52 How. Pr. 14 | New York Court of Common Pleas | 1875
It appears, from the evidence, that the defendant is a boarding and lodging-house keeper, and that the plaintiff had been boarding and lodging with him for some time prior to the 20th day of March, 1873. ‘On the morning of that day, the plaintiff left his room as usual, and on his return in the afternoon he found that a dress coat, a seal skin
As it further appears in evidence that the negro employed by the defendant’s housekeeper never called to obtain payment for the services he had rendered, and as he could not be found at the place where he had told her that he resided, there can be but little doubt that he committed the theft of the plaintiff’s goods. If or do I think that it can be seriously , questioned that the defendant’s housekeeper was guilty of negligence in permitting a person who was a stranger to her, and of whom she knew absolutely nothing, to remain alone in the plaintiff’s room, where the goods of the latter were exposed to his cupidity, and where he had ample facilities for theft.
The only question, therefore, presented for our consideration and determination in this case is, whether a boardinghouse keeper is liable for the loss of his guest’s goods, occasioned through the negligence of his own servants while . they are acting within the scope of their employment ? This point was much discussed in the case of Dansey agt. Richardson (3 El. & Bl., 144). The question there was, whether the defendant, a boarding-house keeper, was responsible for the loss of a dressing case belonging to a boarder, which was placed in the hall just previous to the guest’s departure, from which place it was stolen by a thief, who entered by the hall door which had been negligently left open by one of the boarding-house keeper’s servants. The cause was tried
Subsequently, the case of Holder agt. Goulby (8 C. B. Rep. [N. S], 254), came before the court of common pleas, and Erle, Ch. J., and Byles and Keating, JJ., held that the keeper of a lodging-house was under no obligation to take care of his lodger’s goods, and was. not responsible for their loss. In that case, the lodger’s property was stolen by a person who, in his absence, was permitted by the lodging-house keeper to see the rooms with the view of hiring them. But Erle, Ch. J., nevertheless, intimates, in his opinion, that where the loss has resulted from gross negligence on the part of the lodging-house keeper, he will be liable.
Bow, it seems to me that a distinction may be made as regards liability, between a boarding-house keeper and one
In Ingalsbee agt. Wood (36 Barb., 452), the court, speaking of the inn-keeper’s lien, say : £S The lien and liability must stand or fall together.” “ The material question then is, shall the boarding-house keeper have the inn-keeper’s lien without incurring any of his liability ? Shall he possess all the innkeeper’s rights and advantages, without any corellative duty or obligation on his part ? I apprehend not. When the boardinghouse keeper receives a boarder into his house he also receives as incident to it his baggage and effects, and he ordinarily makes arrangements with reference thereto just as much as the inn-keeper does with respect to the goods of his guest. In both cases this is done for hire and reward; and it can make no difference that in the one case the compensation is included in the contract made with the boarding-house keeper, while in the other it is embraced within the reasonable charges which the inn-keeper is authorized to make.
It is true the extreme liability of an inn-keeper is owing to a custom which had its origin in a peculiar state of society which does not' exist at the present time. Nevertheless, judge Porter, in delivering the opinion of the court of appeals, in Hulett agt. Swift (supra), says: “ The considerations of public policy in which the rule had its origin forbid any relaxation of its rigor. * * * We are not at liberty to discard the settled rules of the common-law, founded on reasons which still operate in all their original force. * * * The rule is salutary and should be steadily and firmly upheld.” I do not however by any means wish to be understood as favoring the idea that a boarding-house keeper should be held to the same degree of care in respect to the goods of his boarder that is exacted from an inn-keeper. All that I contend for is, that he should be required to exercise due and reasonable care; such care as a prudent person would ordinarily take of his own property. That care the court, in Dansey agt. Richardson, conceded he was bound to take; and that care, it seems to rue, it is but fair and just to the boarder that he should take.
But we are not left wholly without authority on this point, so far as our own courts are concerned. In Ingalsbee agt. Wood
As regards the liability of a boarding-house keeper for the negligence of his servants, I agree in the views expressed in the opinion of chief-justice. Campbell and judge Coleridge, in the case of Dansey agt. Richardson. The general rule undoubtedly is, that a master is liable to third persons for the negligence of his servants while acting within the scope of their employment as such. I know of no good reason why a boarding-house keeper should be an exception to this rule. “ Qui facit per alium facit per se” is a maxim which seems to me to be as applicable to him as to any other person. A boarder at a boarding-house, in general, has no more control of, or authority over the servants in the house than a guest at an inn has over the inn-keeper’s servants. Mr. Bedfield, in his valuable work on bailments (page 441, note), says that both in London and on the continent there are two kinds of boarding-houses; in the one class the house is virtually given
It follows from what has been said, that the court below was authorized to find upon the evidence adduced in this case, that the loss of the plaintiff’s goods .was occasioned by the negligence of the defendant’s servants, and was therefore correct in adjudging that the defendant was responsible for the damage resulting from the larceny. But the aggregate value of the goods stolen, as proved on the trial, does not exceed in amount ninety-three dollars. The court could not allow the plaintiff for the two or three small articles of jewelry when there was not a particle of evidence of their value. There should have been at least some proof of value to justify the awarding of more than mere nominal damages for them. The witness could not testify as to the value of those
The judgment should, therefore, be reduced to ninety-three dollars and affirmed for that amount, with costs and extra costs of the court below; neither party to have costs on appeal to this court.
Daly, Ch. J., and J. F. Daly, J., concurred.