
    Hotels Statler Co., Inc., v. Safier.
    
      Innkeepers — Loss of goods — Stored by guest after checking out —Bailment for mutual benefit, when — Ordinary care by bailee.
    
    Plaintiff for several consecutive weeks became a guest of a hotel. His business calling him to adjacent cities, he checked out each week with the expectation of returning at the end of the week as a guest. Each week the plaintiff returned to the hotel, staying as a guest for three or four days. The hotel was provided with special storage rooms, used as a necessary'incident to its business, for customers who left their baggage until their return. By arrangement with an authorized employe plaintiff left his trunk and contents for storage in such room until his weekly return, and obtained a receipt therefor. Held: The facts stated make this a bailment for mutual benefit, based upon a sufficient consideration, and the bailee was required to use ordinary care for the safekeeping of the goods.
    (No. 16471
    Decided December 20, 1921.)
    Error to the Court of Appeals of Cuyahoga county.
    The defendant in error brought an action in the municipal court of Cleveland, Ohio, asking damages in the sum of $1037 for the loss of a trunk and contents left by him with the hotel company for storage under circumstances hereinafter stated. The cause was tried to the court without the intervention of a jury. The plaintiff recovered a judgment in the trial court for the sum of $500, which judgment was affirmed by the court of appeals on error. Error is now prosecuted to this court.
    As a basis for recovery Safier, an agent for the Triangle Film Company, alleged in his amended statement of claim that from April to August, 1917, he was a guest each week at the hotel of the defendant for a period of about four days; “that each week, when leaving the said Hotel for his business duties in other cities, the said plaintiff did call upon the officers, agents and employes of said defendant, to take the trunk and contents thereof, — belonging to plaintiff, — from the respective room and quarters occupied by plaintiff, to the usual, customary and designated place, in said Hotel, used and designed for the keeping and storage of trunks and the contents thereof.”
    He then averred that each week the defendant removed the trunk from his room to its customary place of keeping and storing trunks, giving him a receipt therefor, and that each week upon his return and again registering at the hotel the defendant upon delivery of the receipt would place the trunk in the room he was to occupy. Each time upon departing he would pay his bill, and nothing was asked or paid for storage of the trunk. About August 1, 1917, having been absent for three or four days from the hotel, he again returned, presented his receipt and was then informed by the defendant that the trunk and contents had been lost. He further alleged that the defendant neglected to take proper and reasonable care for the safekeeping of said trunk and contents and that it was guilty of gross negligence in that respect.
    The defense of the hotel company amounted to a general denial. The only witnesses in the case were the plaintiff himself and the assistant manager of the hotel. The evidence was undisputed that Safier was a guest at the hotel each week from April to August and that the trunk was lost. The plaintiff testified that in April, 1917, the first week that he was a guest at the hotel, he went to the assistant manager and stated to him, “I have a trunk in my room and don’t know how long I will be in town; I may be here once again, and may be here an indefinite period.” The plaintiff further testified: “I says, ‘Have you any way that you can take care of a trunk, or have I got to take this trunk in the small towns with me and bring it back with me?’ He says, ‘No, we have a big storage room, we will give you a’check for it, and when you come back give your check to the porter and get your trunk back.’ ” He also testified that each week, when leaving the hotel, the porter came up to his room and gave him a check for the trunk; that at the time he went away just previous to the loss of his trunk the usual procedure was followed; that upon his return, after discovery of the loss, he surrendered the check to the assistant manager; that he then asked the assistant manager what he would have to show that,he gave him the trunk check and, that the assistant manager answered “our head porter will give you a receipt for it;” and that the head porter, a Mr. Gibo, thereupon gave him a receipt for the check, which receipt read as follows: “Received from Morris Safier check for trunk No. 2600 left for storage at Hotel Statler. F. Gibo. 8/28/17.”
    The assistant manager testified that they had two storage rooms in the hotel for the storage of property of guests. He was asked: “Now, people who bore the relation that Mr. Safier did as traveling man, whatever that relation may be, from April to August, 1917, where were their trunks put after they checked out until they re-registered, did you have some special place for them?” And he answered: “If they were put in storage — if we got a storage check for them they were put in either 369 or the fourteenth floor.”
    The undisputed testimony discloses that Safier returned to the hotel each week from April to August, registering and staying at the hotel from three to four days each week, and spending the balance of the week in adjacent cities.
    
      Messrs. Squire, Sanders & Dempsey and Mr. Ellis R. Diehm, for plaintiff in error.
    
      Mr. James Metzenbaum and Mr. P. J. Mulligan, for defendant in error.
   Jones, J.

It would seem from this record that the payment of the hotel bill by the plaintiff below and his engagement for the storage of his trunk were simultaneously made. There is no question that at .this time the plaintiff and defendant occupied the relation of innkeeper and guest. Not only does this relation appear from the evidence, but at common law the plaintiff would be held to occupy that relation until he had had a reasonable length of time to remove his baggage from the hotel. This principle seems to be in accord with all the authorities.

“The innkeeper’s liability does not, however, cease at the very instant a guest leaves an inn, but the latter has a reasonable length of time, dependent on the circumstances of the case, in which to remove his goods, during which period the extraordinary liability of the innkeeper continues.” 14 Ruling Case Law, 532; 22 Cyc., 1088; Maxwell v. Gerard, 84 Hun, 537; Adams v. Clem, 41 Ga., 65, and Sas-seen & Whitaker v. Clark, 37 Ga., 242.

It may be conceded that at common law the general trend of authority is to the effect that when a guest pays his bill at an inn and departs without taking his baggage therefrom within a reasonable length of time, the relation of innkeeper and guest is terminated and the former relieved from the strict responsibility imposed upon him, holding him liable for goods lost unless the loss has been caused by the act of God or by a public enemy or by the fault of the owner. Palace Hotel Co. v. Medart, 87 Ohio St., 130, 134.

We are not here concerned with that rule of liability, for it appears both by the pleadings and the evidence that if any liability accrued it arose from a bailment for the accommodation of both entered into between the bailor and the bailee about August 1, 1917, when the plaintiff left the defendant’s hotel. This special engagement entered into between them, while relieving the innkeeper from the stringent rule of liability under the common law for the safekeeping of goods, imposed upon the hotel bailee the duty of exercising reasonable care for their preservation. This arrangement is based upon a sufficient consideration and imposes upon the bailee the duty required of it as a bailee for hire. Under the facts disclosed in this case this is a bailment for mutual benefit. “Where a bailment is a mere incident to the performance of services for which the bailee receives compensation or to the conduct of a business from which the bailee derives profit, it is a bailment for mutual benefit, although the bailee receives no compensation for the bailment, as such.” 6 Corpus Juris, 1100.

Judge Story in his work on bailments (9 ed.), page 27, states the principle thus: “When the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect.” Manifestly the bailment, in a case like the present, is of the latter class, for, while the customer pays nothing'directly, or eo nomine, for the safe-keeping of his effects, the dealer receives his compensation in the profits of the trade of which the bailment is a necessary incident.

An early case in point is that of White v. Humphery, 11 Q. B., 43, 12 Jur., 417. In that case the defendant bailee carried on the business, both of carrier and wharfinger. As such, he received into his warehouse several tons of hops, which were to be conveyed to London for a compensation, the bailee in the meantime providing storage for the hops, for which he received no compensation. The hops remained in the warehouse for about thirteen months and were damaged by mice while in the defendant’s custody. The learned judge charged the jury “that the advantage of carrying the hops for hire might be considered as payment for the warehousing, and that the defendant was not a gratuitous bailee.” Lord. Denman, C. J., committed himself and his associates upon the queen’s bench to the principle announced by the judge on the trial, and held that the instruction was correct.

In Newhall v. Paige, 10 Gray (76 Mass.), 366, it was held that “a contingent benefit' is a sufficient consideration for undertaking ahailment.” In that case it appeared that the only compensation received by the bailee for receiving and storing merchandise was the advantage of bringing the bailee business. The trial court charged that the benefit accruing to the bailee should be certain “and not a mere contingent, uncertain and indirect beuefit or expectation of benefit.” In his opinion, Bigelow, J., at page 368, says: “The only error in this case was in the instructions given to the jury, and consisted in telling them that the defendant could not be considered a bailee for hire unless his compensation was for some certain benefit to himself, and that a mere contingent, uncertain and indirect benefit would not constitute such a consideration as was necessary to establish a contract of bailment for hire or reward. This was stating the proposition more broadly than the rules of law will warrant. A person becomes a bailee for hire when he takes property into his care and custody for a compensation. The nature and amount of the compensation are immaterial. The law will not inquire into its sufficiency or the certainty of its being realized by the bailee. * * * The law does not undertake to determine the adequacy of a consideration. That is left to the parties, who are the sole judges of the benefits or advantages to be derived from their contracts. It is sufficient if the consideration be of some value, though slight, or of a nature which may inure to the benefit of the party making the promise.”

The following authorities sustain the principle that the bailment is one for hire, although no hire was paid, where the bailment is a necessary incident of the business in which the bailee makes a profit: Sulpho-Saline Bath Co. v. Allen, 66 Neb., 295; Woodruff v. Painter & Eldridge, 150 Pa. St., 91, and Hoyt v. Clinton Hotel Co., 35 Pa. Supr. Ct., 297. However, we do not wish to extend this principle so as to include others than bailees subjected to public obligations, such as innkeepers, carriers or warehousemen.

In this case the evidence establishes that the storage rooms provided by the hotel company were used as a necessary incident to its business and with the expectation of making a profit from its customers who left their baggage until their return. This was a special arrangement entered into by the hotel company for the benefit of its customers. It had provided another baggage room for outgoing and incoming baggage. The assistant manager himself testified that the hotel had provided a special place for travelers who left their baggage until they returned and re-registered. Under this state of facts, therefore, the plaintiff established a bailment by special arrangement for storage of baggage, for the mutual benefit of bailor and bailee, and the bailee became liable for the exercise of ordinary care for its safety.

In a requested finding of facts in this case the trial court found that the relationship of innkeeper and guest did not exist. While technically a guest when the arrangement for storage was made, the transaction for the storage of goods covered a period when no such relationship existed; although such future relation was contemplated with advantage to both parties. We have held that this was a bailment for the mutual benefit of both, therefore the rigid rule of obligation between innkeeper and guest gave way to the rule defining the rights and obligations between bailor and bailee for mutual benefit. As a bailee for hire impliedly contracts to use ordinary care it follows he may not contract against his own negligence or the lack of such care. Ordinarily in bailments the parties may dimmish the liability of the bailee by special contract, provided the contract is not in violation of law or of public policy and does not relieve the bailee of negligence. (6 Corpus Juris, 1112.) But in the instant case no such special contract was made, and in the absence of a special agreement the law of bailments fixes the degree of the bailee’s liability. “The general rule, at least in the United States, seems to be that where a bailor alleges and proves simply the delivery of the property to the bailee and the latter’s failure to return it on demand, a prima facie case is made out against the bailee.” 3 Ruling Case Law, 151.

The trial court found the goods were delivered to the innkeeper, and that upon demand the innkeeper was unable to account for their loss. The plaintiff below, therefore, had a prima facie case against the bailee.

The judgments of the lower courts are affirmed.

Judgments affirmed.

Johnson, Wanamaker, Robinson and Matthias, JJ., concur.  