Levesque v. D.C. Hotel.

• Decision Date: 21 November 1945
• Citation: 44 A.2d 728
• Parties: LEVESQUE v. COLUMBIA HOTEL.
• Court: Maine Supreme Court

44 A.2d 728

LEVESQUE

v.COLUMBIA HOTEL.

Supreme Judicial Court of Maine.

Nov. 21, 1945.

Motion for New Trial and Exceptions from Superior Court, Cumberland County.

Action of assumpsit by Lillian Levesque against Columbia Hotel to recover money allegedly deposited by plaintiff with defendant for safekeeping. Verdict for plaintiff, and defendant brings exceptions and moves for a new trial.

Exceptions sustained.

Jacob H. Berman, Edward J. Berman, and Sidney W. Wernick, all of Portland, for plaintiff.

Bradley, Linnell, Nulty & Brown, by William B. Nulty and Franklin G. Hinkley, all of Portland, for defendant.

Before THAXTER, HUDSON, MANSER, and MURCHIE, JJ., and CHAPMAN, Active Retired Justice.

THAXTER, Justice.

This is an action of assumpsit brought to recover the sum of $4,850 which the plaintiff claims she deposited with the defendant for safe-keeping. After a verdict for the plaintiff, the case is before us on the defendant's exceptions and motion for a new trial. We shall consider only the exceptions.

The defendant owns and operates a hotel in the City of Portland. In July, 1943, the plaintiff interviewed the manager to find out on what terms she might obtain a room. She told him that she wanted it permanently, but nothing was said as to the length of time she would be there. She was told that the hotel had just the daily rate, but she could have the room on a weekly basis and pay six times the daily rate. She arrived at the hotel July 9th, registered, and was assigned room 132. She found that this room was too hot and later was transferred to room 107. Here she remained during the balance of 1943 and all of 1944. Statements were presented to her weekly and were paid. She took with her to the hotel her radio, a few pictures, and personal belongings. Except for these articles, the room was furnished by the hotel, which supplied the linen, and was taken care of by maids employed by the hotel. On occasions she went away for short stays but continued to pay for her room. She claims, and the jury appears to have found, that on December 29, 1944, she drew from a bank the sum of $4,850 and brought it back to the hotel. This money in bills she inserted in an envelope, wrote her name on it, sealed it, and then placed it in a larger envelope which she also sealed, wrote directions on this envelope to send it to her sister in New Hampshire should anything happen to her. She then inserted this in a third envelope which she signed. She left her room with this envelope in her hand, and near the hotel office on the second floor met one Anne Goodrich who, she claims and the jury apparently found, was the assistant to the manager of the hotel. She and Miss Goodrich were friends. She gave Miss Goodrich the envelope telling her that there was money in it and that she wanted the hotel to keep it for her safely. Miss Goodrich placed the package in the safe in the upstairs office of the hotel. The plaintiff then left town for a few days returning shortly after New Year's. On the morning of January 9, 1945, it was discovered that the safe had been opened during the night and the plaintiff's money together with over $2,000 of the hotel money had been stolen. The jury evidently found, and we shall assume for the purpose of this opinion were warranted in finding, that Miss Goodrich as the duly authorized agent of the hotel received the money for safe-keeping and that it was lost by the negligence of the defendant.

The action is assumpsit and is based on the claim as set forth in the declaration that the plaintiff was not a guest of the hotel but was a permanent resident, and that the defendant received the money as a bailee and did not return it. The plea is the general issue with a brief statement setting forth that the plaintiff was a guest of the hotel, that the hotel had complied with the statute relating to innkeepers, and that it was entitled to the benefit of the statute which placed a limit on its liability to its guests. The brief statement further alleges that the defendant had kept the money in accordance with the instructions of the plaintiff and that in doing so it had exercised due care.

The issue involves the liability of the defendant as a hotelkeeper as that liability may be limited by the provisions of Rev.Stat.1944, Ch. 88, Secs. 35 and 36. These sections read as follows:

35. ‘No innkeeper, hotel keeper, or boarding-house keeper who constantly has in his inn, hotel, or boarding-house a metal safe or suitable vault, in good order and fit for the custody of money, bank notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers, and bullion, and who keeps on the doors of the sleeping rooms used by guests suitable locks or bolts, and on the transoms and windows of said rooms suitable fastenings, and who keeps a copy of this section printed in distinct type constantly and conspicuously posted in not less than 10 conspicuous places in all said hotel or inn, shall be liable for the loss of or injury to any articles or property of the kind above specified suffered by any guest, unless such guest has offered to deliver the same to the innkeeper, hotel keeper, or boarding-house keeper for custody in such metal safe or vault, and the innkeeper, hotel keeper, or boarding-house keeper has omitted or refused to take said property and deposit it in such safe or vault for custody and to give such guest a receipt therefor; provided, however, that the keeper of any inn, hotel, or boarding-house shall not be obliged to receive from any 1 guest for deposit in such safe or vault any property hereinbefore described exceeding a total value of $300, and shall not be liable for any excess of such property, whether received or not.'

36. ‘Any such innkeeper, hotel keeper, or boarding-house keeper may, by special arrangement with a guest, receive for deposit in such safe or vault any property upon such terms as they may in writing agree to; and every innkeeper, hotel keeper, or boarding-house keeper shall be liable for any loss of the above enumerated articles of a guest in his inn, hotel, or boarding-house after said articles have been accepted for deposit, if caused by the theft or negligence of the innkeeper, hotel keeper, or boarding-house keeper, or any of his servants.'

At common law a hotelkeeper was an insurer of the property of a guest and was liable for loss or injury to it not caused by the act of God, the public enemy, or the neglect or fault of the owner or his servants. Wagner v. Congress Square Hotel Co., 115 Me. 190, 98 A. 660. From time to time this liability has been limited by statute. Our present law dates from 1913, Pub.Laws 1913, Ch. 101. Sections 35 and 36 quoted above govern the problem before us. They are complementary and must be read together and harmonized.

The Wagner case supra clearly shows that the innkeeper is not liable for the loss or injury of the articles enumerated in section 35 if he complies with the conditions specified in that section, unless the guest has offered to deposit and he has omitted or refused to receive the articles for custody. If he does not comply with the statute he is left under the old common law obligation as an insurer with this exception,-that his liability is limited to $300 whether he receives the property or not.

Section 36 provides that the guest and the hotelkeeper may make in writing a special arrangement to receive such articles for deposit upon such terms as they may see fit. Then comes the provision, the meaning of which is in controversy in the present case. It provides that the hotelkeeper is liable for the loss of the enumerated articles after they have been accepted for deposit provided such loss is caused by the theft or negligence of the hotelkeeper or any of his servants. Counsel for the plaintiff maintain that for theft or negligence there is liability for the full value of the articles received for deposit irrespective of the $300 limitation set by article 35. This might be true if we read section 36 by itself and not in connection with section 35. To construe it as suggested renders it inconsistent with section 35, the last provision of which would thereby become meaningless. It is clear that the court in the Wagner case did not so construe it. That opinion, referring to the deposit of the articles with the hotelkeeper, says, 115 Me. page 194, 98 A. page 661: ‘If they were accepted, section 2 (now section 36) made him liable for theft or negligence afterwards by him or his servants. If he did not comply with the statute, it afforded him no protection as to liability for such articles. He was left under the common-law liability. But the statute provided that an innkeeper should not be liable for the value of such property in excess of $300, whether received or not.’ It is clear from this that the provision of section 36, imposing the liability for theft or negligence, applies to the articles enumerated in section 35 only after they have been received for deposit and that the limitation of three hundred dollars governs, not only the liability imposed by section 35 for the omission or failure to accept the articles, but also the liability...