103 N.W. 446 (Neb. 1905), Clancy v. Barker

Citation103 N.W. 446, 71 Neb. 91
Opinion JudgeSEDGWICK, J.
Party NameMICHAEL FRANK CLANCY v. GEORGE E. BARKER ET AL
Judge PanelSEDGWICK, J. BARNES, J., dissenting. BARNES BARNES, J., dissenting.
Case DateMay 03, 1905
CourtSupreme Court of Nebraska

Page 446

103 N.W. 446 (Neb. 1905)

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.

[71 Neb. 92] 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

Page 447

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; [71 Neb. 93] 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...

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12 practice notes
  • 688 P.2d 333 (N.M.App. 1984), 7323, Pittard v. Four Seasons Motor Inn, Inc.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 19, 1984
    ...Crawford v. Hotel Essex Boston Corp., 143 F.Supp. 172 (D.Mass.1956); Clancy v. Barker, 71 Neb. 83, 98 N.W. 440 (1904), adhered to on reh'g, 71 Neb. 91, 103 N.W. 446 (1905). We decline to follow these cases to the extent that they do impose a higher standard. These decisions draw an analogy ......
  • 132 N.W. 233 (S.D. 1911), Faulk v. Missouri River & N.W. Ry. Co.
    • United States
    • South Dakota Supreme Court of South Dakota
    • June 30, 1911
    ...And it has been recently held by the Supreme Court of Nebraska that a statute imposing limitation is unconstitutional. Kime v. Cass County, 71 Neb. 97, 99 N.W. 546, 101 N.W. 2. And the same view was taken by the Supreme Court of Missouri in Levee Com'rs v. Dancy, 65 Miss. 335, 3 So. 568. Mr......
  • 288 P. 309 (Okla. 1930), 19156, Mayo Hotel Co. v. Danciger
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • April 1, 1930
    ...v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465; Trulock v. Willey, 187 F. 956, 112 C. C. A. 1; Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 103 N.W. 446, 69 L. R. A. 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682; De Wolf v. Ford, 193 N.Y. 397, 86 N.E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Re......
  • 261 N.W. 170 (Neb. 1935), 29300, Waits v. Columbia Fire Underwriters Agency of National Fire Ins. Co. of Hartford, Conn.
    • United States
    • Nebraska Supreme Court of Nebraska
    • May 31, 1935
    ...Peck, 26 Neb. 624, 42 N.W. 707; Columbia Nat. Bank v. Rice & Co., 48 Neb. 428, 67 N.W. 165; Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 103 N.W. 446, 69 L.R.A. 642, 115 Am.St.Rep. 559, 8 Ann.Cas. 682; Sheridan Coal Co. v. C. W. Hull Co., 87 Neb. 117, 127 N.W. 218, 138 Am.St.Rep. 435; Sou......
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12 cases
  • 688 P.2d 333 (N.M.App. 1984), 7323, Pittard v. Four Seasons Motor Inn, Inc.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • April 19, 1984
    ...Crawford v. Hotel Essex Boston Corp., 143 F.Supp. 172 (D.Mass.1956); Clancy v. Barker, 71 Neb. 83, 98 N.W. 440 (1904), adhered to on reh'g, 71 Neb. 91, 103 N.W. 446 (1905). We decline to follow these cases to the extent that they do impose a higher standard. These decisions draw an analogy ......
  • 132 N.W. 233 (S.D. 1911), Faulk v. Missouri River & N.W. Ry. Co.
    • United States
    • South Dakota Supreme Court of South Dakota
    • June 30, 1911
    ...And it has been recently held by the Supreme Court of Nebraska that a statute imposing limitation is unconstitutional. Kime v. Cass County, 71 Neb. 97, 99 N.W. 546, 101 N.W. 2. And the same view was taken by the Supreme Court of Missouri in Levee Com'rs v. Dancy, 65 Miss. 335, 3 So. 568. Mr......
  • 288 P. 309 (Okla. 1930), 19156, Mayo Hotel Co. v. Danciger
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • April 1, 1930
    ...v. Power, 7 Metc. (Mass.) 596, 41 Am. Dec. 465; Trulock v. Willey, 187 F. 956, 112 C. C. A. 1; Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 103 N.W. 446, 69 L. R. A. 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682; De Wolf v. Ford, 193 N.Y. 397, 86 N.E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Re......
  • 261 N.W. 170 (Neb. 1935), 29300, Waits v. Columbia Fire Underwriters Agency of National Fire Ins. Co. of Hartford, Conn.
    • United States
    • Nebraska Supreme Court of Nebraska
    • May 31, 1935
    ...Peck, 26 Neb. 624, 42 N.W. 707; Columbia Nat. Bank v. Rice & Co., 48 Neb. 428, 67 N.W. 165; Clancy v. Barker, 71 Neb. 83, 98 N.W. 440, 103 N.W. 446, 69 L.R.A. 642, 115 Am.St.Rep. 559, 8 Ann.Cas. 682; Sheridan Coal Co. v. C. W. Hull Co., 87 Neb. 117, 127 N.W. 218, 138 Am.St.Rep. 435; Sou......
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