Clancy v. Barker

• Decision Date: 03 May 1905
• Parties: MICHAEL FRANK CLANCY v. GEORGE E. BARKER ET AL
• Court: Nebraska Supreme Court

103 N.W. 446

71 Neb. 91

MICHAEL FRANK CLANCY v. GEORGE E. BARKER ET AL

Supreme Court of Nebraska

May 3, 1905

SEDGWICK, J. BARNES, J., dissenting.

OPINION

SEDGWICK, J.

Since the filing of the former opinion in this case, ante, p. 83, the question principally discussed therein, and arising out of the same transaction, has been decided by the United States court of appeals for this circuit, Clancy v. Barker, 131 F. 161. The opinion of that court prepared by Judge Sanborn strongly states the reasons which led the majority of the court to the conclusion that the hotel company ought not to be held liable. In a dissenting opinion Judge Thayer upholds the views expressed in the former opinion of this court.

1. The first ground urged by counsel for holding the defendant liable we think is satisfactorily discussed in the majority opinion of that court. This relates to the doctrine of respondeat superior derived from the relation of master and servant. If there had been evidence showing that it was the duty of the employees of the hotel to prevent children from entering and playing in rooms which were not assigned to them, it might perhaps be contended that the boy Lacy was acting within the scope of his employment when the accident occurred. The evidence offered as tending to show that he was so acting was properly excluded, as shown in the former opinion, and it does not appear that there was any other evidence in the record upon this point.

2. Whether the relation that exists between a keeper of a hotel and his guests makes the former liable for any misconduct of his employees, by which his guests are injured while they are in the hotel and are in his care, is a more difficult question. It is admitted that common carriers under such circumstances are liable. It is said that the reason for this is that the passenger places himself in the care of the employees of the carrier, and is continually in their care so that whatever they do while the passenger is being transported is within the scope of their employment. The hotel keeper is also bound to bestow reasonable care for the safety and comfort of his guests. He is not an insurer of his guests; but neither is the carrier an insurer of his passengers. The carrier of course is bound to use extraordinary care or, as is sometimes said, the utmost care for the safety of his passengers. The business engaged in is a dangerous one and the care should be in proportion to the danger that exists. In this respect there is a difference between the two situations, but both perform public duties, and are bound to serve any individual who requires their service and suitably applies for it. The hotel keeper offers accommodations for strangers who are not acquainted with his employees and who have no voice in their selection. He undertakes to provide them with suitable accommodations and with at least a certain degree of care for their comfort and safety. He has some control over their persons and conduct. He must not allow such conduct on their part as will interfere with the reasonable hospitality which he owes to other guests. It may be that the carrier has greater control over the persons and conduct of passengers, but this idea seems to be exaggerated in some of the opinions. In what sense does the porter of a sleeping car have charge of the occupants of the car and have control of their conduct and behavior? Surely, if it is different in degree from the control that the hotel keeper has over his guests, it is not much different in kind. The hotel keeper is under obligation to protect his guests from danger when it is reasonably within his power to do so; and is under obligation to select such employees as will look after the safety and comfort of his guests, and will not commit acts of violence against them so far as is reasonably within his power. It would seem that to relieve him from liability for injuries done to his guests by his employee, upon the sole ground that the employee was not then in the active discharge of some specific duty in connection with his employment, and hold the carrier responsible under similar conditions, is making a fine distinction. The liability of a common carrier under such circumstances is a doctrine of modern growth. There does not appear to be reason for establishing such doctrine that would not equally apply under modern conditions to the relations between an innkeeper and his guests.

Notwithstanding the great respect due to the court which has reached a contrary conclusion in Clancy v. Barker, supra, we conclude that our former decision ought to be adhered to.

FORMER JUDGMENT ADHERED TO.

DISSENT BY: BARNES

BARNES J., dissenting.

In this case I find myself unable to concur in the majority opinion, which adheres to our former decision. While I concurred in that decision when it was rendered, on a reexamination of the question as presented on the rehearing, I am convinced that the defendant should not be held liable. The facts which are the basis of the plaintiff's cause of action, briefly stated, are as follows: The plaintiff, Michael F. Clancy and his wife, with their infant son Freeman, who was about six years old, were stopping at the Barker hotel in the city of Omaha, and had been guests at the hotel for several days prior to the accident complained of. About 8:30 o'clock of the evening of January 15, 1902, Freeman left his mother's room and went down the elevator to the first floor of the hotel, as he says, "To get some ice water." Reaching that floor, he passed by a room where a boy of the name of Lacy, who was employed as a porter or bellboy at the hotel, was playing a harmonica; the door being ajar he entered this room, apparently to satisfy his childish curiosity; another boy, who sometimes ran the elevator, was also in the room; both of these employees seem to have been off duty at the time, and engaged in amusing themselves in a room not occupied by any of the guests of the house. As the Clancy boy entered the room, young Lacy said to him, apparently in jest, "See here, young fellow, if you touch anything, this is what you get," at the same time pointing a pistol at him. The pistol was at that instant accidentally discharged, the ball striking the boy Freeman in the head, destroying one of his eyes and inflicting other injuries upon him which, however, did not prove fatal; and this action was brought by the father to recover damages alleged to have been sustained by him by reason of these facts.

The prevailing opinion does not place the right of recovery in this case on the ground of negligence or tort, for no negligence on the part of the defendants is alleged or proved; but bases such right solely on an alleged breach of the implied contract of an innkeeper that his guest shall be treated with due consideration for his comfort and safety; and so holds the proprietors of the hotel liable to both the father and his infant son for the damages sustained by them.

It must be conceded that, until recent years, the whole trend of authority supported and adhered to the common law rule that an innkeeper is not an insurer of the safety of his guest against injury, and that his obligation is limited to the exercise of reasonable care for the safety, comfort and entertainment of his visitor. Calye's case, 8 Rep. (4 Coke) 32; Sandys v. Florence, 47 L.J.C.P. 598; Weeks v. McNulty, 101 Tenn. 495, 48 S.W. 809; Curtis v. Dinneen, 4 Dak. 245, 30 N.W. 148; Sheffer v. Willoughby, 163 Ill. 518, 45 N.E. 253; Gilbert v. Hoffman, 66 Iowa 205, 23 N.W. 632; Overstreet v. Moser, 88 Mo.App. 72; Stanley v. Bircher, 78 Mo. 246; Stott v. Churchill, 15 Misc. (N.Y.) 80, 36 N.Y.S. 476; Sneed v. Morehead, 70 Miss. 690, 13 So. 235. It is claimed, however, that the more recent cases have changed the rule, and to support this view we are referred, in the original opinion, to Rommel v. Schambacher, 120 Pa. 579, 11 A. 779. In that case it appears that on the evening of the 9th of August, 1884, the plaintiff, William Rommel, a minor, entered the tavern of Jacob Schambacher, and there found one Edward Flanagan; they both became intoxicated on the liquor furnished them by Schambacher. While the plaintiff was standing outside of the bar, engaged in conversation with the defendant, Flanagan pinned a piece of paper to his back and set it on fire. The consequence was that Rommel's clothes were soon in flames, and before they could be extinguished he was badly injured. On those facts it was held that the proprietor of a saloon is liable for injuries sustained by one who enters therein and becomes intoxicated, by reason of another, who also became intoxicated there, and who, in full view of the proprietor, attached a piece of paper to the former and set it on fire.

The sole ground of holding the proprietor liable was that he furnished the liquor which caused the intoxication of the two men, and allowed one of them, in his presence, to attach the paper to the other and set it on fire, when he could, and should, have prevented it. So it will be seen that there is nothing in the facts of that case, or in the matter actually decided, which supports the prevailing opinion.

Our attention is also called to the case of Commonwealth v. Power, 7 Met. (Mass.) 596, in which Shaw, C. J., said:

"An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an innkeeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound, to so regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and of course he has a right, and is bound, to exclude from his...