NOTES OF RECENT CASES

INNKEEPERS. (SAFETY OF GUESTS — ACTS OP SERVANTS — DEGREE OP CARS) CIRCUIT COURT OF APPEALS, STH CIRCUIT. Suit was brought in the case of Clancy v. Baker, 131 Federal, 161, for damages because of the accidental shooting of the son of a guest of the hotel by one of the bell boys while the latter was off duty but within the hotel building. It seems that the little boy went down the elevator into the basement to get some ice water. He passed by a room where some one was playing a har monica, and passing in found the bell boy and a companion. The boy who was playing the in strument playfully pointed a pistol at him, telling him that he must not touch anything. The pistol was accidentally discharged and the boy injured. The majority of the court hold that the rule which obtains in regard to common carriers can not be extended in a case like this to apply to inn keepers, and the distinction which is pointed out between the two classes is that the innkeeper is not an insurer of the safety of the person of his guest, but his obligation is limited to the exer cise of reasonable care. The court states that this rule has been so applied by every court which has ever passed upon the question, and a large number of cases are cited. The case of Bass v. Chicago & Northwestern R. Co., 36 Wis. 450, 17 Am. Rep. 495, is quoted from at length as to the duty which railroads and palace car companies in particular owe to their guests and passengers. It is pointed out that in this class of cases the carrier takes and the passenger surrenders to him a complete control and dominion of his person, and the chief and in fact only occupation of both parties is the performance of the contract of car riage. The carrier regulates the movements of the passenger, assigns him to a seat or berth, and determines when and how and where he shall ride, eat and sleep, while the passenger submits to the rules, regulations and directions of the car rier, and is transported in the manner the latter directs. The logical and necessary result of this relation of the parties is that every servant of the carrier who is employed in assisting to transport the passenger safely, every conductor, brakeman, and porter who assists in the transportation, is constantly acting within the scope and course of his employment while he is tipon the train or boat. Any negligence or willful act of such a servant which inflicts injury upon the passenger is necessarily a breach of the master's contract of safe carriage, and for it the latter must respond. But the contract of an innkeeper with his guest and their relations to each other are not of this character. The innkeeper does not take, nor does the guest surrender, the control or dominion of

257

the latter's person. The performance of the con tract of entertainment is not the chief occupation of the parties, but it is subordinate to the ordinary business or pleasure of the guest. Judge Thayer dissents and holds to the theory that the same degree of care is required of innkeepers and com mon carriers, and quotes from the Indiana case of Dickson v. Waldron, 34 N. E. 506, 24 L. R. A. 483, 41 Am. St. Rep. 440, as follows: "But com mon carriers, innkeepers, managers of theatres, and others who invite the public to become their patrons and guests, and thus submit personal safety and comfort to their keeping, owe a more special duty to those who may accept such invi tation. Such patrons and guests have a right to ask that they shall be protected from injury while present on such invitation, and particularly that they shall not suffer wrong from the agents and servants of those who have invited them." Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657, is also cited. Judge Thayer denies that common carriers are the insurers of the personal safety of passengers, and holds that they only exercise a very high degree of care. INTOXICATING LIQUORS. (RETAILING WITH OUT A LICENSE — GIFTS) KENTUCKY COURT OF APPEALS. A case of importance because of the attention which the courts have recently paid to gift enterprizes and evasions of the liquor laws is that of Friedman v. Commonwealth, 83 Southwestern Reporter, 1040. An indictment was brought against the plaintiff for retailing spirituous liquors without a license. The evidence disclosed the fact that a contract was made with a salesman to the effect that he would be given one quart of whiskey for each sale he made of five gallons of liquor, and an arrangement was made by which a dozen or more friends of the salesman were to purchase the five gallons required to secure the premium, and the whiskey was delivered at the designated place and divided among the pur chasers. The court holds that the one quart given to the salesman under these circumstances was a sale, as much so as it would have been if the appellant had sold it to some one else and received money for it. Instead of paying money for the liquor, the salesman performed services to pay for it. The conviction was, therefore, sus tained. LIBEL. (NEWSPAPER ARTICLES — PUBLIC SCORN AND CONTEMPT) NEW YORK SUPREME COURT, APP. Div., IST DEPT. Taking its cue from the Triggs case, 179 N. Y. XS3. 71 N. E. 742, recently reviewed in this de