Opinion,
Mr. Just toe Mitchell:
As long ago as Chancellor Kent’s day, it was said: “ The responsibility of an innkeeper for the horse or goods of his guest .... has been a point of much discussion in the books: ” 2 Kent Com., 592. The common-law rule, as established in Calye’s Case, 8 Rep. 63, was that the innkeeper was bound absolutely to keep safe the goods of his guest deposited within the inn; and Kent, after considering the cases, lays it down that “an innkeeper, like a common carrier, is an insurer of the goods of his guest: ” 2 Kent Com., 594. The subject is also learnedly discussed in the note to Calye’s Case, 1 Sm. L. C. 197, and the notes to Coggs v. Bernard, Idem, 307, where the learned American annotators sum up the rule in the following form: “ An innkeeper is answerable for all losses happening to the goods of travelers becoming his guests, except such losses as are caused by the act of God or the public enemies, or by the conduct of the guest himself, or his servant, or the companion whom he brings with him.”
The learned counsel for the appellant has presented us a strong array of authorities to show that the true foundation of [273]*273the rule as administered in the later cases, both in England and many of our sister states, is the negligence of the innkeeper, and the only difference between the innkeeper and ordinary bailees is that a loss is prima facie proof of the innkeeper’s negligence, and throws upon him the burden of disproving it. If the question were open, it might he interesting to examine how far the desire to fix the exact limits of the liability, by resting it on something more definite than public policy, has led to modification of the severity of the common-law rule. Conceding negligence to be the foundation, we must logically concede the desired result, that, if the innkeeper shows by satisfactory proof that he took due care, he is absolved from liability. For my own part, I apprehend that the liability, like that of a common carrier, rested on the surrender of the owner’s possession and control of his goods, and public policy, which, for the protection of the owner, under such circumstances, precluded every excuse for not restoring the goods to the owner, except such as were the result of vis major, the act of God or the public enemies, which would he notorious, and could not be fraudulently pretended.
But the rule, whatever its foundation, is no longer open to question in this state. In Houser v. Tully 62 Pa. 92, the common-law liability was laid down by Williams, J., in the following emphatic terms: “ His responsibility extends to all his servants and domestics, and to all the goods and moneys of his guest which are placed within the inn ; and he is' bound, in every event, to pay for them, if stolen, unless they were stolen by a servant or companion of the guest.” The learned counsel for appellant has distinguished this case very carefully and accurately upon the facts, and claims that the. enunciation of the general rule above quoted, was not really necessary to the decision of the case actually before the court, and that it is therefore only dictum. If the case stood alone, there would be good ground for the claim, and we might he required now to re-examine the foundation and merits of the rule announced. But in Walsh v. Porterfield, 87 Pa. 376, the former case was distinctly affirmed in all the breadth of the opinion. The judge below had charged the jury that “ at common law an hotel-keeper or innkeeper was liable, at all events, for the goods and baggage of his guests. . . . . That law is the same [274]*274to-day.....It was in fact insuring, as it were, the safety of the property of guests; and it was immaterial, if a loss occurred or property was stolen whilst the guest was in the hotel, by whom it was stolen, unless it was by the guest’s own servant, or a fellow-guest of the party who was robbed, or the negligence of the guest; and, however vigilant the landlord might have been, he was responsible to the party losing the property. That was the common-law liability. He was practically an insurer of the safety of the property whilst the guest remained in his house.” It was assigned for error that this charge was too broad, and eminent counsel argued there, as here, that the real foundation of the rule is the negligence of the landlord or his servants. But this court, in affirming the judgment, said: “We adhere to the statement of the law as laid down by our late Brother Williams in Houser v. Tully, as to the extent and character of the liability of innkeepers for the-goods of their guests. An innkeeper is bound to pay for goods stolen in his house from a guest, unless stolen by the servant or companion of the guest.....The learned judge below, in his charge to the jury, evidently adopted this case as his chart, and there is no error in his instructions upon the law.” After this deliberate affirmance of the common-law rule, in a case where it was applied, and the correctness of the instruction distinctly assigned for error, we must regard the rule as settled.
The learned judge, therefore, was right in the general instruction he gave the jury as to the foundation of the plaintiff’s case. In the press of the trial, however, the defence, unfortunately, did not receive the same consideration. Neither the question of contributory negligence, nor the effect of the statute of 1855, was presented to the jury as it should have been.
Volenti non fit injuria, and conduct of the plaintiff contributing to the loss, whether voluntary or negligent, is always a defence. This principle, though not very clearly enunciated, was applied to the liability of an innkeeper, even in Calye’s Case, where the first resolution was that, if the horse was put to pasture at the guest’s request, and stolen, the innkeeper was not liable; and the eighth (8 Rep. 68), that, if the innkeeper requires his guest to put his goods in such a chamber under lock, and the guest leave them in an outer court, and [275]*275tliey are stolen, the innkeeper shall not be liable. And, however it might have been in the days of good Queen Bess, when Calye’s Case was decided, and when the length of his wine bill might have been deemed sufficient consideration for the duty of an innkeeper to take care of his guest, drunk or sober, it is now held in our own case of Walsh v. Porterfield that intoxication is no excuse for the negligence of a guest which contributes to his loss.
The evidence in the present case leaves the circumstances of the robbery in some degree of mystery. According to the plaintiff’s story, he locked and bolted his chamber door on going to bed, and found it open on waking in the morning. The back outer door of the hotel bore marks of violence with a hammer or other tool; the catch of the dead-latch was broken off, and matches of a kind not used in the hotel were found scattered at various points. All this pointed to a burglary by outside parties. Yet the evidence is that the plaintiff’s bedroom door bore no marks of violence anywhere; the key was in the lock, and the transom window was but a foot high, and swung in the middle, leaving ordy a space of six inches through which no person could possibly climb. How, then did the thief get in ? There is no theory which does not encounter some difficulties, and the first question that arises in the mind is whether plaintiff may not be mistaken in supposing he locked and bolted his door. The testimony is, that, though a sober man, he was not a total abstainer, and had been drinking that evening.
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Opinion,
Mr. Just toe Mitchell:
As long ago as Chancellor Kent’s day, it was said: “ The responsibility of an innkeeper for the horse or goods of his guest .... has been a point of much discussion in the books: ” 2 Kent Com., 592. The common-law rule, as established in Calye’s Case, 8 Rep. 63, was that the innkeeper was bound absolutely to keep safe the goods of his guest deposited within the inn; and Kent, after considering the cases, lays it down that “an innkeeper, like a common carrier, is an insurer of the goods of his guest: ” 2 Kent Com., 594. The subject is also learnedly discussed in the note to Calye’s Case, 1 Sm. L. C. 197, and the notes to Coggs v. Bernard, Idem, 307, where the learned American annotators sum up the rule in the following form: “ An innkeeper is answerable for all losses happening to the goods of travelers becoming his guests, except such losses as are caused by the act of God or the public enemies, or by the conduct of the guest himself, or his servant, or the companion whom he brings with him.”
The learned counsel for the appellant has presented us a strong array of authorities to show that the true foundation of [273]*273the rule as administered in the later cases, both in England and many of our sister states, is the negligence of the innkeeper, and the only difference between the innkeeper and ordinary bailees is that a loss is prima facie proof of the innkeeper’s negligence, and throws upon him the burden of disproving it. If the question were open, it might he interesting to examine how far the desire to fix the exact limits of the liability, by resting it on something more definite than public policy, has led to modification of the severity of the common-law rule. Conceding negligence to be the foundation, we must logically concede the desired result, that, if the innkeeper shows by satisfactory proof that he took due care, he is absolved from liability. For my own part, I apprehend that the liability, like that of a common carrier, rested on the surrender of the owner’s possession and control of his goods, and public policy, which, for the protection of the owner, under such circumstances, precluded every excuse for not restoring the goods to the owner, except such as were the result of vis major, the act of God or the public enemies, which would he notorious, and could not be fraudulently pretended.
But the rule, whatever its foundation, is no longer open to question in this state. In Houser v. Tully 62 Pa. 92, the common-law liability was laid down by Williams, J., in the following emphatic terms: “ His responsibility extends to all his servants and domestics, and to all the goods and moneys of his guest which are placed within the inn ; and he is' bound, in every event, to pay for them, if stolen, unless they were stolen by a servant or companion of the guest.” The learned counsel for appellant has distinguished this case very carefully and accurately upon the facts, and claims that the. enunciation of the general rule above quoted, was not really necessary to the decision of the case actually before the court, and that it is therefore only dictum. If the case stood alone, there would be good ground for the claim, and we might he required now to re-examine the foundation and merits of the rule announced. But in Walsh v. Porterfield, 87 Pa. 376, the former case was distinctly affirmed in all the breadth of the opinion. The judge below had charged the jury that “ at common law an hotel-keeper or innkeeper was liable, at all events, for the goods and baggage of his guests. . . . . That law is the same [274]*274to-day.....It was in fact insuring, as it were, the safety of the property of guests; and it was immaterial, if a loss occurred or property was stolen whilst the guest was in the hotel, by whom it was stolen, unless it was by the guest’s own servant, or a fellow-guest of the party who was robbed, or the negligence of the guest; and, however vigilant the landlord might have been, he was responsible to the party losing the property. That was the common-law liability. He was practically an insurer of the safety of the property whilst the guest remained in his house.” It was assigned for error that this charge was too broad, and eminent counsel argued there, as here, that the real foundation of the rule is the negligence of the landlord or his servants. But this court, in affirming the judgment, said: “We adhere to the statement of the law as laid down by our late Brother Williams in Houser v. Tully, as to the extent and character of the liability of innkeepers for the-goods of their guests. An innkeeper is bound to pay for goods stolen in his house from a guest, unless stolen by the servant or companion of the guest.....The learned judge below, in his charge to the jury, evidently adopted this case as his chart, and there is no error in his instructions upon the law.” After this deliberate affirmance of the common-law rule, in a case where it was applied, and the correctness of the instruction distinctly assigned for error, we must regard the rule as settled.
The learned judge, therefore, was right in the general instruction he gave the jury as to the foundation of the plaintiff’s case. In the press of the trial, however, the defence, unfortunately, did not receive the same consideration. Neither the question of contributory negligence, nor the effect of the statute of 1855, was presented to the jury as it should have been.
Volenti non fit injuria, and conduct of the plaintiff contributing to the loss, whether voluntary or negligent, is always a defence. This principle, though not very clearly enunciated, was applied to the liability of an innkeeper, even in Calye’s Case, where the first resolution was that, if the horse was put to pasture at the guest’s request, and stolen, the innkeeper was not liable; and the eighth (8 Rep. 68), that, if the innkeeper requires his guest to put his goods in such a chamber under lock, and the guest leave them in an outer court, and [275]*275tliey are stolen, the innkeeper shall not be liable. And, however it might have been in the days of good Queen Bess, when Calye’s Case was decided, and when the length of his wine bill might have been deemed sufficient consideration for the duty of an innkeeper to take care of his guest, drunk or sober, it is now held in our own case of Walsh v. Porterfield that intoxication is no excuse for the negligence of a guest which contributes to his loss.
The evidence in the present case leaves the circumstances of the robbery in some degree of mystery. According to the plaintiff’s story, he locked and bolted his chamber door on going to bed, and found it open on waking in the morning. The back outer door of the hotel bore marks of violence with a hammer or other tool; the catch of the dead-latch was broken off, and matches of a kind not used in the hotel were found scattered at various points. All this pointed to a burglary by outside parties. Yet the evidence is that the plaintiff’s bedroom door bore no marks of violence anywhere; the key was in the lock, and the transom window was but a foot high, and swung in the middle, leaving ordy a space of six inches through which no person could possibly climb. How, then did the thief get in ? There is no theory which does not encounter some difficulties, and the first question that arises in the mind is whether plaintiff may not be mistaken in supposing he locked and bolted his door. The testimony is, that, though a sober man, he was not a total abstainer, and had been drinking that evening. Did he get more than he thought, and is his recollection thereby beclouded? Or did he lock and bolt the door, as he thinks, and did the beer get him up again in a confused condition of mind, and was his open door the result of this ? The other circumstances only add to the difficulty of a satisfactory explanation. The evidence in general, as already said, points to a robbery by outside parties. But the vest carefully folded, and laid between the two lap blankets on the hat-rack in the dining-room, is hard to reconcile with such a theory. Again; the evidence of Mrs. Wall as to the voices on the porch, and of Rahn as to the men asking for plaintiff, suggest the possibility of other parties in company with plaintiff, and the loss of the money before he entered his room. As already said, there is no view of the evidence that does not meet with some difficulty, and such difficulty is always'for the jury to solve. Jurors are to [276]*276exercise the same common sense and judgment in the jury-box that they do as men in the affairs of life, only with a strict regard, under the direction of the court, to the nature, relevancy, and weight of evidence upon both sides. They cannot base verdicts on surmise or conjecture without evidence, but they are not bound to believe an incredible story because no witness contradicts it. It is for them to survey the whole case, and say whether the party having the burden of proof has met it by a satisfactory preponderance of evidence. The learned judge below was of opinion that there was no sufficient evidence of plaintiff’s negligence to be considered by the jury; and therefore, though stating the law correctly as to such negligence, he limited the jury to the consideration of the single question whether or not there was a theft. In this view we are unable to concur. The difficulties in the way of the plaintiff’s theory, and the general uncertainty of the entire occurrence, should have sent the whole case to the jury with an affirmance of defendant’s second and third points.
The evidence in regard to the safe, and the notice to guests, is not as full or satisfactory as it might be, but it was sufficient to go to the jury. The provisions of the act of May 7, 1855, P. L. 479, in regard to the places where notices must be posted, are intended to secure knowledge brought home to the guest. They may be said to be mandatory in the sense that, as they amount to constructive notice, they must be strictly complied with, if constructive notice is relied on; but if notice in fact is proved, then the provisions for constructive notice become immaterial. Defendant testified positively to having called the plaintiff’s attention to the notice at the head of the hotel register, though it was probably not on this particular visit. The plaintiff denied it. This question should have gone to the jury, for them to determine, under all the circumstances, the lapse of time since plaintiff saw the notice, if they find that he did have his attention called to it, the frequency of his visits, and his consequent familiarity with the customs of the house, etc., whether he should be treated as having notice of the existence of a safe, and, if so, whether' his omission to avail himself of that protection, and his carrying such an amount of money to his bedroom, was negligence for which he must himself bear the loss.
Judgment reversed, and venire de novo awarded.