
    NO. 7570.
    RICHARD BURKE VS ALFRED S. AMER CO. LTD.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION

By John 3t.P0.nl, Juago.

The petition charges that defendant, la an Innkeeper; that in oonneotion with its hotel it runs a public hath house; that IHiüat plaintiff was in said hath house as a guest and patron, -two of defendant'8 servants engaged in an altercation; that in the course thereof one of said servants threw a glass at the other, which struck the wall and broke, and plaintiff was injured by the flying pieces.

The defendant filed an exception of no oanse of action on the ground that the aot complained of was not within the scope of the servant's employment; which exception the court maintained and plaintiff now appeals.

II.

She soundness of the law relied upon by defendant is not questioned, but plaintiff denies its application to the case at bar. He contends that the principle applicable hern is that by which carriers, Inkeepers, and others who cater to the public, owe a special duty to their guests and patrons, towit, that of protecting them whilst on the premises against the unlawful act even of a third person, if it be in the power of the master or his servants to prevent it; and a fortiori against the unlawful aots of the very servants themselves (See 22 Cyc 1080 1081 notes 2 and 3)

III.

That there is such a.rule applicable to Carriers, was established by the overwhelming weight of authority more than 80 years ago (See note to Ware vs Barataria Co, 35 Am. Dec. 189, 201) and it was applied to carriers by our own Supreme Court repeatedly. See, Williams vs Pulman Car Co, 40 An 417; Block vs Bannerman 10 An 1; Lafitte vs N. O. City & Lake R. R. Co 43 An 34.

IV.

Thera is however some conflict of authority as to whether the rule is striotly applicable to inkeepers and others who cater to the publio.

In Rahmel vs Lehndorff, 142 Calif 681, 65 L. R. A 88, the rule was held inapplicable to an lnkkeeper where a waiter had# assaulted and beaten a guest seated at a dining table. And in Curtis vs Dinneen, 4 N. Dakota 245, 30 N. W. Rep 148, the rule was heldAapplloable where a guest was maltreated by the husband of a woman innkeeper.

In Clancy vs Barker, 66 C. C. A. 469, 69 L R A 653, the U. S. Circuit Court of Appeals held that the rule did not apply to an inkeeper where a child, stopping at a hotel with its parents, was accidently shot and injured in the hotel by two bell boys who wore then off duty.

But in the very same case the Supreme Court of Hebraska, both on first hearing and on rehearing, held that the rule did apply to inkeepers and others of that sort. (See 98 N. W. 440; 1307 69 L. R. A. 642 & 648).

Also in Bommel vs Sohambaoher, 120 Penn state 579, 6 Am. State Hep 782, the rule was held applicable to the proprietor of a saloon who permitted one intoxicated guest to set fire to the olothing of another.

Likewise in Curran vs Olson, 88 Minn 307, 60 L. R. A 788, the rule was held applicable to the proprietor of a saloon whose bar-keeper permitted a practical joker to pour alcohol in the foot of a sleeping patron and set ########## it afire.

Again in Dickson vs Waldron, 135 Indiana 507, 24 L. R. A 483, the rule was held applicable to a Theatre Manager, where a patron was maltreated by a tioket seller and a watchman in a quarrel over ohange.

T.

m the three first mentioned opinions the doctrine contended for by da fondant was applied; towit, that the aot of the servant was beyond the scope o-f his employment and henos the master was not answerable•

In the fonr last mentioned opinions the rule applied was that the ttíéitté innkeeper or other oaterer to the publio, owed protection to his guests, and patrons even against the unlawful aots of third persons, when preventable, and a fortiori against the aots of his own servants*

71.

a From the foregoing it la manifest that there is a oonfllot to of authority as ###whether or not a rule, admittedly applicable to common carriers, extends to'innkeepers and others who aster to the publlo. And we have but to ohooae between these oonfliota and give our reasons for. so doing.

We think that rule followed by the Supreme Courtfof Indiana, Minnesota, Pennsylvania and Nebraska preferable to that followed by the Supreme CourtJof Horth Dafcatah and California, and the United states Court of Appeal.

We think so for these reasons;

1. Because the rule is not an unreasonable one; it does not require the innkeeper or caterer to insure his guests and patrons against all injury whatkwwr but simply against suoh as the master and. hie serrante oatt prevent; and some enoh rule la neoessary for the protection of guests and patrons of suoh establishments.

May 1919.

2. Beoause this rule aooorda with the prlneiples of Civil law, of Ooramon law, and of our on Civil Code, all of which hold the master responsible for the polloe of his own premises* Digest Lib 9, Tit 3; Blackstone Vol 1 p. 431; La Civil Code Art 177.

3. Beoause the mile is admittedly applioable to Carriers, and under the Civil Lawr as well as under our Code, the liability of Hi Innkeepers and carriers is exaetly the same. Digest Lib 4, fit 9; La Civil Code Art 2751. And under the French law this similarity extends to keepers of restaurants, ctffee houses, public baths etc. Sourdat de la Responsability Vol 2 p. 170 Section 939; Merlin, Questions de Droit, Vol 5 p. 187, Verbo Depot Necessaire; Troplong, du Depot, No. 229.

4. Beoause the modern tendency is undoubtedly towards thds rule, which we find approved in the following cases amongst others, though not strictly necessary for the decision thereof, towit, Lehnen vs Hines, 88 Kans 58, 42 L. R. A. N. S 830, DeWolf vs Ford, 193 N. Y. 397, 21 L R A N S 860.

The judgment appealed from is therefore reversed, and it is now ordered that the exception of no oause of action be overruled and the oase remanded to the court a qua for further proceedings according to law; defendant to pay coats of this appeal, and the other oosts to await final judgment.

. New Orleans, La,  