CHAPTER VI. DUTY TO FURNISH ADEQUATE FACILITIES. JACKSON v. VIRGINIA HOT SPRINGS CO. 209 Fed. 979. 1913.1 MCDOWELL, District Judge. This is an action of trespass on the case against an innkeeper, brought by a proposing guest who was refused accommodation. The original declaration was demurred to for several reasons, but it has become unnecessary to discuss any of the grounds of demurrer except the failure of the pleader to allege that the defendant at the time in question had room for the plaintiff. The general rule in common-law pleading is that it is not necessary to state matter which would come more properly from the other side. Heard's Stephen Pl. (9th Am. Ed.) p. 349. It is also not necessary and, as a rule, is improper, to anticipate and deny or avoid matter of defense. 31 Cyc. 109. But it is necessary to allege at least a prima facie case. Heard's Stephen Pl., p. 351 [352]. The duty of the innkeeper to furnish lodging does not exist if his accommodations are exhausted. In 2 Chitty Pl. (16th Am. Ed.) p. 531, it is said: "An innkeeper is bound by the custom of the realm to receive travelers and guests at all hours and times if they tender and are ready to pay the customary charge, are in a fit and proper condition as to conduct and health, and if there is accommodation for them." In Justice Harlan's dissent in the Civil Rights Cases, 109 U. S. 40, 3 Sup. Ct. 43, 27 L. Ed. 835, the following is quoted: "An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation. . . ." Story, Bailments, §§ 475, 476. And again: "In Rex v. Ivens, 7 Carr. & P. 213, 32 E. C. L. 495, the court speaking by Mr. Justice Coleridge, said: "An indictment lies against an innkeeper who refuses to receive a guest, he having at 1 Part of the opinion is omitted.- ED. the time room in his house; and either the price of the guest's entertainment being tendered to him or such circumstances occurring as will dispense with that tender."" In 16 Am. & Eng. Ency. (2d Ed.) p. 525, it is said: "If an innkeeper improperly refuses to receive and entertain any person coming to the inn as a guest, he is liable, in consequence of such unlawful act, to an action by the injured party for damages." In 22 Cyc. 1074, it is said: "An innkeeper, as one carrying on a public employment, is obliged to receive all travelers who properly apply to be admitted, provided he has room and they pay his reasonable charges." And quotations of this same purport could be added almost indefinitely. The only forms for pleading in such cases that I know of are found in 2 Wharton's Precedents of Indictments, 911, and in Hawthorn v. Hammond, 1 Carrington & Kirwan, 404, 47 E. C. L. 403, which is cited by Chitty (2 Pl. [16th Am. Ed.] p. 533) as a precedent. In the indictment, as in the declaration in case, it is alleged that there was at the time sufficient room in the inn. As the duty to receive the guest does not exist unless there is room, I do not see that a prima facie cause of action is alleged unless the declaration contains an allegation that the defendant had room for the plaintiff. It is argued that the facts in this respect lie peculiarly within the knowledge of the innkeeper, and that therefore exhaustion of accommodation should be regarded as a matter of defense. This argument is making use of a mere (occasional) rule of evidence to overcome a rule of pleading. Prof. Thayer says that no one has a right to look to the law of evidence to determine the rules of pleading. Thayer's Prelim. Treatise on Evidence, p. 371. This ground of demurrer must be held good as to this count, and also as to all the remaining counts of the declaration.2 DE WOLF v. FORD. 193 N. Y. 397. 1908.1 WERNER, J. For centuries it has been settled in all jurisdictions where the common law prevails that the business of an 2"I think a person who comes to the inn has no legal right to demand to pass the night in a public sitting-room if the bedrooms are all full, and I think that the landlord has no obligation to receive him." Brown v. Brand [1902], 1 K. B. 696. 1 Only an extract from the opinion is here reprinted.- ED. innkeeper is of a quasi public character, invested with many privileges, and burdened with correspondingly great responsibilities. Except as the general rule of the common law is modified by statutory enactment, an innkeeper has the undoubted right to conduct his inn as he deems best, so long as he does not violate the law. Although he impliedly invites the public to his establishment, he is bound to furnish no particular kind of entertainment or accommodation, except such as may be expressly stipulated for, or such as may be reasonably implied from the prices which he charges, or the grade of the inn which he maintains. And while he is bound to accept as guests all proper persons, so long as he has room for them, he is under no legal obligation to assign a guest to any particular apartment. Fell v. Knight, 8 M. & W. 269. From the very nature of the business it is inevitable that an innkeeper must, at all reasonable times and for all proper purposes, have the right of access to and control over every part of his inn, even though separate parts thereof may be occupied by guests for hire. Over against these general rights and privileges there is the well-recognized responsibility of the innkeeper for the guest's goods and chattels brought to the inn. As to these the innkeeper is an insurer unless his common-law duty is modified by statute, and he is liable for all loss except such as is occasioned by the negligence or fraud of the guest, or by the act of God or the public enemy. Hulett v. Swift, 33 N. Y., 571, 88 Am. Dec. 405. Although this liability of the innkeeper for the loss of goods intrusted to him by his guest was clearly defined nearly four centuries ago, it has been reserved for us at this late day, in the development of our jurisprudence, to define, with such accuracy as the nature of this case requires, the relation of the innkeeper to the person of his guest. It is clearly not the conventional relation of landlord and tenant, for there is no contract as to the realty. Taylor's L. & T. § 66. A room in an inn occupied by a guest is not, in the legal sense, his dwelling house, for notwithstanding his occupancy, it is the house of the innkeeper. Rogers v. People, 86 N. Y. 360, 40 Am. Rep. 548. Nor is the relation of innkeeper and guest usually created by express contract, for as a rule it is based wholly upon the mere circumstance that one man happens to have an inn which is patronized by another, and the law implies whatever else is necessary to constitute the relation between them. Anthon's Law Student, p. 57; Willard v. Reinhardt, 2 E. D. Smith, 148. It is a relation, moreover, which cannot be defined with exactitude in matters of detail, for it may be one thing in a mining camp, or in the remote and sparsely settled portions of a country. It may be another thing in the tavern by the rural wayside, and yet another in the modern urban palace called a hotel. Between the extreme of rugged simplicity on the one hand and of palatial magnificence on the other, there are numberless gradations of service, attention, convenience, and luxury which must necessarily give the relation * of innkeeper and guest such flexibility as will render it adaptable to varying conditions and circumstances. But underneath all these differing conditions there is, of course, a basic legal principle which governs the general relation of innkeeper and guest. The innkeeper holds himself out as able and willing to entertain guests for hire; and, in the absence of a specific contract, the law implies that he will furnish such entertainment as the character of his inn and reasonable attention to the convenience and comfort of his guests will afford. HERVEY v. HART. 149 Ala. 604. 1906.1 HARALSON, J. In Doyle v. Walker, 26 U. C. J. B. 502, it was held, as the common law on the subject, that the innkeeper has the right and the sole right to select the apartment for a guest, and, if he finds it expedient, to change the apartment and assign the guest another, without becoming a trespasser in making the change. If, having the necessary convenience, he refuses to afford reasonable accommodation, he is liable to an action for damages. 16 Am. & Eng. Ency. Law (2d Ed.) 524, 525. The plaintiff in this case, the appellee here, sued the defendants, who are appellants, to recover damages for the alleged reason that he was put out of the room to which he had been assigned by defendants in their hotel, and was refused proper accommodations in said hotel. The jury found for defendants, and the court, on motion of the plaintiff, set aside the verdict and granted a new trial. The grounds of the motion were: "1. Because the verdict was not supported by the evidence, as applied to the law as charged by the court. 2. Because the jury in rendition of the verdict, ignored the law as charged by the court. 3. Because the verdict is not supported by the evidence." The well established rule in this court, as to granting new trials is, "that this court will not revise a judgment granting the motion, unless the evidence plainly and palpably supports the verdict." Merrill v. Brantley, 133 Ala. 537, 31 South. 847; Smith v. Tombigbee R. R. Co., 141 Ala. 332, 37 South. 389. 1 The statement of facts, arguments of counsel and part of the opinion are omitted.- ED. The theory of the plaintiff relied on for a recovery is clearly stated. in the complaint, upon which, issue being taken, the case was tried. The plaintiff's evidence tended to support the complaint, but the evidence of the defendants was not entirely consonant therewith. In some of its more important phases, it conflicted, and different inferences might have been well drawn therefrom. It would be useless to review the evidence on each side, to do which would require time and labor. We have carefully read the evidence in consultation, and conclude that while it might justify, yet it does not plainly and palpably support the verdict," without which condition, we cannot consistently with the rule of the court above announced reverse the judgment granting the motion for a new trial. Under the averments of the complaint, the defendant was not liable, if he offered plaintiff proper accommodations in lieu of the room previously assigned to him. The ruling on the motion for a new trial must be affirmed.2 TYSON, C. J., and SIMPSON and DENSON, JJ., concur. OCEAN STEAMSHIP CO. OF SAVANNAH v. SAVANNAH LOCOMOTIVE WORKS AND SUPPLY CO. 131 Ga. 831. 1909.1 EVANS, P. J. At common law a carrier's duty to receive goods was limited to his facilities for transportation. The owner of a single ship may hold himself out to the public to carry certain goods for hire. As to the goods he proposes to carry, he is a public carrier; but he is under no obligation to provide other ships because his vessel is inadequate to transport all goods which may be offered him. Such a carrier does not owe to the public all the duties imposed by the law on railroad companies and similar public institutions to furnish adequate transportation facilities for all goods which may be tendered. Railroad companies are public institutions, and are granted certain exclusive franchises and rights which naturally impose correlative duties. They are invested with the power of condemnation, by the exercise of which sovereign right they acquire an exclusive privilege to carry on their business over the highway constructed by them. They are endowed with special and unusual powers, with an express view to their 2 Compare Mann Boudoir Car Co. v. Dupré (1893), 54 Fed. 646, and Pullman Palace Car Co. v. Taylor (1879), 65 Ind. 153. 1 Only an extract from the opinion is here reprinted.— ED. |