Mr. William A. Redick, for defendants Iowa, 428, 42 Am. Rep. 36 note, 13 N. W. in error:

pointed it at the boy, saying, "See here, young fellow, if you touch anything this is what you get." The revolver by some means was then discharged, the ball striking the boy, destroying one of his eyes, and inflicting upon him other serious injuries. While there is no direct evidence that the person who inflicted the injuries was in the employ of the proprietors of the hotel, the evidence shows that he waited on the guests, carried water to their rooms, and rendered such other services as are usually rendered by servants of a certain class about a hotel, and is amply sufficient to warrant a finding that he was a servant of the proprietors, and, for the purposes of this case, would have made him such, perhaps, in the absence of a contract of employment. There is no evidence tending to connect the defendant George E. Barker with the operation of the hotel. At the close of plaintiff's case the court directed a verdict for the defendants, and from a judgment rendered on such verdict the plaintiff brings the record here for review.

infant guest, and the defendants thereby violated their agreement, duty, and obligation of law with and to the plaintiff, by the following conduct, to wit: The said porter, in attempting to have said infant son of plaintiff leave said room and corridor where defendants did not want him, as instructed, and retire to his mother's room, and to have said infant cease his childish play and pretended annoyance, carelessly, imprudently, rashly, unnecessarily, negligently, and foolishly picked up a revolver, and, pointing it at said infant, said, 'If you handle anything, this is what I will do to you,' or similar words, calculated to frighten the said infant out of his natural and hildish playfulness and prevent his touching any of defendants' property, or being about said room or the halls. That the said infant threw up his hands when thus frightened and assaulted, and, by some means unknown to this plaintiff, the said pistol was carelessly and negligently discharged by the said defendants' servant as aforesaid. The petition contains the usual 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 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 corporation. The evidence adduced by the plaintiff sufficiently shows that the plaintiff, his wife, and infant son became guests at the hotel, intending to remain but a short time; that about three days after they were received in the hotel, and while they were guests therein, a servant of the proprietors of the hotel, who had waited upon the plaintiff and the members of his family during their stay at the hotel, was playing a harmonica in a room which was not one of those assigned to the plaintiff or any member of his family; that the plaintiff's infant son, attracted by the music, entered the room, the door of which was open; that thereupon the servant who had been playing the harmonica took up a revolver, and

the son

This brings us at once to the question whether the act of the servant resulting in the injuries complained of constitutes a breach of the implied contract between the plaintiff and the proprietors of the hotel for the entertainment of the former and his family. By the implied contract between a hotel keeper and his guest, the former undertakes more than merely to furnish the latter with suitable food and lodging. There is implied on his part the further undertaking that the guest shall be treated with due consideration for his safety and comfort. Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779. In Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258, Story, J. [Shaw, Ch. J., in Com. v. Power, 7 Met. 601, 41 Am. Dec. 465], said: “An

Am. Rep. 33; Southern Kansas R. Co. v. Rice, 38 Kan. 398, 5 Am. St. Rep. 766, 16 Pac. 817. An examination of the foregoing cases will show, we think, that the reasoning applies with equal force to a hotel keeper, as regards his duties to his guests. Those duties spring from the implied. terms of his contract, and a failure to discharge them, while it may in some instances amount to a tort, amounts in every instance to a breach of contract.

them with due consideration, but that they shall be so treated while inmates of the hotel as guests; and, if they be not thus treated, there is a breach of the implied contract, whether the lack of such treatment is the result of some act or omission of the proprietor himself, or of his servant or servants.

owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound, so to regulate his house, as well with regard to the peace and comfort of his guests who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and, of course, he has a right and is bound to exclude 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, 17 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. 1. 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; Pulling is not that he personally shall treat man Palace Car Co. v. Lowe, 28 Neb. 239, 6 L. R. A. 809, 26 Am. St. Rep. 325, 44 N. W. 226. The foregoing also shows that the duties of a hotel keeper to his guests are regarded as similar to the common-law obligation of a common carrier to his passengers. As regards the duty of a common carrier to his passengers, in Duinelle v. New York C. & H. R. R. Co. 120 N. Y. 122, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319, the court said: "As we have seen, the defendant owed the plaintiff the duty to transport him to New York, and during its performance to care for his comfort and safety. This duty of protecting the personal safety of the passenger, and promoting by every reasonable means the accomplishment of his journey, is continuous, and embraces other attentions and services than the occasional service required in giving the passenger a seat or temporary accommodation. Hence, whatever is done by the carrier or its servants which interferes with or injures the health or strength or person of the traveler, or prevents the accomplishment of his journey in the most reasonable and speedy manner a violation of the carrier's contract, and he must be held responsible for it." To the same effect are the following: Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 53 Pa. 515, 91 Am. Dec. 224; Goddard v. Grand Trunk R. Co. 57 Me. 214, 2 Am. Rep. 39; Chamberlain v. Chandler, 3 Mason, 245, Fed. Cas. No. 2,575; Pendleton v. Kinsley, 3 Cliff. 417, Fed. Cas. No. 10,922; Bryant v. Rich, 106 Mass. 188, 8 Am. Rep. 311; Chicago & E. R. Co. v. Flexman, 103 Ill. 548, 42

some

Neither do we deem it material whether the servant at the time of the injury was actively engaged in the discharge of his duty as servant or not. He was a servant of the proprietor, and an inmate of the hotel. His duty as to the treatment to be accorded the guests of the hotel was a continuing one, and rested upon him wherever, within the hotel, he was brought in contact with them. To hold otherwise would be to say that a guest would have no redress for any manner of indignity received at a hotel, so long as it was inflicted by a servant not actively engaged in the discharge of some duty. The following from Dwinelle v. New York C. & H. R. R. Co. 120 N. Y. 122, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319, is peculiarly applicable at this point: "The idea that the servant of a carrier of persons may, in the intervals between rendering personal services to the passenger for his accommodation, assault the person of the passenger, destroy his consciousness and disable him from further pursuit of his journey, is not consistent with the duty that the carrier owes to the passenger, and is little less than monstrous. While this general duty rested upon the defendant to protect the person of the passenger during the entire performanec of the

contract, it signifies but little or nothing whether the servant had or had not completed the temporary or particular service he was performing, or had completed the performance of it, when the blow was struck. The blow was given by a servant of the defendant while the defendant was performing its contract to carry safely and to protect the person of the plaintiff, and was a violation of such contract."

It is equally immaterial to this case, we think, whether the shooting was accidental or wilful. The servant, in pointing a loaded gun at the boy, committed a trespass, and, as a result of such trespass, inflicted serious and permanent injuries on the child. His acts, therefore, constitute a breach of the implied undertaking of his employers to treat the plaintiff and his family with due consideration for their safety and comfort, for which breach his employers are liable in damages.

We are aware that there are cases holding contrary to the foregoing conclusion, but they do not seem to us to be based on sound reasons, nor upon just considerations of public policy, and are contrary to the weight and trend of modern authority.

The plaintiff offered to prove by one of his witnesses that the day following the accident one Mr. Bowman, the manager of the hotel, told the witness "that he had told the boys [referring to the porters and bell boys of the hotell time and again to keep the kid [meaning the plaintiff's son] out of the elevator, halls, and rooms of the hotel, and to keep him in his mother's room." The offer was rejected, and the plaintiff contends that the ruling of the court in that behalf is erroneous. We do not think so. It was not within the scope of the authority of the manager to bind his employer by the admission or declaration sought to be proved, and it was too remote in point of time, and too detached from the injury, to be admissible as a part of the res gesta. Gale Sulky Harrow Co. v. Laughlin, 31 Neb. 103, 47 N. W. 638; Commercial Nat. Bank v. Brill, 37 Neb. 626, 56 N. W. 382; Collins v. State, 46 Neb. 37, 64 N. W. 432; Friend v. Burleigh, 53 Neb. 677, 74 N. W. 50.

Per Curiam:

For the reasons stated in the foregoing opinion, the judgment of the District Court as to the defendant George E. Barker is affirmed, and as to the other defendants the judgment is reversed, and the cause remanded for further proceedings according to law.

A petition for rehearing having been filed, Sedgwick, J., on May 3, 1905, handed down the following response:

and

Since the filing of the former opinion in this case (ante, 642, 98 N. W. 440), the question principally discussed therein, rising out of the same transaction, has been decided by the United States court of appeals for this circuit (Clancy v. Barker, post, 653, 66 C. C. A. 4€9, 131 Fed. 161). The opinion of that court, prepared by Judge Sanborn, strongly states the reasons that led the majority of the court to the conclusion that the hotel company ought not to be held liable. In a dissenting opinion, Judge Thayer upholds the views expressed in the former opinion of this court.

1. The first ground urged by counsel for holding the defendants liable, we think, is satisfactorily discussed in the majority opinion of that court. This relates to the from the relation of master and servant. If doctrine of respondeat superior, derived there had been evidence showing that it was the duty of the employees of the hotel to prevent children from entering and playing in rooms which were not assigned to them, it might perhaps be contended that the boy Lacy was acting within the scope of his employment when the accident occurred. The evidence offered as tending to show that he was so acting was properly excluded as shown in the former opinion, and it does not appear that there was any other evidence in the record upon this point.

2. Whether the relation that exists between a keeper of a hotel and his guests makes the former liable for any misconduct of his employees by which his guests are injured while they are in the hotel and are in his care is a more difficult question. It is admitted that common carriers under such circumstances are liable. It is said that the reason for this is that the passenger places himself in the care of the employees of the carrier, and is continually in their judg-passenger is being transported is within the care, so that whatever they do while the scope of their employment. The hotel keeper is also bound to bestow reasonable care for the safety and comfort of his guests. He is not an insurer of his guests; but neither is the carrier an insurer of his pas sengers. The carrier, of course, is bound to use extraordinary care-as is sometimes

As to the defendant George E. Barker, as we have seen, there is no evidence which would warrant a verdict against him. Hence, so far as he is concerned, the ment of the district court is right; but. as to the other defendants, it is recommended that the judgment be reversed, and the cause remanded for further proceedings according to law.

Barnes and Glanville, CC., concur.