Oxford Hotel Co. v. Lind

• Decision Date: 07 February 1910
• Citation: 47 Colo. 57,107 P. 222
• Parties: OXFORD HOTEL CO. v. LIND.
• Court: Colorado Supreme Court

107 P. 222

47 Colo. 57

OXFORD HOTEL CO. v. LIND.

Supreme Court of Colorado

February 7, 1910

Appeal from County Court, City and County of Denver; Chas. E Southard, Judge.

Action by Ole Lind against the Oxford Hotel Company. From a judgment for plaintiff, defendant appeals. Reversed.

Doud &amp Fowler, for appellant.

George F. Dunklee and O. E. Jackson, for appellee.

MUSSER J.

Inasmuch as there was a verdict in favor of the plaintiff below, who is appellee here, the testimony given in his behalf, mainly his own, will alone be considered. From this it appears that the plaintiff came to the hotel of the appellant at 7 or 8 o'clock in the evening of June 9th, engaged a room, paid for it, and occupied it during the night. The plaintiff was in ill health. After engaging his room, and during the same evening, the proprietor of a sanitarium called upon him at the hotel, and arrangements were made whereby the plaintiff was to go to the sanitarium, and the proprietor was to send a conveyance to the hotel to take him there between 9 and 10 o'clock the next morning. During that evening he counted his money and separated it into two parts. The one part consisted of $200, which he intended to deposit in a bank. The other part consisted of $175, which he was going to take with him to the sanitarium. About 8 o'clock the next morning he left his room and went to the hotel counter. He there told the clerk that he was going away; that he did not want his room any more, and asked for the proprietor, by whom he wanted to send some money to a bank for deposit. The clerk asked him why he did not leave it in the safe at the hotel. The plaintiff asked if it would be all right, and the clerk assured him that it would be. Thereupon the plaintiff handed the clerk the $200 which he had intended to bank. The clerk put it in an envelope, which he sealed and on which he wrote the plaintiff's name, put it in the safe and told the plaintiff if he (the clerk) was not there another clerk would be to give him the money when plaintiff came for it. After this, and between 9 and o'clock, he left the hotel, as arranged the evening before, and proceeded to the sanitarium where he paid $50 in advance for two months' board and lodging, and deposited the other $125 with the proprietor. Here he became quite ill, and about a month after he had left the hotel he returned for the money he had deposited there. No one then employed at the hotel knew anything about the money. The clerk to whom he had given it was not then in the employ of the hotel. The plaintiff then told the manager of the hotel about the deposit of the money with the clerk. This was the first the manager knew of it. The former clerk was found, and he informed the manager and plaintiff that he could not remember that the plaintiff had deposited any money. The manager sought for the money, but it was not found. What became of it is not known. During the month after he had left the hotel the plaintiff thought of his money frequently and worried about it, but he told no one about it, nor made any effort to procure it until he went to the hotel about a month afterwards. He brought this action against the hotel company to recover his money. At the conclusion of plaintiff's case the defendant moved for a nonsuit, which motion was denied, and this ruling of the court is one of the assignments of error.

The plaintiff did not deposit his money with the clerk as a guest ordinarily deposits money with an innkeeper for safe-keeping while he is at an inn. He had separated this $200 from his other money and intended to deposit it in a bank. The other money he intended to, and did, take with him to the sanitarium to pay his expenses there and to supply himself with what he might otherwise need. The $200 was to be put in a bank for safe-keeping. At the last moment he substituted the safe of the hotel for the bank, but the safe was to answer the same purpose as the bank, namely, a safe repository for his money for an indefinite period after he left the hotel. The only further use which plaintiff intended to make of the hotel was as a place of deposit in lieu of a bank. An innkeeper is not bound to receive the goods of a person who desires the use of the inn only as a place of deposit. Arcade Hotel Co. v. Wiatt, 44 Ohio St. 32, 46, 4 N.E. 398, 58 Am.Rep. 785. To make a hotel a substitute for a bank, and to use the hotel for no other purpose, does not ordinarily occur in the course of hotel management. Such a transaction is without the ordinary duties of an innkeeper, is foreign to the ordinary management of an inn, and must therefore be based upon a special contract. The plaintiff had done all that was necessary to do so far as this deposit is concerned, at least, in order to sever the relation of innkeeper and guest, which had existed between him and the defendant. He had made arrangements to go elsewhere. He had paid for his room and had given it up. He was going away with no intention of returning as a guest. The deposit of the money was made as in a bank, and not in view of, nor in connection with, the relation of innkeeper and guest. All this he communicated to the clerk before or at the time of the deposit, and by communicating it he then and there severed his relation as a guest of the hotel, so far, at least, as such deposit was concerned.

In Wear v. Gleason, 52 Ark. 364, 12 S.W. 756, 20 Am.St.Rep. 186 Boddy, a salesman of the plaintiff, was a guest at defendant's hotel. He paid his bill, obtained a loan of $25, leaving a trunk as security. Boddy then gave defendant a duebill for the $25 received, and defendant offered to give a check for the trunk,...