The Court.
Upon further consideration of this cause, after hearing in Bank, we are satisfied with the conclusion reached in Department, and with the opinion there rendered, and for the reasons stated in said opinion, the judgment and order appealed from are affirmed.
Beatty, C. J., and Paterson, J., dissented.
The following is the opinion of Department Two, above referred to, rendered on the 23d of June, 1891: —
De Haven, J.
The plaintiff recovered judgment against the defendant for damages occasioned by the loss of her jewelry, wearing apparel, and other articles of personal property needed for her personal use consumed [259]*259by fire at the burning of the Hotel Del Monte, April 1, 1887, of which the defendant was at that time the proprietor.
The court below found that the Hotel Del Monte was, at the date named, a public inn, and that plaintiff was a guest therein. On this appeal the defendant claims that the evidence does not sustain these findings; and also that the burning of the hotel was an irresistible superhuman cause, for which it is not liable, and that it is not, in any event, liable for plaintiff’s diamonds and other jewelry, because not deposited in defendant’s safe.
1. An inn is a house which is held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation, •— a hotel. In Wintermute v. Clark, 5 Sand. 247, an inn is defined as a public house of entertainment for all who choose to visit it, and this definition was quoted with approval by this court in Pinkerton v. Woodward, 33 Cal. 596. The fact that the house is open for the public, that those who patronize it come to it upon the invitation which is extended to the general public, and without any previous agreement for accommodation or agreement as to the duration of their stay, marks the important distinction between a hotel or inn and a boardinghouse. This difference is thus stated in Schouler on Bailments: “ An inn is a house where a keeper holds himself out as ready to receive all who may choose to resort thither and pay an adequate price for the entertainment; while the keeper of a boarding-house reserves the choice of comers and the terms of accommodation, contracting specially with each customer, and most commonly arranging for long periods and a definite abode.” (Schouler on Bailments, 253.)
We think the evidence in this ease is full and complete to the point that the Hotel Del Monte was a public inn. It not only had a name indicating its character as such, but it was also shown that it was open to all persons who have a right to demand entertainment at a public house; that it solicited public patronage by ad= [260]*260vertising and in the distribution of its business cards, and kept a public register in which its guests entered their names upon arrival and before they were assigned rooms; that the hotel, at its own expense, ran a coach to the railroad station for the purpose of conveying its patrons to and from the hotel; that it had its manager, clerks, waiters, and in its interior management all the ordinary arrangements and appearances of a hotel, and the prices charged were for board and lodging. These facts were certainly sufficient to justify the court in finding, as it did, that the appellant was an innkeeper. (Krohn v. Sweeny, 2 Daly, 200.) Nor was the force of this evidence in any wise modified by the fact that the hotel was not immediately upon a highway, or that the grounds upon which it stood were inclosed and the gates closed at night. The location of the hotel, the extent of the grounds surrounding it, and the manner in which these grounds were improved, and reserved for the exclusive use and enjoyment of those who patronized it, doubtless made the hotel more attractive to those who chose to make a transient resort of it, but did not convert it into a mere boarding-house. A hotel is none the less one because in some respects it may be conducted differently or have more attractions than other public hotels, so long as it is held out to the public as a place for the entertainment of all transient persons who may have occasion to patronize it.
“ Modes of entertainment alter with the fashion of the age, and to preserve a clear definition is not easy. It is not wayfarers alone, or travelers from a distance, that at the present day give character to an inn, the point being rather that people resort to the house habitually, no matter whence coming or whither going, as for transient lodging and entertainment.” (Schouler on Bailments, 249.)
2. The evidence shows that the plaintiff was a guest, and not a boarder. The fact that upon her arrival, and before being assigned to her room, she ascertained what she would have to pay for the room and board is not [261]*261sufficient of itself to show that she was not received as a guest. (Pinkerton v. Woodward, 33 Cal. 597; Hancock v. Rand, 94 N. Y. 1; 46 Am. Rep. 112; Jalie v. Cardinal, 35 Wis. 118; Hall v. Pike, 100 Mass. 495; Berkshire Woolen Co. v. Proctor, 7 Cush. 417.)
The Del Monte being a public hotel, in the absence of evidence showing that plaintiff went there as a boarder, the presumption would be that she went there as a guest. (Hall v. Pike, 100 Mass. 495.) Not only does the evidence fail to overthrow this presumption, but the testimony of the plaintiff shows that she was there as a mere temporary sojourner, without any agreement as to the time she should stay, and with only the intention on her part of resting a week or two, and then proceeding to the East. She obtained no reduction of price in consideration of an agreement to remain a definite time, or as a boarder; nor was there anything said from which it could be inferred that there was any understanding between her and the defendant that she was to be received as a boarder, and not as a guest.
3. Under section 1859 of the Civil Code, an innkeeper is liable for the loss of personal property placed by his guests under his care, “ unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn.”
In this case, the loss was occasioned by the burning of the hotel, and the origin of the fire is not showm further than that it broke out in one of the rooms in which there was nothing except the batteries which supplied the bells with electricity. Under this state of facts, the defendant is liable. (Hulett v. Swift, 33 N. Y. 571; 88 Am. Dec. 405.) A fire thus occurring cannot be considered an “irresistible superhuman cause,” within the meaning of section 1859 of the Civil Code. The words “ irresistible superhuman cause” are equivalent in meaning to the phrase “ the act of God,” and refer to those natural causes the effects of which cannot be prevented by the exercise of prudence, diligence, and care, and the [262]*262use of those appliances which the situation of the party renders it reasonable that he should employ. (1 Am. & Eng. Ency. of Law, 174.) A loss arising from an accidental fire is not caused by the act of God, unless the fire was started by lightning or some superhuman agency. (Miller v. Steam Nav. Co., 10 N. Y. 431; Chicago etc. R. R. Co. v. Sawyer, 69 Ill. 285; 18 Am. Rep. 613.)
4.
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The Court.
Upon further consideration of this cause, after hearing in Bank, we are satisfied with the conclusion reached in Department, and with the opinion there rendered, and for the reasons stated in said opinion, the judgment and order appealed from are affirmed.
Beatty, C. J., and Paterson, J., dissented.
The following is the opinion of Department Two, above referred to, rendered on the 23d of June, 1891: —
De Haven, J.
The plaintiff recovered judgment against the defendant for damages occasioned by the loss of her jewelry, wearing apparel, and other articles of personal property needed for her personal use consumed [259]*259by fire at the burning of the Hotel Del Monte, April 1, 1887, of which the defendant was at that time the proprietor.
The court below found that the Hotel Del Monte was, at the date named, a public inn, and that plaintiff was a guest therein. On this appeal the defendant claims that the evidence does not sustain these findings; and also that the burning of the hotel was an irresistible superhuman cause, for which it is not liable, and that it is not, in any event, liable for plaintiff’s diamonds and other jewelry, because not deposited in defendant’s safe.
1. An inn is a house which is held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation, •— a hotel. In Wintermute v. Clark, 5 Sand. 247, an inn is defined as a public house of entertainment for all who choose to visit it, and this definition was quoted with approval by this court in Pinkerton v. Woodward, 33 Cal. 596. The fact that the house is open for the public, that those who patronize it come to it upon the invitation which is extended to the general public, and without any previous agreement for accommodation or agreement as to the duration of their stay, marks the important distinction between a hotel or inn and a boardinghouse. This difference is thus stated in Schouler on Bailments: “ An inn is a house where a keeper holds himself out as ready to receive all who may choose to resort thither and pay an adequate price for the entertainment; while the keeper of a boarding-house reserves the choice of comers and the terms of accommodation, contracting specially with each customer, and most commonly arranging for long periods and a definite abode.” (Schouler on Bailments, 253.)
We think the evidence in this ease is full and complete to the point that the Hotel Del Monte was a public inn. It not only had a name indicating its character as such, but it was also shown that it was open to all persons who have a right to demand entertainment at a public house; that it solicited public patronage by ad= [260]*260vertising and in the distribution of its business cards, and kept a public register in which its guests entered their names upon arrival and before they were assigned rooms; that the hotel, at its own expense, ran a coach to the railroad station for the purpose of conveying its patrons to and from the hotel; that it had its manager, clerks, waiters, and in its interior management all the ordinary arrangements and appearances of a hotel, and the prices charged were for board and lodging. These facts were certainly sufficient to justify the court in finding, as it did, that the appellant was an innkeeper. (Krohn v. Sweeny, 2 Daly, 200.) Nor was the force of this evidence in any wise modified by the fact that the hotel was not immediately upon a highway, or that the grounds upon which it stood were inclosed and the gates closed at night. The location of the hotel, the extent of the grounds surrounding it, and the manner in which these grounds were improved, and reserved for the exclusive use and enjoyment of those who patronized it, doubtless made the hotel more attractive to those who chose to make a transient resort of it, but did not convert it into a mere boarding-house. A hotel is none the less one because in some respects it may be conducted differently or have more attractions than other public hotels, so long as it is held out to the public as a place for the entertainment of all transient persons who may have occasion to patronize it.
“ Modes of entertainment alter with the fashion of the age, and to preserve a clear definition is not easy. It is not wayfarers alone, or travelers from a distance, that at the present day give character to an inn, the point being rather that people resort to the house habitually, no matter whence coming or whither going, as for transient lodging and entertainment.” (Schouler on Bailments, 249.)
2. The evidence shows that the plaintiff was a guest, and not a boarder. The fact that upon her arrival, and before being assigned to her room, she ascertained what she would have to pay for the room and board is not [261]*261sufficient of itself to show that she was not received as a guest. (Pinkerton v. Woodward, 33 Cal. 597; Hancock v. Rand, 94 N. Y. 1; 46 Am. Rep. 112; Jalie v. Cardinal, 35 Wis. 118; Hall v. Pike, 100 Mass. 495; Berkshire Woolen Co. v. Proctor, 7 Cush. 417.)
The Del Monte being a public hotel, in the absence of evidence showing that plaintiff went there as a boarder, the presumption would be that she went there as a guest. (Hall v. Pike, 100 Mass. 495.) Not only does the evidence fail to overthrow this presumption, but the testimony of the plaintiff shows that she was there as a mere temporary sojourner, without any agreement as to the time she should stay, and with only the intention on her part of resting a week or two, and then proceeding to the East. She obtained no reduction of price in consideration of an agreement to remain a definite time, or as a boarder; nor was there anything said from which it could be inferred that there was any understanding between her and the defendant that she was to be received as a boarder, and not as a guest.
3. Under section 1859 of the Civil Code, an innkeeper is liable for the loss of personal property placed by his guests under his care, “ unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn.”
In this case, the loss was occasioned by the burning of the hotel, and the origin of the fire is not showm further than that it broke out in one of the rooms in which there was nothing except the batteries which supplied the bells with electricity. Under this state of facts, the defendant is liable. (Hulett v. Swift, 33 N. Y. 571; 88 Am. Dec. 405.) A fire thus occurring cannot be considered an “irresistible superhuman cause,” within the meaning of section 1859 of the Civil Code. The words “ irresistible superhuman cause” are equivalent in meaning to the phrase “ the act of God,” and refer to those natural causes the effects of which cannot be prevented by the exercise of prudence, diligence, and care, and the [262]*262use of those appliances which the situation of the party renders it reasonable that he should employ. (1 Am. & Eng. Ency. of Law, 174.) A loss arising from an accidental fire is not caused by the act of God, unless the fire was started by lightning or some superhuman agency. (Miller v. Steam Nav. Co., 10 N. Y. 431; Chicago etc. R. R. Co. v. Sawyer, 69 Ill. 285; 18 Am. Rep. 613.)
4. The court finds that the property lost was such as was needed for the present personal use of the plaintiff. We cannot say that the evidence does not support this finding. It certainly cannot be said that jewelry worn by a woman daily must, when not actually upon her person, be deposited with the innkeeper, in order to make him responsible for its loss in the inn. If worn daily, it does not cease to be needed for present personal use when its possessor lays it aside upon retiring for the night. Nor is it necessary, in order to render the innkeeper liable, that the property should have been delivered into his exclusive personal possession.
“ The guest may retain personal custody of his goods within the inn, — as of his trunk and its contents, his wearing apparel, and other articles in his room, and any jewelry or valuables carried or worn about his person, — without discharging the innkeeper from responsibility.” (Jalie v. Cardinal, 35 Wis. 126.)
We have examined the other points made by appellant, but do not think they call for special discussion.
The rule which makes an innkeeper liable for the value of the property of his guest, in case of its loss by fire, may at first thought be deemed a harsh one; but the loss must fall somewhere, and section 1859 of the Civil Code provides upon whom it should properly fall, and the innkeeper’s liability in this respect is one of the burdens pertaining to the business in which he is engaged, and in view of which it must be supposed that he regulates his charges.
Judgment and order affirmed.
Sharpstein, J., and McFarland, J., concurred.