Swanner v. Conner Hotel Co.

224 S.W. 123, 205 Mo. App. 329, 1920 Mo. App. LEXIS 107

• Court: Missouri Court of Appeals
• Decided: June 5, 1920
• Status: Published

Opinions

Plaintiff, a traveling salesman, went to the Conner Hotel in Joplin about 11:30 a.m. on a certain day in May, 1919, to obtain a room as a guest. He was familiar with the hotel, having worked prior to that time for a taxicab company that had a stand in the hotel. On entering the hotel plaintiff went directly to the bell boys' bench where it was the custom to leave grips, and set his grip by the bench. On previous occasions when plaintiff was a guest at this hotel he had seen the bell boy set his grip by this bench, and had seen the grips of other guests set by this bench. He then went to the desk and asked for a room, and there was no room vacant. He afterwards ate lunch in the hotel. After lunch plaintiff went away, but returned about 5:30 p.m. No room was vacant then, but would be "before the evening was up." After 10 p.m. plaintiff succeeded in getting a room, registered, looked for his grip, and it was gone. None of the bell boys handled his grip or knew it was there so far as the record shows. He did not call the attention of anyone connected with the hotel that he had a grip. He merely went in and set his grip where he knew it was the custom to set grips while the guest was registering and securing a room. The defendant maintained a check room in the hotel, and plaintiff knew of this fact, and knew where it was. He could have checked his grip without cost, and without inconvenience, as the check room was near the clerk's desk, and only about twenty feet from the place where plaintiff set his grip. An attendant was in the check room at the time plaintiff entered the hotel, and at all other times, ready to check plaintiff's or any other guest's grip. Plaintiff never looked for his grip, nor gave it any attention from the time he set it down until after ten o'clock that night.

The cause was tried before the court, and at the close of the case defendant demurred to the evidence, and was overruled. The correctness of this ruling is the only question here. It is conceded, or rather not questioned, that the relation of innkeeper and guest was created, and existed. The law as to an innkeeper's liability is not the same in all jurisdictions. 22 Cyc. 1081, says that the prevailing view is that an innkeeper is liable, like the carrier, for all goods of the guest lost in the inn, unless the loss happened by an act of God, or a public enemy or by fault of the owner. Supporting this view Cyc. cites many cases from various states. According to another view an innkeeper is liable only when negligent, but that he owes the highest possible degree of care to his guest; but if such care has been exercised, and the guest's goods have been injured or lost, the innkeeper is not liable. Many cases are cited in support of this rule. The same text also says that whatever view is adopted, it is agreed that upon loss or injury to the goods of the guest being shown the innkeeper is prima facie liable, and the burden is on him of establishing such facts as will exonerate him. It has been held in our own state that the liability of an innkeeper, while not precisely the same, is analogous to that of a common carrier, and that the reasons for the liability are the same. [Batterson v. Vogel 10 Mo. App. 235.] In this case the court said: "The case of the innkeeeper is this: He is prima facie liable for the loss of his guest. He may show that he was diligent and that the guest was negligent; but, though ever so diligent, he is liable for the loss of goods of his guest not arising from the negligence of the guest, the act of God; or public enemies." We have found no case in this state that tends to run counter to the rule as laid down in the Batterson case, hence that seems to be our rule.

Defendant urges that plaintiff's baggage was never infrahospitium, that is, in the care and under the custody of the innkeeper, and that, therefore, no liability attached. As stated, the fact that plaintiff was a guest is not questioned. He had put his baggage where it was customary to put baggage while a guest was registering and seeing about a room. Plaintiff did not register immediately after setting his grip by the bell boys' bench, but would have then had there been a room. He was told there would be a room, and he waited for the room. His baggage was where it should have been at least up to the time he asked for and failed to get a room.

In Read v. Amidon, 41 Vt. 15, 98 Am. Dec. 560, plaintiff laid down a pair of gloves and lost them, and discussing the case the court said: "When the plaintiff entered the inn, and took off his overcoat and gloves, he did not deliver them to the defendant or to any of his servants, nor call the defendant's attention to them, but folded up his coat, and laid it on a bench in the room, with his gloves under it. It does not appear that the defendant had any knowledge of their being there. Story, in his work on bailments, says a delivery of the good into the custody of an innkeeper is not necessary to charge him with them; for although the guest doth not deliver them, nor acquaint the innkeeper with them, still the latter is bound to pay for them if they are stolen or carried away. The loss will be deemed prima facie evidence of negligence. The innkeeper, however, may be exonerated in divers ways; as, for example, by showing that the guest has taken upon himself exclusively the custody of his own goods, or has by his own neglect exposed them to peril. [Story on Bailments, sections 478, 480, 483; 2 Kent's Com. 593; 8 Barn. C. 9; 5 Term. Rep. 273.] The guest is not relieved from all responsibility in respect to his goods on entering an inn; he is bound to use reasonable care and prudence in respect to their safety so as not to expose them to unnecessary danger of loss. Whether the plaintiff was so careless, in laying down his gloves in the manner he did, as to exonerate the innkeeper of fact to be determined by the jury, in view of all the circumstances." [See, also, Maloney v. Bacon, 33 Mo. App. 501; Labold v. Southern Hotel Co., 54 Mo. App. 567.]

The Vermont case is quite similar to the facts of the instant case. There the guest laid his overcoat with his gloves under it, on a bench in the room. He did not call attention to the fact that his gloves and overcoat were on the bench, and the innkeeper did not know such fact, yet the gloves were infra hospitium and likewise was plaintiff's grip in the case at bar. Should plaintiff's negligence bar recovery as a matter of law? Defendant did not plead contributory negligence, but merely a general denial. But notwithstanding that contributory negligence is not pleaded, yet under the rule as laid down in Batterson v. Vogel, supra, if plaintiff's negligence was the cause of the grip being lost he cannot recover. Plaintiff's familiarity at defendant's hotel no doubt contributed to his lack of attention to his baggage, and perhaps gave him a feeling of security that a stranger might not have had, but plaintiff is to be considered as he was. We do not think that plaintiff's negligence was any more than a question for the trier of the facts, and therefore we decline to sustain appellant on this feature.

Defendant complains about a refusal of a declaration of law asked. We have examined this declaration and find when analyzed it is a premptory direction to find for defendant, and it was properly refused. The judgment below is affirmed.

Farrington, J., concurs; Sturgis, P.J., dissents in a separate opinion.