Spring v. Hager , 145 Mass. 186 ( 1887 )

Field, J.

The only negligence of the plaintiff which the defendants contended that the evidence proved, was the neglect of the plaintiff to bolt the door. The plaintiff locked the door by a lock connected with the door knob. The bolt was on the inside of the door, six inches from the top, and the door was “ about six feet and six inches high.” The plaintiff testified that “he did not know it was there until after the robbery.” It does not appear that there were any regulations of the inn, which were posted in the room or anywhere else, or which were in any manner brought to the notice of the plaintiff, and it is conceded that the attention of the plaintiff “ was not called by the defendants or by any one else to the bolt.” The defendants contended, however, upon all the evidence, that “ the plaintiff must have seen the bolt.” The first request of the plaintiff for a ruling was, in effect, that his failure to bolt the door after having locked it was not such negligence as would defeat the action, even if he saw the bolt; and the second request was, in effect, that his failure to bolt the door after having locked it would not defeat the action, “ if said bolt was not known to the plaintiff, nor his attention in any way called to the same.” This second request raises the question whether it was the duty of the plaintiff to examine the door to see if there were other fastenings upon it besides the lock. It may be conceded that the bolt and lock together afforded greater security than either of them alone, and that, although the bolt was in an unusual place upon the door, it could easily have been seen if the plaintiff had searched for it.

The Pub. Sts. e. 102, § 16, provide that “ An innholder against whom a claim is made for loss sustained by a guest may in all cases show that such loss is attributable to the negligence of the guest himself, or to his non-compliance with the regulations of the inn, if such regulations are reasonable and proper, and are shown to have been duly brought to the notice of the guest by the innholder." This provision was first enacted in the St. of 1853, a. 405, § 3, which was soon after the decision in Berkshire Woollen Co. v. Proctor, 7 Cush. 417; and, although this statute made some changes in the law, the clause that it is competent for an innkeeper- to show' that the loss is attributable to the negligence of the guest is only declaratory of the common law. Mason v. Thompson, 9 Pick. 280. Berkshire Woollen Co. v. Proctor, ubi supra. Elcox v. Hill, 98 U. S. 218. Oppenheim v. White Lion Hotel Co. L. R. 6 C. P. 515. Cashill v. Wright, 6 El. & Bl. 890. Morgan v. Ravey, 6 H. & N. 265.

It has indeed been said that, “in the absence of notice of a rule of the inn to lock and bolt the door, the failure to do so is not legal negligence at common law.” Murchison v. Sergent, 69 Ga. 206, 213. It has been often decided that not locking or fastening the door of a bedroom is not, as matter of law, negligence, but that this fact, in connection with others, may be evidence of negligence for the jury; and the weight' of modern authority is, we think, that the failure to lock or bolt the door of a lodging-room at an inn, when there is a lock or bolt upon it, is evidence of negligence for the jury. Oppenheim v. White Lion Hotel Co., ubi supra. Spice v. Bacon, 36 L. T. (N. S.) 896. Herbert v. Markwell, 45 L. T. (N. S.) 649.

At common law, “ inn-keepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property.” Mason v. Thompson, 9 Pick. 284.

The statutes have not changed the general nature of the liability of an innholder; and, subject to the statutory provisions, he is liable to his guests in cases where no actual negligence on the part of himself or his servants is shown. It has been held that the burden of proof is upon the innholder to show that the loss was caused by the negligence of his guest. Norcross v. Norcross, 53 Maine, 163. The language of the Pub. Sts. c. 102, § 16, implies that this burden is upon the innholder. The case at bar is not, therefore, an action for negligence, and it may be doubted whether the rulings in such actions upon evidence of contributory negligence are in all respects applicable.

No case has been cited in which it has been held that the single fact that the plaintiff did not bolt his door, after having locked it on the inside, is sufficient evidence of negligence.

In Spice v. Bacon, and in Herbert v. Markwell, ubi supra, the jury must have found that the door was left unfastened either by bolt or lock.

In Morgan v. Rarey, 2 F. & F. 283, it is said that the plaintiff locked the door, but did not bolt it. In the same case, in the Court of Exchequer, 6 H. & N. 265, 266, it is said that “ witnesses were, however, called, on the part of the defendants, to prove that the plaintiff had told them he had not locked the door.” It was admitted that he did not use the bolt. There was a notice posted over the mantel-piece requesting “all visitors to use the night bolt,” which the plaintiff admitted he saw, but said he did not read beyond the word “ notice.” Chief Baron Pollock, at nisi prius, left the question of negligence to the jury, but told “ them at the same time that the guest was not bound to lock his bedroom door, &c.” The verdict was for the plaintiff.

It must often depend much upon the circumstances of the case, the customs of the age and country, and the usages of the place, whether the plaintiff has been guilty of such negligence that the loss can be said to be attributable to it; and we cannot say, as matter of law, that, on the facts appearing in this case, if the plaintiff saw the bolt and did not use it, this was not some evidence of negligence to be submitted to the jury. The delivery of a key to a guest may be held to be an intimation to him that he is to use it in locking his door. The lock, however, is the only fastening which the guest can use when he is not in the room. A bolt, if seen, may itself suggest that it ought to be used. If, however, there are no regulations brought to the notice of a guest requesting him to bolt the door, and if it is not known to the guest that there is a bolt, and his attention is not in any way called to it, we are of opinion that the fact that, after locking his door with the key, he does not search for a bolt and find it, is not evidence of negligence on his part, and that the second ruling requested should have been given. See Murchison v. Sergent, ubi supra; Batterson v. Vogel, 10 Mo. App. 235.

Exceptions sustained.