Walpert v. Bohan

Lumpkin, J. (After stating the foregoing facts.) If one keeps an inn, and also, separate from the inn, keeps a bath-house where persons bathing in the sea change their garments [534] and leave their clothes, he is not chargeable as an innkeeper for property stolen from the bath-house. Minor v. Staples, 71 Me. 316. In the opinion in this case it is said: “We are not now speaking of bathrooms attached to or kept within hotels, but of separate buildings, erected upon the seashore, and used, not as bathrooms, but as places in which those .who bathe in the sea change their garments and leave their clothes, and other valuables, while so bathing.” In Schouler’s Bailments and Carriers (3d ed.), § 280, it is said: “One who keeps a public house may, not inconsistently, carry on a restaurant, cater to a select company, serve liquors-at a bar, keep a shaving saloon, or permit outside parties to get up a ball on his premises; and, as to strangers who avail themselves of such extraneous service, he is no innkeeper at all.” It is true that, the declaration alleges in general terms that in connection with the inn, and as a part of it, and as a part of his business at that place, the defendant maintained a certain bath-house where he was accustomed, for rent or hire, to furnish to such of his guests and the general public as desired to enjoy the pleasure and benefits of sea-bathing, bath-rooms, bathing-suits, and other bathing accessories. It does not appear, however, that the bath-house was physically connected with the inn, or was for the use of guests as such, or that becoming a guest at the inn entitled one to use the bath-house, or that conducting it was an actual part of innkeeping; but apparently it was a separate and distinct building on the seashore, where the general public, whether guests of the inn or not, could for hire obtain dressing-rooms, and other accessories of sea-bathing. We do not think this was sufficient to show that the relation of innkeeper and guest existed between the proprietor of the bath-house and those who went there for the purpose of bathing in the sea. Although the proprietor of the bath-house may have also been an inn-' keeper, operating the bath-house, it did not thereby become a part of the innkeeping. When the facts set forth show that the defendant, in reference to the transaction under consideration, is not an innkeeper, merely to call him by that name in the pleading does not determine his liability as that of an innkeeper. Ancient common-law definitions of an inn are not altogether applicable to modern conditions and methods of travel and innkeeping. Thus Lord Bacon defines an innkeeper to be “a person who makes it his business to entertain travellers and passengers, and to provide lodg [535] ings and necessaries for them and their horses and attendants.” Bae. Abr. title Inn and Inn Keepers B. New now travel with horses and attendants; nor is the entertainment of transient customers confined to actual travellers. A very good definition of an innkeeper at present is, “one who regularly keeps open a public house for lodging and entertaining transient comers, on the general expectation of his suitable recompense.” Schouler’s Bailm. §§ 279, 303. If the proprietor of a hotel should also furnish, for' hire by his guests and others, boats for rowing and sailing on a river or lake, or should maintain a public race-course or golf-links or a baseball park, where all could enter by paying an admission fee, these things would evidently not be a necessary part of keeping an inn, although they might furnish attractive sports’ which would give pleasure to guests and others. See Bonner v. Welborn, 7 Ga. 296, 304, et seq.; 16 Am. & Eng. Enc. L. (2d ed.) 509. 2, 3. While this is true, we think the presiding judge erred in dismissing the petition on general demurrer. In Bird v. Everard, 4 Misc. Rep. (N. Y.) 104, it was held that the proprietor of a bathing establishment who receives from his patrons the sum demanded for the privilege of a bath, and assumes the custody of their wearing apparel while the latter are enjoying the privileges thereof, becomes a voluntary custodian of the patrons’ apparel for profit, and is bound to exercise due care to guard against loss or theft by others having access to his establishment.with his permis-? sion; and for any loss or theft which could have been prevented by the exercise of such care, said proprietor is answerable in damages. See also Bunnell v. Stern, 122 N. Y. 539; Tombler v. Koeling, 60 Ark. 62, 46 Am. St. Rep. 146; Dilberto v. Harris, 95 Ga. 571; 7 Am. & Eng. Enc. L. (2d ed.) 321, 322, and notes. The proprietor of such an establishment, who receives the apparel or valuables of a bather for safe-keeping while the customer is bathing, and receives a consideration for this and the use of the bathroom or dressing-room and accessories to the bath, being a bailee for hire, is bound to use ordinary care, and is liable for a failure to do so. The declaration sufficiently alleged negligence on the part of the defendant or his agent, and was not subject to a general demurrer. Judgment reversed. All the Justices concur, except Fish, G. J., absent.