Chamberlain & Co. v. Masterson

| Ala. | Jan 15, 1855

G-OLDTHWAITE, J.

—The law held the innkeeper responsible to travelers who became his guests, for all losses infra hospitium, in every case, unless he proved that it was not owing to any default in him or his servants (Calye’s case, 8 Co. 32); and some of the cases go further, and hold him liable for the acts of other guests.—Jones on Bailm. 94; Story on Bailm., § 470; Shaw v. Berry, 31 Me. 478" court="Me." date_filed="1850-07-01" href="https://app.midpage.ai/document/shaw-v-berry-4928677?utm_source=webapp" opinion_id="4928677">31 Maine 478. But there is a distinction between the liability of innkeepers towards guests and boarders, which was taken at an early day. — Calye’s case, supra; Bacon’s Abr., “Inns and Innkeepers”, c. 5 ; Story on Bailm. (4th ed.) § 477 (3). If the goods lost belong to a boarder, in order to charge the innkeeper, he would be required to show that the loss was owing to the failure on his part to discharge the duties which his situation as boardinghouse-keeper, or the special contract -with the other party, imposed on him; and these duties must be measured by the analogies of the law applicable to other species of bailments, The hotel-keeper employs the servants to attend to the rooms, and his boarders have a right to expect that he will employ those who are honest; and if he fails to do so, and a loss is thereby occasioned, without negligence on the other side, he is held responsible, precisely on the same principle that a steamboat owner is, if an injury is sustained by the failure to employ a skilful pilot, or a careful engineer, or a competent captain.—Walker v. Bolling, 22 Ala. All bailees are liable to third persons for the acts of their agents or servants, done in the course of their employment. We do not mean to say, that it is not incumbent on the boarder to use that degree of care which ordinary prudence requires. The guest who, after exposing bank notes which he had in a box in the presence of many persons, left it in the commercial room, was held guilty of gross negligence (Armstead v. White, 6 Eng. Law and Eq. 349); and if a boarder leaves money, or valuables, open and exposed in his room during his absence, it would be doubtful whether this would not be such negligence on his part as would prevent a recovery if they were stolen by a servant of the house. ' Neither guests nor boarders should tempt persons who occupy the situation of servants-about hotels, in this way; and if the property was stolen under such circumstances, even by a servant of the house, we are strongly inclined to the opinion, that the keeper would not be liable. Here, however, no question of this kind arises, as the record fails to show any negligence on the part of the boarder; and although it is to be inferred from the charge given by the judge, as to what constituted negligence, that the question was raised, there was no error in the charge upon that point, which was, in effect, that if the boarder did not take such care of his watch as a person of ordinary prudence should, the landlord would not be liable.

Neither was there any error in what was said by the court to the jury, in relation to their being misled by the case read by the counsel for the defendants on the trial below. JYon constat that it laid down the law correctly ; but whether it did or not, we see no impropriety in the judge instructing the jury that they were not to receive it as law further than was warranted by the charge of the court. If the case read was regarded by the counsel as a correct exposition of the law, and applicable to the case on trial, he might properly have requested a charge which asserted the same legal proposition; but failing to do this, we cannot say there was any error in the action of the court in this respect.

So, also, as to the refusal of the judge, after the argument was closed and the cause submitted to the jury, to allow the counsel to explain the distinction between a boarder and a guest. These are matters properly belonging to the conduct of the cause, which are entrusted very properly to the discretion of the judge trying the cause, and are not revisable here.

But in instructing the jury that the main charge was to be with them the controlling charge, we think the court erred. When a charge is requested, which has not been given, is not abstract, and asserts a correct legal proposition, the party has the right to demand that it should be given, without any qualification. We do not mean to say, that after giving it, the court may not prevent its undue effect by presenting the law applicable to the evidence on the other side, or any portion of it. It is frequently necessary, to prevent injustice, and to enable the jury to comprehend clearly the law applicable to the case, that a legal principle which governs it in one aspect should be presented to the jury in juxta-position with the law upon the facts in a different aspect; and every one who has practiced before juries will understand that this course is frequently necessary to prevent one side from obtaining an undue advantage over the other. But it might entirely destroy the effect of the charge given, if, after giving it, the jury were told that they must be governed by the main charge; and such were, in effect, the instructions given by the court. We can imagine no case in which such a charge would not have a tendency to mislead the jury.

For this error, the judgment is reversed, and the cause demanded.