Clancy v. Barker

• Citation: 131 F. 161
• Decision Date: 28 May 1904
• Docket Number: 1,941.
• Parties: CLANCY v. BARKER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

131 F. 161

CLANCY v. BARKER et al.

No. 1,941.

United States Court of Appeals, Eighth Circuit.

May 28, 1904

Syllabus by the Court

Innkeepers are not insurers of the safety of the persons of their guests. The limit of their liability is for the exercise of reasonable care for the safety, comfort, and entertainment of their visitors.

Innkeepers do not contract to insure the safety of their guests against injuries which are inflicted upon them by the negligent or willful acts of their servants beyond the scope and course of their employment, and for such acts they are not liable in damages when they have exercised reasonable care to prevent them.

A boy about six years of age, a guest of the defendants at their hotel, wandered out of the room assigned to him, and into a room in which a bell boy or porter of the defendants was engaged in playing a harmonica for his amusement, and the latter accidentally or willfully shot the former with a pistol.

Held the bell boy was not acting within the course or within the apparent or actual scope of his employment at the time of the shooting, and the innkeepers were not liable for the injury he inflicted.

John O Yeiser, for plaintiff in error.

William A. Redick, for defendants in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN Circuit Judge.

This case was determined in the lower court on a demurrer to the evidence; the trial court holding, on the conclusion of the plaintiff's testimony, that there was no substantial evidence warranting a recovery. It accordingly directed a verdict in favor of the defendants. This action was taken on testimony which tended to establish, and did establish, the following facts:

Freeman Clancy, in whose behalf the action is brought, at the time of the accident hereafter described, was about six years old and was stopping with his parents at the Barker Hotel, in the city of Omaha, Neb.; the father, mother, and son having been guests at the hotel for a few days prior to the accident. During the evening of January 15, 1902, about 8:30 p.m., he went down the elevator from one of the upper floors, where the room occupied by his parents was located, to the ground floor of the hotel for the purpose, as he says, of getting some ice water. Reaching the ground floor, he passed by a room where some one was playing a harmonica. The door being ajar, he entered this room, actuated, apparently, by no other motive than childish curiosity, and found a boy, who was employed about the hotel either as a bell boy or porter engaged in playing the instrument. Another boy who ran the hotel elevator was also in the room. Both of these employes of the hotel seem to have been off duty at the time, and engaged in amusing themselves in a room that was not occupied by guests. As the boy Clancy entered the room, the boy who was playing the harmonica said to him, evidently in jest, 'See here, young fellow; if you touch anything, here is what you will get,' at the same time pointing a pistol at him. The pistol was accidentally discharged, the ball striking the boy in the head, fracturing the frontal ethnoid and sphenoid bones of the head,' and destroying one of his eyes. The ball also passed through the boy's thumb, but the injury did not prove fatal.

One paragraph of the complaint, on which the case was tried, alleged:

'That on or about the 12th day of January, 1902, the said father and mother of the plaintiff entered the said hotel of defendant with their said infant child, the plaintiff, as guests of defendant, for a temporary rest in said city at said hotel, and were received by the said defendants as the guests of the said innkeepers or hotel keepers; the defendants thereby contracting with the said father for and on behalf of said plaintiff, and with the plaintiff by implication of law, for his personal safety, kind treatment, and for all of the usual hospitalities, covenants, and agreements, and obligations due from an innkeeper and hotelkeeper to his guess.'

Another paragraph of the complaint alleged, in substance, that it was the duty of the bell boy or porter, through whose acts as aforesaid the injury was sustained-- 'To direct the guests of said hotel about said hotel, and to wait on, watch over, and protect said guests and their property and the property of the said hotel, and such other duties as are usually required of porters by innkeepers or hotel keepers, and imposed by law.'

Another paragraph of the complaint alleged that said bell boy or porter being a servant of the defendants and of said hotel, in that capacity, by the acts heretofore described-- 'Violated all obligations of hospitality and patience due from said defendants, through said servants, to said infant guest, and the defendants thereby violated their agreement, duty, and obligation of law with and to the plaintiff.'

On this state of facts and pleading, counsel for the plaintiff in error asserts a right of recovery against the defendants on two grounds: First, he contends that by receiving the boy and his parents as guests at the hotel the proprietors of the hotel undertook, like a common carrier of passengers, to protect him against injuries occasioned by the negligence or willful misconduct of their employes in and about the hotel, and that this contractual obligation of the defendants was violated. In the second place, counsel contends that when Lacey, the porter, pointed the pistol at the boy, he was guilty of a wrongful and negligent act; that he was engaged at the time in the performance of one of his duties as servant; and that on this ground the defendants are liable. It is argued that it was a part of Lacey's duty as a servant, when the child entered the room where he was playing the harmonica, to see that he did not disturb or handle any articles in the room; that a jury might well infer that the act which occasioned the injury was done by Lacey in the performance of this duty; and that the ordinary rule, 'Respondeat superior,' applies to the case.

We entertain no doubt that the act in question was in fact wrongful and negligent, but the difficulty which we encounter in upholding this latter theory is that the evidence fails to show that Lacey had been charged with the duty of guarding such articles as may have been in the room where the accident occurred, or that the room contained any articles which the child could have injured or carried away, or that he had made any movement in that direction. All this is mere surmise, which will not suffice to sustain a verdict. So far as the evidence warrants an inference, the inference is that Lacey was not engaged at the time in the discharge of any duty for and in behalf of the defendants; that he was temporarily, at least, off duty, engaged in amusing himself; and that he pointed the pistol at the child in sport, to see how he would act, rather than to prevent him from touching or intermeddling with anything in the room. The act in question seems to have been prompted by a momentary impulse, and to have been done by Lacey for his own amusement, and to have been in no wise connected with the discharge of any duty or with the performance of any task that had been devolved upon him by the defendants. Under these circumstances we are of opinion that the proprietors of the hotel cannot be held accountable for the act in question on the second ground above stated, since it is too well settled to require the citation of any authority that the master is not responsible ordinarily for the negligent acts of his servant, unless they are committed while the servant is rendering some service for and in behalf of the master.

But counsel for the plaintiff insists that, although the defendants were not negligent in the employment of their servant, the bell boy, and although he was not acting in the course or within the actual or apparent scope of his employment when he discharged the pistol, yet the defendants are liable for the injury he inflicted, because it is a part of the contract between an innkeeper and his guest that the former will insure the safety of the person of the latter against injury from every act or omission of his servants. The crucial question here, therefore, is whether or not an innkeeper is an insurer of the safety of the person of his guest while the latter remains in his hotel against the negligent and willful acts of his servants, when they are acting without the course and without the actual or apparent scope of their employment.

An affirmative answer to this question would be in conflict with the decisions of the courts rendered prior to the time when the contract herein was made, and to our understanding of the law upon this subject as it then existed. The general rule of law governing the liability of innkeepers when these defendants made their agreement with the plaintiff, the rule which had received the approval of every court which had ever decided the question, so far as we have the safety of the person of his guest against injury, but that his obligation was limited to the exercise of reasonable care for the safety, comfort, and entertainment of his visitor. Calye's Case, 4 Coke, 202, 206; Sandys v. Florence, 47 L.J.C.P.L. 598; Weeks v. McNulty, 101 Tenn. 499, 48 S.W. 809, 43 L.R.A. 185, 70 Am.St.Rep. 693; Curtis v. Dinneen (Dak.) 30 N.W. 148, 153; Sheffer v.

Willoughby, 163 Ill. 518, 521, 522, 45 N.E. 253, 34 L.R.A. 464, 54 Am.St.Rep. 483; Gilbert v. Hoffman, 66 Iowa, 206, 23 N.W. 632, 55 Am.Rep. 263; Overstreet v. Moser, 88 Mo.App. 72, 75; Stanley v. Bircher's Ex'r, 78 Mo. 245, 248; Stott v. Churchill (Com. Pl.) 36 N.Y.Supp. 476, 477; Sneed v. Morehead, 70 Miss. 690, 13 So. 235.

In another class of cases, those involving the liability of common carriers and of the operators of palace...