
    W. R. CASE & SONS CUTLERY CO. v. CANODE.
    (No. 1371.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 12, 1918.)
    1. Innkeepers <@=>11(3) — Liability Aá Bailee.
    An innkeeper is under duty to exercise extraordinary care to prevent the loss of property committed to his custody by a guest.
    2. Innkeepers <@==>11(12) — Liability as Bailee — Exercise op Care— Sufficiency of Evidence.
    In action against innkeeper for loss of traveling salesman’s grip containing manicure sets, evidence held not to show an extreme degree of care in protecting-the grip.
    3. Innkeepers <@=>11(12) — Liability of Bailee — Questions of Fact.
    In suit against innkeeper for loss of traveling salesman’s grip, where it appeared that when thief was arrested part of goods were recovered, but district attorney kept them to use in evidence, whether innkeeper was liable for loss of worth of goods recovered, or whether they were recovered within a reasonable time, and his liability was simply for delay in delivering them, were questions of fact.
    4. Innkeepers <@=>11(3) — Liability as Bailee — Insurer.
    An innkeeper is not an insurer of the safety of his guest’s property intrusted to him, though under duty to exercise extreme care.
    5. Innkeepers <@=^11(12) — Liability as Bailee — Prima Facie Case — Burden of Proof.
    In suit against innkeeper for loss of salesman’s grip, proof of delivery and failure to redeliver on demand entitled plaintiff prima facie to recover, and, if innkeeper desired to avoid liability by showing his extreme care, he had burden to allege and prove it.
    6. Pleading <@=>378 — General Denial — Effect.
    A general denial only put plaintiff on proof of the allegation of his petition in order to make a prima facie case.
    7. Trial <@=>352(4) — Submission of Issue — Pleadings.
    The trial judge should not submit an issue not raised 'by the pleadings.
    8. Courts <@=>122 — Jurisdictional Amount.
    The amount of plaintiff’s demand at the time of filing suit fixes the jurisdiction of the court, in the absence of fraudulent intent in making the allegation.
    9. Innkeepers <@=>11(12) — Liability as Bailee — Damages.
    In action against innkeeper from whose custody salesman’s grip was stolen, plaintiff company owning grip was entitled to recover full market value of the article and its contents unless returned.
    10. Innkeepers <@=>11(12) — Action Against— Liability.
    In action against innkeeper for loss of traveling salesman’s grip from his custody, letter of district attorney' notifying plaintiff company owning grip that goods recovered from thief were ready to be redelivered, was admissible on issue of delay in delivery, and to show extent of liability.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Action by the W. R. Case & Sons Cutlery Company against H. P. Canode. From judgment for defendant, plaintiff appeals.
    Reversed, and cause remanded.
    Kimbrough, Underwood & Jackson and D. I. Hutchinson, all of Amarillo, for appellant. Yeale & Lumpkin, of Amarillo, for appellee.
   HALL, J.

Appellee is an innkeeper in Amarillo. One R, A. Chitwood, drumming for appellant company, registered at appel-lee’s hotel about the 28th day of May, 1917, and checked Ms grip, cohtaining manicure sets of the value of $252.25j His grip was checked on Saturday, and dn the following Monday, when called for, it was not found. Subsequent developments showed that it had been stolen by a negro boy who had occasionally worked at the hotel, but who was not employed in or about tbe building at tbe time. of tbe tbeft. Appellee’s answer contains several defenses unnecessary to be stated bere.

Tbe first assignment is based upon tbe refusal of tbe court to direct a verdict in appellant’s favor. In the case of Howth v. Franklin, 20 Tex. 798, 73 Am. Dec. 218, Judge Roberts states tbe liability of innkeepers for tbe loss of property of tbeir guests in tbe following language:

“He is liable for any loss of property committed to Ms keeping, wMch any care or vigilance or diligence on Ms part could have prevented. * * * The diligence used was ordinary, but not extreme; and therefore, if be were an innkeeper, he was liable. When property committed to the custody of an innkeeper by his guest is lost, the presumption is that the innkeeper is liable for it, and he can relieve himself from that liability by showing that he has used extreme diligence. What facts will excuse him is a question perhaps not very web settled; but it is well settled that he cannot excuse himself without showing that he has used extreme care and diligence in relation to the property lost.”

In tbe subsequent case of Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654, Bell, J., approves a charge wbicb states tbe liability of innkeepers in tbe following language;

“Lándlords of public hotels for transient boarders or travelers are held to strict liability for all losses of such ordinary articles of personal property or money as are carried about the persons of travelers and which are lost in the tavern. They are held liable for the value of such articles lost or stolen at the tavern unless it is made to appear that the loss did not result from any want of care or neglect, or any insufficiency of means for protection, on the part of the defendant or his servants.”

It is stated in 14 R. C. L. p. 516, § 19:

“It is also quite generally agreed that for all thefts from within or unexplainable, whether committed by guests, servants, or strangers, the innkeeper is answerable; and while some courts repudiate the general rule that he is an insurer of the safety of goods brought by guest, yet in the case of loss by theft they refuse to exonerate him, although it is an unavoidable accident, not due to any fault or negligence of his.”

Appellee testified that be bad been in tibe hotel business about 16 years. He described tbe arrangement of tbe ground floor of bis hotel, showing that tbe baggage room was north of tbe clerk’s counter; that tbe regular checkroom was separate from the office and across a narrow ball. He stated, however, that tbe check room was easily accessible from tbe office. On direct examination be stated:

“We use every precaution possible to take the very best care of it. The check room is so situated with reference to my office that I can practically see what is going on about there. It is right within a very short distance of it.”

On cross-examination be stated be bad no personal knowledge of the deposit of the grip in question except what Chitwood told him; that tbe grip was checked in tbe regular way, and from tbe time be went into tbe check room It received just tbe care received by every one’s baggage; that tbe transaction was in no way different from such transactions on other occasions; that be bad no personal knowledge of the door being left open. He further stated that be baa been in the hotel business for sixteen years, and could not recall another instance where be bad been sued for tbe loss of a grip. This evidence falls short of showing an extreme degree of care in protecting the grip in question. Tbe fact that it was stolen by a negro, who was not an employé in the hotel, and bad no right to be there, and the further fact that be must have entered tbe baggage room through an open door, when appellee testified that this door could have been seen from tbe clerk’s desk, shows a want of even ordinary care. It negatives tbe idea that any watch was kept over tbe baggage room, and, in our opinion, is wholly insufficient to relieve ap-pellee of liability.

Tbe court, however, should not have given tbe peremptory instruction requested by appellant, for tbe reason that tbe record discloses the fact that.part of tbe goods, to tbe value of $115, were recovered when tbe thief was arrested within a few days after the tbeft. It appears that upon tbe arrest of tbe thief tbe district attorney took tbe grip with the remaining manicure sets in bis possession and held them to be used as evidence in the trial of tbe thief; that this trial resulted in tbe conviction of tbe negro about tbe last day of October, at which time it appears that appellant might have again obtained possession of tbe remainder of tbe goods without any controversy. “A mere delay in delivery does not amount to conversion where it was not willful, nor under such a circumstance as to amount to a denial of ownership or right of possession.” 6 O. J. p. 1143, § 97. “Where the time of redelivery is not fixed by agreement or by tbe nature of tbe object to be accomplished, redelivery must be made within a reasonable time after demand; tbe question of what time is reasonable being determined by tbe circumstances of each particular case.” Id. “If a time for tbe return of tbe property is not fixed by agreement or by the nature of tbe object to be accomplished, the bailee must, after a reasonable time, redeliver it wbenever be is called upon to do so.” R. O. L. p. 114, § 37. It then became a question of fact whether, under all tbe circumstances, appellee was liable for tbe loss of tbe $115 worth of goods recovered, or whether they were recovered within a reasonable time and bis liability was simply for delay in redelivering them. What is bere said also disposes of tbe second assignment.

According to the rule as stated in Howth v. Franklin, supra, an innkeeper is not an insurer of bis guest’s property, and tbe court did not err in refusing special charge No. 3.

Appellant alleged tbe delivery of tbe grip and its contents to appellee, and a failure to redeliver upon demand. There is no allegation of negligence in tbe petition, but tbe right to recover is based upon tbe liability of an innkeeper as stated above, Proof of these facts entitled appellant prima facie to recover, and a general denial only put appellant upon proof of its allegation. If appellee desired to avoid liability by showing that he had used extreme care, it was incumbent upon him to allege and prove that fact. Such proof was not admissible under the pleadings, and we think the court erred in submitting that issue to the jury, although evidence upon it was admitted without objection. The charge should not submit an issue not raised by the pleadings. We agree'with appellant in the contention that the burden of proof to show extreme care and diligence was upon appellee. The evidence shows that appellant was engaged in interstate commerce, and the charge with reference to appellant’s being engaged in interstate commerce should not have been given. The amount of plaintiff’s demand at the time of filing suit fixes the jurisdiction of the court, and upon the face of- the petition appellant was entitled to recover at that time the full market value of the grip and its contents. No fraudulent intent was shown in making the allegation. We think the letter of the district attorney notifying appellant that the goods were ready to be redelivered was admissible upon the issue of delay in delivery and to show the extent of appellee’s liability.

The judgment is reversed and the cause remanded. 
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