Horton v. Terminal Hotel & Arcade Co.
89 S.W. 363
Mo. Ct. App.
1905
Check Treatment
GOODE, J.

Plaintiff while a guest at the Terminal hotel in St. Louis, lost a gold-filled locket containing an ivory miniature, both alleged to be of the value of $221. The defendant company was conducting the hotel at the time and this action was instituted to recover the value of the lost property. It appears that lodging is furnished to the traveling public at the Terminal hotel, but not food. There is a restaurant contiguous, but not operated by the defendant. The hotel company itself furnishes nothing more in the way of entertainment than lodging. It advertises its house as a hotel, receives as transient guests all who apply for lodging, and is conducted under a hotel license. Because food is not furnished defendant contends it is not an innkeeper, nor subject to the onerous responsibilities of an innkeeper for the loss of property belonging to guests. A great deal of learning can be found in the books, and some nice distinctions, regarding the facts requisite to constitute a person an innkeeper in the technical sense. Anciently it was the law that an innkeeper was one who held himself out as ready to receive all travelers and entertain them with both lodging and food and, perhaps feed and stable their horses; or, as the old expression ran, provide entertainment “for man and beast.” Changes in the modes of travel and the custom of furnishing food and lodging separately, have relaxed the definition of an innkeeper. [Commonwealth v. Weatherbee, 101 Mass. 214.] It might be held that a hotel where any traveler is given lodging is an inn nowadays, even though the guests take their meals elsewhere. But we see no> reason why we should go into and decide this question in the present controversy; for, conceding that the defendant conducted an inn in the technical sense, the proof is that an iron safe, suitable for the safe-keeping of money and jewelry, was kept in the hotel and that notices of the fact were posted, as required by the statutes. Plaintiff himself thus testified, as did defendant’s employees. Now, the statutes provide that,, in such circumstances, *361no innkeeper in this State shall be liable for the loss of money or jewelry or gold and silver articles belonging to a guest, unless the guest offered to deliver the property to the innkeeper for deposit in the safe and the innkeeper refused to receive or deposit it. [R. S. 1899, sec. 7578.] Plaintiff never offered the lost articles for deposit in the safe of the Terminal Hotel Company. Before going into the adjacent restaurant to get his supper, he handed a box containing the locket to the clerk and requested him to keep it for him, but gave the clerk no information concerning the contents of the box. In truth, the plaintiff admits he intended to get the locket after supper and keep it in his room during the night; but says he forgot to call for it and never thought of it again until midnight and after he had retired. When he remembered leaving it with the clerk, he rang for a bell-boy and sent him to get the locket, at the same time showing the boy another locket like it. This was the first time any employee about the hotel knew what was in the box the plaintiff had left with the clerk. When the bellboy asked for the locket, the clerk with whom it had been left had gone off watch and the night clerk who had come on, could not find it. About three o’clock at night this clerk did find it and, after opening the box and seeing the locket inside, entrusted it to the bell-boy to take to plaintiff’s room. The boy laid the box on a balustrade in the hotel until he filled an order for liquor which some guest had given, and when he returned it was gone. The clerk with whom the box was left .had laid it on a desk in the office, under some papers, where the night clerk found it. These are the undisputed facts. Now, it is plain that when plaintiff handed the box containing the locket to the hotel clerk to keep until supper was over, not apprising him of its contents, the hotel company became, at most, a gratuitous bailee or depositary and was liable only for gross negligence in the care of the property. It assumed no liability as an innkeeper, for the reason that the article was one which, *362under the statute we have cited, it was plaintiff’s duty to entrust to the defendant to he deposited in the hotel safe. The defendant was responsible only as bailee, and we think the complaint was sufficient to charge it in that capacity. It alleged the delivery of the property to the defendant and the hotel company’s failure to return it. Proof of those facts cast the burden on the defendant to excuse itself for not delivering the property. [Standard Milling Co. v. Transit Co., 122 Mo. 258, 26 S. W. 704; Kincheloe v. Priest, 89 Mo. 240, 1 S. W. 235.] But the defendant requested a declaration of law on this branch of the case which the court erroneously refused. An issue of fact arose regarding the care defendant had observed in caring for the property — an issue to be found by the judge as trier of the facts. The declaration was, in effect, that the defendant was a depositary of the locket and was bound only to take such care of it as the most inattentive and thoughtless person would take of his own property, and if the court believed from the evidence that the defendant used that degree of care, but, nevertheless, the property was lost, a verdict should be returned in defendant’s favor. In a similar case the Supreme Court declared the law in accordance with that declaration; holding it was erroneous to give an instruction that a hotel proprietor, liable only as a gratuitous bailee, was responsible for gross negligence, without defining the meaning of that phrase, and that it meant the omission to use the degree of care which even the most inattentive and thoughtless never failed to take of their own conceras. [Wiser v. Chesley, 53 Mo. 547.]

The judgment is reversed and the cause remanded.

All concur.