
    Purvis v. Coleman et al.
    
    
      Innkeepers.-—-Notice.
    
    Where a statute provides for a constructive notice by posting, an actual personal notice is equivalent thereto ; and, therefore, actual personal notice to a guest at an inn, that a safe is provided for the keeping of valuables, is sufficient, though the notice required by the act of 1855, c." 421, was not posted in his room.
    The act of leaving a large amount of gold coin in the guest’s trunk, in his room, with no person therein, in a hotel in New York, after such notice, is such negligence on the part of the guest, as will relieve the hotel-keeper from responsibility.
    Purvis v. Coleman, 1 Bos. 321, affirmed.
    Appeal from the Superior Court of the city of New York where judgment was entered for the defendant, upon a special finding- of-the facts by the jury, subject to the opinion of the court at general term. (Reported below, 1 Bos. 321.)
    This was an action against the defendants as keepers of a common inn, in the city of New York, known as the Astor House, to recover the value of 400 sovereigns, which the plaintiff had lost, whilst a guest in the Astor House, through the negligence and carelessness of the defendants, or- their servants.
    On the 23d January 1856, the plaintiff, a resident of the East Indies,, then on a visit to the United States for pleasure, put up at the Astor House as a guest; he was assigned a room, and escorted to it, with his baggage, by a servant of the defendants, who told the plaintiff that if he had any money or jewelry, he should deposit it in the office, as there was a safe provided for- it; and that there was an act passed by the legislature to keep hotel-keepers from any liability for a loss. There was a conflict of evidence as to whether the notice required by the act of 1855, was posted in the plaintiff’s room. The plaintiff’s trunk was broken open, in his absence, and the money feloniously abstracted.
    The jury found specially, in answer to questions submitted to them in writing : * 1. That the money was in the plaintiff’s trunk, when it was broken open: 2. That the notice required by the statute was not posted in the plaintiff’s room: 3. That he had actual notice to deposit his valuables in the safe provided for that purpose, and that the defendants would not be liable, unless he complied therewith: 4. That the plaintiff was guilty of negligence, under the circumstances, in not availing himself of such notice. The jury, under the directions of the court, rendered a general verdict for the plaintiff for $2058, subject to the opinion of the court at general term; where the verdict was set aside, and judgment entered for the defendants upon the facts specially found; whereupon, the plaintiff took this appeal.
    
      Porter, for the appellant.
    
      Reynolds, for the respondents.
   Davies, J.

At common law, the defendants were liable for all losses of the property of their guests infra Jiospitium. The legislature of this state, in 1855, for reasons which might easily be suggested, and which wore satisfactory to them, modified this strict liability of the common law, which had been uniformly enforced by the courts with rigidity, and its application in many cases involved peculiar hardship.

The act of 1855 provides, that whenever the proprietor of any hotel shall furnish a safe in the office of such hotel, or other convenient place, for the safe-keeping of any money, jewels or ornaments belonging to the guests of such hotel, and shall notify the guests thereof, by posting a n°tice> stating the ‘"'fact that such safe is provided, in which such moiiey, jewels or ornaments may be deposited, in the room occupied by such guest, in a conspicuous manner, and such guest shall neglect to deposit such money, jewels, &c., in such safe, the proprietor of such hotel shall not be liable for any loss of such money, jewels, &c., sustained by such guest, by theft or otherwise.

It is seen from an examination of this statute, that two things are to be done by the proprietor of the hotel, to relieve himself from liis- common-law liability:

1. He is to provide a safe in his office, or other convenient place in the hotel, for the safe keeping of the money, &c.

2. He is to notify the guests thereof, by posting a notice in a conspicious place in the room or rooms occupied by the guests, stating the fact that such safe was provided, in which such money, &c., may be deposited.

There is no doubt, that in this hotel the proprietors had provided the safe in their office for the safe - keeping of the money of their guests; so far they had undeniably conformed to the statute. The notice, by posting in the room, required by the statute, was not given, as found by the jury; but the jury has found as a fact that this plaintiff had actual and full notice that such safe was provided for that purpose.

The actual notice given to the plaintiff was far more full and ample than the constructive one provided for in the act of the legislature. The notice to be posted by the act was only to state the fact that such safe was provided, in which such money, &c., might be deposited that was all the constructive notice the act required. It is easy to perceive, that if such notice was brought to the attention of a stranger, he might well fail to perceive that there was anything in it changing or modifying the duties or liabilities of the proprietor, in respect to the safety of the property of his guest. He would see from this statutory notice, if he read it, that a safe was provided in which his money might be deposited, but it would fail to infonn him of any consequences attending his not availing himself of its use. The notice actually given in the present case distinctly brought to his "'mind not only the fact of the safe being provided, but the reasons of such provision, and the important fact that if the guest did not avail himself of this place of safety for his money, in case of its loss, he could have no claim upon the proprietor of the hotel. The actual notice, therefore, given in this case, was far more satisfactory and ample than the constructive one required by the statute; and the question is, whether the defendants were protected by the act, giving this notice, and omitting to post that prescribed by the statute?

There can be no controversy, that an actual notice is far more certain to bring knowledge of a fact to a party than constructive notice. We certainly must be permitted to look at the object of the legislature in passing this act, and in making the provision as to notice which it contains. It was certainly to limit the liability of hotel-keepers and to provide means by which they might restrict it; it was also the object of the legislature to provide for the security of the guest, and not to deprive him of the rights secured to him by the common law, without special notice of the provisions of this act. It must have been seen by the framers of the act, that it would have been a difficult matter, in a large hotel, receiving three or four hundred guests daily, to give personal notice to each guest of the requirements of this act, and to preserve evidence of such notice. The legislature, therefore, in addition to the knowledge which every man is presumed to have of the law, thought proper to provide, in this particular case, that the putting of a notice in a conspicuous place in the room occupied by the guest, stating the fact that a safe was provided in which his money might be deposited, should be -primfi,facie evidence of notice to him of the act. The mode and manner of giving the notice was, therefore, clearly for the benefit of the hotel-keeper. It is easily seen, that the chances of its attracting the attention of the guests were small; and even if it did, and stated only what the act requires, it would fail to inform him of the advantage secured by the act, and the consequence which would follow, in case he did not avail himself of the use of the safe.

We think, therefore, the actual notice given in this case '“"contained more full information than the statutory notice, and that the object and purpose of the act have been more than complied with. We do not see that the precise mode of giving the notice specified in the act, and in the precise form prescribed by it, are essential to the protection of the defendants; we must look at the substance of things, and not be led away by forms. Under our recording acts, the recording of a deed or mortgage is notice to all subsequent purchasers or incumbrancers, but no principle is more familiar, than that actual notice of a deed or' mortgage unrecorded, is quite as effective and far more satisfactory than record notice; one is constructive, the other actual. Previous to 1844, in proceedings to foreclose mortgages by advertisement, the notice of sale was required to bo given, by publication in a newspaper printed in the county, and by affixing a copy of such notice on the' outer door of the court-house of the county in which the lands to be sold were located. In Stanton v. Kline (11 N. Y. 198), Gardiner, C. J., in delivering the opinion of this court, says— “ The publication in the newspaper and the posting on the court-house door were the equivalents to a personal service; if so, it certainly follows, that if personal service, on any person affected by the proceeding, had been made of the notice, it would have dispensed with proof of the statutory notice.” We think, that the actual notice given in the present case, afforded all the protection to the defendants which they would have luid, if the statutory notice had been posted, as required by the act of 1855.

But we think there is another ground, equally satisfactory, upon which the judgment of the court below can be sustained. The jury have found, as a fact in this case, that the plaintiif was himself guilty of negligence, under the circumstances, in not availing himself of the notice given to him, to deposit his valuables in the safe provided by the defendants.

The judge charged the jury, “ that if the information ■ communicated to the plaintiff, was communicated by the authority of the defendants, and was so communicated, as that it was understood by the plaintiff, so that he had full notice that there was a safe in the office appropriated to the safe custody of valuables, *it was negligence, considering the amount of money he had, not to have intrusted it to the safe.”

The jury, in finding that the plaintiff was guilty of negligence, must have found all the facts which the judge liad told them were necessary to be proved to justify such a finding; and having ascertained the facts, they drew from them the exact conclusion which the judge had instructed them to draw. It follows, if it be the' law, that the loss of the plaintiff, having been caused by his own negligence, is a bar to his recovery, that, in the present case, such negligence having been established as a fact, he cannot recover.

It is said in Calye’s case (8 Co. 33), that if the innkeeper require his guest that ho will put his goods in such a chamber, under lock and key, and then he Avill Avarrant them, otherAvise not, and the guest lets them lie in an outer court, Avhere they are taken aAvay, the innkeeper shall not be charged, for the fault is in the guest. In Richmond v. Smith (8 Barn. & Cress. 10.) Lord Tenterden placed the liability of the innkeeper upon the common-law rule, that where a traveller brings goods to an inn, the landlord is responsible for them; and he says, “ if it had been intended by the defendant not to be responsible, unless his guests chose to have their goods placed in their bedrooms, or some other place selected by him, he should have said so.” The Chief Justice deems the situation of the landlord precisely analogous to that of a carrier. Bayley, J., said, that “ an innkeeper’s liability very closely resembles that of a carrier; he is primd facie liable for any loss not occasioned by the act of God, or the king s enemies, although he may be exonerated, when the guest chooses to have the goods under his own care.” These cases are cited with approbation by Nelson, C. J., in Piper v. Manny (21 Wend. 284). Applying these principles to the facts of the present case, where it is apparent that the defendants wished to have the plaintiff’s money put in a place of safety, which he refused to permit, but chose to have it under his own care, the defendants are exonerated, and the plaintiff •must suffer the consequences of his own folly.

*^le &rouud of the defendants’ liability, has always been likened to that of a common carrier. The rules of law applicable to such a condition of parties have always been maintained with firmness by the courts, and certainly by those of this state. (Dorr v. New Jersey Steam Navigation Company, 11 N. Y. 485.) Yet, it is also the well-settled law of this state, that if the plaintiff’s negligence has caused or contributed to the loss or injury, an action against the carrier cannot be maintained. (Tonawanda Railroad Company v. Munger, 5 Denio 255; s. c. 4 N. Y. 349; Shepherd v. Hees, 12 Johns. 434; Bush v. Brainard, 1 Cowen 78; Brownell v. Flagler, 5 Hill 282; Cook v. Champlain Transportation Company, 1 Denio 99; Haring v. New York and Erie Railroad Company, 13 Barb. 9.)

It being an established fact in this case, that the plaintiff was guilty of negligence in not availing himself of the place of safety provided by the defendants for the safe-keeping of his money, it follows, that he cannot maintain this action. The judgment of the superior court should therefore be affirmed.

Judgment affirmed. 
      
       Hewlett v. Swift, 33 N. Y. 571.
     
      
       A majority of the court concurred on this point, but three of the judges did not agree that a verbal notice was sufficient.
     
      
       In Classen v. Leopold, 2 Sweeny 711, Jones, J. says, this is the point ruled in Purvis v. Coleman.
     