others were lessees and managers of the Park theater, in the city of Indianapolis: that Waldron came to the box office of the theater and applied for a 10-cent ticket, giving the ticket seller, one Joseph Gordon, a silver dollar, and receiving from him his ticket and only 70 cents in change; that one John Dickson was in the box office at the time with the ticket seller, and was in charge of, and conducting, the theater for and on behalf of the lessees. Waldron demanded of the ticket seller the right change; an altercation ensued, and the janitor of the theater, who was also a special policeman, was ordered by Dickson, who had reached through the window and grabbed Waldron and slapped him in the face, to arrest Waldron for a "vag." The janitor thereupon struck Waldron, knocked him down, and beat him severely; someone interfered, and the janitor withdrew; then Gordon came out of the ticket office, and, in the presence of the manager, assaulted waldron, and beat him shamefully; that thereafter the janitor arrested Waldron and took him to the police station. On these facts it was held, as in Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779, that the proprietor of the theater was liable for the injuries sustained by Waldron.

Overstreet v. Moser, 88 Mo. App. 72; Stan- that case were that George A. Dickson and ley v. Bircher, 78 Mo. 245; Stott v. Churchill, 15 Misc. 80, 36 N. Y. Supp. 477; Sneed v. Moorehead, 70 Miss. 690, 13 So. 235. It is claimed, however, that the more recent cases have changed the rule, and, to support this view, we are referred in the original opinion to Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779. In that case it appears that on the evening of the 9th of August, 1884, the plaintiff, William Rommel, a minor, entered the tavern of Jacob Schambacher, and there found one Edward Flannagan; they both became intoxicated on the liquor furnished them by Schambacher. While the plaintiff was standing outside of the bar engaged in conversation with the defendant, Flannagan pinned a piece of paper to his back and set it on fire. The consequence was that Rommel's clothes were soon in flames and before they could be extinguished he was badly injured. On those facts it was held that the "proprietor of a saloon is liable for injuries sustained by one who enters therein and becomes intoxicated, by reason of another who also became intoxicated there, and who, in full view of the proprietor, attached a piece of paper to the former and set it on fire." The sole ground of holding the proprietor liable was that he furnished the liquor which caused the intoxication of the two men, and allowed one of them, in his presence, to attach the paper to the other and set it on fire, when he could, and should, have prevented it. So it will be seen that there is nothing in the facts of that case, or in the matter actually decided, which supports the prevailing opinion.

Our attention is also called to the case of Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258, in which Story, J. [Shaw, Ch. J., in Com. v. Power, 7 Met. 601, 41 Am. Dec. 465], said: "An 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, to so 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 persons, and all persons not conforming to regulations necessary and proper to such quiet and good order." This language, it seems to me, comes far short of justifying the conclusion announced by the majority.

The case of Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1, is also cited to sustain the prevailing opinion. The facts in

In the foregoing cases, and in some others, the courts have made use of the expression: "The liability of an innkeeper is like that of a common carrier." But it is nowhere held that the kind and extent of the liability of the innkeeper is the same as that of a common carrier. All of the other cases referred to are actions where common carriers were sued for injuries to passengers while being transported.

Our attention was also called, on the rehearing, to the case of Curran v. Olson, 88 Minn. 307, 60 L. R. A. 733, 97 Am. St. Rep. 517, 92 N. W. 1124, as sustaining plaintiff's contention. That was a case where a patron of a saloon fell asleep in his chair, and a third person poured alcohol, which was furnished by the bartender in charge of the defendant's business, on the foot of the sleeper, and set it on fire. The saloon keeper was held liable because the tort was committed in the presence and with the assent of his managing agent, when it was the duty and within the power of the agent to have prevented it. So it seems to me that in none of the cases to which our attention has been directed are the facts the same or similar to those in the case at bar, and I am of opinion that none of them fairly support the rule announced by the majority. On the other hand, I believe the great weight of authority to be with the defendants, and that the rule that an innkeeper is not an insurer

of the safety of the person of his guest|rier regulates the movements of the passenagainst injuries, and that his contract obli- ger, assigns him his seat or berth, and detergation is limited to the exercise of reasonable care for the safety, comfort, and entertainment of his visitors, should be adhered to. While my associates state that they do not intend to make the innkeeper an insurer of the safety of the guest, it seems clear to me that such is the effect of the prevailing opinion.

The case of Clancy v. Barker, post, 653, 66 C. C. A. 469, 131 Fed. 161, which was an action for the infant, Freeman Clancy, by the plaintiff herein, as his next friend, to recover for his injuries occasioned by the accident which is the basis of this action, is commented on by the majority, and I take this occasion to review it. It was there held by the United States circuit court of appeals that the defendants were not liable. The plaintiff's contention there was the same as here, and Judge Sanborn, who wrote the prevailing opinion, said: "The crucial question here, therefore, is whether or not an innkeeper is an insurer of the safety of the person of his guest, while the latter remains in his hotel, against the negligent and wilful acts of his servants, when they are acting within the course and without the actual or apparent scope of their employment. | Counsel for the plaintiff insists that the liability of the innkeepers should be extended in the case at bar even beyond that of common carriers; so that the defendants should be held liable for the injuries inflicted by the wilful or careless act of their servant when he was not acting within the course or scope of his employment. The argument in support of this contention is that common carriers are liable for the negligent or wilful acts of their servants to whom they intrust the care, custody, and control of the passengers they transport, and that the liability of innkeepers to their guests is similar to that of carriers to their passengers. There are many reasons, however, why this argument is not persuasive, and why it fails to demonstrate that an innkeeper insures the safety of the persons of his guests against injuries inflicted by his servants when they are not engaged in the discharge of their duties as employees.

There is a marked difference in the character of the contracts of carriage on a railroad or steamboat and of entertainment at an inn, and a wide difference in the relation of the parties to these contracts. In the former, the carrier takes and the passenger surrenders to him the control and dominion of his person, and the chief, nay, practically the only, occupation of both parties is the performance of the contract of carriage. For the time being all other occupations are subordinate to the transportation. The car

mines when, how, and where he shall ride,
eat, and sleep while the passenger submits
to the rules regulations, and directions of
the carrier, and is transported in the manner
the latter directs. The contract is that the
passenger will surrender the direction and
dominion of his person to the servants of the
carrier, to be transported in the car, seat, or
berth, and in the manner in which they di-
rect, and that the latter will take charge of
and transport the person of the passenger
safely. The logical and necessary result of
this relation of the parties is that every ser-
vant of the carrier who is employed in as-
sisting to transport the passenger safely,
every conductor, brakeman, and porter who
is employed to assist in the transporta-
tion, is constantly acting within the scope
and course of his employment while he is
upon the train or boat, because he is one of
those selected by his master and placed in
charge of the person of the passenger to
safely transport him to his destination.
Any negligent or wilful act of such a servant
which inflicts injury upon the passenger is
necessarily a breach of the master's contract
of safe carriage, and for it the latter must
respond. But the contract of an innkeeper
with his guest, and their relations to each
other, are not of this character. The inn-
keeper does not take, nor does the guest
surrender, the control or dominion of the
latter's person. The performance of the con-
tract of entertainment is not the chief occu-
pation of the parties, but is subordinate to
the ordinary business or pleasure of the
guest. The innkeeper assigns a room to his
guest, but neither he nor his servants direct
him when or how he shall occupy it.
The agreement is not that the guest shall
surrender the control of his person and
action to the servants of the innkeeper in
order that he may be protected from injury
and entertained. It is that the guest may
retain the direction of his own action, that
he may enjoy the entertainment offered, and
that the innkeeper will exercise ordinary
care to provide for his comfort and safety.

The natural and logical result of this relation of the parties is that when the [innkeeper's] servants are not engaged in the course or scope of their employment, although they may be present in the hotel, they are not performing the master's contract, and he is not liable for their negligent or wilful acts."

An examination of the cases involving the liability of common carriers, of owners of palace cars, of steamboats, and of theaters, cited in the prevailing opinion, discloses that the defendants' servants in every case were acting within the course or scope

er.

of their employment, and none of them hold | control of the passenger himself. They are the defendants liable for the wilful or negli- used and controlled wholly by the servants gent acts of their employees beyond that of the carrier in transporting the passenger scope. I am much impressed with the pre- to his place of destination. During every vailing opinion of Judge Sanborn. The rea- moment of his journey he is in charge and soning employed by him appears to be sound, under the control of the employees of the and is supported by the great weight of au- carrier, and so the carrier is held liable for thority in both England and in this coun- the lightest negligence; while one who is try; and, while I do not consider myself the guest of the modern hotel or inn has the bound by that opinion, yet it seems to me to utmost freedom of movement; there is no announce the better rule. I regret that dif- danger or hazard connected with the busiferent courts should arrive at different and ness, and when a room is assigned to the inconsistent conclusions from the same facts, guest it is his own to occupy or not, as he and practically in the same case. pleases; it is his domicil from which he may exclude all intruders; and when, as in many cases, the guest lives constantly at the hotel, it is his home, from which he may depart, and to which he may return, at any time, and at all hours of both day and night. Again, there are at all times other guests of the house with whom he necessarily is thrown in contact, and from whom he may possibly receive an injury; and it is believed that our former opinion goes to the extent of holding the proprietor of the hotel liable for such injuries without any negligence on his part. The modern hotel is, to a certain extent, a public place. Anyone may enter it for any lawful purpose without the consent of the proprietor, and leave it without let or hindrance; and yet the effect of the prevailing opinion is that, for any injury inflicted by such a person to a guest of the house, the innkeeper would be liable, even if he had no reason to expect it, and could not in any way have prevented it. It seems clear to my mind that an ordinary nonhazardous and useful occupation should not be required to bear such an extraordinary burden.

Again, the supreme court of Dakota, in Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148, directly decided a similar question to the one presented in this case in accordance with the general rule, and in favor of the innkeepIn that case the plaintiff, while a guest at the defendant's hotel, was assaulted by the defendant's husband, who was employed in and about the house, but not in the course of his employment. The court said: "It is doubtless good legal doctrine that a master is liable to answer in a civil action for the tortious or wrongful act of his servant, if done in the course of his employment in his master's service, even though the master did not know of or authorize such act, or may have disapproved of or forbidden it. The act must be done in the execution of the authority given by the master and in pursuit of the master's business, and must be within the scope of the servant's employment, or, unless it be ratified by the master, he (the master) will not be liable there for." And so it was held that an innkeeper is not liable for assault and battery com mitted on a guest by one of his servants. where the assault was not within the line of the servant's duty, and was not adivsed or countenanced by the master.

In a still later case, Rahmel v. Lehndorff. 142 Cal. 681, 65 L. R. A. 88, 100 Am. St. Rep. 154, 76 Pac. 659, the supreme court of California, in a well-considered opinion, held: "An assault by a waiter in a hotel on a guest is not within the scope of the waiter's employment, or within the real or supposed scope of his duties, so as to render the innkeeper liable for the tort. An innkeeper is not bound to protect his guests from acts of violence of his servants, in the absence of negligence in employing a violent or disorderly person."

To my mind, there are many other reasons why the contractual liability of innkeepers to their guests should not be held to be coextensive with and the same as that of common carriers to their passengers. The agencies employed by common carriers to transport their passengers are extremely hazardous, and are not in any manner under the

Again, the thought intrudes itself that the person injured in this case was an infant of such tender years that the defendants had the right to expect that its parents, who in reality were their guests, would prevent him from entering the rooms of the servants or other guests, or getting into place of danger; in other words, from roaming about the hotel at will and unattended. It can hardly be said that the proprietors, knowing that the child was with his mother and under her immediate care and control, impliedly contracted to relieve her of that duty, assume it themselves, and insure him against injury while in their hotel.

After mature reflection and a careful examination of the authorities, I am of opinion that the defendants should not be held liable for the injury complained of. For the foregoing reasons, it seems clear to me that our former opinion should be vacated, and the judgment of the district court should be affirmed.

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT. Freeman CLANCY, by Catherine Clancy, | on testimony which tended to establish, and His Next Friend, Plff. in Err.,

บ.

George E. BARKER et al.

(66 C. C. A. 469, 131 Fed. 161.)

*1. Innkeepers are not insurers of the safety of the persons of their guests. The limit of their liability is for the exercise of reasonable care for the safety, comfort,

and entertainment of their visitors. 2. Innkeepers do not contract to insure the safety of their guests against injuries which are inflicted upon them by the negligent or wilful acts of their servants beyond the scope and course of their employment, and for such acts they are not liable in damages when they have exercised

reasonable care to prevent them.

3. A boy about six years of age, a guest of the defendants at their hotel, wandered out of the room assigned to him, and into a room in which a bell boy or porter of the defendants was engaged in playing a harmonica for his own amusement, and the latter accidentally or wilfully shot the former with a pistol. Held, the bell boy was not acting within the course, or within the apparent or actual scope, of his employment at the time of the shooting, and the innkeepers were not liable for the injury he

inflicted.

(Thayer, Circuit Judge, dissents.)

(May 28, 1904.)

E
RROR to the Circuit Court of the
United States for the District of Ne-
braska to review a judgment in favor of de
fendants in an action brought to recover
damages for personal injuries for which
defendants were alleged to be responsible.
Affirmed.

The facts are stated in the opinions.
Argued before Sanborn, Thayer, and
Hook, Circuit Judges.

Mr. John O. Yeiser for plaintiff in

error.

Mr. William A. Redick for defendants in error.

Sanborn, Circuit Judge, delivered the opinion of the court: This case was determined in the lower court on a demurrer to the evidence; the trial court holding, on the conclusion of the plaintiff's testimony, that there was no substantial evidence warranting a recovery. It accordingly directed a verdict in favor of the defendants. This action was taken

*Headnotes by SANBORN, Circuit Judge.

did establisn, the following facts:

Reach

Freeman Clancy, in whose behalf the action is brought, at the time of the accident hereafter described, was about six years old, and was stopping with his parents at the Barker hotel, in the city of Omaha, Nebraska; the father, mother, and son having been guests at the hotel for a few days prior to the accident. During the evening of January 15, 1902, about 8:30 P. M., he went down the elevator from one of the upper floors, where the room occupied by his parents was located, to the ground floor of the hotel for the purpose, as he says, of getting some ice water. ing the ground floor, he passed by a room where someone was playing a harmonica. The door being ajar, he entered this room, actuated, apparently, by no other motive than childish curiosity, and found a boy, who was employed about the hotel either as a bell boy or porter, engaged in playing the instrument. Another boy who ran the hotel elevator was also in the room. Both of these employees of the hotel seem to have been off duty at the time, and engaged in amusing themselves in a room that was not occupied by guests. As the boy Clancy entered the room, the boy who was playing the harmonica said to him, evidently in jest, "See here, young fellow; if you touch anything, here is what you will get," at the same time pointing a pistol at him. The pistol was accidentally discharged, the ball striking the boy in the head, fracturing "the frontal ethnoid and sphenoid bones of the head," and destroying one of his eyes. The ball also passed through the boy's thumb, but the injury did not prove fatal.

One paragraph of the complaint, on which the case was tried, alleged: "That on or about the 12th day of January, 1902, the said father and mother of the plaintiff entered the said hotel of defendant with their said infant child, the plaintiff, as guests of the defendant, for a temporary rest in said city at said hotel, and were received by the said defendants as the guests of the said innkeepers or hotel keepers; the defendants thereby contracting with the said father for and on behalf of said plaintiff, and with the plaintiff by implication of law, for his personal safety, kind treatment, and for all of the usual hospitalities, covenants, and agreements, and obligations due from an innkeeper and hotel keeper to his guests." Another paragraph of the complaint al

NOTE. See last preceding case, Clancy v. leged, in substance, that it was the duty of

Barker, and note.

the bell boy or porter, through whose acts

as aforesaid the injury was sustained, "to | ants; that he was temporarily, at least, off direct the guests of said hotel about said duty, engaged in amusing himself; and hotel, and to wait on, watch over, and pro- that he pointed the pistol at the child in tect said guests and their property and sport, to see how he would act, rather than the property of the said hotel, and such to prevent him from touching or intermedother duties as are usually required by por-dling with anything in the room. The act ters by innkeepers or hotel keepers, and imposed by law."