Kirby, J.,
(after stating the facts). It is contended by appellant that he was not an innkeeper, and that appellee was only a boarder at the hotel, and that the court erred in giving said instructions.
The common law is in force in this State, and the liability of innkeepers thereunder has not been altered or abridged by our statutes.
“An inn has been judicially defined as ‘a house where the traveller is furnished with everything which he has occasion for whilst upon his way; * * * but a mere coffee house or eating house or boarding house is not an inn.” 2 Parsons on Contracts, p. 157.
Mr. Bishop says: “An inn, hotel or tavern is a house for the general entertainment of all travellers and strangers applying, ready to make suitable compensation, and may be or not for the accommodation also of their horses and vehicles.” Bishop’s Non-Contract Law, § 1165.
It is defined in 16 Am. & Eng. Enc. of Law, 508, as follows: "An inn is a house which is held out to the public as a place where transient persons who come will be received and entertained as guests for compensation. An innkeeper is one who holds out that he will receive all travellers and sojourners who are willing to pay the price adequate to the sort of accommodation provided.”
Appellant, according to his statement, was proprietor of the Waverly Hotel; and, although his principal patrons were families, he received all the transient people he could get, was ready to entertain transient persons whenever they came, and to receive anybody who was a proper person, just like any other hotel, and under the circumstances he was an innkeeper, within the meaning of the law.
Being an innkeeper, he was, like a common carrier, an insurer of the property of his guests committed to his care, and liable for any loss thereof, not arising from the act of God, the public enemy, or the neglect or fraud of the owner of the property. It has been so held by the weight of authority that an innkeeper was an insurer of the property of his guest from the time of the decision in Calye’s Case, 8 Coke, 32a, down to now.
Parsons states the rule: “Public policy imposes upon an innkeeper a severe liability. The later and on the whole prevailing authorities make him an insurer of the property committed to his care against everything but the act of God or the public enemy, or the neglect or fraud of the owner of the property.” 2 Parsons on Contracts, 158.
“He is an insurer of the safety of whatever baggage or other things he receives into his inn from his guest, whether in fact negligent in their keeping or not, except against the two overwhelming forces, termed the acts of God, or the public enemy. For example, if they are stolen or burned without the fault of either the guest or the landlord, the latter must pay for them.” Bishop’s Non-Contract Law, § 1173. See, also, 2 Kent’s Commentaries, p. 594; Beale on Innkeepers and Hotels, §§ 185, 189; Mason v. Thompson, 9 Pick. 280, 20 Am. Dec. 471; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 675, Magee v. Pacific Improvement Co., 98 Cal. 678, 35 Am. St. Rep. 199; Shultz v. Wall, 134 Pa. St. 263, 19 Am. St. Rep. 686; Holstein v. Phillips, (N. C.) 59 S. E. 1057, 14 L. R. A. (N. S.) 475; Glenn v. Jackson, (Ala.) 12 L. R. A. 382.
Appellant contends that this rule of liability does not apply to the case presented here because, as he insists, that appellee is shown to have been a boarder at the hotel and not a guest at the time of the fire and the destruction of the property.
“A guest is a transient person who resorts to and is received at an inn for the purpose of obtaining the accommodation which it proposes to afford. * * * But it is essential that a party shall be a transient; that is, that he shall come to the inn for a more or less temporary stay, and if he is transient he may become a guest, in a legal sense,' notwithstanding an express contract between him and the innkeeper fixing the amount to be paid, for it has been laid down as one of the distinctive features of the relation that a guest is received under an implied contract.” 16 Am. & Eng. Enc. of Law, 516.
In Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 675, the court said: “A traveller who enters an inn as a guest does not cease to be a guest by proposing to remain a given number of days, or by ascertaining the price that will be charged for his entertainment, or by paying in advance for his board and entertainment, or by paying for what he has occasion for as his wants are supplied.”
In Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417, the court held: "If a traveller who puts up at an inn and is received there as a guest makes an agreement with the innkeeper for the price of his board by the week, he does not thereby cease to be a guest and become a boarder.?”
In Neal v. Wilcox, 4 Jones, Law, 146 (N. C.), 67 Am. Dec. 266, the court said: "A transient customer at an inn, although he be not a stranger or traveller, is considered as a guest; a lodger who sojourns at an inn and takes a room there for a specified time and pays for his lodging on a special agreement, as by the month or week, is a boarder.”
In Fay v. Pacific Improvement Co., 93 Cal. 253, 27 Am. St. Rep. 198, the court said: "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 boarding house.”
In Bostick v. State, 47 Ark. 126, the court, construing the statute in which appellant was charged with keeping a public tavern without a license, said: "The testimony tends to prove that her house was a public house, intended for the reception and entertainment of all comers, and not a mere boarding house, where the boarder is selected and received into the house upon an express contract for a certain period of time.”
Thus it appears that the fact that a person has been at a hotel for more than a week, and paid the reduced weekly rate, does not make him a boarder, rather than a guest, in the absence of an agreement as to the time he would remain in the hotel. Neither does the fact that one makes an arrangement to pay a reduced rate per meal, or per day, or per week, take away his character as a guest, where there is no agreement as to the time he will remain at the hotel. And the question whether one is a boarder or guest is one of fact, to be determined by the jury under proper instructions from the court.
The court told the jury that the distinction between a boarder and a guest is made by contract. That a boarder is one who contracts for board and entertainment for a definite period and for a fixed sum. One who stays at a hotel for an indefinite period is not a boarder but a guest.
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Kirby, J.,
(after stating the facts). It is contended by appellant that he was not an innkeeper, and that appellee was only a boarder at the hotel, and that the court erred in giving said instructions.
The common law is in force in this State, and the liability of innkeepers thereunder has not been altered or abridged by our statutes.
“An inn has been judicially defined as ‘a house where the traveller is furnished with everything which he has occasion for whilst upon his way; * * * but a mere coffee house or eating house or boarding house is not an inn.” 2 Parsons on Contracts, p. 157.
Mr. Bishop says: “An inn, hotel or tavern is a house for the general entertainment of all travellers and strangers applying, ready to make suitable compensation, and may be or not for the accommodation also of their horses and vehicles.” Bishop’s Non-Contract Law, § 1165.
It is defined in 16 Am. & Eng. Enc. of Law, 508, as follows: "An inn is a house which is held out to the public as a place where transient persons who come will be received and entertained as guests for compensation. An innkeeper is one who holds out that he will receive all travellers and sojourners who are willing to pay the price adequate to the sort of accommodation provided.”
Appellant, according to his statement, was proprietor of the Waverly Hotel; and, although his principal patrons were families, he received all the transient people he could get, was ready to entertain transient persons whenever they came, and to receive anybody who was a proper person, just like any other hotel, and under the circumstances he was an innkeeper, within the meaning of the law.
Being an innkeeper, he was, like a common carrier, an insurer of the property of his guests committed to his care, and liable for any loss thereof, not arising from the act of God, the public enemy, or the neglect or fraud of the owner of the property. It has been so held by the weight of authority that an innkeeper was an insurer of the property of his guest from the time of the decision in Calye’s Case, 8 Coke, 32a, down to now.
Parsons states the rule: “Public policy imposes upon an innkeeper a severe liability. The later and on the whole prevailing authorities make him an insurer of the property committed to his care against everything but the act of God or the public enemy, or the neglect or fraud of the owner of the property.” 2 Parsons on Contracts, 158.
“He is an insurer of the safety of whatever baggage or other things he receives into his inn from his guest, whether in fact negligent in their keeping or not, except against the two overwhelming forces, termed the acts of God, or the public enemy. For example, if they are stolen or burned without the fault of either the guest or the landlord, the latter must pay for them.” Bishop’s Non-Contract Law, § 1173. See, also, 2 Kent’s Commentaries, p. 594; Beale on Innkeepers and Hotels, §§ 185, 189; Mason v. Thompson, 9 Pick. 280, 20 Am. Dec. 471; Hulett v. Swift, 33 N. Y. 571, 88 Am. Dec. 405; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 675, Magee v. Pacific Improvement Co., 98 Cal. 678, 35 Am. St. Rep. 199; Shultz v. Wall, 134 Pa. St. 263, 19 Am. St. Rep. 686; Holstein v. Phillips, (N. C.) 59 S. E. 1057, 14 L. R. A. (N. S.) 475; Glenn v. Jackson, (Ala.) 12 L. R. A. 382.
Appellant contends that this rule of liability does not apply to the case presented here because, as he insists, that appellee is shown to have been a boarder at the hotel and not a guest at the time of the fire and the destruction of the property.
“A guest is a transient person who resorts to and is received at an inn for the purpose of obtaining the accommodation which it proposes to afford. * * * But it is essential that a party shall be a transient; that is, that he shall come to the inn for a more or less temporary stay, and if he is transient he may become a guest, in a legal sense,' notwithstanding an express contract between him and the innkeeper fixing the amount to be paid, for it has been laid down as one of the distinctive features of the relation that a guest is received under an implied contract.” 16 Am. & Eng. Enc. of Law, 516.
In Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 675, the court said: “A traveller who enters an inn as a guest does not cease to be a guest by proposing to remain a given number of days, or by ascertaining the price that will be charged for his entertainment, or by paying in advance for his board and entertainment, or by paying for what he has occasion for as his wants are supplied.”
In Berkshire Woollen Co. v. Proctor, 7 Cush. (Mass.) 417, the court held: "If a traveller who puts up at an inn and is received there as a guest makes an agreement with the innkeeper for the price of his board by the week, he does not thereby cease to be a guest and become a boarder.?”
In Neal v. Wilcox, 4 Jones, Law, 146 (N. C.), 67 Am. Dec. 266, the court said: "A transient customer at an inn, although he be not a stranger or traveller, is considered as a guest; a lodger who sojourns at an inn and takes a room there for a specified time and pays for his lodging on a special agreement, as by the month or week, is a boarder.”
In Fay v. Pacific Improvement Co., 93 Cal. 253, 27 Am. St. Rep. 198, the court said: "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 boarding house.”
In Bostick v. State, 47 Ark. 126, the court, construing the statute in which appellant was charged with keeping a public tavern without a license, said: "The testimony tends to prove that her house was a public house, intended for the reception and entertainment of all comers, and not a mere boarding house, where the boarder is selected and received into the house upon an express contract for a certain period of time.”
Thus it appears that the fact that a person has been at a hotel for more than a week, and paid the reduced weekly rate, does not make him a boarder, rather than a guest, in the absence of an agreement as to the time he would remain in the hotel. Neither does the fact that one makes an arrangement to pay a reduced rate per meal, or per day, or per week, take away his character as a guest, where there is no agreement as to the time he will remain at the hotel. And the question whether one is a boarder or guest is one of fact, to be determined by the jury under proper instructions from the court.
The court told the jury that the distinction between a boarder and a guest is made by contract. That a boarder is one who contracts for board and entertainment for a definite period and for a fixed sum. One who stays at a hotel for an indefinite period is not a boarder but a guest.
And by instruction numbered 2, that if they should find that plaintiff resided in Louisville, Kentucky, and, desiring to come to Hot Springs for her health, arranged to stop at defendant’s hotel at so much per week, and that' her proposed stay was for an indefinite period, subject to be terminated by the plaintiff at will, and that she was received into the said hotel on these terms and conditions, they would find she was a guest of the defendant and not a boarder.
From the authorites already cited, it-will be seen that this was a substantially correct declaration of the law, and the testimony, as set out, shows that appellee came to the hotel with the expectation of remaining an indefinite length of time; and, although there was an-agreement as to the weekly rate she should pay for entertainment, there was none as to the time of her stay, and she could have departed at any time that suited her whim or convenience, and the jury were warranted in finding that she was a guest of the hotel, and not a boarder.
It follows that no error was committed in the giving of said instructions, and, notwithstanding the court gave an instruction as to the liability of the hotel keeper, number 3, which was more favorable to appellant than the law warranted, he can not complain of that.
The judgment is- right, and is affirmed.