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INNKEEPERS-LIABILITY TO GUESTS.

FREWEN V. PAGE.

Supreme Judicial Court of Massachusetts.

Suffolk. May 31, 1921.

131 N. E. 475.

(6) If a court may determine that the Governor is acting willfully in construing the Constitution to require him to protect the Executive Department against invasion by the Judiciary and coerce the Governor, the Governor has an equal right to determine that the court is corruptly and willfully violating the Constitution in ordering his arrest and may use the militia to coerce the court, or may, when the court makes a decision which does not accord with the views of the Governor, arrest and imprison the judge, because the executive and judicial departments are upon an exact equality with respect to a construction by either of the powers and duties of the other under the Constitution.20

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(7) If the Governor can be arrested and put upon trial for an alleged criminal act committed before he was elected, or for an act not involving a malfeasance, misfeasance, high crime or misdemeanor in office, for which he might be impeached, he can, upon the complaint of any private citizen, be arrested and put upon trial for an act of misconduct in office or the most insignificant misdemeanor upon the command of the most insignificant court, or even by a constable without a warrant for a violation of the law which has, in fact, been committed if the constable has reasonable grounds to believe the Governor committed it.21

BRALEY, J. The only reference to the evi. dence in the record is the “statement of facts," from which it appears that the plaintiffs, who are husband and wife, were accepted as guests at the Hotel Langham, managed and kept by the defendant George H. Page, and the question whether they had been properly registered, as required by St. 1918, c. 259, § 5, has been answered in the affirmative by the jury. A finding would have been warranted that while in bed in a room assigned to them, to which they had been escorted and given a key, three employees of the defendant entered, followed by the defendant with a police officer, and although ord red to leave the hotel, the plaintiffs refus compliance with the order, and that evidence was offered “of an assault, of false imprison. ment, and slander, all incidental to the plain. tiffs' right to the quiet enjoyment of their room, but the defendant offered evidence to dispute this." We assume that this summary refers to what took place after the defendant came in and that the jury could find he acted as the proprietor in control of the hotel, and the employees and police officer were present at his direction and solicitation.

The action is in tort or contract. But at the plaintiffs' election by order of the court on motion of the defendant, the cases were submitted to the jury on the counts in contract, and gen. eral verdicts were returned for the plaintiffs. The jury having specially found that the plaintiffs had duly registered, they were rightly in occupation The defendant's fifth and sixth requests, that if the defendants were violating the law in occupying a room without having been properly registered “that are precluded from recovering for any injury suffered while in the room," and the defendant was "justified in entering the room for the purpose of learning whether the law had been complied with,

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and, if the occupants refused to assist him, he is justified in assuming that their presence is unlawful, and can use any reasonable means to remove them,” are no longer material. See St. 1918, c. 259, § 5.

The questions raised by the seventh request, whether the defendant was "responsible for the acts of the police officer done by the police officer while in the performance of his lawful duty," and "that the police officer was acting within the scope of his lawful duty in entering the room *** to investigate into the right of their presence there,” were for the jury under suitable instructions. Mason v. Jacot, 235 Mass. 521, 127 N. E. 331.

The eighth request, that if the defendant had no intention of frightening the plaintiffs, but merely went to the room to ascertain whether they "had a right to be there," he is not responsible "for her fright, or the consequent injury to her health,” is not supported by any legal presumption. The deferdart was not justi. fied in assuming the plaintiffs were not registered. The hotel registry disclosed their names, and he could not for this reason intrude upon their privacy. Sampson v. Henry, 11 Pick. 379, 387. It is necessary, however, to ascertain the respective rights of the parties upon which the defendant's remaining requests must rest. The defendant urges that consequential damages for breach of contract are limited to such damages as were within the contemplation of the parties at the time of entering into the agreement. But it was held in Dickinson v. Winchester, 4 Cush. 114, 121 (50 Am. Dec. 760), that a plaintiff who had lost a trunk and its contents while a guest at the defendant's hotel could declare in case of assumpsit.

“The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise.” Vannah v. Hart Private Hospital, 228 Mass. 132, 117 N. E. 328, L. R. A. 1918A, 1157; Norcross v. Norcross, 53 Me. 163.

The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse and unjustifiable interference, whether exerted by the defendant or his servants, or those under his control, or acting under his orders. The plaintiffs, having duly registered and been put in possession of a room for their exclusive use, had the right of occupation for all lawful purposes until va. cated, subject only to the access of the de. fendant at reasonable times, and in a proper manner, for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated,

controlling emergency. Com. v. Power, 7 Metc. 596, 601, 41 Am. Dec. 465; Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Lehnen v. Hines, 88 Kan. 58, 127 Pac. 612, 42 L. R. A. (N. S.) 830.

If without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice, or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in damages if excessive force, or coercion, or intimidation was used, or his conduct towards the plaintiffs was abusive, insult. ing, and wanting in ordinary respect and de. cency. And his tenth request, that if as owner of the hotel he entered the room "for the pur. pose of inspecting the same and seeing that the rules of the hotel, and all statutory regulations were complied with, then he was acting within the scope of his legal right and was not a tres. passer,” is not supported by the record. The judge's instructions are not stated, and it must be inferred as against the excepting party that they were correct and sufficient. Khron V. Brock, 144 Mass. 516, 519, 11 N. E. 748. The jury could find that after entering the room he engaged in the wrongful acts charged without justification or excuse. See Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724. The general law is well settled. The guest is entitled to respectful and considerate treatment at the hands of the innkeeper and his employees and servants, and this right created an implied obligation that neither the innkeeper nor his servants will abuse or insult the guest, or engage in any conduct or speech which may unreasonably subject him to physical discomfort, or distress of mind, or imperil his safety. Lehnen v. Hines, 88 Kan. 58, 127 Pac. 612, 42 L. R. A. (N. S.) 830; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21. L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Morningstar v. Lafayette Hotel Co., 211 N. Y. 465, 105 N. E. 656, 52 L. R. A. (N. S.) 940; McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 514, 39 Am. St. Rep. 699; 13 R. C. L. Innkeepers, s 11 and notes. And he can recover damages for injury to his feelings resulting from the humiliation to which he has been subjected. Clancy v. Barker, 71 Neb. 83, 98 N. W. 440, 103 N. W. 446, 69 L. R. A. (N. S.) 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682; Aaron v. Ward, 203 N. Y, 351, 96 N. E. 736, 38 L. R. A. (N. S.) 204; Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503; De Wolf v. Ford, 193 N. Y. 397, 401, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am.

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St. Rep. 969; Head v. Georgia Pacific Railroad, humiliation, but could only recover for the val79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434. ue of the room," even when read in connection The plaintiffs are not shown to have annoyed with the special answers of the jury to quesor disturbed other guests, or to have improper- tions propounded by the defendant and submit. ly demeaned themselves, or to have violated any ted at his request, is covered by what has been rules of the hotel, and under suitable instruc- said, and the defendant having failed to show tions the jury on conflicting evidence could find reversible error, the exceptions should be overthe defendant had been guilty of assault, false ruled. imprisonment and slander, by "words spoken So ordered. *** imputing crime.” It follows that the plaintiff's four requests,

NOTE.Liability of Innkeeper for Invasion of

Guest's Right of Privacy.—The business of an that if they were unlawfully restrained of their

innkeeper is quasi public, and he is bound to liberty, the defendant is liable in damages, and respect the convenience, privacy, safety and comif he incited, encouraged, or countenanced the fort of his guests, and to courtesy and respect

ful treatment. Hurd v. Hotel Astor Co., 182 presence and acts of the officer he is liable there.

App. Div. 49, 169 N. Y. Supp. 359. for, and that damages may be assessed for hu

The right of a guest to the use and possession miliation and injury to the plaintiff's feelings,

of his room is subject to such emergent and as well as for unwarranted disturbance of his occasional entries as the innkeeper and his servright of privacy and exclusive use of the room ants may find it necessary to make in the reafor himself and wife, and that even if the entry

sonable discharge of their duties. De Wolf v.

Ford, 193 N. Y. 397, 86 N. E. 527. of the defendant arose from scme mistake made

In the last cited case the Court said: “As a by him or his agents “in his records,” such mis

guest for hire in the inn of the defendants, the take would not amount to a justification, were

plaintiff was entitled to the exclusive and peaceunexceptionable. The defendant's ninth

able possession of the room assigned to her, subquest, that if the plaintiff suffered no physical ject only to such proper intrusions by the deinjury, “she cannot recover for mental suffer

fendants and their servants as may have been

necessary in the regular and orderly conduct of ing," was properly denied. As we have said,

the inn, or under some commanding emergency. he could not treat the plaintiffs with contume

But for all other purposes, 'their occasional or ly by the use of insolent language concerning regular entries into the plaintiff's room were subthem, specifically set forth in the declaration, ject to the fundamental consideration that it was, and referred to, and characterized in the record

for the time being, her room, and that she was

entitled to respectful and considerate treatment as "slander," which the jury could say caused

at their hands. Such treatment necessarily imthe plaintiffs not only physical annoyance and plied an observance by the defendants of the discomfort, but also worry and distress of mind. proprieties as to the time and manner of enterDe Wolf v. Ford, 193 N. Y. 397, 401, 86 N. E.

ing the plaintiff's room, and of civil deportment

towards her when such an entry was either neces527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep.

sary or proper." 969. The defendant's duty in this respect is

Where the servant of an innkeeper forcibly analogous to that of a common carrier of pas

entered a guest's room, insulted her, etc., the sengers. Com. v. Power, 7 Metc. 596, 601, 41 guest may recover either on the theory of a tort Am. Dec. 465; Jackson v. Old Colony Street or breach of contract. Boyce v. Greeley, Square

Hotel Co., 228 N. Y. 106, 126 N. E. 647, affg. 168 Railway, 206 Mass. 477, 485, 92 N. E. 725, 30

N. Y. Supp. 191. L. R. A. (N. S.) 1046, 19 Ann. Cas. 615; Gorman v. Southern Pacific Co., 97 Cal. 1, 31 Pac. 1112, 33 Am. St. Rep. 157. In uttering incrim

BOOK REVIEW. inating words in the presence of his servants and the police officer, the defendant violated BERRY ON AUTOMOBILES-THIRD his contractual obligation to the plaintiffs as

EDITION. guests, of courtesy and respectful treatment, and freedom from humiliation, contempt and No subject of the law has grown faster in ridicule arising from slanderous verbal attacks. the last few years than the law relating to

We are therefore of opinion that the cases automobile traffic. To the student of legal come within the doctrine of Bryant v. Rich, history this phenomenon is interesting 106 Mass. 180, 8 Am. Rep. 311, and kindred de- he sees passing before his very eyes thar cisions, and the plaintiffs can recover in con- which occurred in analogous cases hundreds tract, as fully as if they had sued in tort. The of years ago. The development of the law final request, that they “could not recover on merchant, of master and servant, of railroads, their counts in contract for any damages result- of electricity, etc., were in the same way the ing from words spoken, the slander, the false application of old principles to new situations imprisonment, assault and battery, or for the created by the advancement of commerce, art

as

Collisions with Street Cars; 18, Collisions with Railroads; 19, Collisions Between Automobiles; 20, Collisions of Automobiles with Other Vehicles and with Animals; 21, Injuries from Defective Highways; 22, Measure of Re. covery for Damage to Automobile; 23, Evidence of Speed and as to Stopping; 24, The Chauffeur; 25, Liability of Owner When Automobile is Operated by Another; 26, Liability of Owner When Automobile is Operated by Member of Family or Guest; 27, Liability of Owner for Injuries to Chauffeur; 28, The Garage; 29, Filling Stations; 30, The Garage Man and the Repair Man; 31, Sales; 32, The Agent and the Manufacturer; 33, Liability of Manufacturer for Injuries Caused by Defective Automobile; 34, Automobile in Public Service; 35, Violation of Police Regulations and Prosecution Therefor; 36, Insurance.

The feature of the earlier editions maintained in the new is that the classification is according to the facts in each case. The sec. tion sub-headings are frequent and subdivide the facts minutely so that it is often possible for an attorney to get a case on "all fours" with his own.

and invention, as well as changes in the mode of living. The common law is so elastic that it is able to fit any new situation in society and if the fiction that it constitutes a reservoir of principles to fit every possible situation which it is the duty of the court to discover has been exploded, yet the action of the judges in applying old principles to new situations is not conscious judicial legislation. There is always the attempt on the part of the judges to weave the new law into the warp and wooi of the old, so that the law still shall be as it always has been considered to be, one homologous structure.

The law relating to automobiles is the application of principles of negligence, agency and master and servant to the motor-driven vehicle. There have necessarily been some pulling and stretching to make the old principles to fit the new situations, but the variations have not been as great or as numerous as one would be led to suppose.

These reflections have been prompted by examination we have just made of the thira edition of Mr. C. P. Berry's work on Automobiles, which has just come from the press. Mr. Berry's second edition was a very good book, but the third edition has been revised so carefully and the scope so greatly enlarged that we are now prepared to say that from the practitioner's standpoint, it is the best work on the subject of automobiles which we have examined.

Besides being entirely rewritten, completely revised and brought up to date, this new edi. tion contains six more chapters than the previous edition, and double the amount of material. The work is exhaustive and complete, covering the whole field of Automobile Law in its entirety. All the new phases of the law, such as Filling Stations, Jitneys, Insurance, etc., have been exhaustively dealt with.

A list of the chapter headings will give some idea of the wide range of the questions discussed in this treatise. They are as follows: 1, Definition and History; 2, Legal Status; 3, State Police Regulations; 4, Municipal or Local Police Regulations; 5, State License Laws; 6, Municipal or Local License Laws; 7, Federal Laws Affecting the Automobile; 8, Rights and Duties on the Highway Generally; 9, Regulation and Licensing-Failure to Comply with Law; 10, Regulatory Terms Defined; 11, Injuries to Pedestrians; 12, Injuries to Persons Boarding and Alighting from Street Cars; 13, Injuries to Children; 14, Injuries to Persons Employed in Streets; 15, Injuries to Occupant of Automobile; 16, Frightening Horses; 17,

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CORRESPONDENCE.

COMPETENCY OF COURTS TO DECIDE

SCIENTIFIC QUESTIONS

In general the blunders of the Federal Courts on such elementary matters result from heedlessness in the reversal of the deliberate opinion of the trained engineer examiners of the Patent Office upon engineering questions which the examiners are conversant with while the courts as now constituted are not.

Should the builder erect concrete buildings on the pseudo equitable principle enunciated by the 8th C. C. A., i. e., putting the steel in the top of a floor is the plain mechanical equivalent of putting it in the bottom, would not the public insist upon re-enactment of the old Building Code Law of Hamurabi to the effect that, if a builder constructs a house and the work be not firm and it falls and kills the owner thereof, then shall the builder's life be forfeited therefor.

And yet the lawyer would have the layman believe that we now have a practical system for the encouragement of all the scientific arts!

Yours very truly,

C. A. P. TURNER. Minneapolis, Minn.

HUMOR OF THE LAW.

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"Shay, offisher, wheresh th' corner?”

"You're standing on it.” “ 'S no wonder I couldn't find it.”Pupper.

Editor, Central Law Journal:

Your issue of August 12th, on page 96, quotes a statement of Dean Roscoe Pound, of Harvard: “There is a growing disposition on the part of every , learned profession to question the competency of the lawyer to determine scientific problems.” Is it a growing disposition or a known fact?

Relative to resistance of materials the Federal Reporter furnishes ample evidence that the knowledge of the geography of strain possessed by the Federal Judge presents the same lack of precision evidenced by the college freshman's definition of longitude as the distance East and West of the Equator.

The mental dead reckoning of longitude by this definition leaves us somewhere in the regions of nowhere, just as do our court decisions on the engineering phases of the patent case. Thus, in the Third Circuit we have four judges holding that all the engineer does in designing concrete is to put steel in where strains come in defiance of the law of rigidities and least work. We find in the Eighth Circuit a fusion of applied shear force with shear strain. In comparing two cases where the applied forces are the same, in one the shear strain is zero next to the support (proportional to the sum of the moment areas) and in the other a maximum at the support for the same reason because the bending moments

the same sign throughout in the latter case and in the former they are of opposite signs over and between the supports. Yet, the court held that the shear strains were greatest at the support where they are zero and the two cases alike; in other words, that nothing equals something. The maximum shear strain in one case would be about one-fifth as great as in the other and the maximum value which occurs at different places was held by the court to occur at the same place. In the Third Circuit we have the finding that circular and radial strains in all directions are equivalent. The latter measures deflection—the former is related to it about as closely as the distance East or West of the Equator is to longitude.

The expressed amazement of an entire Court of Appeals at the statement that a floor bends or deflects under load disclosed a mental grasp of the subject of resistance of materials far inferior to that possessed years before the Christian Era.

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Early in his career as a lawyer, Chief Justice White was once called upon to defend a man who had stolen a pair of pants. The man was seated with his legs under a large table, when Mr. White sat down and asked him something about the case. The man was most reticent. Finally the lawyer for the other side called the accused to take the stand. The prisoner turned to Mr. White and said:

"Jedge, I don't want to take the stand."

"Why not?" asked Mr. White. "You're perfectly innocent, aren't you?"

Yes, sir, I'se perfectly innocent as long as I sit with my feet under the table, but if I get up on the stand-oh Lord, Jedge, the trouble is I'se got them pants on!”

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