Baker v. Bailey

• Decision Date: 18 March 1912
• Citation: 145 S.W. 532,103 Ark. 12
• Parties: BAKER v. BAILEY
• Court: Arkansas Supreme Court

145 S.W. 532

103 Ark. 12

BAKER v. BAILEY

Supreme Court of Arkansas

March 18, 1912

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.

STATEMENT BY THE COURT.

Appellant a traveling salesman, brought suit against appellee for the loss of one of his grips containing wearing apparels and other personal effects. He was passing through Fort Smith on his journey, and on arriving there handed his baggage--two grips--to the porter of the Hotel Main, who was at the station to receive the baggage of incoming guests.

The complaint alleged: "That plaintiff went direct to the hotel from said station with the intention of remaining until some time the following day; but upon arriving at said hotel found that the train he would take would depart much earlier than he had anticipated, and, owing to the time of the departure, he did not procure a room but remained in and about the hotel."

The answer denied that appellant became a guest at the hotel and any liability for the loss of his grip.

He testified: "I was under the impression that the Kansas City Southern train left going north something like 4 or 5 o'clock next morning, and gave the porter the baggage with the expectation of staying all night there if the train did go at this time. When I reached the hotel, I found that the train went out earlier than I expected, upon inquiry of the clerk, and, consequently, I did not have any time to speak of to get any sleep if I had gone to bed, and did not register. If I had known the train was to leave as early as it did, I would have checked my baggage at the station and not gone to the hotel."

He stated further that he arrived at the hotel about 10 o'clock, too late for supper, and went out to a nearby restaurant for that meal, which consumed some time. That he later returned to the hotel and wrote some letters and stayed in and around there until the time of the departure of his expected train, when he asked the clerk for his grips and only one was returned to him, the one containing the wearing apparel and other effects not being found.

There was some testimony relative to the rules of the hotel, as to its liability for baggage only when checked and put in the baggage room, and that there was a notice to this effect upon the check room door. From other testimony, it was doubtful whether this notice was in such a place as would likely attract the attention of or be seen by persons required to observe its provisions.

The hotel porter testified that he took all the grips that were handed to him at the station; that he supposed he got the two belonging to appellant, although he did not know him, and that it was so dark at the station that he could not easily recognize any of the persons turning their grips over to him. He said also that he brought all the baggage delivered to him to the hotel; that none was lost, and that he put it down on the floor of the lobby at the accustomed place. When appellant got ready to leave, he inquired for and demanded his grips, but only one was delivered to him, the clerk not being able to find the other, which he thought might have been taken by mistake by some member of the base ball club that had gone from the hotel out to Poteau, Oklahoma, to play there the next day. The clerk also stated that it was the rule of the hotel to require baggage checked before any responsibility for loss was assumed by it, of which rule notices were posted in the hotel.

There was testimony also as to the value of the lost grip and its contents.

The court directed a verdict for appellee. From the judgment thereon this appeal comes.

Judgment reversed and cause remanded.

H. C Locklar and Fred A. Isgrig, for appellant.

Appellant was a guest of the hotel, but if not he was liable as a bailee. 83 Ga. 696; 75 Ill.App. 102; 69 Id. 618; 4 Cush. 114; 37 Ga. 242; 88 Mo. 72; 136 S.W. 997; 59 Ky. 439; 53 Me. 163.

Read & McDonough, for appellee.

1. Appellant was not a guest, nor was there any liability even as a bailee. 136 S.W. 997; 88 Mo. 72; 77 Mo.App. 596; 10 Daly (N. Y.) 265; 79 S.W. 113; 16 Am. & E. Enc. Law, p. 518; 65 S.E. 674.

2. The liability of a gratuitous bailee is limited to gross negligence. 22 Fla. 627; 1 Am. St. Rep. 219; 52 Ark. 364.

OPINION

KIRBY, J., (after stating the facts).

It is insisted that appellant became a guest of the hotel, and that it was liable to him as such for the loss of his property but we do not agree to this...