Albert, O.
The plaintiff in his petition filed in the district court alleges, in effect, that the defendants were the proprietors and operated a hotel in the city of Omaha; that on the 12th day of January, 1902, he entered such hotel with his wife and infant son for a temporary sojourn therein, whereupon he and the said members of his family were received as guests in said hotel by the defendants; that afterwards, and while they were thus guests in said hotel, the plaintiff’s infant son entered a room of the hotel to speak or play with a porter or servant of the defendants, avIio, at the time, was in said room. Then follow these allegations:
“That the said porter and servant of defendants in said hotel, in said capacity at said time, violated all obligations of hospitality and patience due from said defendants, through said servants, to said infant guest, and the defendants thereby violated their agreement, duty and obligation of law with, and to, the plaintiff by the following conduct, to wit: The said porter, in attempting to have said infant son of plaintiff leave said room and corridor, where defendants' did not want him, as instructed, and retire to his mother’s room, and to have said infant cease; his childish play and pretended annoyance, carelessly, imprudently, rashly, unnecessarily, negligently and foolishly picked up a revolver and pointing it at said infant, said: ‘If you handle; anything, this is what I will do to [85]*85yon/ or similar words calculated to frighten the said infant out of his natural and childish playfulness and prevent his touching any of defendants’ property, or being about said room or the halls; that the said infant threw up his hands when thus frightened and assaulted, and, by some means unknown to this plaintiff, the said pistol was carelessly and negligently discharged by the said defendants’ servant as aforesaid.”
The petition contains the usual allegations as to damages.
The defendants by their answers admit that the defendant administrator and corporation were the proprietors of the hotel and were operating it as alleged in the petition; that the plaintiff, his wife and infant son were received into said hotel as guests, at the date alleged in the petition, and that, while the plaintiff and the said members of his family were thus guests at the hotel, the son was seriously injured. But they specifically deny that the person described in the petition as their porter or servant was in their employ at the time the; injury occurred, and that he was on duty, or in the performance of any duty, as porter or servant of the defendants at such time. They also specifically deny that the defendant George E. Barker was one of the proprietors of the hotel, or in any way interested in the same, or the operation thereof, save as president of the defendant corporation.
The evidence adduced by the plaintiff sufficiently shows that the plaintiff, Ms wife and infant son became guests at the hotel, intending to remain but a short time; that about three days after they were received in the hotel, and while they were guests therein, a servant of the proprietors of the hotel, who had waited trpon the plaintiff and the members of his family during their stay at the hotel, was playing a harmonica in a room which was not one of those assigned to the plaintiff or any member of his family; that the plaintiff’s infant son, attracted by the music, entered the room, the door of which was open; that thereupon the servant who had been playing the [86]*86harmonica took up a revolver and pointed it at the boy, saying, “See here, young fellow, if you touch anything, this is what yon get.” The revolver, by some means, was then discharged, the ball striking the boy, destroying one of his eyes and inflicting upon him other serious injuries. While there is no direct evidence that the person who inflicted the injuries was in the employ of the proprietors of the hotel, the evidence shows that he waited on the guests, carried water to their rooms and rendered such other services as are usually rendered by servants of a certain class about a hotel, and is amply sufficient to warrant a finding that he was the servant of the proprietors, and, for the purposes of this case, would have made him such, perhaps, in the absence of a contract of employment. There is no evidence tending .to connect the defendant George E. Barker Avith the operation of the hotel.
At the close of plaintiff’s case the court directed a verdict for the defendants, and from a judgment rendered on such verdict the plaintiff brings the record here for review.
The defendants insist, that the plaintiff having failed to allege that the servant wilfully or maliciously inflicted the injury, it was incumbent on him to shoAV that the injuries Avere the result of negligence on the part of the servant in the performance of some duty for which he was employed, or in the discharge of some duty which the defendants owed the plaintiff. We think they overlook the theory upon AAdiich this action was brought and prosecuted. The plaintiff by his petition and evidence obviously intended to commit himself unreservedly to the theory that his cause of action is ex contractu. A contract is alleged in the petition, the Avrongful acts of the servant, which resulted in injury to the boy are alleged, not for the purpose of stating a cause of action ex delicto, but for the purpose of shoAving a breach of contract ánd consequent damages.
This brings us at once to the question, whether the act of the servant, resulting in the injuries complained of, con-[87]*87sti tutes a breach of the implied contract between tbe plaintiff and the proprietors of the hotel for the entertainment of the former and his family. By the implied contract between a hotel keeper and his guest, the former undertakes more than merely to furnish the latter with suitable food and lodging. There is implied on his part the further undertaking that the guest shall bé treated with due consideration for his safety and comfort. Rommel v. Schambacher, 120 Pa. St. 579; Jencks v. Coleman, 2 Sumner (U. S. C. C.), 221. In Commonwealth v. Power, 7 Met. (Mass.) 596, Shaw, C. J., said:
“An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound, so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and of course he has a right, and is bound, to exclude from his premises all disorderly persons, and all persons' not conforming to regulations necessary and proper to secure such quiet and good order.”
The foregoing language is quoted with approval in Bass v. Chicago & N. W. R. Co., 36 Wis. 450. Substantially the same language is employed by the court in Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506. See also Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557, 585; Russell v. Fagan, 7 Houst. (Del.) 389; Pullman Palace Car Co. v. Lowe, 28 Neb. 239. The foregoing also show that the duties of a hotel keeper to his guests are regarded as similar to the common law obligation of a common carrier to his passengers. As 'regards the duty of a common carrier to his passengers, in Dwinelle v. New York C. & H. R. R. Co., 120 N. Y. 117, 127, the court Said:
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Albert, O.
The plaintiff in his petition filed in the district court alleges, in effect, that the defendants were the proprietors and operated a hotel in the city of Omaha; that on the 12th day of January, 1902, he entered such hotel with his wife and infant son for a temporary sojourn therein, whereupon he and the said members of his family were received as guests in said hotel by the defendants; that afterwards, and while they were thus guests in said hotel, the plaintiff’s infant son entered a room of the hotel to speak or play with a porter or servant of the defendants, avIio, at the time, was in said room. Then follow these allegations:
“That the said porter and servant of defendants in said hotel, in said capacity at said time, violated all obligations of hospitality and patience due from said defendants, through said servants, to said infant guest, and the defendants thereby violated their agreement, duty and obligation of law with, and to, the plaintiff by the following conduct, to wit: The said porter, in attempting to have said infant son of plaintiff leave said room and corridor, where defendants' did not want him, as instructed, and retire to his mother’s room, and to have said infant cease; his childish play and pretended annoyance, carelessly, imprudently, rashly, unnecessarily, negligently and foolishly picked up a revolver and pointing it at said infant, said: ‘If you handle; anything, this is what I will do to [85]*85yon/ or similar words calculated to frighten the said infant out of his natural and childish playfulness and prevent his touching any of defendants’ property, or being about said room or the halls; that the said infant threw up his hands when thus frightened and assaulted, and, by some means unknown to this plaintiff, the said pistol was carelessly and negligently discharged by the said defendants’ servant as aforesaid.”
The petition contains the usual allegations as to damages.
The defendants by their answers admit that the defendant administrator and corporation were the proprietors of the hotel and were operating it as alleged in the petition; that the plaintiff, his wife and infant son were received into said hotel as guests, at the date alleged in the petition, and that, while the plaintiff and the said members of his family were thus guests at the hotel, the son was seriously injured. But they specifically deny that the person described in the petition as their porter or servant was in their employ at the time the; injury occurred, and that he was on duty, or in the performance of any duty, as porter or servant of the defendants at such time. They also specifically deny that the defendant George E. Barker was one of the proprietors of the hotel, or in any way interested in the same, or the operation thereof, save as president of the defendant corporation.
The evidence adduced by the plaintiff sufficiently shows that the plaintiff, Ms wife and infant son became guests at the hotel, intending to remain but a short time; that about three days after they were received in the hotel, and while they were guests therein, a servant of the proprietors of the hotel, who had waited trpon the plaintiff and the members of his family during their stay at the hotel, was playing a harmonica in a room which was not one of those assigned to the plaintiff or any member of his family; that the plaintiff’s infant son, attracted by the music, entered the room, the door of which was open; that thereupon the servant who had been playing the [86]*86harmonica took up a revolver and pointed it at the boy, saying, “See here, young fellow, if you touch anything, this is what yon get.” The revolver, by some means, was then discharged, the ball striking the boy, destroying one of his eyes and inflicting upon him other serious injuries. While there is no direct evidence that the person who inflicted the injuries was in the employ of the proprietors of the hotel, the evidence shows that he waited on the guests, carried water to their rooms and rendered such other services as are usually rendered by servants of a certain class about a hotel, and is amply sufficient to warrant a finding that he was the servant of the proprietors, and, for the purposes of this case, would have made him such, perhaps, in the absence of a contract of employment. There is no evidence tending .to connect the defendant George E. Barker Avith the operation of the hotel.
At the close of plaintiff’s case the court directed a verdict for the defendants, and from a judgment rendered on such verdict the plaintiff brings the record here for review.
The defendants insist, that the plaintiff having failed to allege that the servant wilfully or maliciously inflicted the injury, it was incumbent on him to shoAV that the injuries Avere the result of negligence on the part of the servant in the performance of some duty for which he was employed, or in the discharge of some duty which the defendants owed the plaintiff. We think they overlook the theory upon AAdiich this action was brought and prosecuted. The plaintiff by his petition and evidence obviously intended to commit himself unreservedly to the theory that his cause of action is ex contractu. A contract is alleged in the petition, the Avrongful acts of the servant, which resulted in injury to the boy are alleged, not for the purpose of stating a cause of action ex delicto, but for the purpose of shoAving a breach of contract ánd consequent damages.
This brings us at once to the question, whether the act of the servant, resulting in the injuries complained of, con-[87]*87sti tutes a breach of the implied contract between tbe plaintiff and the proprietors of the hotel for the entertainment of the former and his family. By the implied contract between a hotel keeper and his guest, the former undertakes more than merely to furnish the latter with suitable food and lodging. There is implied on his part the further undertaking that the guest shall bé treated with due consideration for his safety and comfort. Rommel v. Schambacher, 120 Pa. St. 579; Jencks v. Coleman, 2 Sumner (U. S. C. C.), 221. In Commonwealth v. Power, 7 Met. (Mass.) 596, Shaw, C. J., said:
“An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound, so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and of course he has a right, and is bound, to exclude from his premises all disorderly persons, and all persons' not conforming to regulations necessary and proper to secure such quiet and good order.”
The foregoing language is quoted with approval in Bass v. Chicago & N. W. R. Co., 36 Wis. 450. Substantially the same language is employed by the court in Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506. See also Norcross v. Norcross, 53 Me. 163; Pinkerton v. Woodward, 33 Cal. 557, 585; Russell v. Fagan, 7 Houst. (Del.) 389; Pullman Palace Car Co. v. Lowe, 28 Neb. 239. The foregoing also show that the duties of a hotel keeper to his guests are regarded as similar to the common law obligation of a common carrier to his passengers. As 'regards the duty of a common carrier to his passengers, in Dwinelle v. New York C. & H. R. R. Co., 120 N. Y. 117, 127, the court Said:
“As we have seen, the defendant owed the plaintiff the duty to transport him to New York, and, during its performance, to care for his comfort and safety. The duty of protecting the personal safety of the passenger and pro[88]*88moting, by every reasonable means, the accomplishment of Ms journey is continuous, and embraces other attentions and services than the occasional service required in giving the passenger a seat or some temporary accommodation. Hence, Avhatever is done by the carrier or its servants which interferes with. or injures the health or strength or .person of the traveler, or prevents the accomplishment of his journey in the most reasonable and speedy manner, is a violation of the carrier’s contract, and he must be held responsible for it.”
To the same effect are the following: Pittsburg, F. W. & C. R. Co. v. Hinds, 53 Pa. St. 512; Goddard v. Grand Trunk R. Co., 57 Me. 202; Chamberlain v. Chandler, 3 Mason (U. S. C. C.), 242; Pendleton v. Kinsley, 3 Cliff. (U. S. C. C.) 417; Bryant v. Rich, 106 Mass. 180; Chicago & E. R. Co. v. Flexman, 103 Ill. 546; Southern Kansas R. Co. v. Rice, 38 Kan. 398. An examination of the foregoing-cases Will show, we think, that the reasoning applies with equal force to a hotel keeper as regards his duties to his guests. Those duties spring from the implied terms of his contract and a failure to discharge them, and while it may in some instances amount to a tort, it amounts in every instance to a breach of contract.
If then the defendants were under a contractual obligation that the plaintiff and his family should be treated with due consideration for their comfort and safety, the act of the servant, resulting in the injuries complained of, obviously amounts to a breach of contract. That the wrongful act was committed by a servant, is wholly immaterial. The rule which requires that a guest at a hotel be treated with due consideration for his comfort and safety would be of little value if limited to the proprietor himself. As a rule he does not come in contact with the guests. His undertaking is not that he personally shall treat them with due consideration, but that they shall be so treated while inmates of the hotel as guests; and if they be not thus treated there is a breach of the implied contract, whether the lack of such treatment is the result [89]*89of some act. or omission of tlie proprietor 'himself, or of his servant or servants.
Neither do we deem it material whether the servant, at the time of the injury, was actively engaged in the discharge of his duty as servant or not. He Avas a servant of the proprietor and an inmate of the hotel; his dnty as to the treatment to be accorded the guests of the hotel was a continuing one and rested upon him wherever, within the hotel, he Avas brought in contact Avith them. To hold otherwise would be to say that a guest would have no l'edress for any manner of indignity received at a hotel, so long as it Avas inflicted by a servant not actively engaged in the discharge of some duty. The following from Dwinelle v. New York C. & H. R. R. Co., 120 N. Y. 117, is peculiarly applicable to this point:
“The idea that the servant of a carrier of persons may, in the intervals between rendering personal sendees to the passenger for his accommodation, assault the person of the passenger, destroy his consciousness, and disable him from further pursuit of his journey, is not consistent Avith the dnty that the carrier owes to the passenger, and is little less than monstrous. While this general duty rested upon the defendant to protect the person of the passenger during the entire performance of the contract, it signifies but little or nothing Avhether the servant had or had not completed the temporary or particular service he was performing or had completed the performance of it, when the blOAV Avas struck. ■ The blow was given by a servant of the defendant AAdiile the defendant Avas performing its contract to carry safely and to protect the person of the plaintiff, and Avas a violation of such contract.”
It is equally immaterial to this case, Ave think, whether the shooting Avas accidental or Avilful. The servant in pointing a loaded gun at the boy committed a trespass, and as a result of such trespass inflicted serious and permanent injuries on the child. His acts, therefore, constituted a breach of the implied undertaking of his employers to treat the plaintiff and his family Avith due consideration for [90]*90their safety and comfort, for which breach his employers are liable in damages.
We are aware that there are cases holding contrary to the foregoing conclusion, but they do not seem to us to be based on sound reasons, nor upon just considerations of public policy, and are contrary to the weight and trend of modern authority.
The plaintiff offered to prove by one of his witnesses that the day following the ac.cident one Mr. Bowman, the manager of the hotel, told the witness “that he had told the boys (referring to the porters and bellboys of the hotel) time and again to keep the kid (meaning the plaintiff’s son) out of the elevator, halls and rooms of the hotel, and to keep him in his mother’s room.” The offer was rejected, and the plaintiff contends that the ruling of the court in that behalf is erroneous. We do not think so. It was not within the scope of the authority of the manager to bind his employer by 'the admission or declaration sought to be proved, and it was too remote in point of time and too detached from the injury to be admissible as a part of the res gestee. Gale Sulky Harrow Co. v. Laughlin, 31 Neb. 103; Commercial Nat. Bank v. Brill, 37 Neb. 626; Collins v. State, 46 Neb. 37; City of Friend v. Burleigh, 53 Neb. 674.
As to the defendant George E. Barker, as we have seen, there is no evidence which would warrant a verdict against him. Hence, so far as he is concerned, the judgment of the district court is right, but as,to the other defendants it is recommended that the judgment be reversed and the cause remanded for further proceedings according to law.
Baenes and Glanville, CO., concur.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court, as to the defendant George E. Barker, is affirmed and, as to the other defendants, the judgment is reversed and the cause remanded for further proceedings according to law.
Judgment accordingly.
1. Master and Servant: Torts or Servant. The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.
2. Innkeepers: Assault by Servant: Liability. It is the duty of a hotel keeper to protect his guests while in his hotel against the assaults of employees who assist in the conduct of the hotel and in the care and accommodation of the guests. If damages result from such assault the hotel keeper is liable therefor.