Curtis v. Murphy

• Decision Date: 31 March 1885
• Citation: 22 N.W. 825,63 Wis. 4
• Parties: CURTIS v. MURPHY.
• Court: Wisconsin Supreme Court

63 Wis. 4

22 N.W. 825

CURTIS

v.MURPHY.

Supreme Court of Wisconsin.

Filed March 31, 1885.

Appeal from county court, Milwaukee county.

J. E. Wildish, for appellant.

John A. Wall, for respondent.

COLE, C. J.

The defendant in this action was a proprietor of the St. James Hotel, in Milwaukee. The plaintiff was a single man, and kept a saloon not many blocks distant from the hotel. The following facts are clearly shown by the plaintiff's own testimony. About 12 o'clock at night on the thirteenth of March, 1882, the plaintiff came to the hotel with a disreputable woman, whom he had met on the street, and whose name he did not know, and registered himself and the woman as “Thomas Curtis and wife,” called for a room, and it was assigned him by a person or clerk who was in charge of the office. The plaintiff testified that before going to his room he said to this clerk that he saw on the top of the register that all moneys and jewels should be given to the proprietor; when the clerk replied that the proprietor was in bed, and that he held the position of night-clerk. Thereupon the plaintiff handed the clerk $102 for safe-keeping, and took a receipt, which read, “I O. U. $102,” signed by the clerk. That night the clerk absconded with the money. The plaintiff sues to recover it of the proprietor of the hotel.

The natural, perhaps necessary, inference from the plaintiff's own testimony is that he went to the defendant's hotel at midnight with a prostitute, and engaged a room solely for the purpose of having sexual intercourse with the woman. True, he says that he went to the hotel as a guest, and asked the clerk if he “could stay there for bed and breakfast.” But he lived near by, gave no reason why he did not go to his usual lodging-place, therefore we feel entirely justified in assuming that he went to the hotel for the unlawful purpose above indicated. This being the case, the question arises whether he was a guest in a legal sense, and entitled to protection as such. The learned counsel for the defendant insists that he cannot and should not be deemed a guest under the circumstances, and entitled to the rights and privileges of one. If the relation of innkeeper and guest did exist between the parties, it is difficult to perceive upon what ground the defendant can escape responsibility for the loss of the money handed to the clerk or person in charge of the office; for the common law, as is well known, on grounds of public policy, for the protection of travelers, imposes an extraordinary liability on an innkeeper for the goods of his guest, though they may have been lost without his fault.

It is not easy, says Mr. Schouler, to lay down, on the whole, who should be deemed a guest in the common-law sense; the facts in each case must guide the decision. Bailm. 256. A guest is a “traveler or wayfarer, who puts up at an inn.” Calye's Case, 8 Coke, 32. “A lodger or stranger in an inn.” Jac. Law Dict. A traveler who comes to an inn and is accepted, becomes instantly a guest. Story, Bailm. § 477. “It is well settled that if a person goes to an inn as a wayfarer and traveler, and the innkeeper receives him into his inn as such, he becomes the innkeeper's guest, and the relation of landlord and guest, with all its rights and liabilities, is instantly established between them.” Jalie v. Cardinal, 35 Wis. 118. “The cases show that to entitle one to the privileges and protection of a guest he must have the character of a traveler; one who is a mere temporary lodger, in distinction from one who engages for a fixed period at a certain agreed rate. The main distinction is the fact that one is a wayfarer, or transiens; and it matters not how long he remains, provided he assumes this character.” 7 Amer. Dec., note to Clute v. Wiggins, 451.

In these definitions the prominent idea is that a guest must be a traveler, wayfarer, or a transient comer to an inn for lodging and entertainment. It is not now deemed essential that a person should have come from a distance to constitute a guest. “Distance is not material. A townsman or neighbor may be a traveler and therefore a guest at an inn as well as he who comes from a distance or from a foreign country.” Walling v. Potter, 35 Conn. 183. Justice WILDE says, in Mason v. Thompson, 9 Pick. 284, that “it is clearly settled that to constitute a guest in legal contemplation, it is not essential that he should be a lodger or have any refreshment at the inn. If he leaves his horse there, the innkeeper is chargeable on account of the benefit he is to receive for the keeping of the horse.” Judge BRONSON, in commenting on this case in Grinnell v. Cook, 3 Hill, 485-490, says where the owner of a horse sent the animal to an inn to be kept, but never went there himself, and never intended to go there as a guest, it seemed but little short of downright absurdity to say that in legal contemplation he was a guest. On principle it would seem that a person should himself be either actually or constructively at the inn or hotel for entertainment in order to establish the relation of landlord and guest. In Atkinson v. Sellers, 5 C. B. (N. S.) 442, COCKBURN, C. J., remarks: “Of course a man could not be said to be a traveler who goes to a place merely for the purpose of taking refreshments. But if he goes to an inn for refreshments in the course of a journey, whether of business or of pleasure, he is entitled to demand refreshment and the innkeeper is justified in supplying it.”

If a traveler have no personal entertainment or refreshment at an inn, but...