SOMERVILLE, J.
— The plaintiff in the present action seeks to charge the defendant, Lanier, as keeper of the Exchange Hotel, in the city of Montgomery, for the loss of about sixty dollars in money, a watch and chain, and other articles of jewelry of small value, worn about his person, which are shown to have been stolen during the night, from a room in the hotel occupied by the plaintiff, who was a transient guest or customer.
It is first insisted for the defendant, that, inasmuch as the evidence shows that lie had never taken out a license, as keeper of a regular inn or hotel under the provisions of the statute (Code, 1876, §§ 522-525), he can not, for. this reason, be held to the common law liabilities of this class of bailees; but is to be regarded only as the keeper of a house or place of entertainment for boarders or lodgers, and, therefore, freed from the more severe liability attaching to the keepers of inns or hotels. This precise question was raised and fully considered by this court in the case of Beale v. Posey, 72 Ala. 323. It was there ■ held that, under a proper construction of the [591]*591several statutes of this State, if the keeper of an unlicensed house of entertainment fails to make a special contract with his guest as required by statute, he elects to assume the common law liability of an innkeeper, and when sued for the loss of goods belonging to the guest, he can not be heard to say that he was not a licensed innkeeper. The known purpose of the act of March 22, 1875, now embodied in sections 522-525 of the present Code, was to allow to innkeepers a larger liberty in the selection of their guests than was accorded to them under the stringent rules of the common law, and to thus obviate the evil effects of unwise congressional legislation, enacted under a power by which it was sought to arrogate to the General Government the right to regulate mere social matters of local and private concern in the several States. We regard the principle as settled by the above authority, that if persons in this State hold themselves out to the public as keepers of inns or hotels, even though unlicensed as such, and refuse or fail to make special written contracts with their guests; they must be held chargeable with the liabilities imposed by the principles of the common law touching the loss of personal property belonging to their guests or customers, except so far as these principles may have been modified by statute. — Beale v. Posey, supra; Code, 1876, §§ 1549-1551; Code, §522.
The common law liability of innkeepers is too well established to need any extensive discussion at this late day by the courts, so far, at least, as the particular facts of this case are concerned. There is a conflict, it is true, among the authorities on one point. This liability is stated by many to be commensurate with that of the common carrier, who is regarded as an insv/rer, being responsible for losses of every character, except such as were occasioned by “the act of God, the public enemy, or the party complaining.” — 2 Parson’s Contr. 146 ; 2 Story’s Contr. §909; Ohitty on Contr. 675; Saunders on Negl. 212. By other writers, innkeepers are held to be excused for losses occasioned by vis major, or irresistible force, such as robbery or fire. — 2 Kent’s Com. 593 ; Wharton on Negl. § 678 ; Bedf. on Car. § 596; Story on Bailments, § 472. But however this may be, nothing is better settled than that they are liable, under the rules of the common law, for losses occasioned by theft, unless superinduced by the proximate contributory negligence of the owner. — 2 Kent’s Com. 592; Mason v. Thompson, 20 Amer. Dec. 471; Houser v. Tully, 1 Amer. Rep. 390; Dunbier v. Day, 41 Amer. Rep. 772; Story on Contr. § 748.
It may be considered as the fair result of all the cases, that this liability covers all the personal property of every kind, infra hospitium, which the traveller or guest finds it convenient to carry about him, including money, jewelry or other valuables [592]*592devoted to use or ornament. — Redf. on Carriers, 458 ; Ramaley v. Leland (43 N. Y. 539), 3 Amer. Rep. 728. How much further the principle- extends, is not a question in this case. Clute v. Wiggins, 7 Amer. Dec., note, p. 452-454; Wilkins v. Earle, 4 Amer. Rep. 655.
In addition to other defenses which are-authorized to be set up by an innkeeper, in excuse of loss of the guest’s goods, is thqfraud or negligence of the guest himself, which may be classed under the head of contributory negligence. This constitutes, according to the better view, an established exception engrafted upon the rule of liability in the case of common carriers. — 1 Smith’s Lead. Cases (7th Amer. Ed.), 411; Ala. Gr. South R. R. Co. v. Little, 71 Ala. 611. The reasons are just as forcible why it should also obtain in the case of the keepers of inns, hotels and other like houses of public entertainment. — Clute v. Wiggins, 7 Amer. Dec. 455; Chamberlain v. Masterson, 26 Ala. 371; Purvis v. Coleman, 21 N. Y. 111. It is not every slight negligence on the part of the guest, of course, which will be held to excuse, as coming within this principle. Nor is the rule perhaps sound, as sometimes found to be intimated, that the negligence required to be imputed must be gross negligence, or such as evinces a want of good faith on the part of the plaintiff. The true rule in our judgment, and the one which seems to be sustained by the analogies of the law in other cases, is, that the want of ordinary care on the part of the guest, or of such as a prudent man may reasonably be expected to exercise under like circumstances, is sufficient to defeat a recovery against the innkeeper, where it appears that such negligence proximately contributed to the loss, and that the loss would not otherwise have happened. Cashill v. Wright, 6 El. & B. 891; Clute v. Wiggins, 7 Amer. Dec. 455.
In the case of The City Council of Montgomery v. Wright, 72 Ala. 411, we stated the sounder and better rule in our opinion to be, that “the question of negligence is always deemed one of fact for the determination of the jury, in all cases of doubt, either where the facts are disputed, or where different minds may reasonably draw different inferences or conclusions. But it is a question of law, to be decided by the court, where the facts are undisputed, and the inference to be drawn from them is clear and certain.” — Shear. & Redf. Negl. § 11; Whart. oh Negl. §420; 2 Dill. Mun. Corp. (3rd Ed.) § 1026. The same rule is deemed applicable to the present case, as a proper principle by which we are to be governed in discussing the question of the plaintiff’s alleged contributory negligence, to which we shall presently have occasion to allude.
The question of most importance in this case arises under [593]*593the construction of sections 1549-1551 of the Code, which prescribe the manner in which hotel and inn keepers in cities may exempt themselves from liability for the loss or abstraction of “any money, jeioelry, watches, plate or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass.” — Code, 1876, § 1550. , This condition is specified to be, that every such inn or hotel keeper “must provide himself with an iron chest, or other safe depository for valuable articles belonging to his guests or customers, and must keep posted on his door,
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SOMERVILLE, J.
— The plaintiff in the present action seeks to charge the defendant, Lanier, as keeper of the Exchange Hotel, in the city of Montgomery, for the loss of about sixty dollars in money, a watch and chain, and other articles of jewelry of small value, worn about his person, which are shown to have been stolen during the night, from a room in the hotel occupied by the plaintiff, who was a transient guest or customer.
It is first insisted for the defendant, that, inasmuch as the evidence shows that lie had never taken out a license, as keeper of a regular inn or hotel under the provisions of the statute (Code, 1876, §§ 522-525), he can not, for. this reason, be held to the common law liabilities of this class of bailees; but is to be regarded only as the keeper of a house or place of entertainment for boarders or lodgers, and, therefore, freed from the more severe liability attaching to the keepers of inns or hotels. This precise question was raised and fully considered by this court in the case of Beale v. Posey, 72 Ala. 323. It was there ■ held that, under a proper construction of the [591]*591several statutes of this State, if the keeper of an unlicensed house of entertainment fails to make a special contract with his guest as required by statute, he elects to assume the common law liability of an innkeeper, and when sued for the loss of goods belonging to the guest, he can not be heard to say that he was not a licensed innkeeper. The known purpose of the act of March 22, 1875, now embodied in sections 522-525 of the present Code, was to allow to innkeepers a larger liberty in the selection of their guests than was accorded to them under the stringent rules of the common law, and to thus obviate the evil effects of unwise congressional legislation, enacted under a power by which it was sought to arrogate to the General Government the right to regulate mere social matters of local and private concern in the several States. We regard the principle as settled by the above authority, that if persons in this State hold themselves out to the public as keepers of inns or hotels, even though unlicensed as such, and refuse or fail to make special written contracts with their guests; they must be held chargeable with the liabilities imposed by the principles of the common law touching the loss of personal property belonging to their guests or customers, except so far as these principles may have been modified by statute. — Beale v. Posey, supra; Code, 1876, §§ 1549-1551; Code, §522.
The common law liability of innkeepers is too well established to need any extensive discussion at this late day by the courts, so far, at least, as the particular facts of this case are concerned. There is a conflict, it is true, among the authorities on one point. This liability is stated by many to be commensurate with that of the common carrier, who is regarded as an insv/rer, being responsible for losses of every character, except such as were occasioned by “the act of God, the public enemy, or the party complaining.” — 2 Parson’s Contr. 146 ; 2 Story’s Contr. §909; Ohitty on Contr. 675; Saunders on Negl. 212. By other writers, innkeepers are held to be excused for losses occasioned by vis major, or irresistible force, such as robbery or fire. — 2 Kent’s Com. 593 ; Wharton on Negl. § 678 ; Bedf. on Car. § 596; Story on Bailments, § 472. But however this may be, nothing is better settled than that they are liable, under the rules of the common law, for losses occasioned by theft, unless superinduced by the proximate contributory negligence of the owner. — 2 Kent’s Com. 592; Mason v. Thompson, 20 Amer. Dec. 471; Houser v. Tully, 1 Amer. Rep. 390; Dunbier v. Day, 41 Amer. Rep. 772; Story on Contr. § 748.
It may be considered as the fair result of all the cases, that this liability covers all the personal property of every kind, infra hospitium, which the traveller or guest finds it convenient to carry about him, including money, jewelry or other valuables [592]*592devoted to use or ornament. — Redf. on Carriers, 458 ; Ramaley v. Leland (43 N. Y. 539), 3 Amer. Rep. 728. How much further the principle- extends, is not a question in this case. Clute v. Wiggins, 7 Amer. Dec., note, p. 452-454; Wilkins v. Earle, 4 Amer. Rep. 655.
In addition to other defenses which are-authorized to be set up by an innkeeper, in excuse of loss of the guest’s goods, is thqfraud or negligence of the guest himself, which may be classed under the head of contributory negligence. This constitutes, according to the better view, an established exception engrafted upon the rule of liability in the case of common carriers. — 1 Smith’s Lead. Cases (7th Amer. Ed.), 411; Ala. Gr. South R. R. Co. v. Little, 71 Ala. 611. The reasons are just as forcible why it should also obtain in the case of the keepers of inns, hotels and other like houses of public entertainment. — Clute v. Wiggins, 7 Amer. Dec. 455; Chamberlain v. Masterson, 26 Ala. 371; Purvis v. Coleman, 21 N. Y. 111. It is not every slight negligence on the part of the guest, of course, which will be held to excuse, as coming within this principle. Nor is the rule perhaps sound, as sometimes found to be intimated, that the negligence required to be imputed must be gross negligence, or such as evinces a want of good faith on the part of the plaintiff. The true rule in our judgment, and the one which seems to be sustained by the analogies of the law in other cases, is, that the want of ordinary care on the part of the guest, or of such as a prudent man may reasonably be expected to exercise under like circumstances, is sufficient to defeat a recovery against the innkeeper, where it appears that such negligence proximately contributed to the loss, and that the loss would not otherwise have happened. Cashill v. Wright, 6 El. & B. 891; Clute v. Wiggins, 7 Amer. Dec. 455.
In the case of The City Council of Montgomery v. Wright, 72 Ala. 411, we stated the sounder and better rule in our opinion to be, that “the question of negligence is always deemed one of fact for the determination of the jury, in all cases of doubt, either where the facts are disputed, or where different minds may reasonably draw different inferences or conclusions. But it is a question of law, to be decided by the court, where the facts are undisputed, and the inference to be drawn from them is clear and certain.” — Shear. & Redf. Negl. § 11; Whart. oh Negl. §420; 2 Dill. Mun. Corp. (3rd Ed.) § 1026. The same rule is deemed applicable to the present case, as a proper principle by which we are to be governed in discussing the question of the plaintiff’s alleged contributory negligence, to which we shall presently have occasion to allude.
The question of most importance in this case arises under [593]*593the construction of sections 1549-1551 of the Code, which prescribe the manner in which hotel and inn keepers in cities may exempt themselves from liability for the loss or abstraction of “any money, jeioelry, watches, plate or other things made of gold or silver, or of rare and precious stones, or for other valuable articles of such description as may be contained in small compass.” — Code, 1876, § 1550. , This condition is specified to be, that every such inn or hotel keeper “must provide himself with an iron chest, or other safe depository for valuable articles belonging to his guests or customers, and must keep posted on his door, and other public places in his house of entertainment, written or printed notices to his guests or customers, that they must leave their valuables with fhe landlord, his agent or clerk, for safe-keeping, that he may make safe deposit of the same in the place provided for that purpose.” — Code, §1549. It is further provided that any hotel or innkeeper, “who shall refuse or neglect to comply” with these requirements, shall not loe entitled to the exemptions and benefits of the statute, but “shall, in all respects, be liable as provided by present law.” — Code, § 1551.
It is not contended, or shown, that the appellant has literally complied with the requirements of the foregoing statute. ít is made satisfactorily to appear that he has failed to do so, by neglecting to post the requisite written or printed notice on the door of the very room in which the plaintiff was assigned lodgings, and from which the goods and money were abstracted. The statute, being in derogation of the common law, must be strictly construed, and can not be extended in its operation and effect by doubtful implication. It clearly must be construed to mean that the notices in question should be posted on all the doors of rooms occupied by guests, and this would include the door of the room in which the plaintiff was lodged. Its purpose is constructive notice, which conclusively imputes knowledge to the guest, -when there has been an exact compliance with the requirements of the statute, but not otherwise. Beale v. Posey, supra.
It is urged, however, that the plaintiff had actual notice of the facts intended to be imparted by the Written or printed notice which was omitted to be posted upon the door of his room, and that this was sufficient, and must be taken to be a substitute for the constructive or statutory notice required. This was the view taken by the Court of Appeals of New York in Purvis v. Coleman, 21 N. Y. 111. It was shown in that case that, while no notice was posted on the door of the room assigned to the plaintiff as required by the New York statute, yet that full notice in fact was given to him at the time of his arrival at the hotel, and of the occupancy of his room. It was [594]*594held by five out of the eight judges who sat, that the actual notice proved to have been given the guest was “far more satisfactory and ample than the constructive one required by the statute,” and that the object and purpose óf the statute had been “more than complied with.” Three of the judges, however, including Chief Justice Comstock, dissented from this construction, as adopted by a majority of the court. If we were to admit the soundness of the principle declared in that case, we are of the opinion, nevertheless, that the plaintiff has not been brought within its influence. The actual notice, which the plaintiff is shown to have had, was acquired by his having-observed and read the contents of printed, notices in other rooms of the defendant’s hotel,at sometime within the twelvemonths previous to the loss of his goods for which the present action was instituted.- It may be'that the knowledge thus imputed may have lapsed from his memory, or that the absence 'of the required notice from the door may have induced the belief, that the defendant had ceased his compliance with the statute. The posting of a printed or written notice upon the door of the guest’s room may often subserve a more useful office than that of constructive or even actual notice. It may answer as a constant reminder of his obligation to make the requisite deposit of his money and valuables, pointing like a finger-board, always observable, to his statutory duty. It may be an ocular warning, without intermission.
We need not, however, express a.t this time-our disapproval of the case of Purvis v. Coleman, supra, to which we have above adverted. It answers every purpose to hold that the present case does not fall within its influence. The sounder reasoning, perhaps, is, that the statute prescribes the exact manner in which the common law liability may be escaped, and. being in derogation of the common law rule, it must be strictly construed ; and a strict construction excludes actual notice by failing to expressly provide for it. This view is adopted in Batterson v. Vogel, 8 Mo. App. 24, and seems to be sustained by the general current of decisions, at least so far as the reasoning of the adjudged cases extends. — Porter v. Gilkey, 57 Mo. 235; Beale v. Posey, supra; Wilkins v. Earle (44 N. Y. 172), 4 Amer. Rep. 655; Ramaley v. Leland, (43 N. Y. 539), 3 Amer. Rep. 728; Clute v. Wiggins, 7 Amer. Dec. 457, note.
It is further insisted that the. circuit court erred in giving the general charge to find for the plaintiff, because the question of plaintiff’s negligence should have been submitted to the jury, and was improperly decided by the court. The only ground upon which we can see that the plaintiff could, in the remotest degree, be chargeable with negligence, was either in sleeping in a room without a locked door, or in failing to notify the [595]*595proprietor of the hotel that the lock was out of order. If the lock had been in good condition, it is questionable whether a failure to use it would be such contributory negligence on 'the part of the guest as to excuse the.defendant’s liability. It was so held, however, in Oppenheim v. White Lion Hotel Co. (L. R.) 6 C. P. 515, although the contrary seems to have been intimated by Lord Coke in Galye’s case, more than two' hundred years ago.— 8 Coke’s Rep. 203. No negligence in this particular, however, is imputable to the plaintiff, because it is shown that the catch attached to the lock of his room, and in which the bolt fastened, was gone, and there was no way to make the door secure against intruders. Nor can it be said that the plaintiff was negligent in not informing the defendant of this fact, because it was defendant’s clear duty to know it without.information from his guests. It would be a solecism to declare that the law requires of one contracting party the duty of notifying the other of a fact, which it is sheer negligence for the latter not-to know. The plaintiff being clearly free from negligence, no doubt being raised by the undisputed facts in evidence, the question of negligence became one for the decision of the court, under the rule we have stated above, and there was, consequently, no error in withdrawing it from the consideration of the jury. The only question left for the jury to decide was the truth of the facts, and this was properly submitted to them by the general charge given.
We discover no error in the charge of the court,'and the judgment is affirmed.