Weiser v. Lane

Braley, J. The verdict for the defendant was ordered rightly. The R. L. c. 102, § 10, in force when the alleged bailment was made, after designating the class of property for the loss of which the defendant as an innholder would be liable, and limiting the amount of damages recoverable, also provides, that “this section shall not affect the innholder’s liability under the provisions of any special contract for other property deposited with him for safe keeping after being fully informed of its nature and value, nor increase his liability in case of loss by fire or overwhelming force beyond that specified in the following section,” which reads, "In case of loss by fire or overwhelming force, innholders shall be answerable to their guests only for ordinary and reasonable care in the custody of their baggage or other property.” See Mason v. Thompson, 9 Pick. 280. The plaintiff, a travelling salesman, a guest at the defendant’s hotel, rests his right of recovery for the loss of his sample case containing samples of children’s dresses to be shown to customers, on the exception just quoted. The jury undoubtedly could have found on all the evidence, none of which was improperly admitted, that the defendant’s agent with full knowledge of its value undertook at the plaintiff’s request to have the case transported from the railroad station to the hotel, where it was seen by the plaintiff in the lobby mingled with trunks and [342] other sample cases, which, as the plaintiff knew, were not permitted in the rooms of guests but were to be kept in a storage room, and that the case thereafter disappeared and has been totally lost. It also could be found that a charge of forty cents for the transportation was charged in the hotel bill and paid by the plaintiff. But when the case was delivered at the hotel and identified by the plaintiff, the service had been fully performed, and thereafter it was subject to his control and disposition. Murray v. Postal Telegraph-Cable Co. 210 Mass. 188, 194. It is manifest that no custody was asked for or undertaken by the defendant as part of the contract for the plaintiff’s board and lodging as in Coe v. Ricker, 214 Mass. 212, and, there having been no arrangement for storage or safe keeping for hire, the defendant at most was a gratuitous bailee, liable only for want of ordinary care of which the record shows no evidence. Newhall v. Paige, 10 Gray, 366. Smith v. First National Bank in Westfield, 99 Mass. 605. Rubin v. Huhn, 229 Mass. 126. Exceptions overruled.