Turner v. Whitaker ( 1898 )

Opinion by

William W. Ponter, J.,

We have examined the brief submitted to us relating to the distinction sought to be drawn between guests and boarders and the innkeeper’s liability in respect to each, but we are unable to see how the authorities there gathered can aid us in our present inquiry. The distinction was not presented to the court below. The case was tried on the theory that the plaintiff was a negligent guest. The jury have found against the defendants on this question. “Where the verdict of the jury establishes'the liability of the defendants upon the theory of the case by which they chose to have it tested they cannot be permitted on appeal to change their ground and allege that the case should have been treated in accordance with a view not presented on the trial: ” Taylor v. Sattler, 6 Pa. Superior Ct. 229.

The specifications of error may be considered in order. The first is to the failure of the court to enter a nonsuit. This is not assignable error. The second specification is to the failure of the court to direct a verdict for the defendants. No request to so charge was presented to the trial judge. The defendants did not demur to the evidence, nor was any ground presented, so far as we are able to see, upon which such an instruction could have been based. The third specification is to the following portion of the judge’s charge: “ If you are of the opinion, however, that the jewelry which was lost was of that character which pertains to the person in daily or frequent use, and not of such excessive value that it ought to have been put in charge of the landlord, then, if you find there was loss without any fault on the part of the plaintiff, you will render a verdict against the defendant for the value thereof.”

The act of May 7,1855, relating to the provision for the safekeeping of valuable property by landlords, contains the proviso, “that nothing herein contained shall apply to such an amount of money and such articles of goods, jewelry and val-' uables, as it is usually common and prudent for any such guest or boarder to retain in his room, or about his person.” This leaves the innkeeper, as to the articles described (unless stolen by the servant or companion of the guest), practically in the position of an insurer, under the rule of the common law as laid down in Shultz v. Wall, 134 Pa. 262, Walsh v. Porterfield, 87 Pa. 376, and Houser v. Tully, 62 Pa. 92. The learned judge allowed the jury to say whether the jewelry stolen came within the class indicated. In view of the character and value of the articles, we are of opinion that the charge was quite as favorable as the defendants had a right to expect. The fourth and last specification also goes to a part of the charge of the court, as follows: “It is admitted that the plaintiff was not in his room the night before the loss was discovered. Without saying as matter of law upon that point what the effect of his absence would be, I leave it to you to say whether you find that to be an act of negligence or carelessness on Ms part in staying away from Iris room so long a time, especially during the dead hours of the night; whether by doing that he furnished time and opportunity for the thief to ply his vocation.”

The defendants claim that the court should, as a matter of law, have charged that absence from Ms room all night was negligence on the part of the plaintiff, such as to bar his right to recover from the innkeeper the value of the jewelry stolen.

This proposition cannot be sustained.- A guest does not oblige himself at all times to occupy at night the room he may have engaged. There is no rule of law which imposes such a duty. His absence may, however, be a fact for .the consideration of the jury in connection with the question of the negligence of the plaintiff, though for my own part I do not think it should be so regarded in such a case as the present. The court, however, submitted the question of negligence to the jury in the fairest manner, and the verdict must be held to have determined that the plamtiff’s conduct was free from negligence.

The specifications of error are not sustainable, and the judgment of the court below is therefore affirmed.