Clancy v. Barker
| Citation | 103 N.W. 446,71 Neb. 83 |
| Parties | CLANCY v. BARKER ET AL. |
| Decision Date | 03 May 1905 |
| Court | Supreme Court of Nebraska |
CLANCY
v.
BARKER ET AL.
Supreme Court of Nebraska.
May 3, 1905.
1. The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.
2. It is the duty of a hotel keeper to protect his guests while in his hotel against the assaults of employés who assist in the conduct of the hotel and in the care and accommodation of the guests. If damages result from such assault, the hotel keeper is liable therefor.
On rehearing. Affirmed.
For former opinion, see 98 N. W. 440.
Barnes, J., dissenting.
SEDGWICK, J.
Since the filing of the former opinion in this case (98 N. W. 440), 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 Fed. 161). The opinion of that court prepared by Judge Sanborn strongly states the reasons that 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 defendants 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 employés 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 employés 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 employés 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--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 employés 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
[103 N.W. 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, and is under obligation to select such employés 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 employé upon the sole ground that the employé 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.
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