Rarrick v. Browne
| Decision Date | 30 March 1949 |
| Docket Number | 31509. |
| Citation | 85 N.E.2d 386,151 Ohio St. 276 |
| Parties | RARRICK v. BROWNE et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. At common law the relation of an innkeeper to his guest is practically that of an insurer of his guest's property while on the innkeeper's premises; and the innkeeper is liable for any loss of the guest's property on those premises unless it is alleged and proven by the innkeeper that the loss was occasioned by an act of God or of the public enemy or by negligence of the guest or occurred while the property was in the exclusive custody and control of the guest.
2. An innkeeper is liable as at common law for the loss on his premises of a guest's property, except as such liability is modified by Sections 5981, 5982 and 5983, General Code.
3. A watch and a ring are 'jewelry,' and baggage checks and parcel checks are 'valuable papers,' within the meaning of Section 5981, General Code.
4. Where he relies on Sections 5981 and 5982, General Code, to modify his common-law liability, the innkeeper must allege and prove compliance with each of the requirements of Section 5981 with respect to a safe or vault, locks or bolts on the doors and fastenings on the transoms and windows of guest rooms, and the posting of copies of the statute. If compliance with those requirements has been established Sections 5981 and 5982 are operative in losses of property of the kinds described in Section 5981, except where the guest alleges and proves that he offered to deliver the property to the innkeeper for custody in his safe or vault and the innkeeper omitted or refused to take and deposit it, to the extent that it did not exceed $500 in value, and give the guest a receipt therefor.
5. If Section 5981 is operative and there is a loss on the innkeeper's premises of any property of a guest of the kinds described in that section and the property lost was not offered to the innkeeper for custody in his safe or vault the innkeeper will be liable only if such loss was caused by the innkeeper's negligence or theft or that of his servant.
6. The guest has the burden of alleging and proving such negligence. Proof of loss by the guest will not establish a prima facie case of such negligence against the innkeeper.
7. In the absence of a statute or ordinance either forbidding the assignment of a guest to a room having a window readily accessible to anyone from the outside or requiring a screen or barrier on such window, where an innkeeper assigns a guest to a room with a window having a suitable fastener on it but no screen or other barrier to keep out intruders, where such window is readily accessible to anyone from the outside but the guest is not warned of that fact and where property of the guest is stolen from his room during the night, the trier of the facts is not justified in determining that the loss of such property was caused by the negligence of the innkeeper.
Appeal from Court of Appeals, Hamilton County.
Plaintiff filed his bill of particulars against the defendants in the Municipal Court of Cincinnati to recover for the loss of $187 cash, a watch worth $90, a ring worth $50, two baggage checks and two parcel checks. He alleged that he was a guest at the hotel operated by defendants; that during the night the foregoing items were stolen from his room; that when he discovered the loss he went promptly to the railroad depot and found that the stolen baggage checks and parcel checks had been used to secure baggage worth $387.50, a radio worth $79 and a coat worth $32; and that the foregoing $816.50 loss was caused by the negligence of defendants.
Defendants filed a statement of defense denying negligence, alleging contributory negligence of the plaintiff, and alleging also that defendants had in their hotel a metal safe or vault in good order and suitable for the custody of the items of personal property described in Section 5981, General Code, that the door of plaintiff's room had a suitable lock, that the transom and windows of that room had suitable fasteners, and that defendants had posted notices in certain enumerated places as required by Section 5981, General Code.
For reply, plaintiff filed a general denial.
The case was tried to the court which found for the plaintiff and made separate findings of fact and conclusions of law.
The court found that, because defendants failed to have a suitable fastening on a window screen, Section 5981, General Code, did not apply, but Section 5982, General Code, limited the amount recoverable to $500, and the court rendered judgment for that amount.
Defendants appealed to the Common Pleas Court which affirmed the judgment of the Municipal Court.
Defendants then appealed to the Court of Appeals which affirmed the judgment of the Common Pleas Court.
This court allowed defendants' motion to certify.
Francis Thomas Martin, Henry E. Beebe, and Charles E. Dornette, all of Cincinnati, for appellants.
Cowell & Fletcher and Richard B. Baker, all of Cincinnati, for appellee.
At common law, an innkeeper's liability for loss of a guest's property is analogous to that of a common carrier. He is an insurer of such property against all loss on his premises with the following exceptions:
1. Loss occasioned by act of God or of the public enemy.
2. Loss occasioned by negligence of the guest.
3. Loss occurring while the property is in the exclusive custody and control of the guest (for example, where not kept in the guest's room or other proper place designated by the innkeeper for safekeeping of such property).
Thus, it is usually sufficient for the guest to prove that the loss occurred on the premises of the innkeeper. In order to avoid liability for the loss, the innkeeper then has the burden of establishing by a preponderance of the evidence either that the loss was occasioned by an act of God or of the public enemy, or that it was caused by the negligence of the guest, or that it occurred while the property was in the exclusive custody and control of the guest. Fuller, Jr., v. Coats, 18 Ohio St. 343; Palace Hotel Co. v. Medart, 87 Ohio St. 130, at pages 134 and 135, 100 N.E. 317, Ann.Cas.1913E, 860. See Davidson v. Graham, 2 Ohio St. 131, at page 142.
The common-law liability of the innkeeper has been modified in Ohio only as provided for by Sections 5981, 5982 and 5983, General Code.
Sections 5981 and 5982 relate to certain specified kinds of property which are enumerated in Section 5981. Section 5983, by its terms, relates to property 'other than that described' in Sections 5981 and 5982.
Section 5981 reads:
'An innkeeper, whether a person, partnership or corporation, having in his inn a metal safe or vault in good order suitable for the custody of money, banknotes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers, and bullion, and keeping on the doors of the sleeping rooms used by his guests suitable locks or bolts, and on the transoms and windows of such rooms suitable fastenings, and keeping a copy of this section printed in distinct type conspicuously suspended in the office, ladies' parlor or sitting room, bar room, washroom and five other conspicuous places in such inn, or not less than ten conspicuous places in all therein, shall not be liable for loss or injury suffered by a guest, unless such guest has offered to deliver such property to such innkeeper for custody in such metal safe or vault, and the innkeeper has omitted or refused to take and deposit it in the safe or vault for custody and give the guest a receipt therefor.'
In considering the effect of the above section in the instant case, the first question is whether the property lost by plaintiff is all property of the kinds described in that section. Considering the words used in the statute, we believe that 'money' includes the cash lost, 'jewelry' includes the watch and ring, and 'valuable papers' includes the baggage checks and parcel checks.
Where an action is brought to recover for loss on an innkeeper's premises of property of a guest of the kinds described in Section 5981, General Code, the statute will apply only if the innkeeper alleges and proves by a preponderance of the evidence:
1. That he had in his inn a metal safe or vault in good order suitable for the custody of the property enumerated in Section 5981.
2. That he kept on the doors of the sleeping rooms used by his guests suitable locks or bolts.
3. That he kept suitable fastenings on the transoms and windows of such rooms.
4. That copies of Section 5981 were posted as therein required.
A reading of Section 5981 clearly discloses that it is operative in a particular case, only if the foregoing facts are established. It is elementary that, where a statute is so operative only if certain facts exist, the existence of the facts are conditions precedent to operation of the statute, and the party who relies on the statute has the burden of alleging and proving their existence. See Joint Board of County Com'rs v. Whisler, 82 Ohio St. 234, 92 N.E. 21.
Defendants alleged the existence of each of those facts but their existence was denied in the reply of plaintiff. The separate findings of fact are silent as to whether there was a safe or vault, whether there were fastenings on the transoms and windows, and whether there were locks or bolts on the doors unless it may be inferred that the court found the answers to those questions in the affirmative. Such inference might be drawn from the statement in the conclusions of law that Section 5981, General Code, did not apply because there was no suitable fastening on the screen. The printed record does not disclose the evidence...
To continue reading
Request your trial