In Chase Rand v. Pick Hotels, 167 Ohio St. 299, 147 N.E.2d 849 (1958), the Supreme Court of Ohio rejected imposition of a burden upon the innkeeper to inquire of its guests concerning the value of their property.Summary of this case from Nova Stylings, Inc. v. Red Roof Inns, Inc.
Decided February 11, 1958.
Innkeepers — Liability for loss of guest's property — Common-law liability as modified by statute — "Metal safe or vault" of innkeeper, construed — Section 4721.01, Revised Code — Extent of innkeeper's liability — Property received for safekeeping by special arrangement — Loss occasioned by guest's want of care — Want of care a jury question, when — Guest's failure to disclose value of goods deposited — Negligence as matter of law, when.
1. 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 4721.01, 4721.02 and 4721.03, Revised Code. (Paragraph two of the syllabus of Rarrick v. Browne, 151 Ohio St. 276, approved and followed.)
2. Safe deposit boxes of the type commonly found in banks and varying in size from 3 by 5 by 22 inches to 10 by 12 by 22 inches, each of which requires two keys to open, one retained by the depositary and the other given to the depositor of property therein, are a "metal safe or vault" within the meaning of Section 4721.01, Revised Code, and are "suitable" for the deposit of those items of property enumerated in such section.
3. Under the provisions of Section 4721.02, Revised Code, an innkeeper is not required to receive for deposit in such safe or vault items enumerated in Section 4721.01, Revised Code, in excess of $500 in value, and he is not liable for such property exceeding such value, whether received or not, in the absence of a special arrangement.
4. An innkeeper may, by special arrangement with a guest, receive for deposit in such safe or vault any property upon such terms as may be agreed upon, and the innkeeper is liable for the loss of any such property so received, where the loss is caused by the theft by or negligence of the innkeeper or his servant.
5. An innkeeper is not liable for the loss of goods deposited with him by a guest, where the loss is occasioned by the want of ordinary care on the part of the guest, and whether the guest has exercised such care is ordinarily a question of fact for the jury.
6. Where a guest deposits with an innkeeper a case containing precious stones of the value of $32,000, the guest's failure to disclose to the innkeeper the value of such contents is negligence as a matter of law precluding recovery from the innkeeper, in the event of loss, of any amount of such value in excess of that limited by Sections 4721.02 and 4721.03, Revised Code.
APPEAL from the Court of Appeals for Mahoning County.
This action was commenced in the Court of Common Pleas of Mahoning County to recover damages for the loss of a brief case allegedly containing jewelry, precious stones and diamonds valued at $32,292.30, which was deposited by an employee of the plaintiff with the defendant for safekeeping and which was not redelivered on demand.
The plaintiff, appellee herein, is a corporation organized in the state of New York and engaged in the business of buying, processing, and selling diamonds and other precious stones. It employs salesmen who travel throughout the United States to display and sell such diamonds and precious stones. The defendant, appellant herein, is an Ohio corporation operating and maintaining a hotel, called Hotel Pick-Ohio, in Youngstown, Ohio.
The employee, Mandell E. Lewis, according to the special custom of his trade of traveling salesman displaying and selling precious stones, carried with him a case similar to a brief case and with a special lock and containing boxes and wallets which held parcels of loose and polished diamonds and rings. The case was made of leather and was 14 by 17 by about 8 to 9 inches in size.
Loose diamonds were carried in the case in a special leather wallet, and rings were contained in four or five ring cases about seven by ten by one and one-quarter inches in size.
On Friday, October 29, 1954, Lewis registered as a guest of the hotel. He did not disclose to the room clerk or any other employee of the hotel that he was a jewelry salesman. During Friday afternoon, he called on various prospective customers in Youngstown and in the late afternoon returned to the hotel. Lewis, according to his testimony, went directly to the cashier's cage and said to the employee therein, "I would like to put my jewel case in the vault." He showed the employee the case, and she handed Lewis a "safety deposit envelope" which bore a number and the following printed wording:"SAFETY DEPOSIT ENVELOPE
"This check to be signed when package is deposited.
"In accepting this envelope and contents for safekeeping, we assume no liability other than that provided for in the Innkeeper's Act of this state, which has limited our liability so that in no event can we be liable for more than the amount specified in said act. The employee accepting this envelope has no authority to accept same if the contents are valued at more than the amount specified in said act.
"The contents of this envelope do not exceed a value of $ ___
"Signature of depositor __________
"Received by _____ Date _____ 19__
"Do not detach until package is called for
"Delivery only to owner after signature on duplicate check `B' is witnessed and compared.
"B Depositor's check
"This check to be signed only when package is called for and in the presence of the clerk on duty.
"Signature of depositor __________
"Delivered by _____ Date _____ 19__
"Package will be delivered only to party originally depositing it, whose signature appears on duplicate check on package."
Lewis signed the "A check" on the envelope but did not fill in the space provided for the valuation of the parcel. The cashier tore off the "B depositor's check," handed it to Lewis and called a bellboy who affixed the envelope to the brief case with staples, carried the case into a small room or vault back of the cashier's cage, and deposited it upon the floor therein. Lewis accompanied the bellboy to see that the case was placed in the room. This room was approximately five feet deep, seven or eight feet wide and seven or eight feet high. There were two sets of steel doors that gave access to the room. The inner door consisted of two parts that folded together and were locked with a key. The outer door was equipped with a combination lock. Inside the room against one wall was a bank of safe deposit boxes or vaults; 68 of these boxes were three inches high, five inches wide and 22 inches deep; two other boxes were six inches high, ten inches wide and 22 inches deep; and two others were ten and one-half inches wide, 12 inches high and 22 inches deep. Each of these boxes required two keys to open it, one retained by the management and the other given to the depositor of the property, in the same manner as safe deposit boxes are operated by banks. At the time of the deposit of the brief case by Lewis, all the boxes were in good working order. There is no question that Lewis' brief case was too large to fit into any safe deposit box. The inside door to the room was never closed, the outside door was frequently left open, and the combination lock was not then operating. Stationery and supplies used by the hotel and some checked luggage were stored in the room, and authorized employees had access thereto. Guests placing valuable packages in the safe deposit boxes also had access, when accompanied by an employee.
On Monday, November 1, 1954, Lewis presented the "B depositor's check" and requested the return of the case, but search failed to find it. On the date of the trial, it had not been recovered.
The evidence is sharply conflicting in relation to the conversation at the time of the deposit of the "jewel case" with the cashier. She contends that it was handed to her as a "brief case," and she was not informed that it contained jewelry.
Statements by Lewis at the time the brief case was determined to be missing directly contradict his account of the conversation at the time of the deposit.
The defendant offered evidence tending to show that it had complied with the provisions of Section 4721.01, Revised Code, in that it had in the hotel "a metal safe or vault in good order suitable for the custody of * * * jewelry, articles of gold and silver manufacture," and "precious stones"; that it kept on the doors of the sleeping rooms used by the guests suitable locks or bolts, and on the transoms and windows of such rooms suitable fastenings; and that it displayed a copy of this section of the Revised Code in not less than ten conspicuous places.
Defendant denies the claim of plaintiff that the room in which the brief case was deposited was a "vault" within the meaning of the statute, and that it was negligent in any way and claims that the plaintiff was guilty of contributory negligence.
The case was submitted to the jury, which returned a verdict for the plaintiff in the full amount claimed, and judgment was rendered thereon.
Upon appeal to the Court of Appeals, the judgment of the Court of Common Pleas was affirmed, one judge dissenting.
The cause is before this court on the allowance of a motion to certify the record.
Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellee.
Messrs. Manchester, Bennett, Powers Ullman and Mr. John F. Elsaesser, for appellant.
"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 [now Sections 4721.01, 4721.02 and 4721.03, Revised Code]."
These sections of the Code read as follows:
Section 4721.01. "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, bank notes, 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, barroom, washroom, and five other conspicuous places in such inn, or not less than ten conspicuous places in all, 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."
Section 4721.02. "An innkeeper shall not be obliged to receive from a guest for deposit in the safe or vault, property described in Section 4721.01 of the Revised Code exceeding a total value of five hundred dollars, and shall not be liable for such property exceeding such value whether received or not. Such innkeeper, by special arrangement with a guest may receive for deposit in such safe or vault property upon such written terms as may be agreed upon. An innkeeper shall be liable for a loss of any of such property of a guest in his inn caused by the theft or negligence of the innkeeper or his servant."
Section 4721.03. "The liability of an innkeeper whether person, partnership, or corporation, for loss of or injury to personal property placed in his care by his guests other than that described in Sections 4721.01 and 4721.02 of the Revised Code, shall be that of a depository for hire. Liability shall not exceed one hundred fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dollars for each box, bundle, or package, and contents, so placed in his care, unless he has consented in writing with such guest to assume a greater liability."
In the interest of brevity in referring thereto, the property mentioned in these sections will be labeled as follows:
" 4721.01 property," consisting of all property listed in the section, namely, money, bank notes, jewelry, articles of gold and silver manufacture, precious stones, personal ornaments, railroad mileage books or tickets, negotiable or valuable papers and bullion;
" 4721.02 property," consisting of all " 4721.01 property" not in excess of $500 in value, and any other property "specially deposited" with the innkeeper upon such written terms as agreed upon;
" 4721.03 property," consisting of trunks, valises, boxes, bundles and packages.
The trial court charged the jury that as a matter of law the bank of metal safe deposit boxes constituted "a metal safe," and that such boxes complied with the requirement of Section 4721.01, Revised Code, that innkeepers must have "a metal safe or vault." With that charge we are in accord. Concededly, the defendant had complied with the provisions of the section concerning locks and the posting of printed copies of the statute. The only remaining question is whether the safe or vault was a "suitable" one.
In his instructions to the jury, the trial judge, purporting to quote Section 4721.01, Revised Code, said:
"An innkeeper, having in his inn a metal safe or vault in good order suitable for the custody of jewelry and precious stones and other property, which I will not read to you * * *." (Emphasis added.)
On several occasions in referring to the word, the trial court said that "suitable" means suitable for taking care of the valuables of a guest.
In this we believe the court was in error. An innkeeper is not required under Section 4721.01, Revised Code, to maintain a safe or vault suitable for valuables or other property. As pointed out by Judge Taft, in Rarrick v. Browne, supra, a fur coat may be considered a "valuable." Similarly, an expensive piece of luggage, a painting by Renoir or a rare first edition may be considered a "valuable." Yet it could not be contended that these items fall within the enumerated " 4721.01 property." Nor do we believe that a brief case can be classed as " 4721.01 property."
However, from the physical description of the bank of safe deposit boxes, it is clear that they could easily have accommodated the wallets and small packets of jewels alleged to have been in the brief case. The defendant is thus absolved from its common-law liability as an insurer by its compliance with Section 4721.01, Revised Code, and the trial court was in error in submitting to the jury any question of liability thereunder.
The first sentence of Section 4721.02, Revised Code, provides that an innkeeper is not required to accept for deposit in his safe or vault " 4721.01 property" in excess of $500, and he is not liable for such property exceeding that value, whether received or not.
If, therefore, plaintiff's employee deposited "jewels," as he claims, in a "jewel case," he deposited " 4721.01 property," and plaintiff is bound by the provisions of Section 4721.02, Revised Code. The defendant in such event is liable only to the extent of $500, since it is conceded there was no written agreement to assume a greater liability.
The opinion in Rarrick v. Browne, supra, analyzes the legislative history of the three sections of the Innkeeper's Act quoted herein, and the court unanimously accepted the construction of the words, "such property," in the last sentence of Section 4721.02, Revised Code, as applying to all property mentioned in the section, " 4721.01 property" as well as "specially deposited" property. Thus the liability of an innkeeper for negligence of or theft by himself or his servant is related to each of the enumerated property items, and no recovery can be had by a guest without proof of negligence. The rule can also be applied to " 4721.03 property" as well. If this interpretation is the proper one, it would appear that a great many words were wasted in enacting the three sections.
As is indicated in the concurring opinion of Judge Matthias, however, the resolution of the single question involved in the Rarrick case did not require such an interpretation.
As pointed out in the opinion in the Rarrick case, at the time of the 1910 codification, the words, "above enumerated articles," in the last sentence of Section 4427, Revised Statutes, were replaced by the words, "such property," in Section 5982, General Code, when Sections 5981 and 5982, General Code (Sections 4721.01 and 4721.02, Revised Code), were enacted to replace it.
The writer attaches more significance to the use of the word, "such," than was attached to it in the Rarrick case. "Such" is a "descriptive and relative word, and refers to the last antecedent, unless the meaning would be impaired thereby." 40 Words and Phrases, 562; 2 Sutherland, Statutory Construction (3 Ed.), 448, Section 4921. That change, coupled with the fact that the statute was divided into two parts, indicates an intention to modify the previous enactment. It appears to the writer to be the more reasonable construction to apply the last sentence of Section 4721.02, Revised Code, only to the property described in the preceding sentence, i.e., the "specially deposited" property. As to " 4721.01 property" enumerated in the section, the innkeeper would be liable only to the extent of $500, but this liability would be as an innkeeper.
There was a conflict in the testimony as to just what was deposited with the defendant. If the trier of the facts finds that it was "jewels" in a "jewel case," or " 4721.01 property," defendant's liability for the loss is limited by Section 4721.02, Revised Code, to $500. If it is found that the deposit was not " 4721.01 property" but instead was "specially deposited" property, the defendant is liable for the value of such property if it or its servant was negligent, and the usual rules of negligence and contributory negligence are applicable. If the deposit is found to have been neither " 4721.01 property" nor "specially deposited" property, it, of necessity, would have been " 4721.03 property," and the liability of the defendant would be limited to the values prescribed in Section 4721.03.
In determining the liability of an innkeeper, the question of whether there is an obligation on the part of a guest to disclose the contents or the value of the contents of the container, whether it be "jewel case," brief case or valise, becomes important. There are apparently no Ohio cases in point.
At common law, a guest is under no obligation to disclose the contents and value of property taken into an inn, in order to impose liability on an innkeeper. Beale on Innkeepers and Hotels, 159, Section 226; Coskery v. Nagle, 83 Ga. 696, 10 S.E. 491, 20 Am. St. Rep., 333, 6 L.R.A., 483; Shoecraft v. Bailey, 25 Iowa 553; 43 Corpus Juris Secundum, 1155, Section 14.
The trend under modern statutes limiting the common-law liability of an innkeeper appears to be to the contrary, and the majority of cases hold in effect that a guest is not relieved from all responsibility in respect to his property on entering an inn. He is bound to use reasonable care and prudence in respect to its safety, so as not to expose it to unnecessary danger of loss. Read v. Amidon, 41 Vt. 15, 98 Am. Dec., 560; Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec., 654; Rubenstein v. Cruikshanks, 54 Mich. 199, 19 N.E. 954, 52 Am. Rep., 806; Stoll v. Almon C. Judd Co., 106 Conn. 551, 138 A. 479, 53 A.L.R., 1042; Beale on Innkeepers and Hotels, 152, Section 223. Such was the rule at common law in Ohio. Rarrick v. Browne, supra, at 279; Fuller v. Coats, 18 Ohio St. 343.
A number of cases outside Ohio hold that reasonable care and prudence in respect to the safety of his property require a disclosure of the value of such property by a guest if he expects to hold the innkeeper to liability in excess of that limited by statute. Roger Wurmser, Inc., v. Interstate Hotel Co. of Nebraska, 148 Neb. 660, 28 N.W.2d 405; Shiman Bros. Co., Inc., v. Nebraska National Hotel Co., 146 Neb. 47, 18 N.W.2d 551; Hagerstrom v. Brainard Hotel Corp., 45 F.2d 130; Providence Washington Ins. Co. v. Hotel Marysville, Inc., 60 Cal.App.2d 338, 140 P.2d 698; Gardner v. Jonathan Club, 35 Cal.2d 343, 217 P.2d 961.
Such a rule is the essence of reason. How can an innkeeper make a "special arrangement" to receive the property of a guest if he does not know what the property is? How can the innkeeper and guest agree on terms for such receiving? How can an innkeeper refuse to receive " 4721.01 property" in excess of $500, as he has a right to do, unless he knows the value of the property tendered? These questions are unanswerable, unless somewhere along the line there is a duty upon someone to make disclosure.
The above-cited cases announce a salutary and logical rule in imposing on the guest that duty to disclose. The failure of plaintiff's employee to make such disclosure, under the admitted facts in this case, was an act of negligence which precludes any recovery beyond the limited liability imposed by the first sentence of Section 4721.02 or by Section 4721.03, Revised Code.
The view we have taken obviates the necessity of passing on the assigned error in refusing to give the instructions requested by defendant.
Although it is arguable that, as a matter of law, the brief case deposited by plaintiff's employee can not be considered " 4721.01 property," the majority of the court is of the opinion that the cause should be remanded to the Court of Common Pleas for a determination of the question whether the property involved was " 4721.01 property" or " 4721.03 property."
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS and HERBERT, JJ., concur.
TAFT, J., concurs except as to paragraph four of the syllabus.