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or bell boy was in the hotel where he was a , Dak. 245, 30 N. W. 148; Grimes v. Young, menial servant, and using language which 51 App. Div. 239, 64 N. Y. Supp. 859. would indicate that he was protecting his Where the servant, for his own purposes, master's property, a prima facie case is does a wrong without the direction or aumade.

thority of the master, and not for the purCleveland v. Neusom, 45 Mich. 62, 7 N. pose of executing his orders or doing his W. 222; Doherty v. Lord, 8 Misc. 228, 28 work, the master is not liable. N. Y. Supp. 720; Edgeworth v. Wood, 58 Rowell v. Boston & M. R. Co. 68 N. H. N. J. L. 463, 33 Atl. 940; McCoun v. New 358, 44 Atl. 448; Keating v. Michigan C. York C. & H. R. R. Co. 66 Barb. 338; Mott R. Co. 97 Mich. 154, 37 Am. St. Rep. 328, v. Consumers' Ice Co. 73 N. Y. 548; Rich- 56 N. W. 346; Cofield v. McCabe, 58 Minn. berger v. American Exp. Co. 73 Miss. 169, 218, 59 N. W. 1005; Turley v. Boston & 31 L. R. A. 390, 55 Am. St. Rep. 522, 18 M. R. Co. 70 N. H. 348, 47 Atl. 261; So. 922.

Marion v. Chicago, R. 1. & P. R. Co. 59 Mr. William A. Redick, for defendants lowa, 428, 42 Am. Rep. 36 note, 13 N. W. in error:

415; Golden v. Newbrand, 52 lowa, 59, 35 Even common carriers are not held to the Am. Rep. 257, 2 N. W. 537; Chicago Consol. liability of an insurer. They are required Bottling Co. v. McGinnis, 86 Ill. App. 38; to exercise the highest degree of care and Byrne v. Kansas City, Ft. 8. & M. R. Co. skill, but they are not insurers.

24 L. R. A. 693, 9 C. C. A. 666, 22 U. S. Hazard v. Chicago, B. & Q. R. Co. 1 Biss. App. 220, 61 Fed. 605; Reaume v. New503, Fed. Cas. No. 6,275; Chicago & A. R. comb, 124 Mich. 137, 82 N. W. 806; Shearm Co. v. Byrum, 153 lll. 131, 38 N. E. 578, & Redf. Neg. 4th ed. p. 148; Stone v. Hills, Louisville, N. A. & C. R. Co. v. Pedigo, 108 45 Conn. 44, 29 Am. Rep. 635; Western Ind. 481, 8 N. E. 627; Gilson v. Jackson U. Teleg. Co. v. Mullins, 44 Neb. 732, 62 County Horse R. Co. 76 Mo. 282; Missouri N. W. 880; Dolan v. Hubinger, 109 Iowa, P. R. Co. v. Baier, 37 Neb. 235, 55 N. W. 408, 80 N. W. 514; Johnson v. Pioneer 913.

Fuel Co. 72 Minn. 405, 75 N. W. 719; The liability of innkeepers has not been Guille v. Campbell, 200 Pa. 119, 55 L. R. enlarged. It remains what it has always A. 111, 86 Am. St. Rep. 705, 49 Atl. 938; been. Liability with reference to the prop. Winkler v. Fisher, 95 Wis. 355, 70 N. W. erty of the guest is that of an insurer, on 477; McClenaghan v. Brock, 5 Rich. L. 17: grounds of public policy.

Douglass v. Stephens, 18 Mo. 362; Mogk Pullman Palace Car Co. v. Lowe, 28 Neb. v. Chicago City R. Co. 80 Ill. App. 411. 248, 6 L. R. A. 809, 26 Am. St. Rep. 325,

The burden of proof to show that the 44 N. W. 226.

employee was acting within the scope of But this strictness of liability has never his employment is upon the plaintiff. been held with respect to the personal safety

Randall v. Chicago & G. T. R. Co. 113 of the guest, for the obvious reason that the Mich. 115, 38 L. R. A. 666, 71 N. W. 450; guest is not put in charge of the innkeeper, Mo. 477, 50 s. w. 791, 57 S. W. 268 ;

Raming v. Metropolitan Street R. Co. 157 but retains control of his own movements. The duty of an innkeeper is not to insure Rahn v. Singer Mfg. Co. 26 Fed. 917. of his guests against injury,

Albert, C., filed the following opinion: but merely to take reasonable care of their persons, so that they shall not be injured district court, alleges, in effect, that the

The plaintiff, in his petition filed in the by anything happening to them through

defendants were the proprietors of and his negligence while they are his guests.

operated a hotel in the city of Omaha; that Weeks v. McNulty, 101 Tenn. 499, 43

on the 12th day of January, 1902, he enL. R. A. 185, 70 Am. St. Rep. 693, 48 S. tered such hotel with his wife and infant W. 809; Sandys v. Florence, 47 L. J. C. ; son for a temporary sojourn therein, whereP. N. S. 598.

upon he and the said members of his famThe liability of the innkeeper is based ily were received as guests in said hotel by solely upon the principles applicable to the the defendants; that afterward, and while relation of master and servant.

they were thus guests in said hotel, the Curtis v. Dinneen, 4 Dak. 245, 30 N. W. plaintiff's infant son entered a room of 148.

the hotel, to speak or play with a porter Liability exists only when the servant or servant of the defendants, who at the is acting within the scope of his employ time was in said room. Then follow these ment.

allegations: “That the said porter and servWade v. Thayer, 40 Cal. 578; Com. v. ant of defendants in said hotel in said caPower, 7 Met. 601, 41 Am. Dec. 465; Davis pacity at said time violated all obligations v. Houghtellin, 33 Neb. 582, 14 1. R. A. of hospitality and patience due from said 737, 50 N. W. 765; Curtis v. Dinneen, 4 defendants, through said servants, to said

the persons

as

infant guest, and the defendants thereby | pointed it at the boy, saying, “See here, violated their agreement, duty, and obliga- young fellow, if you touch anything this tion of law with and to the plaintiff, by the is what you get.” The revolver by some following conduct, to wit: The said por- means was then discharged, the ball strikter, in attempting to have said infant son ing the boy, destroying one of his eyes, and of plaintiff leave said room and corridor inflicting upon him other serious injuries. where defendants did not want him, as While there is no direct evidence that the instructed, and retire to his mother's room, person who inflicted the injuries was in the and to have said infant cease his childish employ of the proprietors of the hotel, the play and pretended annoyance, carelessly, evidence shows that he waited on the guests, imprudently, rashly, unnecessarily, negli- carried water to their rooms, and rendered gently, and foolishly picked up a revolver, such other services as are usually rendered and, pointing it at said infant, said, 'If you by servants of a certain class about a hotel, handle anything, this is what I will do to and is amply sufficient to warrant a finding you,' or similar words, calculated to frighten that he was a servant of the proprietors, the said infant out of his natural and and, for the purposes of this case, would

hildish playfulness and prevent his touching have made him such, perhaps, in the absence any of defendants' property, or being about of a contract of employment. There is no said room or the halls. That the said infant evidence tending to connect the defendant threw up his hands when thus frightened George E. Barker with the operation of the and assaulted, and, by some means unknown hotel. At the close of plaintiff's case the to this plaintiff, the said pistol was care- court directed a verdict for the defendants, lessly and negligently discharged by the and from a judgment rendered on such said defendants' servant aforesaid. verdict the plaintiff brings the record here

The petition contains the usual for review. allegations as to damages. The defend- The defendants insist that, the plaintiff ants, by their answers, admit that the having failed to allege that the servant wildefendant administrator and corporation fully or maliciously inflicted the injury, it were the proprietors of the hotel, and were was incumbent on him to show that the inoperating it. as alleged in the petition; juries were the result of negligence on the that the plaintiff and his wife and infant part of the servant in the performance of son were received into said hotel as guests some duty for which he was employed, or in at the date alleged in the petition; and that, the discharge of some duty which the dewhile the plaintiff and the said members of fendants owed the plaintiff. We think they his family were thus guests at the hotel, overlook the theory upon which this action the son was seriously injured. But they was brought and prosecuted. The plaintiff, specifically deny that the person described by his petition and evidence, obviously inin the petition as their porter or servant tended to commit himself unreservedly to was in their employ at the time the injury the theory that this cause of action is en occurred, and that he was on duty, or in contractu. A contract is alleged in the the performance of any duty, as porter or petition. The wrongful acts of the servant, servant of the defendants, at such time. which resulted in injury to the boy, are They also specifically deny that the defend- alleged, not for the purpose of stating a ant George E. Barker was one of the pro- cause of action ex delicto, but for the purprietors of the hotel, or in any way inter- pose of showing a breach of contract, and ested in the same, or the operation thereof, consequent damages. save as president of the defendant corpo- This brings us at once to the question ration. The evidence adduced by the plain whether the act of the servant resulting in tiff sufficiently shows that the plaintiff, his the injuries complained of constitutes a wife, and infant son became guests at the breach of the implied contract between the hotel, intending to remain but a short time; | plaintiff and the proprietors of the hotel for that about three days after they were the entertainment of the former and his received in the hotel, and while they were family. By the implied contract between a guests therein, a servant of the proprietors hotel keeper and his guest, the former underof the hotel, who had waited upon the plain- takes more than merely to furnish the latter tiff and the members of his family during with suitable food and lodging. There is their stay at the hotel, was playing a har- implied on his part the further undermonica in a room which was not one of taking that the guest shall be treated with those assigned to the plaintiff or any mem- due consideration for his safety and comfort. ber of his family; that the plaintiff's infant Rommel v. Schambacher, 120 Pa. 579, 6 son, attracted by the music, entered the Am. St. Rep. 732, 11 Atl. 779. In Jencks v. room, the door of which was open; that Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258, thereupon the servant who had been play- Story, J. [Shaw, Ch. J., in Com. v. Power, ing the harmonica took up a revolver, and I 7 Met. 601, 41 Am. Dec. 465], said: "An

some

a

owner of a steamboat or railroad, in this | Am. Rep. 33; Southern Kansas R. Co. v. respect, is in a condition somewhat similar | Rice, 38 Kan. 398, 5 Am. St. Rep. 766, 16 to that of an innkeeper, whose premises are Pac. 817. An examination of the foregoing open to all guests. Yet he is not only em- cases will show, we think, that the reasonpowered, but he is bound, so to regulate his ing applies with equal force to a hotel house, as well with regard to the peace keeper, as regards his duties to his guests. and comfort of his guests who there Those duties spring from the implied. terms seek repose, as to the peace and quiet of his contract, and a failure to discharge of the vicinity, as to repress and pro- them, while it may in

instances hibit all disorderly conduct therein; and, of amount to a tort, amounts in every instance course, he has a right and is bound to ex- to a breach of contract. clude from his premises all disorderly per- If, then, the defendants were under a consons, and all persons not conforming to tractual obligation that the plaintiff and regulations necessary and proper to secure his family should be treated with due consuch quiet and good order.” The forego- sideration for their comfort and safety, the ing language is quoted with approval in act of the servant, resulting in the injuries Bass v. Chicago & N. W. R. Co. 36 Wis. complained of, obviously amounts to a 459, Am. Rep. 495. Substantially the breach of contract. That the wrongful act same language is employed by the court in was committed by a servant is wholly imDickson v. Waldron, 135 Ind. 507, 24 L. material. The rule which requires that a R. A. 483, 41 Am. St. Rep. 440, 34 N. E. guest at a hotel be treated with due con510, 35 N. E. l. See also Norcross v. Nor- sideration for his comfort and safety would cross, 53 Me. 169; Pinkerton v. Woodward, be of little value if limited to the propri33 Cal. 585, 91 Am. Dec. 657; Com. V. Power, etor himself. As a rule, he does not come 7 Met. 601, 41 Am. Dec. 465; Russell v. in contact with the guests. His undertakFagan, 7 Houst. (Del.) 396, 8 Atl. 258; Pull- ing is not that he personally shall treat man Palace Car Co. v. Lowe, 28 Neb. 239, them with due consideration, but that they 6 L. R. A. 809, 26 Am. St. Rep. 325, shall be so treated while inmates of the 44 N. W. 226. The foregoing also shows hotel as guests; and, if they be not thus that the duties of a hotel keeper to his treated, there is breach of the imguests are regarded as similar to the com- plied contract, whether the lack of such mon-law obligation of a common carrier treatment is the result of some actor to his passengers. As regards the duty omission of the proprietor himself, or of of a common carrier to his passengers, in his servant or servants. Ducinelle v. New York C. & H. R. R. Co.. Neither do we deem it material whether 120 N. Y. 122, 8 L. R. A. 224, 17 Am. St. the servant at the time of the injury was Rep. 611, 24 N. E. 319, the court said: “As actively engaged in the discharge of his we have seen, the defendant owed the plain-duty as servant or not. He was a servant tiff the duty to transport him to New York, of the proprietor, and an inmate of the hoand during its performance to care for his tel. His duty as to the treatment to be comfort and safety. This duty of protect accorded the guests of the hotel was a coning the personal safety of the passenger, tinuing one, and rested upon him wherever, and promoting by every reasonable means within the hotel, he was brought in contact the accomplishment of his journey, is con- with them. To hold otherwise would be to tinuous, and embraces other attentions and say that a guest would have no redress for · services than the occasional service required any manner of indignity received at a hotel, in giving the passenger a seat or some so long as it was inflicted by a servant temporary accommodation. Hence, whatever not actively engaged in the discharge is done by the carrier or its servants which of some duty. The following from Dwinelle interferes with or injures the health or v. New York C. & H. R. R. Co. 120 N. Y. strength or person of the traveler, or pre- 122, 8 L. R. A. 224, 17 Am. St. Rep. 6ll, vents the accomplishment of his journey in 24 N. E. 319, is peculiarly applicable at the most reasonable and speedy manner is this point: “The idea that the servant a violation of the carrier's contract, and he of a carrier of persons may, in the intervals must be held responsible for it.” To the between rendering personal services to the same effect are the following: Pittsburgh, passenger for his accommodation, assault Ft. W. & C. R. Co. v. Hinds, 53 Pa. 515, | the person of the passenger, destroy his con91 Am. Dec. 224; Goddard v. Grand Trunk sciousness and disable him from further R. Co. 57 Me. 214, 2 Am. Rep. 39; Cham- pursuit of his journey, is not consistent berlain v. Chandler, 3 Mason, 245, Fed. Cas. with the duty that the carrier owes to the No. 2,575; Pendleton v. Kinsley, 3 Cliff. passenger, and is little less than monstrous. 417, Fed. Cas. No. 10,922; Bryant v. Rich, While this general duty rested upon the 106 Mass. 188, 8 Am. Rep. 311; Chicago defendant to protect the person of the pas& E. R. Co. v. Flexman, 103 Ill. 548, 42 'senger during the entire performanec of the

was

contract, it signifies but little or nothing Per Curiam: whether the servant had or had not com For the reasons stated in the foregoing pleted the temporary or particular service opinion, the judgment of the District he performing, or had completed Court as to the defendant George E. Barker the performance of it, when the blow is affirmed, and as to the other defendants was struck. The blow was given by a serv the judgment is reversed, and the cause reant of the defendant while the defendant manded for further proceedings according to was performing its contract to carry safely law. and to protect the person of the plaintiff, and was a violation of such contract.”

A petition for rehearing having been filed, It is equally immaterial to this case, we

Sedgwick, J., on May 3, 1905, handed think, whether the shooting was accidental down the following response: or wilful. The servant, in pointing a load

Since the filing of the former opinion in ed gun at the boy, committed a trespass,

this case (ante, 642, 98 N. W. 440), the ques

and and, as a result of such trespass, inflicted tion principally discussed therein, serious and permanent injuries on the child. rising out of the same transaction, has His acts, therefore, constitute a breach of been decided by the United States court of the implied undertaking of his employers appeals for this circuit (Clancy v. Barto treat the plaintiff and his family with her, post, 653, 66 C. C. A. 409, 131 Fed. 161). due consideration for their safety and com

The opinion of that court, prepared by fort, for which breach his employers are

Judge Sanborn, strongly states the reasons liable in damages.

that led the majority of the court to the We are aware that there are cases hold conclusion that the hotel company ought ing contrary to the foregoing conclusion, not to be held liable. In a dissenting opinbut they do not seem to us to be based on ion, Judge Thayer upholds the views exsound reasons, nor upon just considerations pressed in the former opinion of this court. of public policy, and are contrary to the

1. The first ground urged by counsel for weight and trend of modern authority.

holding the defendants liable, we think, is The plaintiff offered to prove by one of his

in the majority

satisfactorily discussed witnesses that the day following the acci- opinion of that court. This relates to the dent one Mr. Bowman, the manager of the from the relation of master and servant. If

doctrine of respondeat superior, derived hotel, told the witness “that he had told the there had been evidence showing that it was boys (referring to the porters and bell boys the duty of the employees of the hotel to of the hotel) time and again to keep the kid prevent children from entering and playing [meaning the plaintiff's son) out of the ele- in rooms which were not assigned to them, vator, halls, and rooms of the hotel, and to it might perhaps be contended that the boy keep him in his mother's room.” The offer Lacy was acting within the scope of his was rejected, and the plaintiff contends that employment when the accident occurred. the ruling of the court in that behalf is er. The evidence offered as tending to show roneous. We do not think so. It was not that he was so acting was properly exclud. within the scope of the authority of the ed as shown in the former opinion, and it manager to bind his employer by the ad does not appear that there was any other mission or declaration sought to be proved, evidence in the record upon this point. and it was too remote in point of time, and 2. Whether the relation that exists betoo detached from the injury, to be admissi- tween a keeper of a hotel and his guests ble as a part of the res gesta. Gale Sulky makes the former liable for any misconduct Harrow Co. v. Laughlin, 31 Neb. 103, 47 N. of his employees by which his guests are inW. 638; Commercial Nat. Bank v. Brill, 37 jured while they are in the hotel and are in Neb. 626, 56 N. W. 382; Collins v. State, his care is a more difficult question. It is 46 Neb. 37, 64 N. W. 432; Friend v. Bur- admitted that common carriers under such leigh, 53 Neb. 677, 74 N. W. 50.

circumstances are liable. It is said that As to the defendant George E. Barker, as

the reason for this is that the passenger we have seen, there is no evidence which places himself in the care of the employees would warrant

of the carrier, and is continually in their verdict against him. Hence, so far as he is concerned, the judg.

care, so that whatever they do while the ment of the district court is right; but.

is being transported is within the passenger

cope of their employment. The hotel keepas to the other defendants, it is recommen er is also bound to bestow reasonable care ded that the judgment be reversed, and the for the safety and comfort of his guests. cause remanded for further proceedings ac

He is not an insurer of his guests; but cording to law.

neither is the carrier an insurer of his pas.

sengers. The carrier, of course, is bound Barnes and Glanville, CC., concur. to use extraordinary care-as is sometimes

a

said, the utmost care-for the safety of , ant should not be held liable. The facts his passengers. The business engaged in is which are the basis of the plaintiff's cause a dangerous one, and the care should be in of action briefly stated, are as follows: The proportion to the danger that exists. In plaintiff, Michael F. Clancy, and his wife, this respect there is a difference between with their infant son, Freeman, who was the two situations, but both perform public about six years old, were stopping at the duties, and are bound to serve any individ- Barker hotel, in the city of Omaha, and had ual who requires their service and suitably been guests at the hotel for several days applies for it. The hotel keeper offers ac- prior to the accident complained of. About commodations for strangers who are not 8:30 o'clock of the evening of January 15, acquainted with his employees and who 1902, Freeman left his mother's room and have no voice in their selection. He underwent down the elevator to the first floor takes to provide them with suitable accom of the hotel, as he says, “to get some ice modations, and with at least a certain de water." Reaching that floor, he passed by gree of care for their comfort and safety. a room where a boy of the name of Lacy, He has some control over their persons and who was employed as a porter or bell boy conduct. He must not allow sucu conduct at the hotel, was playing a harmonica; the on their part as will interfere with the rea door being ajar, he entered this room, apsonable hospitality which he owes to other parently to satisfy his childish curiosity; guests. It may be that the carrier has another boy who sometimes ran the elevator, greater control over the persons and con

was also in the room; both of these employduct of passengers, but this idea seems to ees seem to have been off duty at the time, be exaggerated in some of the opinions. In and engaged in amusing themselves in a what sense does the porter of a sleeping car room not occupied by any of the guests of have charge of the occupants of the car and the house. As the Clancy boy entered the have control of their conduct and behavior? room young Lacy said to him (apparently in Surely, if it is different in degree from the jest): "See here, young fellow, if you touch control that the hotel keeper has over his anything, this is what you get” (at the same guests, it is not much different in kind. time pointing a pistol at him). The pistol The hotel keeper is under obligation to pro

was at that instant accidentally discharged, tect his guests from danger when it is rea

the ball striking the boy Freeman in the sonably within his power to do so, and is head, destroying one of his eyes, and inflictunder obligation to select such employees ing other injuries upon him, which, however, as will look after the safety and comfort did not prove fatal, and this action was of his guests, and will not commit acts of brought by the father to recover damages violence against them, so far as is reason- alleged to have been sustained by him by ably within his power.

It would seem that reason of these facts. to relieve him from liability for injuries

The prevailing opinion does not place the done to his guests by his employee upon the right of recovery in this case on the ground sole ground that the employee was not then of negligence or tort, for no negligence on in the active discharge of some specific duty the part of the defendant is alleged or in connection with his employment, and hold proved, but bases such right solely on an the carrier responsible under similar condi- falleged breach of the implied contract of tions, is making a fine distinction. The lia- an innkeeper that his guest shall be treated bility of a common carrier under such cir- with due consideration for his comfort and cumstances is a doctrine of modern growth. safety, and so holds the proprietors of the There does not appear to be reason for es

hotel liable to both the father and his infant tablishing such doctrine that would not son for the damages sustained by them. equally apply under modern conditions to It must be conceded that until recent the relations between an innkeeper and his years the whole trend of authority supported guests.

and adhered to the common-law rule that an Notwithstanding the great respect due to innkeeper is not an insurer of the safety of the court which has reached a contrary con

his guest against injury, and that his obliclusion in Clancy v. Barker, post, 653, we gation is limited to the exercise of reasonconcluile that our former decision ought to able care for the safety, comfort, and enterbe adhered to.

tainment of his visitor. Calye's Case, 8

Coke, 32a; Sandys v. Florence, 47 L. J. C. Barnes, J., dissenting:

P. N. S. 598; Weeks v. AlcNulty, 101 Tenn. In this case I find myself unable to concur 499, 43 L. R. A. 185, 70 Am. St. Rep. 693, in the majority opinion, which adheres to our 48 S. W. 809; Curtis v. Dinneen, 4 Dak. 245, former decision. While I concurred in that 30 N. W. 148; Sheffer v. Willoughby, 163 decision when it was rendered, on a re-exam Ill. 518, 34 L. R. A. 464, 54 Am. St. Rep. ination of the question, as presented on the 483, 45 N. E. 253; Gilbert v. Hoffman, 66 rehearing, I am convinced that the defend- Iowa, 206, 55 Am. Rep. 263, 23 N. W. 632;

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