“But clear and unmistakable notice of these regulations restricting the publican’s liability must certainly be given,”[105] I asserted. “And,” I continued, “I believe a distinction has been taken, and it appears to rest upon good reason, between those effects of a traveler not immediately requisite to his comfort, and those essential to his personal convenience, and which it is necessary that he should have constantly about him; so that, though personally notified, he is not bound to deposit the latter with the innkeeper. And, perhaps, this distinction will explain the apparently contradictory decisions.”[106]
“Doubtless the notice must be clear. Even a printed notification is not sufficient. It must be brought home to the mind of the guest, or at least to his knowledge, before he enters and takes possession of his room, so that, if he does not like the regulations, he may go elsewhere.[107] In one case, the register was headed with the notice, ‘Money and valuables, it is agreed, shall be placed in the safe in the office; otherwise, the proprietor will not be liable for loss’; and Mr. Bernstein duly entered his name in the book; still he was not held bound by the notice, as there was no proof that it was seen or assented to by him.”[108]
By-stander here remarked: “My father kept an inn in New York State, and once told a man of the name of Purvis, when he arrived at the house, that there was a safe for valuables, and that he would not be responsible for his unless they were placed in it. Purvis, however, neglected the caution, and left $2,000 in gold in a trunk in his bed-room, locked the door, and gave the key to my father. Some thief broke through and stole, and Purvis tried to make the old gentleman responsible for the theft; but the court did not agree with him, and considered that he alone must bear the loss.”[109]
“The host is not liable for the loss of goods if, at the time of their disappearance, they were in the exclusive possession of their owner,[110] and it will generally be left to an intelligent jury to say whether or not the articles were in the sole custody of the guest,”[111] remarked Mr. Inthelaw.
“What do you mean?” asked one.
“For instance, where a Brummagem man, traveling for orders, came to an inn with three boxes of goods; the travelers’ room did not meet with his approbation, so he asked for another one up stairs, where he might display his wares. The lady of the house gave him one with a key in the door, and told him to keep it locked. The boxes were taken to the new apartment, and after dining in the travelers’ room, the Brummagem gent—who seemed inclined to put on airs—took his precious self into the new room, and there also he took his wine. After his repast, he exhibited his wares—chiefly jewelry—to a customer, and in the cool of the evening went out to see the town, leaving the door unlocked, and the key outside. (So the reporter tells us, though why he need have taken the trouble to leave the door unlocked if the key was on the outside, or the key outside if the door was unlocked, I cannot understand.) While he was away, two of his boxes went away, too. He sued the proprietor of the house for damages, but got nothing. He applied for a new trial, but with like success. Lord Ellenborough remarked that it seemed to him that the care of the goods in a room used for the exhibition of the goods to persons over whom the innkeeper could have no check or control hardly fell within the limits of his duty as an innkeeper; that the room was not merely intrusted to our friend in the ordinary character of a guest frequenting an inn, but that he must be understood as having special charge of it. And another learned judge gave it as his sentiments that the traveler should be taken to have received the favor of the private room cum onere; that is, he accepted it upon the condition of taking the goods under his own care.”[112]
“But,” I said, “of course, simply ordering goods to be placed in a particular room is not such a taking under one’s own care as to absolve an innkeeper from his responsibility.[113] I recollect a case where a traveler, on arriving, requested his impedimenta, as old Cæsar used to say, to be taken to the commercial room; they were, and they were stolen, and the innkeeper was held bound to recoup the man, although he proved that the usual practice of the house was to place the luggage in the guest’s room, and not in the commercial room, unless an express order was given to the contrary. The chief justice remarked that if mine host had intended not to be responsible unless his guests chose to have their goods placed in their sleeping apartments, or such other place as to him might seem meet, he should have told them so.”[114]
By-stander observed that the law seemed inconsistent, as there did not appear to be much difference between the two cases.
“Mr. Justice Holroyd distinguished the latter from the former case by saying that the Birmingham man asked to have a room which he used for the purposes of trade, not merely as a guest in the inn.[115] In Wisconsin, it was held that the retention by a guest of money or valuables upon his person was not such exclusive control as to exonerate an innkeeper from liability, if the loss was not induced by the negligence or misconduct of the guest,”[116] remarked one who knew whereof he affirmed.
“An hotel-keeper is of course liable for the conduct of another guest, placed in a room already occupied, without the consent of the occupant.[117] And where a guest left his door unlocked, because he was told that he must either do so or get up in the night and open it, as others had to share the room with him, the innkeeper was held liable for everything lost.”[118]