By the Court,
Bookes, J.
The law is well settled, that innkeepers are held to extraordinary liability on grounds of public utility, growing out of the nature of their vocation. It is insisted that the rule of liability as to innkeepers is the same as that applicable to common carriers of goods—that they warrant the safe keeping of the property of their guests. In other words, that their liability is that of insurers. There can be no possible question, at this day, as to the law in regard to common carriers. They warrant the safe delivery of goods against all contingencies, except the act of Grod or [250]*250the public enemy. . The rule was laid down in Dorr v. The New Jersey Steam Navigation Company, (11 N. Y. Rep. 485,) thus:. “ A common carrier is responsible for all loss or damage except that which is caused by the act of God or the public enemy.” It was held in this case that he might limit his. liability by an express, agreement with the owner of the property.. This stringent rule has been rigorously adhered to by the courts. Judge Jewett says, in Miller v. The Steam Navigation Company, (10 N. Y. Rep. 431,) “ The rule is not disputed that common carriers are responsible for every injury -done to goods intrusted to them to-carry, unless it proceeds from the act of God or the enemies of the land.” (2 Kent, 602. 10 John. 1. 11 id. 107. 6 id. 160. 21 Wend. 190. Story on Bailment, § 489, 490. 26 Wend. 591. 2 Barb. S. C. R. 326. 10 id. 612. 25 N. Y. Rep. 364. 39 Barb. 488. 31 id. 38.) Judge Co wen remarked, in McArthur v. Sears, (21 Wend. 196,) “ No'matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled or the force by which it is overcome be. inevitable, yet if it be the result of human means, the carrier is responsible.” Destruction of property by accidental fire is not deemed to be by inevitable accident or the act of God, as are storms, light-, ning, earthquakes and tempests. . (1 Term Rep. 27. 5 id. 389. 10 N. Y. Rep. 431. 25 id. 364.) In this case, therefore, the property having been accidentally destroyed by fire while in .the possession of the defendant’s testator as innkeeper, he was answerable to. the owner, if subject to the same rule- of liability, as are common carriers. As regards this point there seems to be some confusion of authority. In a note to Blackstone’s Commentaries it is said that an innkeeper’s liability is not so extensive as that of a carrier, nolis he regarded, as a carrier is, in the light of a surety—that all losses, except those arising from inevitable force, the -act, of God, or the king’s, enemies, are presumed to arise from .the negligence of himself or his servants. But he may [251]*251excuse himself by showing, if he can, that he and his servants were guilty of no negligence. In a note to Morewood v. Pollock, (18 Law and Eq. Rep. 341,) it is said that the liability or loss by fire, not occasioned through the defendant’s negligence, does not attach to innkeepers, and cites as an authority for the remark, Merrit v. Claghorn, (23 Verm. Rep. 177.) Judge Story in his work on Bailment, (§ 472,) says: “ Innkeepers are not responsible to the same extent as common carriers. The loss of the goods of a guest, while at an inn, will be presumptive evidence of negligence on the part of the innkeeper, or of his domestics. Bxxt he may, if he can, repel this presumption, by showing that there has been no negligence whatever; or that the loss is attributable to the personal negligence of the guest himself, or that it has been occasioned by inevitable casualty or by sxxperior force.” Bemarks of similar import elsewhere occur in the books. On the other hand it is said, an innkeeper, like a common earlier, is an insui-er of the goods of his guest, and he can only limit his liability by an express agreement or notice. (2 Kent, 594.) This was recognized as the rule of law, in Washburn v. Jones, (14 Barb. 193,) in which case it was held that an innkeeper was l'esponsible for all losses and damages happening, even without his default, excepting such as were caused by inevitable accident or the public enemy, and excepting also such as were occasioned by the fraud, carelessness, or culpable neglect of the guest. In Piper v. Manny, (21 Wend. 282,) Judge ISTelson says, the liability of the innkeeper is strict and doubtless often severe, but not more so than that of the common carrier; both are considered insurers of the goods which are in their keeping. And in another part of this opinion the same learned judge remarks: “ The only question in the case is, whether the goods were received into the care and keeping of the innkeeper within the meaning of the terms of his common law liability: that is, infra hospitium. If they were, the question of negligence of the defendant or his servants has noth[252]*252ing to do with the case;” thereby meaning, as I conceive, that in such case, the innkeeper would be deemed to be liable as an insurer of the property. In Grinnell v. Cook, (3 Hill, 485,) Judge Bronson says that an innkeeper, like a common carrier, is an insurer of the property, and nothing but the act of God or public enemies will excuse a loss. In Mann v. Thompson, (9 Pick. 280,) it was held that innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God or the common enemy, or the neglect or fault of the owner of the property. This case was criticised in Grinnell v. Cook, (3 Hill, 485,) and in Ingalsbee v. Wood, (36 Barb. 452,) but on a point distinct from this; and in the last case cited, Judge Potter says, “ The liability of an innkeeper to his guest, like that of a common carrier to his employer, is not discharged by his showing that the fire was owing to no fault of his; but to an accident.” In Wells v. The Steam Navigation Co., (2 N. Y. Rep. 204,) Judge Bronson classes inn- • keepers with common carriers, and says, “ It is perhaps a debatable question whether common carriers and innkeepers can contract for a more restricted liability than the law imposes on them in the absence of a special agreement. In Hawley v. Smith, (25 Wend. 642,) Judge Kelson says an innkeeper is not to be regarded as an insurer of goods without the inn; thereby intimating that he would be deemed an insurer for goods received infra hospitium. In Shaw v. Berry, (31 Maine Rep. 478,) the rule was declared to be, that an innkeeper was bound to keep the goods and chattels of his guest so that they should be actually safe; inevitable accidents, the acts of public enemies, the owners of the goods and their servants excepted; and that proof that there was no negligence in the innkeeper or his servants was not sufficient for his immunity. (See also 9 Humph. 746. 8 Blackf. 535.) It is said in Parsons on Contracts, that “ Public policy imposes on an innkeeper á severe liability. The later, [253]
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By the Court,
Bookes, J.
The law is well settled, that innkeepers are held to extraordinary liability on grounds of public utility, growing out of the nature of their vocation. It is insisted that the rule of liability as to innkeepers is the same as that applicable to common carriers of goods—that they warrant the safe keeping of the property of their guests. In other words, that their liability is that of insurers. There can be no possible question, at this day, as to the law in regard to common carriers. They warrant the safe delivery of goods against all contingencies, except the act of Grod or [250]*250the public enemy. . The rule was laid down in Dorr v. The New Jersey Steam Navigation Company, (11 N. Y. Rep. 485,) thus:. “ A common carrier is responsible for all loss or damage except that which is caused by the act of God or the public enemy.” It was held in this case that he might limit his. liability by an express, agreement with the owner of the property.. This stringent rule has been rigorously adhered to by the courts. Judge Jewett says, in Miller v. The Steam Navigation Company, (10 N. Y. Rep. 431,) “ The rule is not disputed that common carriers are responsible for every injury -done to goods intrusted to them to-carry, unless it proceeds from the act of God or the enemies of the land.” (2 Kent, 602. 10 John. 1. 11 id. 107. 6 id. 160. 21 Wend. 190. Story on Bailment, § 489, 490. 26 Wend. 591. 2 Barb. S. C. R. 326. 10 id. 612. 25 N. Y. Rep. 364. 39 Barb. 488. 31 id. 38.) Judge Co wen remarked, in McArthur v. Sears, (21 Wend. 196,) “ No'matter what degree of prudence may be exercised by the carrier and his servants; although the delusion by which it is baffled or the force by which it is overcome be. inevitable, yet if it be the result of human means, the carrier is responsible.” Destruction of property by accidental fire is not deemed to be by inevitable accident or the act of God, as are storms, light-, ning, earthquakes and tempests. . (1 Term Rep. 27. 5 id. 389. 10 N. Y. Rep. 431. 25 id. 364.) In this case, therefore, the property having been accidentally destroyed by fire while in .the possession of the defendant’s testator as innkeeper, he was answerable to. the owner, if subject to the same rule- of liability, as are common carriers. As regards this point there seems to be some confusion of authority. In a note to Blackstone’s Commentaries it is said that an innkeeper’s liability is not so extensive as that of a carrier, nolis he regarded, as a carrier is, in the light of a surety—that all losses, except those arising from inevitable force, the -act, of God, or the king’s, enemies, are presumed to arise from .the negligence of himself or his servants. But he may [251]*251excuse himself by showing, if he can, that he and his servants were guilty of no negligence. In a note to Morewood v. Pollock, (18 Law and Eq. Rep. 341,) it is said that the liability or loss by fire, not occasioned through the defendant’s negligence, does not attach to innkeepers, and cites as an authority for the remark, Merrit v. Claghorn, (23 Verm. Rep. 177.) Judge Story in his work on Bailment, (§ 472,) says: “ Innkeepers are not responsible to the same extent as common carriers. The loss of the goods of a guest, while at an inn, will be presumptive evidence of negligence on the part of the innkeeper, or of his domestics. Bxxt he may, if he can, repel this presumption, by showing that there has been no negligence whatever; or that the loss is attributable to the personal negligence of the guest himself, or that it has been occasioned by inevitable casualty or by sxxperior force.” Bemarks of similar import elsewhere occur in the books. On the other hand it is said, an innkeeper, like a common earlier, is an insui-er of the goods of his guest, and he can only limit his liability by an express agreement or notice. (2 Kent, 594.) This was recognized as the rule of law, in Washburn v. Jones, (14 Barb. 193,) in which case it was held that an innkeeper was l'esponsible for all losses and damages happening, even without his default, excepting such as were caused by inevitable accident or the public enemy, and excepting also such as were occasioned by the fraud, carelessness, or culpable neglect of the guest. In Piper v. Manny, (21 Wend. 282,) Judge ISTelson says, the liability of the innkeeper is strict and doubtless often severe, but not more so than that of the common carrier; both are considered insurers of the goods which are in their keeping. And in another part of this opinion the same learned judge remarks: “ The only question in the case is, whether the goods were received into the care and keeping of the innkeeper within the meaning of the terms of his common law liability: that is, infra hospitium. If they were, the question of negligence of the defendant or his servants has noth[252]*252ing to do with the case;” thereby meaning, as I conceive, that in such case, the innkeeper would be deemed to be liable as an insurer of the property. In Grinnell v. Cook, (3 Hill, 485,) Judge Bronson says that an innkeeper, like a common carrier, is an insurer of the property, and nothing but the act of God or public enemies will excuse a loss. In Mann v. Thompson, (9 Pick. 280,) it was held that innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God or the common enemy, or the neglect or fault of the owner of the property. This case was criticised in Grinnell v. Cook, (3 Hill, 485,) and in Ingalsbee v. Wood, (36 Barb. 452,) but on a point distinct from this; and in the last case cited, Judge Potter says, “ The liability of an innkeeper to his guest, like that of a common carrier to his employer, is not discharged by his showing that the fire was owing to no fault of his; but to an accident.” In Wells v. The Steam Navigation Co., (2 N. Y. Rep. 204,) Judge Bronson classes inn- • keepers with common carriers, and says, “ It is perhaps a debatable question whether common carriers and innkeepers can contract for a more restricted liability than the law imposes on them in the absence of a special agreement. In Hawley v. Smith, (25 Wend. 642,) Judge Kelson says an innkeeper is not to be regarded as an insurer of goods without the inn; thereby intimating that he would be deemed an insurer for goods received infra hospitium. In Shaw v. Berry, (31 Maine Rep. 478,) the rule was declared to be, that an innkeeper was bound to keep the goods and chattels of his guest so that they should be actually safe; inevitable accidents, the acts of public enemies, the owners of the goods and their servants excepted; and that proof that there was no negligence in the innkeeper or his servants was not sufficient for his immunity. (See also 9 Humph. 746. 8 Blackf. 535.) It is said in Parsons on Contracts, that “ Public policy imposes on an innkeeper á severe liability. The later, [253]*253and on the whole, prevailing authorities, make him an insurer of the property committed to his care, against every thing hut the act of God, or the public enemy, or the neglect or fraud of the owner.” (1 Parsons on Contracts, 623.) There is, I think, a very great preponderance of authority, both in this, country and in England, in favor of the rule which renders an innkeeper liable as an insurer of the goods committed to his care by his guest; and that he cannot be discharged except by showing that the loss or damage was occasioned by the act of God or the public enemy, or occurred through the fault or neglect of the guest or his servants. The action is based on the common law liability, and as Mr. Justice Sutherland remarks, in Gile v. Libby, (36 Barb. 70,) might be either assumpsit or case. He adds; In either case it is usual, and perhaps necessary, to allege in the declaration that the loss occurred by and through the carelessness of the innkeeper and his servants.” This idea is in accordance with the remark of Mr. Justice Nelson in Piper v. Manny, (21 Wend. 282,) that if the goods be received into the care and custody of the innkeeper, within the meaning of the terms of his common law liability, the question of negligence of the defendant or his servants has nothing to do with the case. In such case the action is based on the common law liability, which makes the innkeeper responsible as insurer.
According to the authorities then, the liability of an innkeeper is of the same stringent character as is that of a common carrier—that is to say—both are to be deemed insurers of the property delivered to them, with consequent liability for loss and damage happening to it while in their possession, except when such loss or damage is occasioned by the act of God, or the public enemy, or through the fault of the owner. As regards the liability of a carrier, the law is too well settled to admit of possible doubt. (10 N. Y. Rep. 431. 11 id. 485. 25 id. 364. 26 Wend. 591.) In the last case cited, the chancellor declared the rule salutary, and expressed a hope that it would not be impaired.
[254]*254The principle of public utility, which is the basis of this salutary rule in the case of common carriers, is equally applicable and potent in the case of innkeepers. Lord Holt states the reason of the rule. He says, that “ If the common carrier was not held to this strict -rule of accountability, it would be in his power to combine with robbers, or to pretend a robbery or some other accident, without a possibility of remedy to the party, inasmuch as the combination could be effected in such a clandestine manner as would render discovery impossible;” and he adds, “The law will not expose him to so great a temptation.” Sir William Jones says: “ He is treated as an insurer against all but the excepted perils, upon that distrust which an ancient writer has called the sinews of wisdom.” (Jones on Bailment, 107.) Mr. Justice Best states the reason of the rule to be, that in case the goods should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. (5 Bing. 217.) These considerations are the basis of the law which obtains at the present day as to common carriers, and they apply to innkeepers, now, with equal propriety. It would be invidious and untruthful to say that innkeepers are now any more honest or trustworthy than are common carriers, and there is no reason or propriety in a rule which shall relieve one class from the effect of a legal presumption which in point of fact attaches to both alike. The rule should be altogether discarded or be adhered to, without unreasonable and arbitrary discrimination. If still salutary, as the decisions hold it to be, in one case, it is equally so in the other. Carriers and innkeepers are under legal obligation—the former to accept property offered for transportation, the latter such guests as present themselves, with their goods—and they are entitled to demand a reasonable compensation, and they have a lien on the property therefor. The carrier may demand recom[255]*255pense commensurate with his extraordinary liability. So too may the innkeeper. Indeed they stand alike in all substantial points of duty, obligations and rights, as well public as private. I am constrained to say that unless we are prepared to make a distinction which impugns a principle, recognized and firmly established in the case of common carriers, we cannot relieve innkeepers from the rule which holds them liable, as insurers, with the exceptions above noted, against loss and damage to the goods of their guests, occurring when in their possession.
[OiraTON Geherai, Term,
July 12, 1864.
These considerations necessarily lead to an affirmance of the judgment.