, and the writing amounted to one to that extent only from the date of its execution. Its reference to a date anterior to the loss therefore could affect such loss only if it may be classed as a release of the cause of action. But there was no consideration for such release. Of course the mutual obligations of the contract were sufficient consideration in so far as concerned transactions thereafter accruing, but not as a release of an existing cause of action, even though it be held to have that meaning and intent, unless based upon some modification of the prior verbal agreement. Abercrombie v. Goode, 187 Ala. 310, 65 So. 816.
We think that we correctly disposed of this question in our original opinion, but, that there may be no misunderstanding, we pretermit altogether a consideration of the effect of an agreement by a bailee to relieve himself of the consequences of his negligence. See 6 Corpus Juris, 1112; Moeran v. New York Poultry, etc., Ass'n, 28 Misc. 537, 59 N.Y. S. 584; 10 Corpus Juris, 133, 134; 32 Corpus Juris, 551 (48); 40 Cyc. 437; Cent. of Ga. R. Co. v. Merrill Co., 153 Ala. 277, 45 So. 628; Thompson v. Mobile L. R. Co., 211 Ala. 525 (6), 101 So. 177, 34 A.L.R. 921; Moore v. Mayor, etc., of City of Mobile, 1 Stew. 284.
We have discussed the two questions argued on this application, and see no reason to modify our former opinion.
Application overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur. *Page 465