
    BECKER v. WARNER.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1, Innkeepers—Guest's “Jewelry and Ornaments”—Watch and Chain.
    A watch is not within Laws 1855, c. 421, amended by Laws 1883, c. 227, requiring a guest of an hotel, in order to charge the proprietor with their loss, to deposit “money, jewels, or ornaments” with the clerk for safekeeping.
    2. Same—Contributory Negligence.
    Plaintiff occupied a room on the ground floor of defendant’s hotel, with a window opening three feet above the public street. He retired about 1 o’clock at night, and there was some evidence that he was then under the influence of liquor. He left the window open, and the light burning in his room. While he was asleep, some of his effects were stolen from his room. Held, that the question of contributory negligence was for the jury.
    Appeal from circuit court, Erie county.
    Action by Louis W. Becker against Alfred S. Warner to recover damages for loss of plaintiff’s property stolen while he was a guest at defendant’s hotel. A verdict was rendered in favor of defendant. From an order granting plaintiff’s motion for a new trial, defendant appeals. Reversed.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    Moses Shire, for appellant.
    Hudson Ainsley, for respondent.
   WARD, J.

On the 20th and 21st of July, 1893, the defendant was keeping an hotel in Buffalo, known as the “Stafford House.” At that time the plaintiff (respondent here) was a guest at the hotel. He was a merchant from the country, and was there in connection with his business. On the evening of the second night, the plaintiff went out riding with some friends in the city, and remained out until about 1 o’clock. A clerk in the hotel conducted the plaintiff to his room, which was on the ground floor of the building, with a window opening on a public street, the bottom of the window being about three feet above the street. The plaintiff knew this fact. There were two clerks at the hotel, and a bell boy; one clerk leaving and the other coming on at 1 o’clock. The clerk who left saw the plaintiff come in, and testified that he had known him for some time; that he appeared as usual, but he thought he had been drinking. Albert S. Rice, the clerk who came on at 1 o’clock, testified, in substance, that he gave the plaintiff the key to his room, to which he went, accompanied by the bell boy. At 2 o’clock the clerk sent a boy around the hotel to look after it. He came back, and made a report to the clerk. Rice went and looked into the window of the plaintiff’s room, and saw him lying on his bed in his underclothes, not under cover. The window, which was sufficient to admit a person, was open, and the blinds were open. The gas in the room was burning brightly, so that everything could be seen therein, practically. Rice then went inside to the door of the plaintiff’s room, and, after a loud knocking, aroused the plaintiff, who let him in. The plaintiff appeared drowsy. His clothes were upon the floor. The plaintiff picked up his clothes, looked through them, said he had lost his watch and money. The clerk asked him if he had put down his window. He said he had not, but that the blinds were down. The bell boy was sworn, and he testified that at 2 o’clock he went around the house, and found plaintiff’s window open; the gas was burning high, and the. blinds were open; that plaintiff was lying on top of the bed, in his underclothes; that he reported the matter to the clerk; .and that they went to the door of plaintiff’s room, when they rapped three or four minutes on the door, and finally succeeded in waking the plaintiff up. The plaintiff asked him what his name was, and said that he (plaintiff) was pretty drunk when he went to bed, and told the bell boy that he ought to know better than show him to a room with the windows open. The plaintiff testified, in substance, that, when he went to the room, he had a gold watch with him, and a chain attached, and about $50 in money; that he knew he was on the ground floor, and that a man could step right into his room from the street; he did not know whether the window was open, but that the inside blinds on the window shoved up and down, and they were closed; there was a bath room connected, in which he took a bath; that, when he retired, he put his vest on a hook in the room, and his watch was in his vest pocket; he put his pants on the bedpost, and his money was in the pants pocket; that he was awakened at 2 o’clock, and he observed that these things were gone, and he never found them. As to the light, he first testified: “I left that light that night; the gas was burning at full head, and it was so burning when I woke up.” As the examination proceeded, he said he did not remember swearing to just what has been stated, but stated the fact was that, while the light was burning in his room, he had turned it partially down; that, when he awoke, he found the window wide open from the bottom, and the inside shutter had been pushed together; that, when he retired, lie did not go to look as to whether the shutters were closed or latched; that he paid no attention to the window; but persisted in saying that the blinds were closed. He denied that he was under the influence of liquor, but he admitted- that he had taken a glass or two of beer with his friends with whom he had been riding, at a saloon, before coming to the hotel.

The defendant had put the proper notice in his hotel that was required by chapter 421 of the Laws of 1855, as amended by chapter 227 of the Laws of 1883, notifying the guest that a safe had been provided in the hotel in which the money, jewels, or ornaments of the guest might be deposited, and, if they should neglect to deliver such money, jewels, or ornaments to the person in charge of the office for deposit in such safe, the proprietor of the hotel would not be liable for the loss of such jewels, money, or ornaments. The learned trial judge held that the plaintiff could not recover for the money lost, as the statute protected the defendant in that regard, but might recover the value of the watch and chain, unless the plaintiff’s negligence under the circumstances had contributed to the loss of the property; and that question was submitted to the jury, who, after being out two days, brought in a verdict for the defendant. A motion for a new trial was made upon the minutes of the judge, and the court granted a new trial, and, in a brief opinion, states the impression of the court that the verdict rendered was against the evidence, and the result of passion or prejudice on the part of the jury. The appellant insists that, under the statute cited, the defendant is riot responsible for the loss of the watch and chain, as it comes within the description of property covered by the notice that should be deposited in the safe, and cites Rosenplaenter v. Roessle, 54 N. Y. 262, 266. As there is some confusion in the cases upon this subject, it may be useful to glance at the decisions relating to it.

In Gile v. Libby, 36 Barb. 70, the action was against an innkeeper for the value of a watch and chain, gold pen and pencil case, and $25 in money. The statutory notice had been posted in the hotel, and the court held that the watch and chain were neither jewels nor ornaments, and the plaintiff might recover for those as well as the small amount of money which he had a right to keep about his person, and that the statute requiring the deposit of the money in the safe referred, not to the small amount usually carried by-guests, but to larger amounts. This was a general term decision of the First district, and was not reversed.

But in Hyatt v. Taylor, 51 Barb. 632, the Broome general term held that, as to money and jewels, the guest was not excused for retaining them to any extent. If he did, and they were stolen, he must bear the loss. This case went to the court of appeals, where the judgment was affirmed (42 N. Y. 258), and the view of the general term as to jewels and money was sustained; and we may therefore regard Gile v. Libby, as to jewels and money, overruled.

In Bernstein v. Sweeny, 33 N. Y. Super. Ct. 271, an action was brought to recover for a watch and chain and diamond shirt studs, the court held that neither a watch nor chain was, within the meaning of the statute, “a" jewel or ornament,” for the loss of which the hotel proprietor is not liable, but is protected under the statute. Allen, J., speaking for the court of appeals in Ramaley v. Leland, 43 N. Y. 539, at page 542, says:

“The statute permits the proprietor of an hotel to relieve himself from the strict common-law liability in respect to certain classes of property upon compliance with the prescribed conditions, but the exemption is limited to the particular species of property named, and, being in derogation of the common law, cannot be extended in its operations and effect by doubtful implication so as to include property not fairly within the term of the act. * * * By statute, the proprietors of hotels may provide a place of safe-keeping of money, jewels, or ornaments belonging to the guest,” etc. “A watch is neither a jewel nor ornament as these words are used and understood either in common parlance or by lexicographers. It is not used or carried as a jewel or ornament, but a timepiece or chronometer,—an article of ordinary wear by most travelers, of every class, and of daily and hourly use by all. It is as useful and necessary to the guest in his room as out of it, in the night as in the day time. It is carried for use and convenience, and not for ornament.”

In Rosenplaenter v. Roessle, supra, an action was brought to recover a lady’s bracelet, stud, hairpin, sleeve buttons, etc., which were stolen from her trunk in the Delavan House, Albany. The court held that the statutory exemptions applied to these articles, and that the plaintiff could not recover. Judge Earl, in the opinion in that case, in speaking of the cases of Gile v. Libby and Hyatt v. Taylor, supra, says as follows, at page 266:

“The law is thus settled in this state that if a guest, on retiring to bed at night, removes a watch .or jewelry from his person, or leaves money in his pocket, and neglects to deposit the same in the safe provided for that purpose, he cannot hold the landlord liable for the loss of the same, provided the notice required by statute has been posted,” etc.

In so far as the foregoing statement includes a watch, it was evidently an inadvertence on the part of the learned judge, or at least obiter. There was no watch in controversy in that case, but the question was directly up, in the same court, a short time before, in Eamaley v. Leland, supra, where an action had been brought against the Metropolitan Hotel in New York by a guest to recover the value of a watch that had been stolen from his room. We must hold that the law is correctly stated in Eamaley v. Leland, and therefore the first contention of the defendant cannot prevail.

But the defendant also .contends that he is relieved from responsibility for the loss of this watch and chain because, of the negligence of the plaintiff contributing, and without which it would not have occurred. The evidence of the intoxication of the plaintiff was received upon this question of negligence, upon the principle asserted in Walsh v. Porterfield, 87 Pa. St. 376, 378, that if the plaintiff was intoxicated, and this in any way contributed to the loss, he could not recover. It is more probable that an intoxicated man, or one whose reason and judgment is obscured by drink, may be less cautious even of property upon which he sets high value. Such, indeed, is the common experience of mankind. This question was fairly submitted to the jury by the learned trial court, and, in our judgment, was properly submitted, and the verdict of that jury should not lie disturbed.

We have stated the leading features of the evidence at some length bearing upon the question of the plaintiff’s negligence, without desiring to prejudice his case in any way upon another trial by a statement of the effect of the evidence upon this question. We simply say, without repeating the evidence, that the bare statement of that evidence must lead to the conclusion that a serious question exists as to whether the plaintiff was not so negligent as to destroy his right of recovery. A guest going to an hotel should use reasonable care and caution to protect his property and himself from the prowling night thieves that infest hotels and cities. There was evidence to go to the jury, and upon which they might act, showing that the plaintiff did not exercise that care which he should have done under the circumstances. Take the whole evidence together, and the jury might conclude that there was an open window in this room, on this summer night, into which any street thief could creep with the slightest effort, and through which he could look on a broad light that fell upon a sleeper, with his vest hanging up on a peg, containing his watch, and his pants conspicuously placed, containing his money; and that condition created by the plaintiff himself, or permitted from his negligent ignorance of the situation. It was held in Swann v. Smith, 14 Daly, 114, by the general term of the New York common pleas, that an hotel keeper was not liable for property stolen from the plaintiff’s room under the circumstances there stated, when the plaintiff had left the door unlocked, as in doing so he indicated want of ordinary care. And in Ramaley v. Leland, supra, the court say that the question whether the plaintiff could and did bolt his door was properly submitted to and passed upon by the jury, upon the question of plaintiff’s negligence. Certainly, if the failure to lock the inside door of an hotel in the plaintiff’s room was sufficient upon the question of negligence to carry the question to the jury, the circumstances in this case are sufficient.

Our attention is called to the rule that granting and refusing new trials on the minutes is a matter largely resting in the discretion of the trial court. That rule does not assist the plaintiff in this case, as the circumstances of negligence to which the evidence points are so formidable that we must review the discretion of the trial court, and reverse this order.

Nor can we discover anything in the case, or in the action of the jury, or in the length of time it took to consider the case, to justify the conclusion that the jury were governed by passion or prejudice.

The order granting a new trial should be reversed, and judgment in favor of the defendant entered upon the verdict, but without costs. All concur.  