Opinion
November 22, 1948.
1. Innkeepers — liability for guest's goods.
The common law liability of an innkeeper by which he was an insurer for all goods of a guest lost in the inn unless the loss happens by an act of God or a public enemy or by the fault of the guest himself, has been changed by statute, Section 7153, Code 1942, so that the inn is no longer an insurer but its liability must be founded upon a failure to exercise that ordinary care required of a bailee for hire.
2. Innkeepers — prima facie case of liability, when shown and effect thereof — shifting of burden.
When the guest has shown delivery of his baggage and personal property into his hotel room in good order and their subsequent loss a prima facie presumption of negligence on the part of the innkeeper is thereby created, and the burden thereupon shifts to the innkeeper to absolve himself of negligence. This burden is met when the innkeeper shows that the loss occurred by a fire in the hotel, thus again shifting the burden to the guest to prove actionable negligence.
3. Master and servant — when an erstwhile servant is only a licensee on the premises.
When a bell-hop regularly employed as such in a hotel came on duty in a drunken condition and he was removed by the mananger to the dressing room and his uniform taken from him, with directions to remain in the dressing room until sober, he became thereupon no more than a licensee on the premises and his action in negligently starting a fire which spread to the hotel itself was not chargeable to the inn as the proximate cause of the guest's loss.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Coahoma County; E.H. GREEN, J.
Holcomb Curtis, for appellant.
In the case at bar it is established beyond question that the relationship of guest and innkeeper existed between the appellant and appellee. This fact being true, the only question then remaining is to determine the degree of care imposed upon appellee to protect appellant's property from loss or destruction by fire.
Although we have made careful study of the Mississippi cases dealing with claims against hotels and inkeepers, we have not found any case which is comparable to the case at bar on the facts, and as far as we have been able to determine, the liability of an inkeeper for the loss of a guest's property destroyed by fire has never been adjudicated by our Supreme Court. Neither are we able to clearly determine whether our court adheres to the theory of strict liability making the innkeeper an insurer or predicates the innkeeper's liability purely on negligence or wrongful act. In Todd v. Natchez-Eola Hotel Company, 171 Miss. 577, 157 So. 703, and in Edwards Hotel Company v. Terry, 185 Miss. 824, 187 So. 518 it does not appear that our court has aligned itself for or against the common law doctrine of strict liability, for in the Todd case, supra, the court declined to decide the question, and in the Edwards Hotel Company case, supra, the facts failed to definitely establish the relationship of innkeeper and guest — a relationship which is undisputed in the case at bar.
Should the rule of strict liability be enforced by this court there is no doubt but that the appellant is entitled to recover from the appellee.
On the other hand, should this court refuse to enforce the doctrine of strict liability, then we respectfully submit that under the testimony as developed by the appellant, there is sufficient evidence of negligence on the part of the appellee to create an issue to be decided by the jury. Under all of the decisions and the authorities it is consistently stated that the innkeeper, as a bailee, has imposed upon him a greater degree of care than an ordinary bailee. The foregoing statement is set forth in 6 American Jurisprudence, page 146, (Bailments) as follows: "Bailments are sometimes classified very generally with respect to the liability of the bailee as ordinary and exceptional bailments. The ordinary bailments with which this article is primarily concerned include bailments for the sole benefit of the bailor, those for the sole benefit of the bailee, and most bailments for the mutual benefit of both parties. The exceptional bailments are those which although for the mutual benefit of both parties and in many respects subject to rules governing such bailments, affect the public interest in such a way that the law has imposed on the bailee a somewhat different liability from that of the ordinary bailee for hire due to reasons of public policy. Exceptional bailments usually include those involving common carriers innkeepers and certain public agents and are given an exhaustive treatment in other articles." See also 28 American Jurisprudence,
The Alcazar Hotel, owned and operated by the appellee, was a public establishment on March 16, 1947, holding itself out to receive guests for lodging and in return therefor charging them a price for the space occupied. In its dealings with the public the appellee was under a duty to render service to its patrons and not to injure them or their property in any respect. The appellee also was under a duty to employ servants who would not commit any acts which would harm the guests of the hotel. The rule is clearly and unequivocally stated in 28 American Jurisprudence, page 576, (Innkeepers): "The obligation of the proprietor to protect his patrons from injury or mistreatment includes the duty to select and retain only such employees as are satisfactory and suitable to look after the safety and comfort of his guests and who will not commit acts of violence against them in so far as it is reasonably within his power to do so. A breach of this duty has been held to constitute negligence and to render an innkeeper or restaurant responsible for even a personal assault. However, the guests must prove negligence on the part of the innkeeper in either employing or retaining an employee whose unfitness for the position caused the injury complained of."
In the case at bar the appellee presented itself to the public as being an establishment in which the appellant and his property could be safely accomodated. In the carrying out of this public service the appellee employed certain servants, to-wit: bell-hops who were at liberty to move about the premises and to perform the various duties assigned to them. These employees must necessarily be of such habits, character and disposition as to afford to the guests complete security and safety. The bellhop, Caesar Stokes, was not such a servant, and his incompetence, unfitness and unreliability were known to appellee who, nevertheless, retained him in its employ. By the exercise of even ordinary and reasonable care, the appellee should have known that the servant, Caesar Stokes, in one of his drunken sprees might commit some act of violence against the guests or the premises. The fact that the servant had come upon the premises in a drunken condition on several occasions at which times he had been sent by the manager to the dressing room, the fact that he had had an altercation with the assistant manager during the month of February, 1947, during which altercation he was admittedly drunk and was arrested by the police officers of the City of Clarksdale, the fact that he was known to drink while on the job and his drinking had been observed by those working in the hotel and other parties in and around the premises — all of these were sufficient warnings to the appellee that this servant was dangerous and constituted a hazard to the safety of the guests. In the case of the Country Club of Jackson v. Turner, 192 Miss. 510, 4 So.2d 718, the question of whether the employer was negligent in retaining a servant who was known to be dangerous and vicious was discussed, and Justice Alexander, speaking for the court, stated:
"Evidence of dangerous propensities should be clear, but definitions thereof are not always so. Each case must be looked to for materials for the construction of a suitable standard. Unquestioned absence or presence of such traits may raise a question merely of legal sufficiency. Between these extremes lie issues of fact for the jury to resolve." See also Jones v. Alden Mills, 150 Miss. 90, 116 So. 438.
In the case at bar the appellee had ample knowledge and information concerning the servant, Caesar Stokes, and was fully aware that his being in and around the hotel premises constituted a danger to the patrons and guests. What greater danger can one imagine than a public establishment, such as a hotel, having in its employ a bellhop who drank continuously on the job, who was in the habit of coming to work in an intoxicated condition and who engaged in altercations with the white management and other employees?
To our minds the appellee was also grossly negligent in another respect: that is, by allowing the drunken Stokes to remain in the hotel premises on March 16, 1947. The testimony shows that Stokes engaged in an altercation with the negro maid, Lula May Hayes. That Stokes was so drunk that he got into one of the beds in a guest room. That the hotel manager, Mr. Defend, came to the fourth floor of the hotel and found Stokes drunk. That he took him to the colored dressing room, located in the Hotel Annex, and told him to remain there "until he sobered up." That Stokes wandered out of the dressing room and Mr. Defend again took him back in there and told him to stay there "until he sobered up." At this stage of events, Mr. Defend could have prevented the subsequent fire and destruction of appellant's property by calling the police and having Stokes arrested and placed in custody. Surely any prudent and reasonable hotel manager would have remained with this drunken and belligerent servant until the police could be summoned to take charge of the law violator. It appears conclusively that the appellee could have prevented the destruction of appellant's property, and having the opportunity to do so, but failing therein, he should be held liable therefor. This rule of liability is well recognized and is set forth in 35 American Jurisprudence, page 982, (Master and Servant).
Could Mr. Defend have foreseen that this servant would commit some act of violence such as the fire? We think the evidence amply shows that Defend should have foreseen that this dangerous servant might harm the guests of the hotel. It is true that he (Defend) might never suspect that Stokes would set fire to the hotel, but he could reasonably anticipate that some harm would arise from this employee, and his failure to rid the premises of this party made him liable for the results. As expressed in Cumberland Telephone Telegraph Company v. Woodham, 99 Miss. 318, 54 So. 890, 891: "The negligent act of a person, resulting in injury, . . . creates liability therefor, when the act is of such character that, by the usual course of events, some injury, not necessarily the particular injury, or injury received in the particular manner complained of, would result therefrom, provided the attendant circumstances are such that an ordinarily prudent man ought reasonably to have anticipated that some injury would probably result from the act done." See also City of Greenville v. Laury, 172 Miss. 118, 159 So. 121.
We therefore respectfully urge that the learned lower court was in error in granting to the appellee a peremptory instruction and that there is ample evidence of negligence on the part of the appellee in retaining in its employ the servant, Stokes, and in allowing him to be and remain upon the premises on March 16, 1947, so as to make it a question for the jury to decide.
Roberson, Luckett Roberson and Maynard, Fitzgerald Maynard, for appellee.
Counsel for appellant in their brief express doubt as to what the rule in Mississippi is as to the liability of an innkeeper for the loss of or damage to the personal property of its guests. We could understand that doubt were it not for the fact that Section 7153 of the 1942 Code of Mississippi expressly defines the liability as being that of a depository for hire.
At common law there are two distinct doctrines, each supported by well considered adjudicated cases which define the nature and extent of an innkeeper's liability for loss of or damage to the goods of a guest. An examination of these contrary doctrines would only be of historical interest and could serve no useful purpose in our discussion because of our present statute. However, in passing, it may be said that one of these doctrines held that an innkeeper was practically an insurer of the goods of his guests and the other held that said liability could only be predicated on the negligence or wrongful act of the innkeeper.
The provisions of Section 7153 of the 1942 Code of Mississippi first appeared in Mississippi in 1912 and were in the identical form which they are today. We can find no adjudicated cases in Mississippi prior to 1912 which dealt with the liability of an innkeeper for the loss of personal property belonging to a guest. This statute was construed in the case of Edwards Hotel Company v. Terry, 185 Miss. 824, 187 So. 518.
The plaintiff in that case was suing the Edwards Hotel for damage caused to his automobile when the attendant at the free parking lot of said hotel permitted a stranger to use said automobile, which use resulted in damage thereto. In discussing the liability of said hotel, the Supreme Court stated at page 834: "It is unnecessary that we review the authorities and decide the specific question here as to whether the appellee occupied the relation of a guest to the appellant hotel, by reason of the fact that his attendance and that of the other guests at the banquet resulted in a mutual benefit accruing to them and to the hotel, since Section 5108 of the Code of 1930 (which is now Section 7153 of the 1942 Code), by express language defines the liability of an innkeeper to be that only of a depository for hire. The liability here, by virtue of the provisions of this statute, the hotel not being an insurer, must be founded, if at all, upon a failure to exercise that ordinary care required of a bailee for hire as to the safekeeping of the car in question; unless appellant, indeed, was only a gratuitous bailee of the car at its free parking lot at the time complained of and liable only for gross negligence."
The Terry case thus, in unequivocal language, construes section 7153, of the 1942 Code of Mississippi as limiting the liability of an innkeeper for the loss or damage to property to that of a depository for hire, and goes further to say that said innkeeper must thus exercise only ordinary care.
With this premise of law firmly established, the decision of this case is not difficult. In spite of appellant's skillful legal maneuvering, his arguments cannot overcome the incontrovertible law that a master is not liable for the acts of his servant committed without the scope of his employment and and not in furtherance of his master's business. When appellant seeks to draw an exception to this rule by trying to invoke the incompetent servant principle, he is met with facts showing its complete inapplicability. When he then seeks to establish negligence on the basis of Defend's action in leaving Caesar Stokes in the negro dressing room, he is met by the Mississippi law summed up in the following statement from Vincent v. Barnhill, (Miss.), 34 So.2d 363, at page 364: "Our court is committed to the rule that no man is to be convited of negligence when or because he has failed to guard against that which is merely possible as distinguished from that which is likely to occur or is probable, as sometimes phrased."
We respectfully submit that in no event could the hotel company be held liable for any damage caused as a result of any action by Caesar Stokes, because before and at the time of the alleged fire, Caesar Stokes was not acting within the scope of his employment and his actions were certainly not done with a view to further his master's business.
The well established rule in Mississippi, which is also the general rule, is that an employer is not liable for the acts of his employee unless the employee was acting within the scope of his employment and in furtherance of his master's business. Hines et al v. Cole, 123 Miss. 254, 85 So. 199; Railway Co. v. Harz, 88 Miss. 681, 42 So. 201; Railway Co. v. McAfee, 71 Miss. 70, 14 So. 260; Railway Co. v. Latham, 72 Miss. 35, 16 So. 757; Railway Co. v. Hare, 104 Miss. 564, 61 So. 648; Hines et al v. Green, 125 Miss. 476, 87 So. 649, 67 L.Ed. 299, 260 U.S. Sup. Ct. Reports 348; Loper v. Yazoo M.V.R. Co., 166 Miss. 79, 145 So. 743; Western Union Telegraph Co. et al v. Stacy, 162 Miss. 286, 139 So. 604; Craft v. Magnolia Stores Co, 161 Miss. 756, 138 So. 405; Southern Ry. Co. v. Garrett, 136 Miss. 219, 101 So. 348; Wells v. Robinson Bros. Motor Co., 153 Miss. 451, 121 So. 141; Davis v. Price, 133 Miss. 236, 97 So. 557; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823; Birmingham News Co. v. Browne, 153 So. 773.
In 28 Am. Jur. page 576, in the chapter on "Innkeepers": ". . . The general rule governing the liability of a master for the acts of his servant being applicable. Under this view, the general test of liability for a negligent, wilful, or malicious act of an employee, servant, or agent, causing injury to a guest, is whether, at the time the act was done, he was acting in pursuance of his duties as such employee and in behalf of his employer, or whether he acted for himself from motives or for a purpose with which his duties as employee were not related. . . ."
Although his reasoning seems somewhat obscure to us, appellant seems to advance the theory that appellee is liable because it employed an alleged incompetent servant who burned the Alcazar Hotel.
This theory of appellant is sought to be sustained by the Mississippi cases of Jones v. Alden Mills, 150 Miss. 90, 116 So. 438, and Country Club of Jackson v. Turner, 192 Miss. 510, 4 So.2d 718. An examination of these two cases will demonstrate their inapplicability to our facts.
In the Alden case supra, appellant was invited on the premises as guest of appellee and was viciously attacked by Burroughs, an employee of appellee. The evidence showed that a few days before the attack appellant and Burroughs had some personal difficulty. Burroughs was known by appellee to have a violent temper and vicious disposition and habits and appellee's superintendent had heard Burroughs make the threat that "if he (appellant) came through the mill again he was going to cut his damned head off." With this knowledge, the superintendent nevertheless invited appellant to the mill but concealed from him the threats of Burroughs. As stated by the court on page 104: "There is testimony tending to show that appellee's superintendent knew that the appellant was in imminent danger of suffering serious bodily injury and harm at the hands of the defendant Burroughs, if he came in contact with the said Burroughs on that occasion, and he not only did not warn the appellant of this imminent danger, but, on the contrary, he gave the appellant information that would lead him to believe that Burroughs desired to settle his indebtedness to him, and which would naturally tend to induce the appellant to seek out the said Burroughs for the purpose of collecting the indebtedness. Since the appellee, through its superintendent in charge of the plant, had knowledge of the threatened danger to which the appellant would be subjected if he came in contact with its employee, Burroughs, while passing through said plant, as was his custom under his contract and agreement with the appellee, we think the exercise of reasonable care required this superintendent to warn the appellant of the danger rather than to encourage him to seek out the said Burroughs and thereby incur the risk and danger of great bodily injury; and for such failure of this superintendent to exercise reasonable care to protect the appellant from the threatened and impending danger we think the appellee would be liable. In addition to the testimony showing that the appellee, through its superintendent, had knowledge of the threatened danger to appellant, there was testimony tending to show that the superintendent had sufficient knowledge of the vicious disposition of the said Burroughs to cause him to appreciate the gravity of the danger."
In the Turner case, supra, a caddy of the Country Club of Jackson, sued said Club for an injury caused by an assault on said caddy by an employee of the Club. He sought the employee principle set out in the Alden case, supra, and undertook to prove that the employee who assaulted him was of a dangerous and vicious nature and had previously assaulted other persons. The Supreme Court refused to invoke the principle laid down in the Alden case, supra, because as stated by it on page 516: "Jones v. Alden Mills, supra, discloses one of these rare cases where a definite animosity toward plaintiff was given special color by the general violent conduct of a servant who had made particular threats against the former. Such conduct gave to the very premises quality of danger which it was negligence for the master to ignore. For a natural tendency to be characterized as vicious and dangerous within the principle invoked, such trait must inhere in the nature or disposition of the servant as an individual, and such innate or essential proclivity must be prone to a ready revelation in an unwarranted display of excessive force. Moreover, there must exist such deviation from normal temper as to constitute as an unusual hazard any exposure to the probability of its manifestation."
It is further clear from a study of the Alden and Turner cases, supra, that in order to recover upon the theory that an incompetent servant has been retained, it is necessary that the facts show beyond controversy the viciousness of the nature of the servant and that the injury complained of was the natural result of the known characteristics of the employee.
We feel certain that it was not the intention of the Supreme Court of the State of Mississippi, in the Alden case, supra, to overrule the well established principle that a master is not liable for the acts of an employee without the scope of his employment, except in such unusual circumstances as set out in the Alden case, supra.
Appellant next argues that appellee was negligent in taking Caesar Stokes to the negro dressing room, stating that the hotel manager should have remained with him until the police could have been summoned. The facts surrounding this occurrence are undisputed and are as follows:
On the day of the fire Caesar Stokes was drinking and came to the hotel at 10:30 A.M. He got into an argument with a negro maid and the manager, A.E. Defend, was summoned. Mr. Defend took Caesar downstairs and across an alley to a basement room used as a negro employees' dressing room. There Mr. Defend had Caesar Stokes take off his bellboy uniform and told him to stay there until he sobered up. Caesar put on his civilian clothes and laid down in the dressing room. Later he got up and lit a cigarette. The facts from then on in Caesar's words are: "I laid down there for a few minutes and got up and got me a cigarette and lit it and threw the match over on the floor on some paper. Well, by being on concrete floor I thought it looked like it was going out. I then went across to the delicatessen to get some coffee. While I was drinking my coffee a little girl who was working there told me the hotel was on fire. I didn't believe it and I came back out and I couldn't get in the alley for the smoke."
These facts not only do not indicate any negligence on the part of Mr. Defend but on the contrary show that he used every care required of him by law. The law as to whether a person in negligence merges into the law of proximate cause in such a maner as to make these principles almost synonymous. For this reason we shall discuss these principles as one.
The Supreme Court has times almost without number set out these principles so it is necessary to consider only a few illustrative cases.
In the case of Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277 the court said on page 521: "In order that a person, doing a particular act which results in injury to another, shall be liable therefor, the act must have been of such character and done in such situation that the person doing it should have reasonably anticipated that some injury to another will probably result therefrom. Actionable fault on the part of a defendant must be predicated on action or nonaction, accompanied by knowledge, actual or implied, of the facts which make the result of his conduct not only a probable result, but a result also which he should in view of those facts, have reasonably anticipated. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842."
In discussing the question as to reasonable foreseeability the court in the case of Shuptrine v. Herron, 182 Miss. 315, 180 So. 621 said on page 329: "And in that respect appellants were not required to have foreseen every possible eventuality, but only those which were reasonably foreseeable. No better statement on this point has ever been made than that by Judge McGowen in Illinois Central Railroad Co. v. Bloodworth, 166 Miss. 602, 145 So. 333, as follows: `Precaution is a duty only so far as there is reason for apprehension. Ordinary care of a reasonably prudent man does not demand that a person should prevision or anticipate an unusual, improbable, or extraordinary occurrence, though such happening is within the range of possibilities. Care or foresight as to the probable effect of an act (or omission) is not to be weighed on jewelers' scales, or calculated by the expert mind of the philosopher, from cause to effect, in all situations. Probability arises in the law of negligence when viewed from the standpoint of the judgment of a reasonably prudent man, as a reasonable thing to be expected. Remote possibilities do not constitute negligence from the judicial standpoint.'"
The law on this subject is likewise well summarized in the case of Mauney v. Gulf Refining Company, 193 Miss. 427, 8 So.2d 249, where it is said on page 427: "The rule is firmly established in this state, as in nearly all the common law states, that in order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; but that the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities. Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333; Burnside v. Gulf Refining Co. 166 Miss. 460, 148 So. 219; Shuptrine v. Herron, 182 Miss. 315, 180 So. 620. This rule is affirmed in one way or another in cases which will run into the hundreds in this state." And again on page 428: "The settled law in this state may be summarized in the form of a diagram, as follows: The area within which liability is imposed is that which is within the circle of reasonable foreseeability using the original point at which the negligent act was committed or became operative, and thence looking in every direction as the semidiameters of the circle, and those injuries which from this point could or should have been reasonably foreseen as something likely to happen, are within the field of liability, while those which, although foreseeable, were foreseeable only as remote possibilities, those only slightly probable, are beyond and not within the circle, — in all of which time, place and circumstances play their respective and important parts."
The point at issue is simply whether a reasonable man should have reasonably foreseen that in the usual and ordinary course of events, Caesar Stokes would probably commit some injury to the guests or their property while he was in the negro dressing room in the basement of the hotel annex.
It is obvious that Caesar, while in the basement dressing room, was in no position to injure any guest for no guest was nor would have any occasion to be in the said employees' dressing room.
Even counsel for appellant recognize the remote contingency of this occurrence when they say on page 20 of their brief: "It is true that he (Defend) might never suspect that Stokes would set fire to the hotel."
It goes without saying that this fire was both an unusual and improbable occurrence. Viewed from any angle or tested by any principle of law, Defend could not have reasonably foreseen Caesar Stokes' act of setting fire to the hotel as a probable consequence of his being placed in the basement dressing room.
Plaintiff filed his declaration in the Circuit Court of Coahoma County, alleging that the defendant is engaged in operating a hotel in Clarksdale, known as the "Alcazar Hotel"; that on March 16, 1947, he registered as a guest at said hotel and was assigned a room, wherein was placed his baggage and other personal property of the value of $428.00; that on said day the defendant had in its employ as a bell-hop, a Negro, Caesar Stokes, who was a heavy drinker and who, on several occasions, had reported for work in an intoxicated condition or had become intoxicated on the job, which facts were well known to the management of the hotel; that Caesar Stokes was of low intelligence and was mentally deficient; that by reason of this mental condition he lost his temper and was unmanageable, all of which was well known to defendant; that defendant nevertheless retained the said Caesar Stokes in its employ, thereby endangering the welfare, safety and well being of the guests and patrons of the hotel; that on March 16, 1947, Caesar Stokes reported for work in a drunken condition but was allowed to assume his duties as bell-hop and was admonished by the Manager of the hotel and taken to the dressing room for colored employees where he was left, having in his possession matches, with which the said Caesar Stokes started a fire in the corner of the dressing room, which fire spread rapidly through the hotel to plaintiff's room where his belongings were totally destroyed.
The declaration further charges that the defendant hotel company was under a duty to use every reasonable care to protect him and his property from damage; that defendant was under a duty to select and retain competent employees who were fit and suitable to look after the safety of its guests and their property; that defendant breached such duty by having in its employ and retaining therein the said Caesar Stokes, who was wholly unfit and incompetent to work in a public business, and such action on the defendant's part constituted gross negligence and resulted in the damage to the plaintiff.
There was a plea of general issue. At the conclusion of plaintiff's evidence, defendant moved to exclude and direct a verdict for the defendant and this motion was sustained and a judgment was entered for the defendant. Plaintiff below appeals here and assigns as error, (1) the action of the trial court in granting the peremptory instruction for the defendant, and (2) the action of the lower court in excluding evidence offered by plaintiff below to establish the general reputation of Caesar Stokes for drunkeness and to show convictions against him in the City Court in Clarksdale.
(Hn 1) At common law, an innkeeper is liable absolutely, or as an insurer, for all goods of a guest lost in the inn, unless the loss happens by an act of God or a public enemy or by the fault or negligence of the guest himself. 32 C.J. p. 548, Section 44. But in this State the liability of the innkeeper is regulated by statute. Section 7153, Code 1942, provides as follows:
"The liability of the innkeeper of any inn, whether individual, partnership or corporation, for the loss of or injury to personal property placed by his guests under his care other than that described in the preceding section shall be that of a depository for hire. Provided, however, that in no case shall such liability exceed the sum of one hundred dollars for each trunk and contents; twenty-five dollars for each valise and contents, and five dollars for each box, bundle or package and contents so placed under his care, unless he shall have consented in writing with such guest to assume a greater liability; except that nothing herein shall prevent any guest of any hotel or inn from recovering at common law the actual value of the contents of any trunk, valise, box or package which, after being given into the care or custody of the hotel or innkeeper or placed in the rooms of a hotel or inn, shall be lost by or through theft, or the engligence, carelessness or omission of any hotel or innkeeper or his servant or employee, and not by or through the carelessness, negligence or omission of such guest.
The liability here, by virtue of this statute, the hotel not being an insurer, must be founded, if at all, upon a failure to exercise that ordinary care required of a bailee for hire as to the safe-keeping of the property of its guests. Edwards Hotel Co. v. Terry, 185 Miss. 824, 187 So. 518.
(Hn 2) Now as to the liability of a bailee for hire, this Court held, in Yazoo M.V. Railroad Co. v. Hughes, 94 Miss. 242, 47 So. 662, 22 L.R.A.N.S, 975, that when a bailor shows that goods were delivered to his bailee in good condition and are lost or destroyed or returned in a damaged condition, this fact creates a prima facie presumption of negligence and it thereupon devolved upon the bailee to absolve himself from negligence. But the bailee may acquit himself of the charge of negligence by showing that the loss occurred from a cause which prima facie exonerates the bailee from negligence. Thus, if he proves that the loss was occasioned by burglary, fire, the falling of the warehouse in which the goods were stored, the death of an animal bailed, the burden is again shifted to the bailor to prove the defendant's negligence. So here, when the bailor guest showed delivery of his baggage and personal property into his hotel room in good order and their subsequent loss, this fact creates a prima facie presumption of negligence on the part of his bailee, the hotel-keeper, and it thereupon devolved upon the hotel-keeper to absolve itself from negligence. But when the bailee showed the loss of the bailed property in a fire, this showing prima facie acquitted the bailee of the charge of negligence and the burden again shifted to the bailor to prove the defendant's negligence. This the plaintiff, below, undertook to do by proving that the bailee had employed an incompetent bell-hop, one Caesar Stokes, who was given to drunkenness while in and about the performance of his duties as bell-hop; that his habits of drunkenness were known to the bailee and they nevertheless retained him in their employ, and that through the carelessness of this bellhop the fire was started.
We are not prepared to hold that in no case could such proof establish negligence resulting in the liability of the hotel-keeper bailee, but we do hold that the proof in the case at bar will not justify such a holding.
From the proof in this case, it appears that Caesar Stokes came to the hotel to work at about 10:45 or 11:30 o'clock on the morning of the fire, March 16, 1947, too drunk to work and went up to the fourth floor where he was found by a maid in one of the guest rooms in bed. There was an altercation between the maid and Stokes when she remonstrated with him and Stokes, she says, slapped her. The maid notified the manager, A.E. Defend, and he and a Mr. Floyd Gerald went up to the room and got Stokes and carried him to the dressing room, used by the colored employees for changing from street clothes to uniforms, when going on duty, and from uniforms to street clothes when going off duty. On arrival at the dressing room Defend told him to stay in the room until he sobered up. Shortly after Mr. Defend left the dressing room he observed Stokes leaving the dressing room and carried him back to the dressing room where he took the uniform off of him and again told him to stay there until he sobered up and then left him. Stokes then put on his civilian clothes, laid down on a bench, in the room, for a few minutes and then got up and got a cigarette, lit it, and threw the match over on the floor on some paper. The paper ignited but since it was on a concrete floor he thought it would go out, and went out to a delicatessen to get some coffee. While drinking the coffee he was informed that the hotel was on fire.
Now referring back to the burden upon the bailor to prove the negligence of the bailee and that the bailed property was lost by the bailor as a proximate cause of this negligence we find no proof whatever of negligence on the part of the bailee itself, unless the bailee had negligently employed an incompetent servant or had retained the services of this incompetent servant, after it knew, or by the exercise of proper diligence should have known, of his incompetency, and further unless the negligence of this incompetent servant was the proximate cause of the injury. Ingram Day Lbr. Co. v. Joh, 107 Miss. 43, 64 So. 934.
(Hn 3) But when we look to our facts for an application of the principle, we find it undisputed that at the time Caesar Stokes negligently started the fire, he was not the servant of the bailee at all. His uniform had been taken off of him by the hotel manager and he had been told to stay in the dressing room. At most Caesar Stokes was no more than a licensee. He was not in the service of the bailee at all.
The burden was on the plaintiff below to prove the negligence of the defendant and there being in this record no proof of such negligence the lower court was correct in granting the peremptory instruction for the defendant.
From what has been said it is not necessary to pass upon the assignment that the court erred in excluding evidence of legal convictions of Caesar Stokes and of his general reputation for drunkenness and sobriety. This could only have gone to Stoke's incompetency and the knowledge thereof by his employer. But, as stated above, he was not at the time of the alleged act complained of the servant of defendant and defendant cannot be charged with liability growing out of his conduct.
Affirmed.