47 Colo. 57 | Colo. | 1909
delivered the opinion of the court:
Inasmuch as there was a verdict in favor of the plaintiff below, who is appellee here, the testimony given in his behalf, mainly his own,' will alone be considered. From this it appears that the plaintiff came to the hotel of the appellant at seven or eight o’clock in the evening of June 9th, engaged a room, paid for it and occupied it during the night. The plaintiff was in ill health. After engaging his room, and during the same evening, the proprietor of a
He brought this action against the hotel company to recover his money. At the conclusion of plaintiff’s case, the defendant moved for a nonsuit, which motion was denied and this ruling of the court is one of the assignments of error.
The plaintiff did not deposit his money with the clerk as a guest ordinarily deposits money with an innkeeper fór safe keeping,- while he is at an inn. He had separated this $200.00 from his other money and intended to deposit it in a hank. The other money he intended to, and did, take with him to the sanitarium to pay his expenses there and to supply himself with what he might otherwise' need. The $200.00 was to he put in a hank for safe keeping. At the last moment he substituted the safe of the hotel for the hank, hut the safe was to answer the same. purpose as the hank, namely, a safe repository for his money for an indefinite period after he left the hotel. The only further use which plaintiff intended to make of the hotel was as a place of deposit in lieu of a hank. An innkeeper is not hound to receive the goods of a person who desires the use of the inn only as a place of deposit. Arcade Hotel Co. v. Wiatt, 44 O. St. 32 at 46. To make a hotel a substitute for a bank and to use the hotel for no other purpose does not ordinarily occur in the course of hotel management. Such a transaction is without the ordinary
In Wear v. Gleason, 52 Ark. 364, Boddy, a salesman of the plaintiff, was a guest at defendant’s hotel. He paid his bill; obtained a loan of $25.00, leaving a trunk as security. Boddy then gave defendant a due bill for the $25.00 received and defendant offered to give a check for the trunk, which was declined. Boddy gave defendant a railroad check for the trunk and the latter sent and got it. The court said: “There is no evidence to show that Gleason received the trunk in the capacity of innkeeper.- Boddy had severed his personal connection with the hotel by surrendering his room and paying his bill before the trunk was delivered to Gleason. It was subsequently delivered to him, either under an understanding that it would be held as a pledge for money loaned by him to Boddy, or only for the accommodation of Boddy.” So in the case at bar, after the plaintiff, by his own acts and declarations, had severed his personal connection with the defendant, the clerk received the money for the accommodation of the plaintiff, without regard to his relation as guest.
In the case at bar, the plaintiff had not only made up his mind to leave the hotel and not to return to it again as a guest, but he actually communicated that fact to the clerk at or before the time of depositing the money, and he deposited the money not as a guest ordinarily deposits something with an innkeeper, but as we have seen, in lieu of a bank. So that as in the Vermont case, the deposit of the money with the clerk had no connection with the original, relation of innkeeper and guest. Under the special facts and circumstances of this case, the authority of the clerk to receive such deposit, so as to bind the defendant, was not within the apparent scope, nor
The law of agency in general applies to bailments. The bailee is answerable for the acts of those he employs under him, so far as those acts are committed within the real or apparent scope of the agent’s employment. — Schouler’s Bailments (3d ed.), § 19.
“While an individual proprietor of an inn may incur a liability as bailee for the safe keeping of goods, which he has voluntarily undertaken to keep for others than guests, it is not within the course of employment of a mere clerk of such innkeeper to receive, on deposit, the goods of any, except guests of the inn, and if he does so, it is a transaction between him and the owner, and no liability for the loss of such goods attaches to the innkeeper.”—Arcade Hotel Co. v. Wiatt, 44 O. St. 32 at 49.
In the cases of Murray v. Marshall, 9 Colo. 482; Clark v. Ball, 34 Colo. 223; Brown Hotel Co. v. Burkhardt, 13 Col. App. 59, referred to in the briefs, the
From all of the foregoing) it appears that the clerk was without authority to receive plaintiff’s money, so as to bind the defendant, and the plaintiff failed to connect the defendant with the loss of his money so as to make the company responsible for its loss. It follows, therefore, that it was error to overrule defendant’s motion for nonsuit, and as that error was not cured by any subsequent testimony, the judgment should be reversed and it is so ordered.
Reversed.