
    *Edward Fuller, Jun., v. Charles Coats et al.
    1. A judgment will not be reversed on the ground that incompetent evidence has been given to the jury, where it clearly appears from the record that it does not prejudice the party objecting thereto.
    2. Where a guest at an inn takes his goods from his room, and from the ordinary care and custody of the innkeeper, into his own exclusive custody and control, and they are lost from the inn while so in his custody, the innkeeper is not responsible for the loss.
    
      3. Where an innkeeper, for the purpose of securing the safety of.the goods of his guests, makes a reasonable and proper rule or requirement, to be observed by them, or he will not be responsible therefor, and the goods of a guest having knowledge of the rule are lost from the inn solely by reason of his neglect to comply therewith, the innkeeper is not liable for the loss thus occasioned by the negligence of the guest.
    4. Where a guest at an inn takes his goods from his room into his personal custody, and puts them into a place in the inn not designated by the innkeeper, and without his knowledge, and such place is one unusual, and manifestly hazardous and improper therefor, and they are thereby lost, the innkeeper is not liable for the loss.
    Error to the court of common pleas of Cuyahoga county. Reserved in the district court.
    The original action was brought by the plaintiff to recover of the defendants the value of an overcoat and articles in the pockets thereof, alleged to have been lost from the hotel of the defendants while the plaintiff was a guest therein. The petition contains the ■ordinary averments to charge upon the innkeepers a liability for the loss of the goods of their guest.
    The answer denies the material averments in the petition; and, by way of defense, alleges that the defendants “had prepared a place in their office for the deposit of overcoats, and other articles of personal, apparel not left in the rooms as baggage, and kept there .a person to receive such articles and give to the owner a check therefor, and they required guests to so deposit such articles; of all which the plaintiff had notice; that the plaintiff neglected and ■omittéd to leave his overcoat, with its contents, in the custody of ■defendants, but carelessly and negligently hung the same up in the open hall of the inn without any notice to the defendants, and without any knowledge on their part that he had so negligently exposed the same; and that while so carelessly exposed by the plaintiff, said overcoat was, without the knowledge or fault of the ■defendants, stolen, as- they suppose. And so the defendants say 344] *that said overcoat was lost through and by reason of carelessness and negligence of the plaintiff, and that the negligence of the plaintiff contributed to the loss thereof.”
    The plaintiff denies, in his reply, that he had “notice that defendants required their guests to deposit overcoats in a place which defendants had prepared for that purpose; and denies that he negligently or carelessly left said overcoat in an open hall, or that he in any way, by any carelessness of himself, contributed to its loss.”
    The case was tried to a jury. On the trial the plaintiff proved that he was a guest at the hotel of the defendants on the 12th of December, 1865, when the coat was lost; that ho came down from his room, late in the morning, to breakfast, with his overcoat, and, instead of going to the office, he hung up his coat in the hall, where there were three or four rows of hooks, and went into breakfast from the hall; and that when he came out his coat was gone. The plaintiff testified, on cross-examination, that he knew there was a place at the office where carpet-bags and coats were taken and checks given therefor, and that he had before deposited coats at the •office.
    One of the defendants testified that they kept a place back of the counter, in the offiee, where they kept and checked coats and satchels; that he had frequently checked the plaintiff’s satchel there before the 12th of December; that they kept some one there to receive these articles and give cheeks therefor; that the plaintiff had stayed there at different times before for several days at a time; and that when the coat was lost, a general search was made for it, and it could not be found; that the hooks in the hall were hats, and were placed in three or four rows, beginning two or three feet from the floor; that they had large printed notices in the office •and some other rooms (but not in the hall), that “persons stopping .at this hotel will please have their baggage checked, carpet-bags, .and coats; and if they have any diamonds, precious stones, watches, or jewelry, they must, be kept in the office, in order to make the proprietors responsible.”
    There was no direct proof that the attention of the plaintiff was •called to these notices, or that they came to his knowledge. One *end of the hall, where the plaintiff huDg his coat, opens into [845 "the dining-room, and the other into the street. There is a door from the hall into the office.
    It was shown that 'the daily average of guests at the hotel was from seventy-five to eighty.
    There was placed in the sleeping-rooms of the hotel, and in the one occupied by the plaintiff, a card containing the rules of the house. The seventh rule was as follows: “ The proprietor will not hold him responsible for any article unless put in his charge.”
    Evidence was given tending to show that there was a general usage among the keepers of hotels to have a place to keep coat» and require them to be cheeked, or the proprietor would not be responsible, and that such a rule was necessary.
    The plaintiff testified, in rebutting the evidence of the defendants, that ho never read the notices in the hotel until after his coat was lost, nor did he know that the defendants had a rule that they would not be responsible unless a check was taken for coats, nor did he know of any such custom in the city; but knew that guests frequently took checks for coats there and at other hotels. He saw the card in his room, but did not read it.
    The court charged the jury as follows:
    “1. An innkeeper is liable as an insurer of the goods of his guest committed to his care, against everything but the act of God or the public enemy, or the fraud or neglect of the guest himself, or his own servants or his traveling companion. The innkeeper is liable for a loss occasioned by his own servants, by his other guests, by robbery or burglary, or by rioters or mobs.
    “As it is not claimed that the act of God, the public enemy, the traveling companion, or servant of the guest, occasioned the loss in this case, the only question for your consideration is, whether the plaintiff’s own negligence caused, or directly contributed to, the loss'of the property.
    “2. In legal contemplation, the property of a guest within the rooms of a public hotel is in the possession and under the control of the landlord or proprietor, in such a sense as to place it in his 346] care, and subject him to responsibility for its *loss, unless the guest, or his servant, or agent, or traveling companion, has it in his own personal and exclusive keeping and care.
    “ 3. If the coat was not left in the care or custody of the landlord, or his agents and servants, but was in the sole and exclusive keeping and custody of the plaintiff at the time of the loss, the defendants are not liable for its loss, it not being claimed that it was taken from the plaintiff’s room.
    “4. The defendants had a right to require that the plaintiff should place his overcoat, etc., in a designated place in the office, or keep it in his own room when it is not on his own person, or in his own personal custody; and if they did so require, and brought this requirement to the knowledge of the plaintiff; and if you shall find that the requirement was a reasonable one, and that the property was lost in consequence of the refusal or neglect of the plaintiff to comply with such reasonable precaution, he is not entitled to recover in this action.
    “ 5. The defendants had the right to make reasonable rules and regulations for their own protection, and to limit, to some extent, their liability; but, in order to so limit their liability in this case, it must be shown that the knowledge of the existence of such a. rule or regulation was brought home to the plaintiff before the loss-of his property.
    “ 6. A printed request merely posted in the rooms of the house, requesting or asking guests to leave their overcoats, carpet-sacks, or other baggage in the care of the landlord or his servants in the-office, will not relieve the defendants from liability in case of its loss. To have this effect, the notice must state in clear and unequivocal terms that they will not be responsible for the loss unless the property is left in the office, or other designated place; and must be brought to the knowledge of the guest.
    
      “7. If the coat was taken into the plaintiff’s own personal custody. and put or kept by him in a place not designated by the defendants, or their servants, and not kept for such purposes, and the attention of the defendants, one or any of their servants, was not called to it; and it was an unusual and manifestly hazardous and improper place to lay or hang such an ^article, and it was ["347 thereby lost, the defendants are not liable for such loss.
    “ 8. If you find from the evidence that the coat was lost by reason of the negligence of the plaintiff to exercise ordinary care for its safety, it is admitted by the counsel that the defendants are not responsible for its loss. But the duty of determining what would constitute ordinary care in the premises, is to be determined by you in view of all the facts and circumstances of the case. You may take into consideration the throng of comers and goers, or the-sparseness of population in the vicinity of the hotel, and taking-also into consideration that the guest has a right, at all times, toprosume that the innkeeper is exercising such care of the baggage-of his guest as the law requires him to exercise.”
    “And the plaintiff asked the court further to charge the jury: that the responsibility of the innkeeper attaches to all the goods of his guest, except while they are on his person, or are deposited by the guest in such place as will imply bad faith on his part; and that an innkeeper can not relieve himself to any extent from this responsibility, by a mere notice to his guest that he proposes to relieve himself from it; nor can he relieve himself except by getting the consent of the guest. Which request to charge, as made by the -plaintiff, the court refused to give; and the plaintiff excepted, as '.well as to the charge given by the court.”
    The jury returned a verdict for the defendants. The plaintiff moved for a new trial, on the ground that the verdict was against ■the law and against the evidence; that the court erred in overruling plaintiff’s objections to questions propounded by the-defendants to their witnesses; and that the court erred in the charge to the jury ,.and in refusing to charge as requested.
    The court overruled the motion for a new trial; to which exception was taken.
    The defendants filed in the district court their petition in error -to reverse the judgment of the common pleas, and assigned for ¡■error the overruling the motion for a new trial, and the grounds -alleged in that motion, as error.
    The district court reserved the case for decision in this court.
    
      *Hutchins & Ingersoll, for plaintiff in error:
    1. The court of common pleas erred in the illegal admission of ¡evidence during the trial.
    2. Also in the first paragraph of the fourth proposition of the charge to the jury, and in the seventh proposition of the charge. ■Also in refusing to charge as requested by the plaintiff.
    Upon the charge given and the points refused, we claim:
    (1.) At common law the degree or kind of care required of an innkeeper is the highest kind of cafe known to the law, like that required of a common carrier, and it is imposed by public policy. 1 Smith’s Lead. Cas. 265, 267; 33 N. H. 553; 31 Maine, 478; Edwards on Bailments, 403. And the cases reported do not require a formal delivery of the goods to the innkeeper. It is held sufficient that the goods are placed “ infra hospitium.” 2 Kent’s Com. 760; Story on Bailments, sec. 479; 2 Met. (Ky.) 439 ; 2 Barn. & Ad. 803.
    (2.) May an innkeeper limit this responsibility, or excuse him.-self from it, by a notice, even when it is brought home to the knowledge of the guest ?
    We are not aware that this exact question has ever been before •the Supreme Court of Ohio; but the analogous question — that in -regard to common carriers — has been adjudicated. And this court ¡has held that a notice, even when brought to the knowledge of the consignee of freight, will not excuse the carrier. The reason given is that the obligation of the carrier to exercise the highest care is imposed by public policy, and public policy forbids that a carrier be allowed to remit, in any degree, his care of the property intrusted-to him. But by obtaining the distinct assent of the shipper, a carrier may limit his liability so as to be relieved from loss arising from, the acts of others, as to which he is, at common law, an insurer. Davidson v. Graham, 2 Ohio St. 131.
    If we are correct in the position that the responsibility of the innkeeper is one imposed by public policy, it seems very plain that it' should abide by the same rule as that laid down for common carriers.
    In 17 Ill. 302, it is held that a guest is not bound to conform to-such a notice.
    But upon the merits of the case, even if it be hold that an innkeeper may limit his liability by a notice brought home [349 to the guest, we claim the issue is with the plaintiff, and should have been so found by the i ury. A mere request does not bind a guest 2 Met. (Ky.) 439.
    Again. The legislature has seen fit to say that innkeepers may limit their liability for certain property of their guests by doing' certain things, taking proper precautions; but overcoats are not embraced in the list for which the statute provides. S. & C. 1425. But the defendants did not fulfill the requisitions of the statute im their ease.
    
      Backus & Estep, for defendants in error.
    The Reporter finds no brief for defendants in error among the papers.
   Day, C. J.

Three classes of questions are raised in this case in-, which, it is claimed, the court below erred: 1. In permitting the-defendant to ask his witnesses on the trial illegal questions; 2. In’ the refusal of the court to charge the jury as requested by the-plaintiff, and in the charge given; 3. In overruling the motion for - a new trial.

Nothing practically will be gained by considering here at length the separate questions raised by the objections of the plaintiff to the questions propounded by the defendants to their witnesses on the-trial; for some of the objections are based upon grounds that must be-considered in another form, arising upon the charge to the jury;. .■some of the questions were unobjectionable, and of little or no importance ; but chiefly for the reason that the testimony elicited on .all the questions in no way tended to prejudice the plaintiff; and for that reason, under the provisions of the 138th section of the -code, the ruling of the court on that class of questions will not afford sufficient ground to disturb the judgment.

Did the court erroneously charge the jury?

By the statute of this state the common-law responsibility of innkeepers, as to all goods therein enumerated, is materially modified. 'The goods sued for in this case are not mentioned in the act; it has, therefore, no application to the case, further than the reason 350] of the legislative policy on which it *is based may be regarded, in deciding cases between conflicting constructions of the rules of •common law, by which this case must be determined.

It is claimed that the common law makes an innkeeper an insurer of the goods of his guest, as it does a common carrier of goods, against all loss, except that occasioned by act of God or the public enemy.

The rules of the law controlling both these classes of liability, have their foundation in considerations of public utility; but it does not therefore follow that the rulo in every case is precisely the same. It would seem, rather, that where the circumstances of the two •classes differ, public utility might reasonably require a corresponding modification of the rules applicable to the case.

Common carrier’s ordinarily have entire custody and control of the goods intrusted to them, with every opportunity for undiscoverable negligence and fraud; and are therefore held to the most rigid rules of liability. Innkeepers may have no such custody of the goods of their guests. In many instances their custody of the goods is mixed with that of the guest. In such cases it would be but reasonable that the guest, on his part, should not be negligent of the care of his goods, if he would hold another responsible for them. The case of a carrier and that of an innkeeper are analogous; but, to make them alike, the goods of the guest must be surrendered to the actual custody of the inkeeper; then the rule would, undoubtedly, be the same in both cases.

Vo are not, however, disposed to relax the rules of liability applicable to innkeepers, nor to declare that they are different from •¡those applying to carriers, further than a difference of circum- • ■stances between innkeeper and guest may reasonably necessitate ;Some care on the part of the latter.

The charge of the court below is not inconsistent with a recognition of the same extent of liability in both classes of cases; for it -is well settled that an action against a carrier can not be maintained where the plaintiff’s negligence caused, or directly contributed to, the loss or injury. Upon this theory, and assuming to the fullest extent thaprima facie liability of the innkeeper, by reason of the loss, the court *said to the jury: “The only question for [351 your consideration is whether the plaintiff’s negligence caused, or directly contributed to, the loss of the property.”

It was thus held by the court, and conceded by-the counsel for the plaintiff, that if the property was “ lost by reason of the negligence of the plaintiff to exercise ordinary care for its safety,” the defendants were not liable.

The essential question, then, between the parties is, what, on the part of the guest, is ordinary care, or what may be attributed to. him as negligence.

It is claimed that the court erred in relation to this point, in two particulars : 1. In holding that the guest might be chargeable with ■negligence, in the care of his goods, in any case where they were not actually upon his person; 2. In holding that the innkeeper ■could, in any manner, limit his liability for the loss of the goods of his guest, except by contract with him.

If the guest take his goods into his own personal and exclusive ■control, and they are lost, while so held by him, through his own neglect, it would not be reasonable or just to hold another responsible for them. This is conceded to be true as to the clothes on the person of the guest, but is denied as to property otherwise held by him. There is no good reason for the distinction; for the exemption of the innkeeper from liability is based upon the idea that the property is not held as that of a guest, subject to the care of the innkeeper, but upon the responsibility of the guest alone; and, therefore, it makes no difference, in principle, whether it is on his person or otherwise equally under his exclusive control. But this •must be an exclusive custody and control of the guest, and must not be held under the supervision and care of the innkeeper, as where the goods are kept in a room assigned to the guest, or other proper depository in the house.

The public good requires that the property of travelers at hotels should be protected from loss; and, for that reason, innkeepers are.held responsible for its safety. To enable the innkeeper to discharge his duty, and to secure the property of the traveler from •loss, while in a house ever open to the public, it may, in many in-352] stances, become absolutely necessary *for him to provide special means, and to make necessary regulations and requirements to be observed by the guest, to secure the safety of his property. When such means and requirements are reasonable and proper for that purpose, and they are brought to the knowledge of the guest, with the information that, if not observed by him, the innkeeper-will not be responsible, ordinary prudence, the interest of both parties, and public policy, would require of the guest a compliance therewith; and if he should fail to do so, and his goods are lost,, solely for that reason, he would justly and properly be chargeable with negligence. To hold otherwise, would subject a party without fault to the payment of damages to a party for loss occasioned by his own negligence, and would be carrying the liability of innkeepers to an unreasonable extent. Story’s Bail., secs. 472, 483 Ashill v. Wright, 6 El. & Bl. 890; Purvis v. Coleman, 21 N. Y. 111; Berkshire Woolen Co. v. Proctor, 7 Cush. 417.

Nor does the rule thus indicated militate against the well established rule in relation to the inability of carriers to limit their liability; for it rests upon the necessity that, under different circumstances of the case, requires, the guest to exercise reasonable prudence and care for the safety of his property.

In connection with the two foregoing' propositions, the correctness of the holding of the court below, as stated in the seventh paragraph of the charge, is questioned. Without repeating that paragraph here, it is only necessary to say that upon the hypothesis there stated, the guest, by what he did and neglected to do, would: directly contribute to the loss of his property. The charge was-therefore right.

Taking the whole charge together, so far as it related to the case and is controverted, it is in harmony with the views herein expressed; and must therefore be approved. It also follows, from what has been said, that the ■ court did not erroneously refuse to charge the jury as requested by the plaintiff. The request contained a connected series of propositions, some of which, at least, were unsound in law. It is well settled that in such a case the-court may properly refuse the whole.

*It remains to be considered whether the court erroneously [353 overruled the motion for a new trial, on the ground that the verdict was against the evidence.

While we are not elear from doubt on this point, upon a careful consideration of the evidence we are constrained to say that the verdict is not so clearly against the evidence as to warrant us ,in holding that the court erred in refusing to set it aside.

Judgment affirmed.

Brinkerhoff, Scott, Welch, and White, JJ., concurred.  