
    Samuel L. Bean, Appellant, v. Simeon Ford and Samuel T. Shaw, Respondents.
    (Supreme Court, Appellate Term,
    December, 1909.)
    Bailment — Actions and defenses — Evidence and presumptions.
    Inns and innkeepers — Loss of and injury to property of guest — Property left by one not a guest.
    negligence — Actions — Trial and review — Questions for jury.
    A gratuitous bailee is liable for negligence; and negligence is a failure to exercise such care as an ordinarily prudent person would exercise in the same relationship and under like circumstances; and, ordinarily, the question of negligence is one of fact for the jury.
    Where plaintiff was not a guest of defendants’ hotel at the time he delivered a valise to the person in charge of the cheek or coat room for storage and in exchange accepted a check which recited that the valise was received as a temporary accommodation, and in terms released the defendants from all responsibility for damage by fire, water, theft or other causes, and where, upon defendants’ failure to deliver the valise when called for, plaintiff brings suit to recover the value thereof and of its contents, the ordinary rules of liability between innkeepers and their guests have no application.
    Defendants not having expressly stipulated against liability for their own negligence were liable if the loss of the valise were chargeable to that cause. .
    The inability ci defendants to produce the valise when called for was evidence of their negligence and put upon them the burden of showing either the manner of the loss of the valise or that they used due care in guarding it; and plaintiff’s prima facie case was not met by mere proof of an elaborate and careful system for the care and safe-keeping of baggage left in charge of defendants, in the absence of proof that said system had been applied in the case at bar.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Few York, ninth district, borough of Manhattan, in favor of the defendants, rendered after a trial by the court, without a jury.
    Waldo & Ball (LeRoy D. Ball, of counsel), for appellant.
    John C. Gulick, for respondents.
   Giegerich, J.

In August, 1907, the plaintiff delivered two valises to the persons in charge of the check or coat room of the Grand Union Hotel, in the borough of Manhattan, Few York city, of which, the defendants were the proprietors. The valises contained. personal property belonging to the plaintiff and of considerable value. The plaintiff was not, at the time, a guest of the hotel, but was about to leave the city; and he explained to the clerk that he was to be gone indefinitely. The plaintiff had been a guest of the hotel before and had often left valises there to be stored. In exchange for the valises he received checks on which the following clause was printed; “ This package is received as a temporary accommodation and the party accepting the check releases the hotel from all responsibility, from damage by fire, water, theft or other causes.”

Upon his return to thé city, in January, 1908, the plaintiff applied for his packages and was taken to a storeroom in another building belonging to the proprietors of the hotel, where one of the valises was found and was delivered to the plaintiff. The other valise could not be found, and this action is brought to recover the value of the missing valise and its contents.

The defendants proved that they had a regular system of dealing with baggage left in their custody. It was customary to leave it in the check or coat room for three or four "months, after which it was sent to the storeroom in the basement of the hotel, and later to a storeroom in another building owned or occupied by the defendants. It was proved that the missing valise was sent from the coat room to the room in the basement of the hotel on November 8, 1907. From that time no record of what was done with the valise was produced, and the witnesses were unable to testify from memory what, disposition had been made of that particular package. There was testimony that all the baggage in the basement storeroom was later removed to the other building, but there was a disagreement between the witnesses as to whether the removal occurred on November ninth or eight or nine days later. It was also proved by the testimony of one of the defendants’ employees that while the baggage remained in the basement of the hotel it was not under lock and key except at night; and the numerous persons delivering goods to the hotel during the day passed through the place where it was kept.

At the close of the whole case the court reserved decision and later rendered judgment for the defendants.

As the plaintiff was not a guest of the hotel at the time when he left the valise there, the ordinary rules of liability between innkeepers and their guests have no application; and the various notices to guests posted in the hotel and introduced in evidence seem also to be quite irrelevant.

Nor do we think that the clause printed on the checks, to the effect that the bailor released the hotel from all responsibility for damage arising from specified or other causes, is important. Assuming it to have been a part of the agreement and, consequently, binding on the plaintiff, it was evidently a stipulation intended to protect the bailees against damage to or loss of the goods arising from causes beyond their control and not due to their own negligence. If part of the agreement at all, this stipulation was written by -the defendants; and their own language must be construed most strongly against them. As they did not expressly stipulate against liability for their own negligence, they must be held liable for loss or damage chargeable to that cause. Magnin v. Dinsmore, 56 N. Y. 168, 114; Collins v. Burns, 63 id. 18.

The inability to produce the valise when it was called for was itself evidence of negligence on the part of the bailees (Claflin v. Meyer, 75 N. Y. 260) ; and, as they failed to show the precise manner in which the loss occurred, whether by fire, by theft, or by delivery to the wrong person, and also failed to show any record of the removal of this particular package from the hotel, or of its receipt at the storeroom in the other.building, I do not think that they could' meet the case made out by the plaintiff by proving, merely, that they had an elaborate and careful system for the care and safe-keeping of baggage left in their charge. Burnell v. N. Y. C. R. R. Co., 45 N. Y. 184, 189, 190.

Assuming that they proved that a careful system was in operation in the hotel, which may be doubted in view of the manner in which the baggage was kept in the basement, still they failed to show that the system had been applied to the particular case, inasmuch as they had no record of what was done with the missing valise after it went to the basement storeroom.

The defendants, as gratuitious bailees, were, like any other bailee, liable for negligence; and negligence is the failure to use such care as the circumstances require; and it is not very material whether the degree of care which the defendants were bound to exercise be described as slight, ordinary or great. Booth v. Litchfield, 62 Misc. Rep. 219, 282, and cases there cited. It was the care which ordinarily prudent persons would exercise in the same relationship and under the like circumstances.

Whether or not such care has been exercised is ordinarily a question of fact, to be decided by the jury, where there is one, or by the trial judge where there is not. I should, consequently, be unwilling to disturb the judgment of the trial court in the present case, if I thought the case made by the defendants was capable of sustaining the judgment in their favor. But the fact that the package was missing threw upon them the burden of showing, either the manner of its loss, or that they had used due care in guarding it (Claflin v. Meyer, supra) ; and I am satisfied they very clearly failed to sustain this burden.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Goff and Lehman, JJ., concur..

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  