The record-union., 1891-01-25
SUPREME COURT DECISIONS.
Filled January 10, 1911
DEPARTMENT ONE.


LONG BEACH DEVELOPMENT W. ~ o.
Co., Respondent.
The respondent contends that the statement
upon motion for u new trial, which appears in
the transcript, cannot be looked into for the
reason that it is not identified as having been
used upon the hearing of the motion.
There is but one notice of appeal, and that is
both as to the judgment and the order deny
ing new trial. The stipulation at the end of
the transcript is to this effect: ut is hereby
agreed that the foregoing transcript contains u
full, true and correct copy of all papers neces-
sary and proper to be used on this appeal;
that the appeal herein was duly perfected, and
the requisite deposit in lieu of an undertaking
was given within the time prescribed by law;
that the foregoing is "a full, true and correct
transcript of the record on appeal, and that
the appeal herein may be heard thereon"
II the word appeal, as used in the stipula-
ton, was intended to apply to both the order
denying new trial, and the judgment. then
it covers the statement of the case which ap-
pears in the transcript, which is in due form,
and fted on February 3, 1890, the order deny
ing a new trial was made on the 18th of Feb
ruary, 1890.
1t is plain that the appeal was taken from
both order and judgment, and the stipulation
evidently refers to them both where the word
appeal is used. Since the stipulation states
that the appeal herein may be heard" upon
the record on appeal in the transcript, it is
proper that the statement here under all the
facts appearing in the record, should be held
as being one that can be looked into on the
appeal from the order denying new trial.
The main argument for the reversal of the
judgment and order, by the appellant, seems
to be that the evidence is insufficient to show
that the plaintiff was a bodT'dei' and not a guest
of the innkeeper who was sued, and the for
mer contends that if a guest he is entitled to
recover, but not as boarder. appellants
brief, p. 81
The case, as stated in the complaint, is that
of an Individual who goes to an Inn, as guest
or transient traveller, and while he is there the
inn burns down and he loses his baggage, con-
tanning wearing apparel, jewels and other per-
sonal valuables, occasioned by the negligence
of the defendant and his servants, and seeks
to make the innkeeper responsible for the
loss. The fire appears to have been purely
accidental, and there is nothing to show that
the goods lost were not under the control of
the owner kept in his rooms, or that they
were ever in the manual possession of the inn
keeper.
Nor is it proved or found that the fire or loss
occurred by any negligence of the defen dant
its servants or agents. But the plaintiff con-
tends that an innkeeper is an insurer of the
goods of his guests, placed in the inn, even as
against loss by fire, as well as robbery and
theft and that if they are lost or injured while
there, by any of these agencies, that the inn
keeper must make good the loss.
1t does not seem that any case, as to such
loss by fire, has been adjudicated by the ap-
peilate court of this State. But in Natter VS..
Brown u Cal. 221), and in Pinlerton VS..
Woodward (33 Cal GOO, cases where the loss
to the guest seems to have been occasioned by
robbery, it was held that the innkeeper was
an insurer of the property committed to his
care against everything but the act of God or
the public enemy, or the neglect or fraud of
the owner of the property.
Conceding, therefore, without deciding, that
the view urged by the appellant is the law of
this State upon the matter in hand, the real
question for determination here is whether the
evidence shows the plaintiff to have been u
guest or a b0drder. Each case, as to this point,
turns upon its special state OF facts. There is no
doubt in our minds upon the facts here, that
the plaintiff and his family were boarders
whose time of remaining at their place of So
l1,r
went to the inn to ascertain if it was place
where the health of the wife of the plaintiff
would be benefited, with the determination to
long time, if such should be the case. But
with a view, If her health did not improve,
to leave at any time. Grams, fols. 1S4-5-6
and 1897 1t was also shown that the plaintiff,
before going there with his family, had made
an arrangement for terms of entertainment at
q great deal less than those for a transient
prepared to stay, if they desired, for a con-
siderable time, and to enjoy all the gayeties
that might take place. tFols 100, 194, 1859
They had no other place of residence, and for
the time being this inn was to be such, subject
as to time of stay to their volition, but at re-
duced rates of board by the month. Fols.
1872, 1875, 1869
1t was evidently the hope and the expecta-
ton Of the plaintiff and wife that her health
would be benefited at this inn, which was i
pleasure resort, its principal business season
being that of the summer. And 1T is fair to
presume that they thought it would benefit
her, and went prepared to stay as permanent
boarders, rather than transient travellers.
These facts were known to the defendant, and
with this idea in the minds of both the con-
tracing parties together with the fact that
the plaintiff had just been boarding at another
inn. at another place, and had left there some
of his goods, such as he did not expect to need
at the DEFENDANTS inn, and had no fixed home,
and that he got reduced terms Of board and
did not place his valuables in the care of the
innkeeper, are very persuasive that it was the
intention of all the parties that he should be a
boarder and not a mere transient traveller or
guest; and for the time being a resident on
the place where he was intending to board.
Under these facts and Others appearing In the
record, we cannot say that the findings of the
court below are not sufficiently supported by
the evidence
We therefore advise that the Judgment and
order be affirmed. FooTE G..
We concur:
BELCHER, c.,
HAYNE, G.
THE COURT.
For the reasons given in the foregoing opin-
ion the Judgment and order are affirmed.