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L. R. A. 185, 70 Am. St. Rep. 693, 48 S. W. 809; Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148, 153; Sheffer v. Willoughby, 163 Ill. 518, 521, 522, 34 L. R. A. 464, 54 Am. St. Rep. 483, 45 N. E. 253; Gilbert v. Hoffman, 66 Iowa, 206, 55 Am. Rep. 263, 23 N. W. 632; Overstreet v. Moser, 88 Mo. App. 72, 75; Stanley v. Bircher, 78 Mo. 245, 248; Stott v. Churchill, 15 Misc. 80, 36 N. Y. Supp. 476, 477; Sneed v. Moorehead, 70 Miss. 690, 13 So. 235.

the officers; the corporation being responsible for the acts of the officers, in the conduct and government of the train, to the passengers traveling by it, as the officers would be for themselves, if they were themselves the owners of the road and train. We consider this rule essential to public convenience and safety, and sanctioned by great weight of authority."

In the latter case the court declared: "It was long held by the courts that a common carrier was not responsible for a wilful assault by one of its employees upon a passenger. This rule, however, has been abrogated upon the theory that the common carrier invites the passenger to subject himself to the protection and care of the employee of the corporation, and under these circumstances the common carriers should be responsible for all the acts of the subordinates toward the passenger while under his custody and control."

In another class of cases, those involving the liability of common carriers and of the operators of palace cars to their passengers, this measure of liability has in later years been extended to include responsibility for the wilful and negligent acts of those to whom the carriers intrust the transportation of their passengers, such as brakemen, porters, and conductors, upon the ground that these servants, when upon the trains or steamboats, are engaged in the course or scope of their employment to conduct the Counsel for the plaintiff insists that the safe transportation of the passengers, what- liability of the innkeepers should be extendever they may be doing. The reasons for ed in the case at bar even beyond that of this extension of liability are well stated in common carriers, so that the defendants Bass v. Chicago & N. W. R. Co. 36 Wis. sbould be held liable for the injuries in450, at page 463, 17 Am. Rep. 495, and inflicted by the wilful or careless act of their Mallach v. Ridley, 24 Abb. N. C. 181, 9 servant when he was not acting within the N. Y. Supp. 922. 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.

In the former case the court said: "These officers [the conductors and other servants in charge of the train] may be guilty of acts of arbitrary oppression, beyond endurance, towards passengers, which might warrant resistance. But we feel warranted by principle and authority to hold that, in the enforcement of order on the train, and in the execution of reasonable regulations for the safety and comfort of the passengers, and for the security of the train, the authority of these officers, exercised upon the responsibility of the corporations, must be obeyed by passengers, and that forcible resistance cannot be tolerated. They act on the peril of the corporation, and their own. Indeed, as. that fictitious entity, the corporation, can act only through natural persons, its officers and servants, and as it of necessity commits its trains absolutely to the charge of officers of its own appointment, and passengers of necessity commit to them their safety and comfort in transitu, under conditions of such peril and subordination, we are disposed to hold that the whole power and authority of the corporation, pro hac vice, is vested in these officers, and that, as to passengers on board, they are to be considered as the corporation itself, and that the consequent authority and responsibility are not generation of his hotel is limited to the failure erally to be straitened or impaired by any to exercise ordinary care, because his is arrangement between the corporation and an ordinary occupation fraught with no ex

While there are many loose statements in the books to the effect that the liability the liability of innkeepers to their guests of common carriers their passengers and are similar; and while that proposition may be conceded, it is certain that the limits of these liabilities are by no means the same. A railroad company is liable to utmost care in the preparation of its road its passengers for a failure to exercise the and the operation of its engines and trains upon it, because the swift movement of its passenger trains is always fraught with extraordinary danger, which it requires extraordinary care to avert. But an innkeeper's liability for the condition and op

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ligent acts of its servants beyond the scope of their employment, than it does that the latter is liable for a failure to exercise the highest possible care to make his hotel and its operation safe for its guests, because the carrier must exercise that degree of care in the management of its rail road, engines, and trains.

traordinary danger. Sandys v. Florence, | cupation of the parties, but it is subordi47 L. J. C. P. N. S. 598, 600. It no more nate to the ordinary business or pleasure follows, from the similarity of the liability of the guest. The innkeeper assigns a room of the carrier to that of the innkeeper, that to his guest, but neither he nor his servthe latter is liable for the wilful or negants direct him when or how he shall occupy it; but they leave him free to use or to fail to use it, and all the other means of entertainment proffered, when and as he chooses, and to retain the uncontrolled dominion of his person and of his movements. 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 xercise ordinary care to provide for his comfort and safety. The servants of the innkeeper are not placed in charge of the person of the guest, to direct, guide, and control his location and action, nor are they employed to perform any contract to insure his safety; but they are engaged in the execution of the agreement of the master to exercise ordinary care for the comfort and safety of the visitor. The natural and logical result of this relation of the parties is that when the servants are not engaged in the course or scope of their employment, although they may be present in the hotel, they are not performing their mas ter's contract, and he is not liable for their negligent or wilful acts.

Moreover, the authorities in the cases involving the liability of common carriers, of owners of palace cars, of steamboats, and of theaters, upon which counsel for the plaintiff seems to rely, when carefully examined, are found to be cases in which the servants were acting within the course or scope of their employment, and they do not rest upon the proposition that the defendants in those cases were liable for the wilful or negligent acts of their employees beyond that scope.

In Duinelle v. New York C. & H. R. R. Co. 120 N. Y. 117, 126, 127, 8 L. R. A. 224, 17 Am. St. Rep. 611, 24 N. E. 319, the porter of a sleeping car, who had taken up the ticket of a passenger, was held to be acting within the scope of his employment when he struck the passenger during an altercation between them relative to the return of the ticket.

Again, 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 relations of he 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 carrier regulates the movements of the passenger, assigns him his seat or berth, and determines 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 t'e carrier, to be transported in the car, seat. or berth and in the manner in which they direct, 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 servant of the carrier who is employed in assisting to transport the pssenger safely, every conductor, brake man, and porter who is empleyed to assist in the transportation, is constantly acting within the scope and course of his employment while he is upon the train or bo't. 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 wiful act of such 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 innkeeper does not take, nor does the guest surrender, the control or dominion of the latter's person. The performance of the contract of entertainment is not the chief oc

In Stewart v. Brooklyn & C. T. R. Co. 90 N. Y. 588, 591, 43 Am. Rep. 185, the court declared the limit of the company's liability to be "to protect the passenger against any injury arising from the neg ligence or wilful misconduct of its servants while engaged in performing a duty which

the carrier owes to the passenger," and principals of the defendants. Bass v. Chiheld that a driver of a street car, who cago & N. W. R. Co. 36 Wis. 450, 463, 17 was also the conductor, and who beat a Am. Rep. 495. There are no such reasons passenger in the car, was within the scope for the existence of the liability of innkeepof his employment to carry the passenger ers for the wilful or negligent acts of their safely when he committed the assault. servants beyond the scope of their employment, and the argument of counsel in support of such an extension by analogy with the liability of common carriers fails (1) because innkeepers are not liable to their guests for extraordinary care, while carriers are liable to their passengers for the highest degree of care; (2) because innkeepers do not intrust to their servants the absolute control and dominion of their hotels and of the persons of their guests, nor do the latter surrender themselves to the dominion and direction of such servants; and (3) because the wilful and negligent acts of their servants, for which carriers have been held liable, were committed in the discharge of the duties which they were employed to perform, while those of the servants of innkeepers, now under consideration, were done outside the actual and the apparent scope of their employment.

In Goddard v. Grand Trunk R. Co. 57 Me. 202, 203, 2 Am. Rep. 39, a brakeman, who had authority to collect tickets, and who, after collecting one from a passenger, demanded another of him, and grossly in sulted him because he declined to pay for his passage again, was held to have been acting within the scope of his employment, and the company was charged with the damages he inflicted.

So in Craker v. Chicago & N. W. R. Co. 36 Wis. 657, 673, 17 Am. Rep. 504, a conductor who kissed a passenger; in Pendleton v. Kinsley, 3 Cliff. 416, 427, 428, Fed. Cas. No. 10,922, the clerk of a steamer who assaulted a passenger while trying to collect his fare; in Chicago & E. R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33, a brakeman who struck a passenger because during a search for a lost watch he said he thought the brakeman had it; in Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19, 22, a conductor or brakeman who drenched a passenger with water; in Campbell v. Pullman Palace Car Co. 42 Fed. 485, a porter of a sleeping car who made indecent proposals to a passenger; in Williams v. Pullman Palace Car Co. 40 La. Ann. 421, 8 Am. St. Rep. 538, 4 So. 85, a porter of a Pullman car who assaulted a passenger; and in Dickson v. Waldron, 135 Ind. 507, 24 L. R. A. 483, 41 Am. St. Rep. 440, 34 N. E. 506, 35 N. E. 1, the ticket taker and special policeman of a theater, who, in endeavoring to sell the tickets to a customer, assaulted him,- -were all held to be, and undoubtedly were, acting within the scope of their various employments when they inflicted the injuries for which the defendants were made to pay.

In addition to the argument by analogy which we have been considering, our attention is called to the remarks of Chief Justice Shaw in Com. v. Power, 7 Met. 596, 601, 41 Am. Dec. 465, a case in which the question was whether a railroad company had the right to exclude a disorderly person from its railroad station, and Chief Justice Shaw, in discussing that question, 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 empow. ered, 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 persons, and all persons not conforming to regulations necessary and proper to secure such quiet and good order."

It is also called to the opinion of Judge Story, of the same tenor, in Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258, a case which involved a similar question, to wit, the right of the owner of a steamboat to exclude a disorderly person therefrom; to the decision of the supreme court in Rommel v. Schambacher, 120 Pa. 579, 6 Am. St. Rep. 732, 11 Atl. 779, that an innkeeper who furnished liquor to make a man drunk, and then with gross carelessness permitted him to attach a paper to the back

When all these authorities, and others cited by counsel for the plaintiff, are carefully considered, it clearly appears that the controlling reasons why common carriers have been held liable for the wilful or negligent acts of their servants in these cases are (1) that they owe to their passengers the highest degree of care, and (2) that during the transportation they intrust the entire care, custody, and control of their trains, steamboats, and passengers to these servants, and the passengers yield obedience and control of their movements to these servants, under conditions of peril and subordination in which the passengers are confined and helpless, and the servants in charge of the train are practically the vice

of one of his customers and to set it on fire in his plain sight, was liable for the injury; and to the opinions of various courts in cases in which the liability of innkeepers for the loss or destruction of the property of their guests was in question. These cases have been examined, but neither the decisions of the questions there presented, nor the opinions of the courts concerning them, are either decisive or persuasive in the consideration and determination of the question here under consideration, whether or not an innkeeper is an insurer of the safety of the person of his guest against the wilful or negligent acts of his servants beyond the scope of their employment, because that question was not considered or determined, and clearly was not in the minds of the judges who rendered the decisions and opinions to which reference has been made. This is also true of all the cases, opinions, and expressions which have been cited by counsel for the plaintiff. To them all the declaration of Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. ed. 257, 290, applies in all its force: "It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expres sions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision."

against the negligent or wilful acts of his servants without the scope of their employment. The pregnant fact that no case can be found in the entire field of English and American jurisprudence in which an innkeeper was ever held to be an insuer of the safety of guest, or to be liable for the wilful or negligent acts of his servants beyond the scope of their employment, is the most complete demonstration that this was not the law. If it had been, judgments founded upon it would not have been lacking. Every court that had ever decided the question had declared that the liability of the innkeeper was limited to the exercise of reasonable care, that it did not extend to a guaranty of safety, and hence that it extended only to the acts of his servants within the scope of their employment. This was declared to be the general rule of law in the digests and in the textbooks. 16 Am. & Eng. Enc. Law, pp. 546, 547, note 6.

Finally, counsel for plaintiff presents for our consideration the opinion of the supreme court of Nebraska, rendered since the case in hand was argued and submitted to this court, in an action brought by the father of the plaintiff in this action for the damages which he suffered from the very accident here involved, and in which that court has held that the innkeepers were liable for the act of the bell boy which in flicted the injury, although he was then acting beyond the course and scope of his employment. Clancy v. Barker, ante, 642, 98 N. W. 440. This opinion is entitled to, and it has received, great respect and grave consideration. But, after all, the question here is, not what the supreme court of Nebraska has made the law and the contract of innkeepers since the parties to this action made their agreement, but what that law was, and what the contract between these parties was, when their minds met upon the terms of their agreement. At that time no court had ever held, so far as our research and the authorities cited by counsel have disclosed the decisions, that the contract of an innkeeper was to insure the safety of the person of his guest

In Calye's Case, 8 Coke, 32a, 33b, the court declared that, "if the guest be beaten in the inn, the innkeeper shall not answer for it."

In Sandys v. Florence, 47 L. J. C. P. N. S. 598, 600, a case in which a ceiling fell upon a guest in a hotel, Mr. Justice Lindley said: "I pass over the previous allegation that it was the defendant's duty 'to keep the said hotel in a secure and proper condition, so as to be safe for persons using the same as guests,' because I think that duty is too widely alleged, and that the defendant's duty is not to insure his guests, but to see only that they do not suffer from want of reasonable and proper care on his part."

In Weeks v. McNulty, 101 Tenn. 496, 499, 43 L. R. A. 185, 70 Am. St. Rep. 693, 48 S. W. 809, an action for damages for the death of a guest in a hotel by fire, the court said: "The general rule of law governing the liability of an innkeeper is that he is not an insurer of the person of his guest against injury, but his obligation is merely to exercise reasonable care that his guests may not be injured by anything happening through the innkeeper's negligence."

In Sheffer v. Willoughby, 163 Ill. 518, 521, 522, 34 L. R. A. 464, 54 Am. St. Rep. 483, 45 N. E. 253, a case in which an attempt was made to apply the rule of absolute liability for the loss of the property of a guest in support of a claim for damages caused by the administration of unwholesome food to his guest by the keeper of a restaurant, the court held that the limit of the latter's liability was for the failure to exercise reasonable care.

In Stanley v. Bircher, 78 Mo. 245, 246, 248, an action was brought by the plaintiff,

Stanley, against the executors of the estate | Dakota territory directly decided the very of Bircher for injuries to her person re- questions presented in this case in acsulting from her fall down an elevator cordance with this general rule and in favor shaft of a hotel operated by Bircher. She al- of the innkeeper. The complaint in that leged that she was a guest at this hotel, case alleged, among other things, that that it became his duty, and that he agreed, "The defendant undertook, for a compento furnish safe accommodations for the rea- sation paid her by the plaintiff, to keep sonable wants of the plaintiff, and that he safely and from harm and in a proper mandid not perform the duty or keep the agree- ner this plaintiff while she should remain ment, in that the door to the elevator pit in the defendant's inn or hotel; that while was dangerously constructed and negligently this plaintiff was stopping at the inn or left open by Bircher and his servants, so hotel of the defendant this plaintiff was, by that she walked into it and was injured. the wrongful and spiteful acts of the deA demurrer was interposed to this com- fendant's servants, greatly injured.” plaint on the ground that the cause of action did not survive the death of Bircher. Mark that the complainant clearly alleged a breach of a contract to keep the guest safely, as well as a failure to discharge the duty to exercise ordinary care as in the case at bar, and that the question was whether or not the innkeeper's obligation included a contract of safe-keeping. If it did, the cause of action survived, and the action could be maintained; otherwise, it could not be. The supreme court of Missouri held that the obligation of an innkeeper comprised no such contract, that the action could not be changed from an action on the case for a breach of the duty to exercise ordinary care to one for a breach of contract of safe-keeping by an averment or proof of such contract and breach, because no such contract arose out of the relation of innkeeper and guest. That court said: "But it is claimed by counsel for plaintiff that the action is for the breach of a contract, and that it is not an action on the case for injuries to the person. The allusions in the petition to the formal contract between the plaintiff and the proprietor of the hotel, whereby the plaintiff became a guest in the hotel, cannot change the true character of the action. In setting forth an action of trespass on the case, the pleader often finds it proper, although not absolutely necessary, to mention matters of contract connected with the tort, by way of inducement and explanation. In this case the relation of host and guest, which originated in contract, explains how the defendant's testator came to owe the plaintiff a duty. That duty, however, the law imposes. It is a public duty, which is not defined by the contract. Neither can the proprietor relieve himself from that duty by contract. The action in truth is for a violation of the duty which the law imposes, independent of the contract. Neither the damages nor the scope of the action can be measured or limited by the contract."

And in Curtis v. Dinneen, 4 Dak. 245, 30 N. W. 148, 149, 152, the supreme court of

The evidence tended to show that one of the defendant's servants assaulted and inflicted serious injury upon the plaintiff while she was in the hotel as a guest, but the court held that the guest could not recover, because the assault and battery, although committed by the defendant's servant in her hotel, was not inflicted while the servant was acting within the actual or apparent scope of his employment.

The result is that when the defendants made their contract to entertain the plaintiff at their hotel the law was, and in our opinion it still is (Rahmel v. Lehndorff, 142 Cal. 681, 65 L. R. A. 88, 100 Am. St. Rep. 154, 76 Pac. 659), notwithstanding the late decision of the supreme court of Nebraska to the contrary, that their agreement was to exercise reasonable care for his safety, comfort, and entertainment, and that their agreement did not include an insurance of his person against the wilful or negligent acts of their servants beyond the course of their employment. A change of this law and an extension of the liability of the innkeepers now, after the execution of the contract, so as to make the agreement include such an insurance, is to make a new agreement for the parties after the event, and to impose upon the defendants a liability which they could not foresee and to which they did not assent. A retroactive decision, which makes and applies a new rule of law, and attaches another and unforeseen liability to a contract after its execution, is as vicious as an ex post facto statute.

The judgment below enforced the contract which the parties made in strict accordance with the law which governed it, and it is affirmed.

Thayer, Circuit Judge, dissenting: The important question in this case is whether an innkeeper is exempt from liability to one of his guests who is injured within the hotel by an act of gross negligence on the part of a servant of the innkeeper, because the servant, at the time he committed the negligent act, was not en

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