| Tex. | Jul 1, 1858
The Court charged the jury, that “ the material question in this case is whether or not the defendant is liable as the keeper of a common inn. An innkeeper is one who holds himself out to the public as engaged in the business of keeping a house for the lodging and entertainment of travellers and passengers, their horses and attendants for reasonable compensation. He is liable for any loss of property committed to his keeping, which any care or vigilance or diligence on his part could have prevented. If the defendant only occasionally entertained travellers for compensation, when it suited his pleasure to do so, and did not hold himself out to the public as the keeper of an inn, or house for the accommodation of the travelling public, then the defendant was only bound to take that ordinary care of property committed to his keeping, that a prudent man usually takes of his own property, of the same kind ; and he would not be liable for a loss, unless it was shown that he had failed to use
By the facts as presented in the record, there can be no dispute about anything but as to whether or not Howth was an innkeeper. The diligence used was ordinary, but not extreme; and therefore, if he were an innkeeper, he was liable. When property, committed to the custody of an innkeeper by his guest, is lost, the presumption is that the innkeeper is liable for it; and he can relieve himself from that liability by showing that he has used extreme diligence! What facts will excuse him is a question perhaps not very well settled ; but it is well settled that he cannot excuse himself without showing that he has used extreme care and diligence in relation to the property lost. (Edwards on Bailments, 406; 2 Kent, Com. 592.)
The charge of the Court then was correct, in reference to the facts of this case, both as to what constitutes an innkeeper, and as to his liability. Had the facts shown that more than ordinary diligence was used in taking care of the horse, which was lost, then it might have been required of the Court to have been more specific in the charge, as to what facts would excuse an innkeeper, and as to what is meant by extreme diligence under the circumstances.
A person may hold himself out to the public as an innkeeper, by his acts, as well as by his • declarations, or by a sign. (Edwards on Bailments, 888.) His acts might also force that conclusion, even against his declarations. To such conclusion must the jury have come in this case. That was the question really at issue, and most prominently and fairly presented to them by the Court. The record shows that on the one hand, his house was on a public road and much visited by travellers, who were uniformly taken in, entertained and charged; and that it was well known as a place where entertainment was usually obtained for travellers ; on the other hand, his frequent declarations that he did not keep a tavern, his refusal to take boarders, and entertaining his neighbors and countrymen' frequently free of charge. Here is presented a conflict in the testimony, leading to different conclusions, which it is peculiarly the province of the jury to judge of and determine upon.
There are numerous farmers situated on the public roads of the country, who occasionally, and even frequently, take in and accommodate travellers, and receive compensation for it, who are not innkeepers, and are not liable as such. It is not their business
The question then, of whether he was an innkeeper or not, having been fully and fairly presented to the jury, and the evidence on that subject being conflicting, the verdict of the jury will not be disturbed. The evidence in favor of Ilowth on this issue is strong ; and had the verdict been in his favor, it would not have been disturbed.
There is even, as the facts appear to this Court, a preponderance in his favor, though not to that extent that would enable us to say that the verdict is certainly wrong; and therefore it must, stand.
Judgment affirmed..