Houser v. Tully ( 1869 )

The opinion of the court was delivered,

by Williams, J.

The defendant below kept a licensed tavern, and, in his absence, the plaintiff stopped at his house and remained over night. During the evening, while partially intoxicated, he handed to the person who was acting as barkeeper a package of money for safe keeping, which he locked up in the money drawer, and afterwards embezzled. The defendant refused to make restitution, and the plaintiff brought this action to recover the amount of the deposit.

The court instructed the jury that if the plaintiff was not a guest at the inn he was not entitled to recover. But if he was a guest, and delivered his money for safe keeping to one who had authority as barkeeper to receive it; or who, if not the barkeeper in fact, was acting in a capacity from which an authority to receive the money on the credit of the house might be inferred, he was entitled to recover, if he intrusted the money to him on the credit of the inn. But if he did not intrust the money to him in his capacity of barkeeper, but on his individual credit and responsibility for its safe keeping, then he was not entitled to recover.

These were, in substance, the instructions which the' court gave to the jury in answer to the points submitted on both sides, and in the general charge, and, therefore, it will not be necessary to consider separately each assignment of error. Did the court then err in its instructions to the jury ?

The liability of an innkeeper arises from the nature of his employment. He holds out a general invitation to travellers to come to his house, and he receives a reward for his hospitality. The law, in return, imposes on him corresponding duties, one of which is, to protect the property of those whom he receives as guests: Clute v. Wiggins, 14 John. 175. He is bound to take all possible care of the goods, money and baggage of his guests deposited in his house, or intrusted to the care of his family or servants; and he is responsible for their acts, as well as for the acts of other guests. If the goods of the guest are damaged in the inn, or are stolen from it by the servants or domestics, or by a stranger guest, he is bound to make restitution; for it is his duty to provide honest servants, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. His responsibility extends to all his servants and domestics, and to all the goods and moneys of his guest which are placed within the inn; and he is bound in every event to pay for them if stolen, unless they were stolen by a servant or companion of the guest. In case of a loss by theft, it is no excuse for the innkeeper that he was sick, or absent from home at the time; for he is bound, in such cases, to provide honest and faithful servants according to the confidence reposed in him by the public. These familiar principles require the citation of no authority for their support. They will be found more fully stated in any recent treatise on the law of bailment, and they fully justify the court in charging the jury that if the plaintiff was a guest, and deposited his money on the credit of the inn, with a person having authority as barkeeper to receive it; or who acted in such a capacity as would naturally lead guests to infer that he was the barkeeper, the defendant is responsible for its embezzlement, and bound to make restitution. And the evidence was such as to justify the court in submitting both of these questions to the jury.

But though an innkeeper is liable, on grounds of the soundest policy and public convenience, for whatever is deposited in his house by a guest, he is not responsible for the loss or embezzlement of his guest’s money, where he does not deposit it on the security of the inn, but intrusts it to another guest or inmate for safe keeping in whom he reposes his trust and confidence: Sneider v. Geiss, 1 Yeates 35. Whether the guest deposits his money on the credit of the inn or not, is a question of fact for the jury and not a conclusion of law for the court; and was properly left to the jury under the evidence in this case. The loss of the money was not occasioned by the plaintiff’s drunkenness, but by the dishonesty of the barkeeper, who, after locking it up in the drawer, embezzled it. And as the jury have found that he was acting as barkeeper by the express or implied authority of the defendant, the plaintiff was guilty of no negligence in depositing it with him for safe keeping.

Judgment affirmed.