This question was familiarly put to me (that is, put in a way that evinced no intention on the part of the speaker of paying for the information sought) by an old friend, with whom I occasionally conversed on legal topics, and from whom carelessness and negligence were as inseparable as Apollo and his golden bow, or Orpheus and his tuneful lyre.
“The same old Story, to whom I have often alluded in my professional talks with you, says[281] that negligence may be ordinary, or less than ordinary, or more than ordinary; and that ordinary negligence may be defined to be want of ordinary diligence, and gross negligence to be want of slight diligence. Although some English judges have said that they can see no difference between negligence and gross negligence; that it is the same thing with the addition of a vituperative epithet.[282] Of what kind of negligence have you been guilty, and what has happened?”
“I did not say that I had been doing anything. But suppose that a fellow had some money in his portmanteau and left it in the hall of the hotel with the other baggage, and didn’t say anything about it to the landlord, and it disappeared.”
“Well, sir, in such a case I should say that a jury would be warranted in finding that the individual referred to had been guilty of gross negligence, and that the hotel-keeper was exonerated through his imprudence in thus exposing his goods to peril.”[283]
“I had some such idea floating through my own cranium.”
“’Tis a pity that your brain is in such a liquid state. I remember a case of a man of the name of Armistead, a commercial traveler, who, while at an hotel, placed his box in the commercial room, as was the wont of those who visited the house. The box had money in it, and was left there for three nights. Twice or thrice, in the presence of several on-lookers, Armistead opened the trunk and counted his change. The lock was so bad that any one could unfasten it without a key by simply pushing back the bolt. The money leaked away mysteriously, and Armistead sued the landlord to recover it, but the judge who tried the case told the jury that gross negligence on the part of the guest would relieve the host from his common-law liability; and when the matter came up before the court it was held that the jury had done right in finding the traveler had been guilty of such gross negligence as to excuse his landlord from liability for the money. Lord Campbell remarked that the judge would have been astray had he said that in all cases a box should be taken to the guest’s bedroom, and he doubted whether, in order to absolve the innkeeper, there must be crassa negligentia on the part of the guest.”[284]
“That’s the law, is it?”
“A still more recent case settled the question as to the amount of negligence that would bind the owner of the goods. In deciding it, Earle, J., said that he thought that the rule of law resulting from all the authorities was, that in a case like the one he was considering the goods always remained under the charge of the innkeeper and the protection of the inn, so as to make the landlord liable as for breach of duty, unless the negligence of the guest occasions the loss, in such a way as that it would not have happened if the guest had used the ordinary care that a prudent man might reasonably have been expected to take under the circumstances;[285] and the same rule seems to hold good on this side of the Atlantic.”[286]
“If a friend bags your baggage,” inquired the searcher after cheap knowledge, “at an hotel, and marches off with it, could you compel the proprietor of the establishment to make good your loss?”
“It was decided not, in Illinois, where one had allowed his chum to exercise acts of ownership over his trunk;[287] and long ago it was held, in the old land, that if a landlord tells a guest, on his arrival, that he has no room, the house being full, and his words are veritable truth, and yet the guest insists upon being admitted, saying that he will shift for himself, or if he go and share the apartment of another, without the consent of the proprietor or his servants, the host is not responsible for his traps, unless the sufferer can show that the goods were actually stolen or lost through the negligence of the innkeeper or his servants.[288] But an innkeeper can’t shirk his liability because his house is full of parcels, if the owner is stopping at the house.”[289]