for instance, as an insurer of the satchel or overcoat which the passenger takes into the car with him and does not check. The innkeeper, on the other hand, is, by both rules, made liable for all the goods which are brought into the inn, and for the clothing and other articles which are left in the sleeping room of his guest, as well as for those which are checked, though not for those which he has entrusted to the custody and safe keeping of another person within the inn. The innkeeper is liable as an insurer for all the property of his guest and is bound to receive the same unless it be for trade. The carrier need not accept what is not baggage. It has been said that the innkeeper is not liable for the articles which are upon the person, or in the personal possession of the guest, as for instance, the money in his pocket when he retires at night, or the watch under his pillow, or the overcoat placed upon a chair; but this is not the general rule. If not liable in many of these specific cases, it is merely because in them there is clear evidence of contributory negligence on the part of the guest. To leave one's room with the door open and unlocked, during a state fair, or political convention, when the hotels are thronged with visitors, would probably be deemed contributory negligence, and the jury would generally be upheld in absolving the innkeeper from liability for clothing or valuables which were lost under such circumstances.

The liability of the innkeeper extends to all property which is brought into the inn, and not merely to that which is reasonably necessary for the personal use of the guest while upon his journey. In this respect, the liability of the innkeeper is greater than that of the carrier of passengers. The only exception to the rule is to be found in the case of goods which are brought to the inn for sale, or for a mercantile display; but, even to this exception, there is an exception, and the peddler's pack and stock are fully protected. This, of course, does not imply that the guest can make a warehouse of the inn. The goods must be those 8 Walsh v. Porterfield, 87 Pa. St. 376.

which are usually brought and carried, or accumulated, by travelers. As to goods generally which are brought to the inn for the purpose of sale, or mercantile exhibition, the innkeeper is only liable for the lack of ordinary care. He is not liable as a bailee at all while such goods are in the personal control and custody of his guest; and he will be responsible merely therefor in cases of injuries arising from the direct torts of himself or his servants, except, of course, at night time while the guest is asleep, and, when the goods have been left by the guest in his room in his absence, in which cases the goods can hardly be said to be in the latter's custody or control.

§ 50. Liability for Jewelry and Other Valuables-Statutes in Relation Thereto. Although the law at no time has compelled innkeepers to provide safes or vaults for the safe custody of the money and jewelry of their guests, the courts, in the absence of any statute upon the subject, have been inclined to hold that where a safe is kept, and this fact is brought to the knowledge and attention of the guest, together with a request that his valuables be left with the innkeeper to be deposited therein, a failure to deposit such article, especially in the nighttime, and except in the case of watches and jewelry which are constantly in use, and, perhaps, small sums of money, may be considered by the jury as evidence of contributory negligence on the part of the owner, or guest, and be made to preclude a recovery, except where the loss is occasioned by the direct wrongful act of the innkeeper, or of his servants. In nearly all of the States of the Union, however, statutes have been passed which have sought to regulate the matter and to remove any question of doubt in relation thereto. Few, if any, of them have made the duty to maintain a safe obligatory upon the innkeeper, but have merely sought to help him if he chose to do so. They generally provide that if an innkeeper will keep a safe, and will post notices of that fact in certain specified places (generally upon the doors of the bedrooms), he will not be liable as an insurer for "money and goods of gold and silver manufacture" or

"money and articles of great value and small compass" which are not entrusted to him. If the goods are entrusted to him he is, of course, an insurer of such articles; if they are not so entrusted the statutes absolve him from his liability as an insurer, but not for losses which arise from the negligence of himself, or of his servants. Whether these statutes would be deemed to cover the money usually carried by a man on his person for present expenses, the ring worn upon his finger, the watch, the emblem, or the earring, is a matter of some doubt. It is, however, probable that they would not, and that to keep such in one's room at night would not be deemed contributory negligence on the part of the guest at the common law, nor be held to absolve the innkeeper from his liability as an insurer under the statutes. Much, however, depends upon the wording of the particular act.9

§ 51. When Liability of Innkeeper as Insurer Begins. The liability of an innkeeper as an insurer of the goods of his guest begins immediately they are received as such, whether at the inn itself, or by a porter, or hackman, or drayman sent by the innkeeper to the depot or wharf for that purpose. The becoming a guest on the part of the owner is, however, essential to the relationship. If one, therefore, entrusts baggage at the depot to the porter, or runner of a hotel, with the intention of coming up to the hotel later, and of becoming a guest thereat, but afterwards changes his mind and does not go to the hotel at all, the liability and relationship of the hotel will be ab initio (from the beginning) that of a gratuitous bailee, and not of an innkeeper.10

§ 52. When Liability of Innkeeper as Insurer Ends. The liability of an innkeeper as an insurer of the goods of his guest, of course, ends when the guest actually departs,

Bernstein v. Sweeney, 33 N. Y. Sup. Ct. 271; Murchison v. Sergent, 69 Ga. 206, 47 Am. Rep. 754; Krohn v. Sweeney, 2 Daly 200; Ramaley v. Leland, 43 N. Y. 539; Briggs v. Todd, 28 Misc. 208, 59 N. Y. Supp 23; Prescott v. Bruce, 2 Cinc. Super. Ct. 58; Rains v. Maxwell House Co., 112 Tenn. 219; Treiber v. Burrows, 27 Md. 130.

10 Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113.

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or when the time agreed upon, or for which payment is made, or may be collected, is ended. If the innkeeper agrees to deliver the goods at the depot or wharf, his liability as an insurer will continue until delivery at such place and even after the departure of the guest from the inn. If the guest, with the consent of the innkeeper, leaves the inn before the period for which he has paid, or can be charged, expires, but leaves his baggage behind, the liability of the innkeeper thereto is that of an insurer until the expiration of the time. Even if he has left the inn, and the term for which he has paid has expired, he may, with the consent of the innkeeper, leave the goods to be called for within a reasonable time and hold the innkeeper to his liability as an insurer until the expiration of that time.11 At such expiration the liability of the innkeeper is that of a gratuitous bailee merely, and this, although the innkeeper may have agreed to forward the goods, provided, however, that the goods are forwarded within the time, and in the manner, which has been agreed upon. If the goods are kept beyond that time the innkeeper will be held liable for all losses thereto, and if the innkeeper violates his agreement as to the method of forwarding, he will be responsible for all losses arising from such breach. If the guest pays his bill and departs and leaves his trunk at the inn, merely stating to the landlord that he will return in a few days, the relationship of the latter is that of a bailee for hire and not that of an innkeeper; and the same is true as to property of the guest which is received by the innkeeper after the departure of the former, even though the innkeeper may have agreed to receive and to forward it. It is probably the rule, however, that mail and other articles which are sent to, and are received by, an innkeeper for, or by the direction of, an intending guest, will be held by the former on his responsibility as an innkeeper and as an insurer, provided that the owner becomes a guest within a reasonable time;12 while mail and similar articles received after the guest

11 Murray v. Marshall, 9 Col. 402; Seymour v. Cook, 53 Barb. 451. 12 See Tulane Hotel Co. v. Holohan, 112 Tenn. 214, 79 S. W. 113.

leaves, will be held under the responsibility of a bailee for hire. 13

§ 53. Lien. The law gives to the innkeeper a lien upon all of the goods of his guest which are brought into the inn, and this, whether they are brought when the guest first arrives, or are collected during his stay. The lien at the common law is a retaining lien merely. It covers both the reasonable charges of the innkeeper and money which may have been lent to the guest by him while under his roof. It may even be asserted against a minor, as being granted by law and not by contract, and the rights and duties of the innkeeper being primary and legal as well as contractual, a legal contractual capacity is not necessary to the liability. It is probably the rule, however, that the accommodations and the goods furnished must be such as would be held to come reasonably within the definition of necessaries, and to be reasonably necessary to one while upon a journey.11 The lien probably covers stolen goods which are brought to the inn by the guest where the theft is unknown to the innkeeper,15 though there is, and rightly, some doubt upon this point.16 The proposition, indeed, can only be asserted upon the theory that the innkeeper is bound to accommodate all who may apply; that a bailment can be made even of stolen goods; that a bailee will not, as a rule, be heard to dispute the title of his bailor; and that such being the case, it is only fair that the innkeeper should have the reciprocal protection of a lien.

With the exception of the duty to receive, however, the mechanic, the wagon maker, and the locatio operis faciendi bailee, generally have the same duties and the same liabilities as the innkeeper, and yet have no lien on stolen goods, while the common carrier of goods has duties and liabilities almost identical with those of the innkeeper and yet is denied the privileges. The rule, indeed, if rule it be, which 13 Wear v. Gleason, 52 Ark. 364; Baehr v. Downey, 133 Mich. 163. 14 Proctor v. Nicholson, 7 Car. & P. 67.

15 Robins & Co. v. Gray, L. R. 2 Q. B. Div. (1895) 501; Singer Mfg. Co. v. Miller, 52 Minn. 516; Cook v. Kane, 13 Ore. 482.

16 Wyckoff v. Southern Hotel Co., 24 Mo. App. 382.