de Wolf v. Ford

Ingraham, J.: The complaint was dismissed upon the trial upon the ground that no cause of action was alleged. It is alleged that the plaintiff went to the defendant’s hotel with her brother and daughter and was assigned a room; that about one o’clock in the morning, when the plaintiff was occupying the room assigned to her, one of the servants, employees and agents of the defendants forced his way into the room of the plaintiff without her consent and against her protest, and in the presence of her brother and another person used towards her vile and insulting language, and,addressed to her words ■ imputing that she was guilty of improper and immoral conduct, and insulted' her in many other ways, ordered her to leave said hotel, and threatened to publish her name in the daily papers as a disreputable person. There was no allegation of an assault. The plaintiff was not put out of the hotel, and the only .wrong alleged to have been committed was that this employee forced his way into the-room. and used towards her insulting. and defamatory language. The language is not set forth. Assuming that the deféndant would be liable for a slander by the employee when engaged in carrying out the instructions of the former and within the scope of his authority, this action cannot be maintainéd as the allegations are not sufficient to justify a recovery for slander. The words used are not given'; what the servant said is merely, characterized as insulting and degrading.. To justify an action for [810] slander, the alleged defamatory words must be set',forth in full; it will not be sufficient to state the substance and effect of the words. (13 Ency. PI. & Pr. 45,. and cases cited.)' ; - The plaintiff, however, seeks to sustain the action upon the.ground of a breach of an implied contract by which an innkeeper undertakes to protect his guests from insult or injury by his employees,. and reliance is placed upon the implied contract of a common carrier. ■ In Gillespie v. Brooklyn Heights R. R. Co. (178 N. Y. 347) the ■ Court of Appeals held that an action could be maintained against a railroad company for injuries inflicted upon a passenger by the ■ defendant’s agent which consisted of insulting language. In that case the conductor called the plaintiff a “dead beat” and a “swindler” when plaintiff asked for the change to which he was entitled. It was held to be a breach of contract for the conductor to refuse to. return to the passenger the change when an amount. was given in excess' of the fare, and that there being a breach- of the contract the insult-and indignity suffered by the passenger-at the hands of the conductor, occasioning mental suffering, humiliation, wounded pride and disgrace, might be considered upon the question of damages in determining'the amount of injury occasioned by a breach óf the-contract ; that the contract between the carrier and passenger calls foi; safe carriage, for safe and respectful treatment from the carrier’s servants and from immunity from assaults by them, or by other persons if it can be prevented by them ; and that the carrier is, responsible for the insulting conduct of its servants which stops - short of - actual vileness. (See, also, Chamberlain v. Chandler, 3 Mason, 242.) Á contract that the innkeeper will protect his guests from insults has never been implied. ■ There were cited upon this question a case in the Supreme Court of California.(Rahmel v. Lehndorff, 142 Cal. 681) holding an.innkeeper not liable and one in tíre Supreme Court of Nebraska (Clancy v. Barker, 71 Neb. 83; 98 N. W. Rep. 440) which holds an imp •keeper liable for an assault committed by one of his servants upon ’ a guest.'- The Nebraska doctrine was repudiated in Clancy v. Barker (131 Fed. Rep. 161) by the United States Circuit Court of Appeals, Judge Sanborkt writing the opinion holding that the innkeeper was not responsible for an assault committed by one of his [811] employees. There was also cited a case in Pennsylvania (Rommel v. Schambacher, 120 Penn. St. 579) in the Court of Common Pleas holding an innkeeper liable for an. assault committed in one of the public rooms of a hotel upon a guest. The rule in England from the earliest time seems to have been that the obligation of an innkeeper extends only to the movables of his guests. Thus, it is said in Calye’s Case (1 Smith L. C. [8th Am. ed-,] 249, 252) that “these words bona et catalla, restrain the latter words tó extend only to moveables; and, therefore, by the latter words, if the guest be beaten in the inn, the innkeeper shall not answer for it; for the injury ought to be done to his moveables, which he brings' with him; and by the words of the writ, the .innholder ought to keep the goods and chattels of his guest, and not his person.” This case has been cited by the English courts as settling the law in relation to the liability of innkeepers. ■■ (Strauss v. County Hotel & Wine Co., L. R. 12 Q. B. Div. 27.) In the note to this case in Smith’s Leading Cases it is stated to be the leading case upon the subject of the liability of innkeepers, and I cannot find that this rule has ever been questioned in England. The distinction between the undertaking of a common carrier towards its passengers and an innkeeper towards his guests is obvious. But the rule of the English common law that the obligation • of an innkeeper towards his guests extends only to their movables and not to their persons seems to have been settled from the earliest timo, and this action, therefore, cannot be sustained as based upon a violation of contractual obligation as between the plaintiff and the proprietors of the hotel at which she was a guest. If' .the servant, when in discharge of the authority conferred upon him by a master, commits an assault, or falsely detains or imprisons a guest or performs other actionable wrongs, the question as to whether the master would be responsible for the wrongful act of the -servant done in the course of his employment and in the exercise of the authority conferred by the master, based upon the general rules of respondeat superior, is not involved upon this appeal. It is certainly not a trespass for the servants of an innkeeper to go into a room although it is assigned to a guest. In consequence of the nature of an innkeeper’s duties in relation to his whole inn, he is required to constantly have access to all of the rooms, and it cannot [812] be said that merely entering the room with or without the consent ■ of the occupant is a trespass. So far .as this action is concerned, the only actionable' injury that is alleged to have been committed was a slander by the servant, and the complaint is no.t sufficient to sustain an action for slander, even assuming that the defendant would be responsible therefor. It follows.. therefore, that the judgment appealed from must be affirmed, with costs. ' Patterson, P.( J., Clarke- and Lambert, JJ., concurred; MoLaughlin, J.,.dissented. ...