#### John Mason *et al. versus*Ebenezer Thompson

An innkeeper is chargeable for the loss of the goods of his guest committed to his sare; unless the loss is caused by the act of God or of the common enemy, or by the neglect or fault of the guest.

An action brought against an innkeeper for the loss of goods intrusted to him by a guest, who is a servant of the owner, may be brought in the name of the owner. With respect to such intrusting, one who hires the goods is the servant of the owner, if a horse, chaise and harness are delivered to an innkeeper, and he receives no separate compensation for keeping the chaise and harness, lie is nevertheless liable foi the loss of them, for the payment for keeping the horse includes a compensation for keeping the chaise and harness.

If a person commits his horse to an innkeeper to be fed, he is a guest, although he do not himself lodge or receive any refreshment at the inn.

If an innkeeper, being also a keeper of a livery stable, receives a horse to be fed, without giving notice that he receives it as keeper of the livery stable, he will be answerable as innkeeper for the loss of it.

This was an action on the case against the defendant a^ keeper of a common inn in Boston. The declaration alleged that the plaintiffs, being owners of a horse, chaise and harness, sent Lydia Giles, their servant, who was received by the defendant as a guest, with the horse, chaise and harness, in his inn, and that the defendant, by the custom of the land, was bound to keep the chaise &c., without diminution, pilfering or loss, but that, by the negligence of the defendant and his servants, certain malefactors stole the harness, and so the plaintiffs lost the same.

The defendant pleaded the general issue.

At the trial in the Common Pleas, before *Ward*C. J., it was proved that Lydia Giles hired the horse &c. of the plaintiffs, and drove the same to Boston to the house of one Abrams, where she stayed as a visitor, and sent the horse &c. to the stable of the defendant, who was an innkeeper, to be kept during her visit. The harness was put into the chaise under the defendant’s shed, and it was proved that the defendant usually put and kept the chaises and harnesses of his guests, and also his own, under the same shed, and that during the time the plaintiffs’ chaise and harness remained there, the gate of his yard, including the shed, was fastened and secured in the usual manner, namely, from nine o’clock in the evening until daylight. At the end of four days, when Lydia Giles sent for *285the horse, &c. the harness could not be found, and was supposed to have been stolen ; whereupon the plaintiffs claimed of the defendant the value thereof in damages, and afterwards brought this action to recover the same.

The defendant produced witnesses, who testified that his shed was secured like many others in Boston, and as it had been for many years, without any similar loss having occurred. Lydia Giles was in no way connected with the plaintiffs, ex cept merely as having hired the horse, chaise and harness. The defendant usually kept several horses at livery, and he usually had horses belonging to guests. He received pay in the present case and in all such cases, only for the keeping of the horse, and received no more therefor than he would in the case of a horse being placed in his stable without any chaise or harness.

Upon this evidence it was contended, that the defendant was not liable, unless the plaintiffs proved negligence in him or his servants ; that the plaintiffs had not proved the allegation in their writ, that they by their servant had been entertained by the defendant as his guests ; but that the defendant in fact merely received the horse, chaise and harness to keep at livery, and not as innkeeper. It was likewise insisted, that the custom of the realm or common law of England, making innkeepers liable in all cases of loss except from the act of God and the king’s enemies, is not the law of this Commonwealth.

The jury were instructed, that innkeepers were entitled to a certain privilege, had a lien on the effects of their guests to secure payment for the accommodations which were furnished them, and were by law bound in all events to keep the effects of their guests safely ; that in order to make them responsible for the loss of any thing which had been committed to them by their guests, it was not necessary to prove that they were chargeable with negligence in keeping it, and that unless the loss arose from the act of God or the common enemy, it would fall on the innkeeper and not on the guest; that the plaintiffs having the general property in the horse, chaise and harness, which were committed to the defendant, they could maintain the action against him as well as if they had committed them to the defendant themselves under the same circumstances *286under which they were committed to him by L. Giles, and that t0 constitute the plaintiffs or L. Giles guests of the defendant, so as to make him answerable for the loss of the harness, it was not necessary that the plaintiffs or L. Giles should diet and lodge in his house ; but that the standing of the plaintiffs’ horse in the defendant’s stable and being fed by him for gain, would make the defendant responsible for the safe keeping of the harness of the horse, as much as he would be for the baggage of a guest, and that it was not necessary for the plaintiff to prove that the defendant received any thing expressly on account of keeping the harness.

The jury were further instructed, that the defence set up by the defendant, that he kept a livery stable as well as a tavern, and that he received the horse, chaise and harness as a keeper of a livery stable and not as an innkeeper, could not avail him ; and having hung out his sign and held himself out to the world as an innkeeper, and having made no communication at the time to the person who committed the horse, chaise and harness to him, that he received them as keeper of a livery stable and not as innkeeper, he could not now qualify the receipt of them by showing that he kept a livery stable as well as an inn.

*T. Fuller,*for the defendant.

The plaintiffs bad not such possession of the harness as will give them a right of action. L. Giles had a special property in the horse, chaise and harness, and she placed them in the care of the defendant on her own account; she was not the servant of the plaintiffs. The action ought to have been brought in her name.

Neither the plaintiffs, nor L. Giles, were guests of the defendant.

An innkeeper is not bound to receive a horse unless he receives the master also. Shep. Epit. 1055 ; *Warbrook*v. *Griffin, 2*Brownl. & Gould. 254 ; Holt’s opinion in *York*v. *Grindstone,*1 Salk. 388 ; S. *C. 2*Ld. Raym. 866. The horse, chaise and harness only having been received, the presumption is that the defendant received them as the keeper of a livery stable.

The liability of an innkeeper is like that of bailees generally, other than common carriers, except that a loss of property intrusted to his care is presumed to be by his default, and the *287burden of proof is upon him to show that it happened by the act of God, the common enemy, or the fault or negligence of the owner. He is liable only for less than ordinary care. The defendant took as much care of the plaintiffs’ property as of his .own. *Calye’s case, 8*Co. 32 ; Registr. 105 ; Jones on Bailm. 96; Com. Dig. *Action upon the Case for Negligence, B.*

But assuming that in England the liability of an innkeeper is like that of a common carrier, the same law is not applicable to this Commonwealth. Here innkeepers are licensed and are bound by recognizance to observe the laws relating to inns, and consequently are more respectable than the same class of persons in England were at the time when our ancestors emigrated. *Van Ness*v. *Pacard,*2 Peters, 144 ; *Commonwealth*v. *Knowlton,*2 Mass. R. 534.

*Sumner*and *Z. G. Whitman, contra.*

L. Giles was the servant of the plaintiffs, within the intent of the law. *Commonwealth*v. *Brown,*4 Mass. R. 580 ; *Ludden*v. *Leavitt,*9 Mass. R. 104 ; *Warren*v. *Leland,*ibid. 265. The action might have been brought in the name of either.

L. Giles was the guest of the defendant. Bac. Abr. *Inns, &c. C*5 ; Com. Dig., *Action on the Case for Negligence, B.*

As to the general liability of innkeepers, they cited *Calye’s case,*8 Co. 32 ; *Bennett*v. *Mellor,*5 T. R. 273 ; *York*v. *Grindstone,*1 Salk. 388 ; *S. C.*2 Ld. Raym. 868 ; 1 Rol. Abr. 3, *Action sur case, E;*2 Rol. Abr. 85, *Inns, A; Robinson*v. *Walker,*1 Rol. Rep. 449 ; S. *C.*Poph. 127 ; S. *C.*3 Bulstr. 269 ; *Bedle*v. *Morris,*Yelv. 162 ; *Burgess*v. *Clements,*4 Maule & Selw. 306; *Dwight*v. *Brewster,*1 Pick. 53.

1

 See *Richmond*v. *Smith,*8 Barn. & Cressw. 9 ; Story’s Comm. Bailments, (3d ed.) 308, 309, 314 ; 2 Kent’s Comm. (3d ed.) 593 *et seq.*

Wilde J.

delivered the opinion of the Court. We have not been able to discover any thing unsound in the principles as laid down by the chief justice of the Court of Common Pleas, in his instructions to the jury, upon the facts reported. Nothing is better settled than the general principle, that innkeepers are chargeable for the goods of their guests lost or stolen from their inns. This liability is imposed upon them from considerations of public policy, for the security of travellers, and to *288protect them not only against the negligence, but also against dishonest practices of the innkeeper or his servants. And from long experience it has been found to be a salutary principle of public policy. It may undoubtedly, in some cases, subject the innkeeper to losses, without any negligence or fault on his part. This may seem hard and unjust, but hard cases are not always to be avoided, and a wholesome rigor is sometimes necessary, to insure public security. It is however no more hard for an innkeeper than for his guest, to sustain a loss, neither party being in fault ; especially when the former undertakes a trade with a full knowledge of his liabilities, for he may so regulate his charges as to indemnify himself. Innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property.1

It is not denied that this is the law of England, but it is said that here the same motives of policy do not exist, the innkeepers here being generally trust-worthy and men of integrity. If this were true without any exception, it would by no means show that the same favorable state of things would continue under a more lax system of policy. Let a door be opened to fraudulent and dishonest practices, and we may expect to see them soon creep in and prevail. To prevent new evils from springing up, is no less important than to suppress those which already prevail. The law therefore rests on the same principles of policy here as it does in England and other countries, and it is wise and reasonable. Innkeepers have peculiar privileges and great facilities to abuse their trust, if they are so disposed, and therefore it is that some peculiar liabilities are imposed upon them in order to prevent, as far as possible, any such abuse.

And this action may be well maintained in the name of the plaintiffs, although they were not themselves the guests of the defendant and did not deliver the horse and harness to him to be kept ; it is sufficient that the horse and harness were their *289property and were delivered by their servant. *Beedle*v. Morris, Cro. Jac. 224 ; Bac. Abr. Inns, *&c. C*5 ; Jones on Bailments, 95. So it is no objection that the defendant was to receive no separate reward for the safe keeping of the harness, for the pay for keeping the horse included a compensation for taking care of the' chaise and harness.2

Then it was urged, that neither the plaintiffs nor their servant were tho defendant’s guests, as neither of them had diet or lodging at his inn. But it is clearly settled that to constitute a guest, in legal contemplation, it is not essential that he should be a lodger or have any refreshment at the inn. If he leaves his horse there, the innkeeper is chargeable on account of the benefit he is to receive for the keeping of the horse.1 Lord *Holt*held a different opinion, in the case of *York*v. Grenaugh, 2 Ld. Raym. 866 ; but the opinion of the majority of the court has ever since been considered as well settled law.

It was objected that the defendant kept a livery stable as wel. as an inn ; but the evidence was satisfactory that the property was delivered as to an innkeeper, and the jury were warranted in so finding.

*Judgment of C. C. P. affirmed*

2

 See *Jones*v. *Tyler,*3 Nev. & Man. 576; *S. C.*1 Adolph. & Ellis, 522; 2 Kent’s Comm. (3d ed.) 592, and note (d); Story’s Comm. Bailments, (2d ed.) 313.

1

 See Story’s Comm. Bailments, (2d ed.) 311, 312; *Orange County Bank*v. *Brown,*9 Wendell, 114, 115.