
    Catharine de Wolf, Appellant, v. Simeon Ford and Samuel T. Shaw, Respondents.
    First Department,
    June 7, 1907.
    Innkeeper — action based on insult by servant — complaint not stating cause of action — innkeeper does not contract to protect persons of guests — entry by servant in guest’s room not trespass.
    A complaint against an hotelkeeper alleging in substance that the plaintiff having been assigned a room was insulted by a servant who .entered and charged . her with immoral conduct and ordered her to leave the hotel does not state a cause of action when there is no allegation of assault, or that the plaintiff was put out-of the hotel, and the .defamatory -words are not set forth.
    Such complaint cannot he sustained as one for slander when the words used are not stated.
    Neither can it be sustained on the ground that there was a breach of an implied , contract by the innkeeper to protect his guests from insult or injury by ■ employees, ,foi‘ the contract obligation .of an innkeeper (aside from, questions of liability for acts of servants under the doctrine of respondeat superior not raised by the pleadingjtoward Ms guests extends only to their movables and not to the protection of their persons.
    It is not trespass for a servant of an innkeeper to go into a room assigned to a guest.
    • McLaughlin,'J., dissented, with opinion. ,
    Appeal by the plaintiff, Catharine de Wolf, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of November, 1906, upon the dismissal of the complaint by direction of the court, on the opening, at the New York Trial Term.
    
      James L. Bennett, for the appellant.
    
      FranMin Pierce [John G. Guliclc with him on the brief], for the respondents.
   Ingraham, J.:

The complaint was dismissed upon the trial upon the ground that no cause of action was alleged. It is alleged that the plaintiff went to the defendant’s hotel with her brother and daughter and was assigned a room; that about one o’clock in the morning, when the plaintiff was occupying the room assigned to her, one of the servants, employees and agents of the defendants forced his way into the room of the plaintiff without her consent and against her protest, and in the presence of her brother and another person used towards her vile and insulting language, and,addressed to her words ■ imputing that she was guilty of improper and immoral conduct, and insulted' her in many other ways, ordered her to leave said hotel, and threatened to publish her name in the daily papers as a disreputable person. There was no allegation of an assault. The plaintiff was not put out of the hotel, and the only .wrong alleged to have been committed was that this employee forced his way into the-room. and used towards her insulting. and defamatory language. The language is not set forth.

Assuming that the deféndant would be liable for a slander by the employee when engaged in carrying out the instructions of the former and within the scope of his authority, this action cannot be maintainéd as the allegations are not sufficient to justify a recovery for slander. The words used are not given'; what the servant said is merely, characterized as insulting and degrading.. To justify an action for slander, the alleged defamatory words must be set',forth in full; it will not be sufficient to state the substance and effect of the words. (13 Ency. PI. & Pr. 45,. and cases cited.)' ; -

The plaintiff, however, seeks to sustain the action upon the.ground of a breach of an implied contract by which an innkeeper undertakes to protect his guests from insult or injury by his employees,. and reliance is placed upon the implied contract of a common carrier.

■ In Gillespie v. Brooklyn Heights R. R. Co. (178 N. Y. 347) the ■ Court of Appeals held that an action could be maintained against a railroad company for injuries inflicted upon a passenger by the ■ defendant’s agent which consisted of insulting language. In that case the conductor called the plaintiff a “dead beat” and a “swindler” when plaintiff asked for the change to which he was entitled. It was held to be a breach of contract for the conductor to refuse to. return to the passenger the change when an amount. was given in excess' of the fare, and that there being a breach- of the contract the insult-and indignity suffered by the passenger-at the hands of the conductor, occasioning mental suffering, humiliation, wounded pride and disgrace, might be considered upon the question of damages in determining'the amount of injury occasioned by a breach óf the-contract ; that the contract between the carrier and passenger calls foi; safe carriage, for safe and respectful treatment from the carrier’s servants and from immunity from assaults by them, or by other persons if it can be prevented by them ; and that the carrier is, responsible for the insulting conduct of its servants which stops - short of - actual vileness. (See, also, Chamberlain v. Chandler, 3 Mason, 242.) Á contract that the innkeeper will protect his guests from insults has never been implied. ■

There were cited upon this question a case in the Supreme Court of California.(Rahmel v. Lehndorff, 142 Cal. 681) holding an.innkeeper not liable and one in tíre Supreme Court of Nebraska (Clancy v. Barker, 71 Neb. 83; 98 N. W. Rep. 440) which holds an imp •keeper liable for an assault committed by one of his servants upon ’ a guest.'- The Nebraska doctrine was repudiated in Clancy v. Barker (131 Fed. Rep. 161) by the United States Circuit Court of Appeals, Judge Sanborkt writing the opinion holding that the innkeeper was not responsible for an assault committed by one of his employees. There was also cited a case in Pennsylvania (Rommel v. Schambacher, 120 Penn. St. 579) in the Court of Common Pleas holding an innkeeper liable for an. assault committed in one of the public rooms of a hotel upon a guest.

The rule in England from the earliest time seems to have been that the obligation of an innkeeper extends only to the movables of his guests. Thus, it is said in Calye’s Case (1 Smith L. C. [8th Am. ed-,] 249, 252) that “these words bona et catalla, restrain the latter words tó extend only to moveables; and, therefore, by the latter words, if the guest be beaten in the inn, the innkeeper shall not answer for it; for the injury ought to be done to his moveables, which he brings' with him; and by the words of the writ, the .innholder ought to keep the goods and chattels of his guest, and not his person.” This case has been cited by the English courts as settling the law in relation to the liability of innkeepers. ■■ (Strauss v. County Hotel & Wine Co., L. R. 12 Q. B. Div. 27.) In the note to this case in Smith’s Leading Cases it is stated to be the leading case upon the subject of the liability of innkeepers, and I cannot find that this rule has ever been questioned in England.

The distinction between the undertaking of a common carrier towards its passengers and an innkeeper towards his guests is obvious. But the rule of the English common law that the obligation • of an innkeeper towards his guests extends only to their movables and not to their persons seems to have been settled from the earliest timo, and this action, therefore, cannot be sustained as based upon a violation of contractual obligation as between the plaintiff and the proprietors of the hotel at which she was a guest. If' .the servant, when in discharge of the authority conferred upon him by a master, commits an assault, or falsely detains or imprisons a guest or performs other actionable wrongs, the question as to whether the master would be responsible for the wrongful act of the -servant done in the course of his employment and in the exercise of the authority conferred by the master, based upon the general rules of respondeat superior, is not involved upon this appeal. It is certainly not a trespass for the servants of an innkeeper to go into a room although it is assigned to a guest. In consequence of the nature of an innkeeper’s duties in relation to his whole inn, he is required to constantly have access to all of the rooms, and it cannot be said that merely entering the room with or without the consent ■ of the occupant is a trespass. So far .as this action is concerned, the only actionable' injury that is alleged to have been committed was a slander by the servant, and the complaint is no.t sufficient to sustain an action for slander, even assuming that the defendant would be responsible therefor.

It follows.. therefore, that the judgment appealed from must be affirmed, with costs. '

Patterson, P.( J., Clarke- and Lambert, JJ., concurred; MoLaughlin, J.,.dissented. ...

McLaughlin, J.

(dissenting):

I am. unable to agree with the other members of the court that ■ the judgment aj)pealed from should be affirmed. At the trial tha >■ z complaint was dismissed, on defendants’ motion, without taking any evidence,, and, therefore, whether or not-the" ruling were correct must be determined in the same way as if the defendants had demurred to the complaint upon the ground that it did not state facts sufficient to. constitute a cause of action.

The complaint alleges that the defendants are engaged' in managing and controlling a hotel for the entertainment of guests for hire; “ that on the fifth day of June, 1905, this plaintiff in company with her daughter and her brother, one George L. Gatlin, called at said hotel and applied for rooms, giving their true and proper names . -and stating the relationship of each to the other; that the plaintiff and her said brother and daughter were thereupon received as guests of said hotel and this plaintiff assigned to a room therein accordingly; that thereafter and about one o’clock in the morning of the nekt day, while plaintiff was occupying the room so assigned to her, o.ne of the servants, employees and agents of the defendants, while in (his) regular employment at said hotel;, forced his way into the said room of this plaintiff, without her consent,'and against, her protest, while "she was undressed and without clothing except her nightdress, and addressed to her and in her presence and in the presence of her said brother, and another person,, vile and insulting language, . and. accused her of being a disreputable person and addressed to her words imputing that. she was guilty of improper and immoral conduct, and insulted her in many other ways * * * and; furtherinore ordered her to leave said hotel, and threatened to publish-her name in the- daily papers as a disreputable person.”

I think the complaint states a cause of- action. It ■ alleges the breach of an implied contract,- entered into when -the plaintiff became a guest at the hotel, which was that "tho defendants would treat her properly, furnish her with lodging and food and protect her, so far as reasonably could be done, against insult and injury.

It is true that in Oalye's Case (1 Smith L. 0. [8th Am. ed.] 249, 252, cited in the opinion of Mr Justice Ing-raham, the English courts held that an innkeeper was- liable for the personal property of a guest, but not. for an injury to his' person, but this case was decided over three hundred years ago. The law,.if anything, isaprogressive science, and it has been the boast of the members, ■of the legal profession that it not.only keeps abreast, but is ahead of the varying changes which are constantly being made for the comfort and improvement of. human society. For this- reason I do not think a rule which was applied three hundred years ago in determining whether an innkeeper was liable, considering the advancement that has since been made and the changes that have taken place in the mode of living, is decisive of- the question. The precise question here presented has' not heretofore arisen in this State, so far as I have been able to discover; but it has, to some extent at least, in some of the other States. (Rommel v. Schambacher, 120 Penn. St. 579; Curran v. Olson, 88 Minn. 307; Mastad v. Swedish Brethren 83 id. 40; Overstreet,v. Moser, 88 Mo. App. 72; Clancy v. Barker, 71 Neb. 83; 98 N. W. Rep. 440; 22 Cyc. 1080.)

The rtile to be applied to innkeepers, so far as the treatment of a guest is concerned, is analogous to the one applied to common carriers. A common carrier is hable to a passenger for an injury to his feelings caused by insulting language of an employee. This liability is .put upon the ground that such acts constitute a breach of its contract which obligates it not only to transport the passenger, but to accord to him respectful and courteous -treatment and protect him from insult from strangers and its own employees. (Palmerz v. Manhattan R. Co., 133 N. Y. 261; Gillespie v. Brooklyn Heights R. R. Co., 178 id. 347, and cases there cited; Busch v. Interborough Rapid Transit Co., 187 id. 388; The words of Judge Story - in ' Chamberlain v. Chandler (3 Mason, 242), while uséd with reference to the- liability of- a common carrier, are, as it seems to me; equally applicable to the proprietor of a hotel. He says, referring to ■‘the sontract: It is a, stipulation not'for toleration merely,-but for . respectful- treatment,dor that decency of demeanor which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that promptitude which administers aid to ■ ■ distress." In respect to- females it proceeds ye.t farther, it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness and against that wanton . disregard of the feelings which aggravates every evil and endeavors by the excitement of terror and cool malignity nf conduct to inflict .' " torture upon susceptible minds. *.. * * It is intimated that all • these acts, though wrong in morals, are yet acts which the law does not punish ; that if the person is untouched, if the acts do not amount to an assault and battery, they are not to be redressed ; the law looks . on them as unworthy-of its cognizance; the master is at 'liberty to inflict ■ the most severe mental sufferings in the . most tyrannical ' maimer, and' yet if he withholds a blow,' the victim may be crushed by his unkindness; he commits nothing within the reach of civil jurisprudence. My opinion is that the law. involves no such absurdity.\ It is', rational and just. It -gives compensation, for mental sufferings,, occasioned by acts of "wanton ■ ■ injustice- ■ equally whether they operate by way off direct or of consequential injuries.” To hold that the- proprietor of a hotel is. liable if - s.i lady’s .handbag be stolen from her room while she is a. guest, but he is not liable if one of. his employees, by hi§ direction, . -invades tlie privacy of her' .room against her protest, when she is disrobed and in the act of retiring, arid uses vile, and insulting language to her, is to my mind abhorrent. It is but another way of .. asserting that the law is powerless to punish -the grossest, outrage.. ...: It is generally supposed tvlien one. as a.guest, is assigned to k- room -in a hotel, that insures hiin the -privacy of his home so long as lie pays the price. charged for the room, conforms Ids conduct-to the rules of the house and behaves himself properly. It is .not true, as I understand the law, that the proprietor of a- hotel or his servants has the right, without tlie consent of a guest, at any time to enter his room. This is not the law, and if it is it ought not. to be, because it is against good morals and the general law of decency, and whenever the proprietor of an inn, either himself or by his servants, commits such acts, he is liable in. damages. The damage to be awarded is, of course, compensatory — that is, the damage, to the humiliation, injury to the feelings, which one suffers by having the privacy of her room invaded, and being addressed in insulting and abusive language. .This, of course, does not include an injury to the character, and I do not understand that the complaint is drafted on that theory, but is to recover for the breach of an implied contract, and to that extent it states a cause of action.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.

Judgment affirmed, with costs.  