FOSTER, Justice.
This suit was tried on counts 1 and 3. They allege that defendant was operating the “Ridgely’’ as an apartment house or hotel, whereby it maintained dominion and control over the hallways, elevators, stairways, entrances, etc. In count 1 it is alleged that plaintiff delivered to defendant her trunk “for the purpose of having the same placed in plaintiff’s apartment in said Ridgely, to-wit, rooms 705-6 on the seventh floor of said apartment.” In count 3 it is alleged that plaintiff delivered her trunk to said apartment house or hotel, and into the hallway, but does not otherwise allege its delivery to or possession by defendant. In both counts it is charged that “defendant negligently caused or allowed said personal property to be stolen, removed
or
misplaced,” etc. In neither count does it allege in what manner she claimed the apartment, or that she agreed to pay any consideration for its use or occupancy.
The duties of a gratuitous bailee impose upon him a liability for gross negligence or bad faith. Prince v. Ala. State Fair, 106 Ala. 340, 17 So. 449, 28 L. R. A. 716 ; Bain v. Culbert, 209 Ala. 312, 96 So. 228; Thomas v. Hackney, 192 Ala. 27, 68 So. 296; Haynie v. Waring, 29 Ala. 263.
Ordinarily the word “gross,” when applied to negligence, imports nothing more than simple negligence, or a want of due care. Stringer v. A. M. R. R. Co., 99 Ala. 397, 410, 13 So. 75 ; Ex parte Priester, 212 Ala. 271, 102 So. 376; 45 Corpus Juris, 671. But the authorities cited above show that a greater duty is imposed upon a bailee for hire than upon one whose relation is gratuitous.
When the complaint alleges facts which warrant a recovery only for gross negligence, a charge in it that the conduct of defendant was “negligent” without the use of the word “gross,” or its equivalent, is generally said to be sufficierit, and gross negligence may then be proven. 45 Corpus Juris, 1090. This is upon the theory that, after all, negligence is but the want of due care; that is such care as is required by law under the circumstances. If more than ordinary care is required, its breach is therefore properly termed negligence, and may be thus expressed in the complaint. But to justify any degree of care, whose breach would be negligence, the complaint must show facts upon which some legal duty exists. American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507.
We think that count 3 of the complaint does not sufficiently allege the facts to show the alleged duty to plaintiff by defendant. It shows that “she delivered to said apartment house or hotel” and into its hallway her trunk for the purpose of having it placed in her apartment. It does not allege that she acquired the right to say that the apart
ment was “hers” on account of any contract with defendant, whereby any duty was imposed upon it, of other circumstances showing such duty.
But the omissions of count 3 were supplied by the uncontradicted proof and the charge of the court. Any error in that connection was thereby cured. Life & Casualty Co. v. Peacock, 220 Ala. 104, 124 So. 229; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665 ; S. C. Rule 45.
Count 1 alleges a delivery to defendant of such property for the same purpose. This ordinarily implies its actual or implied acceptance by defendant. Such, we think, should be its meaning, as thus stated in count 1. So that count means that plaintiff was moving a trunk to her apartment in the house operated by defendant, and delivered the trunk to defendant for that purpose. She could not prove that allegation without showing that defendant either expressly or impliedly accepted the delivery for that purpose. Since no consideration is alleged or properly inferable from the facts alleged, there was a duty, at least to use such care as the law exacts of a gratuitous bailee, and a failure on his part, without excuse, to perform such duty, is negligence, as charged in count 1 of the complaint. We think, therefore, that count 1 was not subject to the demurrer.
The right to recover is dependent upon a consideration of certain legal principles argued very carefully by counsel for appellant.
It is undoubtedly true that a bailee must have possession of the property. Ex parte Mobile L. & R. Co., 211 Ala. 525, 101 So. 177, 34 A. L. R. 921. But such possession may be constructive, growing out of the relation of the parties. 6 Corpus Juris, 1103, 1104, note 51; 32 Corpus Juris, 557. It is also true that, to require the duty of ordinary care upon a bailee, there must be some sort of consideration. But if the bailment was at the instance, or on the invitation, of defendant because of benefits, direct or contingent, which were expected to accrue, or on a contract express or implied, having a legal consideration, it was not gratuitous. Prince v. Ala. State Fair, 106 Ala. 340, 17 So. 449, 28 L. R. A. 716; Birmingham Terminal Co. v. Thomas, 207 Ala. 363, 92 So. 803; 6 Corpus Juris, 1130.
Though not alleged in the complaint, the evidence showed that plaintiff rented the apartment and agreed to pay rent, and by virtue of such agreement she was moving her effects into the apartment. So that there was such consideration shown as'to require the use of ordinary care, if the other incidents of a bailment existed.
The duty of the landlord of a large modern apartment house to the various tenants seems not to have heretofore been the bastó of judicial decision.
That of an innkeeper to guests is an insurer of his personal effects; that of a boarding house keeper and restaurant keeper to customers is the use of ordinary diligence and care. Chamberlain v. Masterson, 26 Ala. 371; Lanier v. Youngblood, 73 Ala. 587; Blaufarb v. Drooker, 251 Mass. 201, 146 N. E. 242, 39 A. L. R. 291; Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263. In each instance the keeper has control over the entire building, including the interior of the rooms of guests and boarders.
The facts in respect to this defendant and its relation to the plaintiff are shown only by plaintiff’s evidence, and are without dispute as follows: Appellee acting by a friend, Mrs. Meeds, first made a verbal agreement to rent an apartment in the Ridgely, but she later signed a written contract. This written contract is not here controlling, since it did not express their relations at the time when plaintiff claims that her cause of action accrued. The Ridgely was shown to be a large apartment house, at least seven stories, and was used to accommodate transients for a night or more, and for apartment tenants for longer terms, equipped in all respects as separate unit residences. Apartment tenants, such as plaintiff, provided their own furniture and equipment for housekeeping. The halls, lobby, porches, stairways, entrances, and elevators were under the management and control of the defendant. A café was maintained by defendant for guests, tenants, and the public. The apartment rented by plaintiff was on the seventh floor, and the door to it was near the entrance to the freight elevator, by which her furniture and effects were transported to the seventh floor, and was also near to a stairway, and adjoined a corridor from which another corridor extended. The friend, Mrs. Meeds, had rented and occupied an adjoining apartment, and they had arranged to combine their holdings and occupy them as one family, each paying her own rent. As plaintiff was having her effects transported, she remained at her former residence, and Mrs.
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FOSTER, Justice.
This suit was tried on counts 1 and 3. They allege that defendant was operating the “Ridgely’’ as an apartment house or hotel, whereby it maintained dominion and control over the hallways, elevators, stairways, entrances, etc. In count 1 it is alleged that plaintiff delivered to defendant her trunk “for the purpose of having the same placed in plaintiff’s apartment in said Ridgely, to-wit, rooms 705-6 on the seventh floor of said apartment.” In count 3 it is alleged that plaintiff delivered her trunk to said apartment house or hotel, and into the hallway, but does not otherwise allege its delivery to or possession by defendant. In both counts it is charged that “defendant negligently caused or allowed said personal property to be stolen, removed
or
misplaced,” etc. In neither count does it allege in what manner she claimed the apartment, or that she agreed to pay any consideration for its use or occupancy.
The duties of a gratuitous bailee impose upon him a liability for gross negligence or bad faith. Prince v. Ala. State Fair, 106 Ala. 340, 17 So. 449, 28 L. R. A. 716 ; Bain v. Culbert, 209 Ala. 312, 96 So. 228; Thomas v. Hackney, 192 Ala. 27, 68 So. 296; Haynie v. Waring, 29 Ala. 263.
Ordinarily the word “gross,” when applied to negligence, imports nothing more than simple negligence, or a want of due care. Stringer v. A. M. R. R. Co., 99 Ala. 397, 410, 13 So. 75 ; Ex parte Priester, 212 Ala. 271, 102 So. 376; 45 Corpus Juris, 671. But the authorities cited above show that a greater duty is imposed upon a bailee for hire than upon one whose relation is gratuitous.
When the complaint alleges facts which warrant a recovery only for gross negligence, a charge in it that the conduct of defendant was “negligent” without the use of the word “gross,” or its equivalent, is generally said to be sufficierit, and gross negligence may then be proven. 45 Corpus Juris, 1090. This is upon the theory that, after all, negligence is but the want of due care; that is such care as is required by law under the circumstances. If more than ordinary care is required, its breach is therefore properly termed negligence, and may be thus expressed in the complaint. But to justify any degree of care, whose breach would be negligence, the complaint must show facts upon which some legal duty exists. American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507.
We think that count 3 of the complaint does not sufficiently allege the facts to show the alleged duty to plaintiff by defendant. It shows that “she delivered to said apartment house or hotel” and into its hallway her trunk for the purpose of having it placed in her apartment. It does not allege that she acquired the right to say that the apart
ment was “hers” on account of any contract with defendant, whereby any duty was imposed upon it, of other circumstances showing such duty.
But the omissions of count 3 were supplied by the uncontradicted proof and the charge of the court. Any error in that connection was thereby cured. Life & Casualty Co. v. Peacock, 220 Ala. 104, 124 So. 229; Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665 ; S. C. Rule 45.
Count 1 alleges a delivery to defendant of such property for the same purpose. This ordinarily implies its actual or implied acceptance by defendant. Such, we think, should be its meaning, as thus stated in count 1. So that count means that plaintiff was moving a trunk to her apartment in the house operated by defendant, and delivered the trunk to defendant for that purpose. She could not prove that allegation without showing that defendant either expressly or impliedly accepted the delivery for that purpose. Since no consideration is alleged or properly inferable from the facts alleged, there was a duty, at least to use such care as the law exacts of a gratuitous bailee, and a failure on his part, without excuse, to perform such duty, is negligence, as charged in count 1 of the complaint. We think, therefore, that count 1 was not subject to the demurrer.
The right to recover is dependent upon a consideration of certain legal principles argued very carefully by counsel for appellant.
It is undoubtedly true that a bailee must have possession of the property. Ex parte Mobile L. & R. Co., 211 Ala. 525, 101 So. 177, 34 A. L. R. 921. But such possession may be constructive, growing out of the relation of the parties. 6 Corpus Juris, 1103, 1104, note 51; 32 Corpus Juris, 557. It is also true that, to require the duty of ordinary care upon a bailee, there must be some sort of consideration. But if the bailment was at the instance, or on the invitation, of defendant because of benefits, direct or contingent, which were expected to accrue, or on a contract express or implied, having a legal consideration, it was not gratuitous. Prince v. Ala. State Fair, 106 Ala. 340, 17 So. 449, 28 L. R. A. 716; Birmingham Terminal Co. v. Thomas, 207 Ala. 363, 92 So. 803; 6 Corpus Juris, 1130.
Though not alleged in the complaint, the evidence showed that plaintiff rented the apartment and agreed to pay rent, and by virtue of such agreement she was moving her effects into the apartment. So that there was such consideration shown as'to require the use of ordinary care, if the other incidents of a bailment existed.
The duty of the landlord of a large modern apartment house to the various tenants seems not to have heretofore been the bastó of judicial decision.
That of an innkeeper to guests is an insurer of his personal effects; that of a boarding house keeper and restaurant keeper to customers is the use of ordinary diligence and care. Chamberlain v. Masterson, 26 Ala. 371; Lanier v. Youngblood, 73 Ala. 587; Blaufarb v. Drooker, 251 Mass. 201, 146 N. E. 242, 39 A. L. R. 291; Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263. In each instance the keeper has control over the entire building, including the interior of the rooms of guests and boarders.
The facts in respect to this defendant and its relation to the plaintiff are shown only by plaintiff’s evidence, and are without dispute as follows: Appellee acting by a friend, Mrs. Meeds, first made a verbal agreement to rent an apartment in the Ridgely, but she later signed a written contract. This written contract is not here controlling, since it did not express their relations at the time when plaintiff claims that her cause of action accrued. The Ridgely was shown to be a large apartment house, at least seven stories, and was used to accommodate transients for a night or more, and for apartment tenants for longer terms, equipped in all respects as separate unit residences. Apartment tenants, such as plaintiff, provided their own furniture and equipment for housekeeping. The halls, lobby, porches, stairways, entrances, and elevators were under the management and control of the defendant. A café was maintained by defendant for guests, tenants, and the public. The apartment rented by plaintiff was on the seventh floor, and the door to it was near the entrance to the freight elevator, by which her furniture and effects were transported to the seventh floor, and was also near to a stairway, and adjoined a corridor from which another corridor extended. The friend, Mrs. Meeds, had rented and occupied an adjoining apartment, and they had arranged to combine their holdings and occupy them as one family, each paying her own rent. As plaintiff was having her effects transported, she remained at her former residence, and Mrs. Meeds was at her new place to receive the effects and help arrange them.
The trunk came with the first truck load of effects, and all were transported by the freight elevator to the seventh floor, and left in the hall in front of the apartment rented by plaintiff. The men doing the hauling then left all of them in the hall, and went for the second truck load. The friend (Mrs. Meeds) was in and out of the apartment, and arranging them in it, and a strange negro man not. connected with the work in any manner, nor with defendant, helped Mrs. Meeds move the goods in the apartment— all of them, except the trunk which was left
in the hall. It was said to he too heavy, weighing two hundred to three hundred pounds. She says she never saw the trunk again after this man left and never saw him again. When they returned with the second load, the trunk was gone, and has not been located, nor has any one definitely identified it as having been seen since. It contained much silverware, and clothing, and was very heavy. Mrs. Meeds did not hear anything being moved about in the hall, or out of it, and there were no marks showing that it was dragged on the floor. The boy operating the freight elevator was a regular employee on that job, and was not examined as a witness. Many negroes were employed by tenants of the apartment house and used the freight elevator.
The defendant in operating the house had ■a lady always on hand in the office to look after the building and wants of the tenants and guests of the house.
There was evidence that on a nearby street on that afternoon a negro was seen with hand trucks of the type used in hotels to transport trunks in halls, on which he was carrying a large trunk of the same general description as that lost by plaintiff. It was not otherwise identified, and it was not shown what became of it, nor that he was the one helping Mrs. Meeds.
Do those facts show that the defendant in the operation of the apartment house was in the constructive possession of the goods of plaintiff as a tenant while they were in the hall temporarily and necessarily before they ■ could be placed into the rooms? We think that such is the legal effect of those circumstances if they are not then under the immediate observation of the tenant or her agent. We think that under such circumstances the owner should be expected to anticipate that they must so remain for a time, when they all cannot be under the observation of the owner, and that he is expected to, and should exercise ordinary care for their safety against theft whether by his own employees or others. The corridors and other such places are under the same nature of supervision by the apartment owner as the rooms and other places of a boarding house, and entail the same nature of duty upon one operating it. This ■duty should not follow the goods into the rooms of the apartment tenant. They are then not in a place over which he has control. Chamberlain v. Masterson, supra.
When goods are lost out of the possession of a bailee, negligence is prima facie imputed to him, and he has the burden of showing that the loss was not due to his want of due care or that of his servants or agents in the line of their employment and duty. Central of Georgia Ry. Co. v. Jones, 150 Ala. 379, 43 So. 575, 9 L. R. A. (N. S.) 1240, 124 Am. St. Rep. 71; Hackney
v.
Perry, 152 Ala. 626, 44 So. 1029; Southern Garage Co. v. Brown, 187 Ala. 484, 65 So. 400; Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am. St. Rep. 33; Haas v. Taylor, 80 Ala. 459, 2 So. 633.
And this rule also applies to gratuitous bailees. Thomas v. Hackney, 192 Ala. 27, 68 So. 296.
Since the burden was cast on defendant by the undisputed evidence to acquit itself of negligence, and no effort was made to do so, the affirmative charge on both counts was properly refused to defendant.
Other assignments of error relate to the refusal of requested charges. Some of them state correct legal principles, but ordinarily it is not error to refuse a charge which merely asserts a correct legal principle without direction to the jury as to its effect. Johnson v. Louisville & Nashville R. R. Co., 220 Ala. 649, 127 So. 216.
We do not think that the refusal of any of such charges was prejudicial to appellant. We do not find reversible error and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.