CHAPTER VI.
FIRE, RATS, AND BURGLARS.
After a time, business called me in the direction in which the “tide of empire rolls,” and we took a long, but by no means tedious or monotonous journey, along that metal ribbon which, stretching from ocean to ocean, unites the Atlantic to the Pacific. The train was well supplied with saloon cars, balcony cars, restaurants, smoking cars, palace cars, and sleeping cars. We encountered none of the adventures so graphically described by the writer of the veracious history of Phineas Fogg; no herd of ten thousand buffaloes delayed, no daring band of Sioux attacked, our train; we had neither duel nor flying leap over bridges, crashing down into abysmal depths. We ate, we drank, we slept, we talked, we gazed; we gazed, we talked, we slept, we drank, we ate; and that was all.
At last we reached the wondrous “City of the West,” and beheld the mighty waters of the Pacific throbbing upon the shores and along the piers of San Francisco. To the Palace Hotel we drove, and there we took up our quarters, glad enough to rest our brains, dizzied and dazed with our flight across the continent.
Refreshed by the quiet rest and needful repose of a long night’s sleep, my wife insisted upon taking a stroll through the magnificent hotel in which we were now quartered.
“If there was a railway running along all the passages and corridors we might manage to get round the Palace Hotel in a morning,” I said, “but steam has not yet been introduced for that purpose. To be sure, there is the pneumatic tube, but that is not quite large enough unless you are willing to go without a pannier.”
“How large is the house?” asked Mrs. Lawyer.
“Why, it is three hundred and fifty feet long by two hundred and seventy-five broad.”
“Let us hurry, then; if it is so huge we have no time to lose,” was the brave response.
“Well, here’s an elevator,” I remarked.
We stepped into one of the four passenger elevators, which are run by hydraulic power. The motion was almost imperceptible, and rapid as the downward flight of a swallow. The young gent in charge told us that it could run from bottom to top and back again to bottom, through the whole seven stories of the house, in ten seconds.
On arriving on the ground floor we first inspected the grand court and the rooms on either side, and then turned into one of the long corridors, from which my wife insisted upon visiting the handsome stores, opening off with their tempting wares. I left her making purchases while I entered the barber’s saloon, and in one of the easiest of patent adjustible chairs, by the deftest of tonsors, with the keenest of razors, allowed myself to be shaved; for Mrs. L. loved not to see a man with his nose projecting over a cascade of hair, and desired that my face might preserve its human outline, instead of presenting—as she sarcastically remarked—no distinction from the physiognomy of a bearded owl or a Barbary ape.
No fear of losing nose or cheek while in that place. But, after all, it is not a sublime attitude for a man to sit, with lathered chin, thrown backward, and have his nose made a handle of. To be shaved, however, is the fashion of American respectability, and it is astonishing how gravely men look at each other when they are all in the fashion. For the benefit of those unfortunates who get gashed betimes beneath the operator’s hand, I would say, that if a barber attempts to shave you he must possess the necessary education and skill, and show the diligence of an expert in that line, otherwise he will be liable for damages sustained.[256] Of course if you suffer an inexperienced volunteer to practice upon your chin and you come to grief, you have no remedy, unless the amateur is guilty of gross negligence; but if one unskilled in the art pushes himself forward and seizes you by the nasal projection, to the exclusion of a professional, he is expected to use the skill usually possessed by a master of the art.[257] In Illinois, it would seem that if one renders his services free, gratis, and for nothing, he will be only liable for gross negligence;[258] but the point appears open to argument.[259] I presume that no one would be so foolish as to suppose that a professor of the tonsorial art is bound to attend to your hirsute appendages willy-nilly; but when he does take you in hand he must carry the operation through without any sins of omission or commission.[260]
When I rejoined my wife, she asked to descend into the basement regions, so down we went, and found bath-rooms and laundry-rooms, wine-rooms, pantries, etc., in well nigh endless succession.
“How many napkins do you use a day?” inquired Mrs. L. of the individual whose duty it was to reside in a region of perpetual steam and damp.
“About three thousand,” was the response; “and four hundred table-cloths, if people are reasonably careful.”
“I would like some things washed; how soon could you do them?” asked my wife.
“If they are large articles, you can have them back in your room in fifteen minutes; if small, in seven minutes.”
“That’s rather quick,” I remarked.
“Well, sir, I have known a man to have his shirt washed while taking a bath; and a handkerchief, sent down the tube dirty, was returned clean during the time he was arranging his neck-tie, or parting his back hair.”
On we went, to the pantries, and saw the thousands and tens of thousands of pieces of china and crockery, glass and cutlery.
“A breakage occasionally would not matter much, among so many thousands of pieces,” I remarked.
“It would matter more to the man who broke the article than to the hotel proprietor, I calculate,” responded the man in charge of this legion of crockery and glassware.
“Well, sir, that depends on how the breakage occurred. I take it that a guest at an hotel is, with respect to the things that he uses, in the same position as if he hired them—in fact he does hire them; and it is well settled that every hirer of a chattel is bound to use the thing let to him in a proper and reasonable manner, to take the same care of it that a prudent and cautious man ordinarily takes of his own property, and to return it to the owner at the proper time, in as good condition as it was in when he got it, subject only to deterioration produced by ordinary wear and tear, and reasonable use, and injuries caused by accidents which have happened without any default or neglect on the part of the hirer.[261] The owner must stand to all the ordinary risks to which the chattel is naturally liable, but not to the risks occasioned by negligence or want of ordinary care on the part of the hirer.[262] In fact, as a late writer has very well put it, the hirer of a chattel is in no sense an insurer, nor is he liable for culpa levissima, or that apocryphal phrase of infinitesimal negligence which stands in antithesis to the diligentia diligentissima which the law does not, as a continuous service, exact.”[263]
As I paused, the man hastily remarked that he had no time to stop and talk, and my wife, fearing that the subterranean air was affecting my brain, said that we had better go up stairs; so, like the youth with the strange device, “Excelsior” was our motto.
“Take that box of matches,” said Mrs. Lawyer. “We may want them when off picnicking.”
“We had better not. They are left there for the purpose of lighting cigars, and can only be taken in a limited manner. Taking them by the boxful would be larceny, if the intent is felonious,”[264] I returned.
“What a terrible place for a fire!” suggested my wife.
“Yes,” I replied. “No fire would have the slightest chance here. What with the huge reservoir supplied by artesian wells, the seven tanks on the roof, the three large steam fire-pumps, the watchmen going their constant rounds, and the thermostats in every room in the hotel, (which, when the temperature is raised to 120°, cause a bell to be rung continuously in the office, and show the number of the room affected in the annunciator) a spark could scarce develop itself into a blaze before its discovery.”
“Well, but,” urged Mrs. Sawyer, “suppose, notwithstanding these precautions, a fire did take place, and our baggage was destroyed, would the landlord have to pay for it?”
“I can only say, my dear, that on the other side of the continent, in the State of Vermont, where a man sued to recover the value of a span of horses, a set of double harness, two horse-blankets, and two halters, it was decided by the court that an hotel-keeper is not liable for property lost by fire where the conflagration is occasioned by unavoidable casualty or superior force, without any negligence on his part or that of his servants.[265] An English decision tends in the same direction;[266] and in Michigan it was held that he was not liable for the horses and wagons of a guest, burned in a barn, without his negligence.[267] But the English decision has been questioned both here and there,[268] and in New York it was considered that the liability of a publican extended to the loss of goods by fire, (though the cause of it was unknown) provided that the guest is free from all blame in the matter.[269] In that State they have a law exempting landlords from liability for the loss by fire of a guest’s goods in a barn or outhouse, if it is shown that the damage is the work of an incendiary, and occurred without negligence on their part; but the burden of proving this is, of course, upon the innkeeper,[270] and my own humble opinion is that an innkeeper is liable for all such losses unless they are caused by a public enemy, or an act of God, (lightning, or an earthquake) or the owner has been negligent.”[271]
* * * * * *
“Heigh-ho!” sighed my wife, as, exhausted with her long tramp through the mammoth house, she sank into a luxurious arm-chair on our return to our own apartment, preparatory to an excursion through the city. “Look at that horrid little thing!” she exclaimed the next instant, and starting up with enough vehemence to frighten a lion, she scared away a little mouse that had been nibbling at her reticule. “The little wretch! see how it has spoilt my nice new satchel! It must have been the cakes inside. Can I make the landlord give me a new one?” she avariciously added.
“Humph! I wish that some one had asked me that question who could afford to pay me for a carefully considered opinion,” I replied.
“Why can’t you tell me?”
“Because I scarcely know what to say. The point seems open to argument. I don’t remember any case where the depredations of mice have occupied the attention of a court of law, although there have been several decisions on the subject of rats.”
“Well, and what were they?” exclaimed my wife, impatiently. “That a man can keep the nasty things in his house, and let them damage the property of his guests, and not pay for them?”
“In one case where rats gnawed a hole in the bottom of a boat, and the water, coming in at the leak, damaged goods on board, the owner of the vessel was held liable for the performance of those rodents;[272] and in another case, carriers were held responsible for their depredations on board a ship, although there were cats and mangooses on board, and the owners had availed themselves of the valuable services of the venerable sire of the pretty rat-catcher’s daughter of Paddington Green.”[273]
“But you stupid man, we are not on board ship,” said my amiable and accomplished spouse.
“And,” I replied, “that is exactly where the difficulty arises; for where a man had a water-tank on the roof of his house, and the rats gnawed through a leaden pipe so that water trickled down and injured the goods of another fellow on the ground floor, the court held that the owner of the establishment, who occupied the upper flat, was not responsible—and Chief Baron Kelly remarked that it was absurd to suppose that a duty lay on the landlord to exclude the possibility of the entrance of rats from without.”[274]
“That seems a very different view from that taken by the judges in the other cases,” remarked Mrs. L.
“Yes; but the Chief Baron said that the case of a ship was wholly different—that it might be possible to insure freedom from rats in a ship, but that it was impossible to say that this could be done with respect to warehouses generally,[275] and another judge remarked that a landlord could not be considered negligent if he omitted taking means to get rid of these pests till there was reason to suppose they were in the building.”[276]
“Never mind what others considered and thought and said—what do you think?”
“I think that perhaps the rule would apply that if a man permits an animal to remain in his possession he becomes liable for the mischief it commits.”[277]
“Do you know what I think?” queried my wife.
“No, my dear.”
“That we had better go to lunch.”
* * * * * *
As we were quietly sleeping the sleep of the wearied just that night, I was aroused by a noise at our window. In a moment or two it was opened, and then a man stealthily entered the room. I had not time to ask him what he wanted, for at the first sound of my voice he was off as quickly as if he had heard the click of a pistol. I made the window secure, and again entered dream-land. In the morning, as we donned the attire which Adam’s transgression has rendered necessary, my wife and myself conversed on the subject of the liability of an hotel-keeper for losses occurring to his guests from burglary.
“In Vermont, my dear,” I said, “it has been held that if the proprietor could show that the burglarious entry was under circumstances that absolved him from all blame, he would not be liable.[278] But that doctrine is not now followed.”[279]
“And what do the judges now say?”
“It was decided in this sunset State that although the point may be somewhat unsettled, yet still the true idea is to hold that innkeepers, like common carriers, are insurers of the property committed to their charge, and are bound to make restitution for any injury or loss not caused by the act of the Almighty, nor by a common enemy, nor by the neglect or default of the owner.”[280]
A fresh topic of conversation here suggesting itself to the active brain of Mrs. L., she launched out upon it con amore.
I found afterwards that I had not been the only object of the burglar’s attentions, for as I was sauntering along one of the corridors of the hotel I was accosted thus:
“I say, you walking digest of the law of inns and innkeepers, what’s the consequence if a guest is a little careless and loses his valuables?”
This question was familiarly put to me (that is, put in a way that evinced no intention on the part of the speaker of paying for the information sought) by an old friend, with whom I occasionally conversed on legal topics, and from whom carelessness and negligence were as inseparable as Apollo and his golden bow, or Orpheus and his tuneful lyre.
“The same old Story, to whom I have often alluded in my professional talks with you, says[281] that negligence may be ordinary, or less than ordinary, or more than ordinary; and that ordinary negligence may be defined to be want of ordinary diligence, and gross negligence to be want of slight diligence. Although some English judges have said that they can see no difference between negligence and gross negligence; that it is the same thing with the addition of a vituperative epithet.[282] Of what kind of negligence have you been guilty, and what has happened?”
“I did not say that I had been doing anything. But suppose that a fellow had some money in his portmanteau and left it in the hall of the hotel with the other baggage, and didn’t say anything about it to the landlord, and it disappeared.”
“Well, sir, in such a case I should say that a jury would be warranted in finding that the individual referred to had been guilty of gross negligence, and that the hotel-keeper was exonerated through his imprudence in thus exposing his goods to peril.”[283]
“I had some such idea floating through my own cranium.”
“’Tis a pity that your brain is in such a liquid state. I remember a case of a man of the name of Armistead, a commercial traveler, who, while at an hotel, placed his box in the commercial room, as was the wont of those who visited the house. The box had money in it, and was left there for three nights. Twice or thrice, in the presence of several on-lookers, Armistead opened the trunk and counted his change. The lock was so bad that any one could unfasten it without a key by simply pushing back the bolt. The money leaked away mysteriously, and Armistead sued the landlord to recover it, but the judge who tried the case told the jury that gross negligence on the part of the guest would relieve the host from his common-law liability; and when the matter came up before the court it was held that the jury had done right in finding the traveler had been guilty of such gross negligence as to excuse his landlord from liability for the money. Lord Campbell remarked that the judge would have been astray had he said that in all cases a box should be taken to the guest’s bedroom, and he doubted whether, in order to absolve the innkeeper, there must be crassa negligentia on the part of the guest.”[284]
“That’s the law, is it?”
“A still more recent case settled the question as to the amount of negligence that would bind the owner of the goods. In deciding it, Earle, J., said that he thought that the rule of law resulting from all the authorities was, that in a case like the one he was considering the goods always remained under the charge of the innkeeper and the protection of the inn, so as to make the landlord liable as for breach of duty, unless the negligence of the guest occasions the loss, in such a way as that it would not have happened if the guest had used the ordinary care that a prudent man might reasonably have been expected to take under the circumstances;[285] and the same rule seems to hold good on this side of the Atlantic.”[286]
“If a friend bags your baggage,” inquired the searcher after cheap knowledge, “at an hotel, and marches off with it, could you compel the proprietor of the establishment to make good your loss?”
“It was decided not, in Illinois, where one had allowed his chum to exercise acts of ownership over his trunk;[287] and long ago it was held, in the old land, that if a landlord tells a guest, on his arrival, that he has no room, the house being full, and his words are veritable truth, and yet the guest insists upon being admitted, saying that he will shift for himself, or if he go and share the apartment of another, without the consent of the proprietor or his servants, the host is not responsible for his traps, unless the sufferer can show that the goods were actually stolen or lost through the negligence of the innkeeper or his servants.[288] But an innkeeper can’t shirk his liability because his house is full of parcels, if the owner is stopping at the house.”[289]
“To tell you, then, what really did happen to me: I got in here late last night, and after entering my name at the office, pulled out my purse and paid the cabby; I then went to my room, and being very tired, tumbled out of my clothes as rapidly as nature and art would permit me, put them on a chair near the bed, and was soon among the flowery meads of dream-land. This morning, lo and behold! the purse which I had left in my pocket was gone, some villain having, while I slept, entered the room by the door, which I had omitted to fasten. Now, then, what are my rights and remedies in the premises?” asked my friend.
“In the days when the Virgin Queen, Elizabeth, ruled the benighted land of our ancestors, and trifled with the affections of subject, prince, king, czar, and Cæsar, the whole Court of Queen’s Bench decided that an innkeeper was bound by law to keep the goods and chattels of his guests, without any stealing or purloining, and that it was no excuse for him to say that he delivered to the guest the key of his bed-room, and that he (the guest) had left the door open, (that is, I presume, unlocked);[290] for that he, the landlord, is responsible for their safety, even in the bed-room, and that even though the poor publican never knew that his visitor had any property with him, and was entirely ignorant of the depredation. Unless, indeed, the thief was the guest’s servant or friend, or the proprietor had required the guest to place his goods in a particular chamber, under lock and key, saying that then he would warrant their safety, otherwise not, and the man had foolishly neglected the advice.”[291]
“Ah, well! then I am all right.”
“Kindly refrain from forming a definite opinion until you are in full possession of the whole law on the subject. I know that it has been held again and again, in England, that a guest is not bound to either fasten or lock his door.[292] In a very late case Lord Chancellor Cairns remarked that he would be sorry to say any single word implying that there is any rule of law as to this;[293] and our own authorities seem to be in unison with the English decisions.[294] But perhaps you may have heard the remark that circumstances alter cases.”
“I must confess the maxim has a ring not altogether novel to my ears.”
“I may say that it is particularly true in legal matters; and sometimes it is incumbent on a guest to fasten his door.[295] For example, a commercial traveler obtained a private room wherein to exhibit his goods to his customers. Clements, the landlord, told him to lock the door. This the man neglected to do, although while showing his samples a stranger had twice popped his phiz into the room. The court considered that the traveler by his own act had absolved Clements from his liability, and that he must hear his loss as philosophically as possible.”[296]
“Did the occupants of the bench state the why and the wherefore?”
“Yes; and it was partly on the ground that the hotel-keeper was not bound to extend the same protection to goods placed in a room for the purposes of trade as to those in an ordinary chamber. (You know the liability is only as to baggage; it extends not to merchandise.)[297] And further, that circumstances of suspicion had arisen which should have put the guest on his guard; that after the vision of the strange head it became his duty, in whatever room he might be, to use at least ordinary diligence, and particularly so as he was occupying the apartment for a special purpose. For though, in general, a traveler who resorts to an inn may rest upon the protection which the law casts around him, yet, if circumstances of suspicion arise, he must exercise at least ordinary care.”[298]
“But,” said my companion, “I had no head to warn me—not even Banquo-like did any ‘horrible shadow, unreal mockery’ appear, to place me on my guard.”
“A case occurred at Bristol, in England, which may, perchance, put the matter to you in a clear light. A man of foreign extraction, Oppenheim by name, went to the White Lion Hotel. While in a public room he took from his pocket a canvas bag, containing twenty-two gold sovereigns, some silver, and a £5 note, and extracted therefrom a tanner—”
“A what?”
“A six-penny bit—to pay for some stamps. Shortly afterwards he retired for the night to a room in an upper story; the door had both lock and bolt; the window looked on to a balcony. The chambermaid told him that the window was open, but said nothing about the door. He closed the latter, but did not lock it or bolt it; left the window open, and placed his clothes, with the money in a pocket, on a chair at his bedside. During the night some one entered by the door and removed the bag without first removing the money from it. Of course Oppenheim sued the hotel company, and had the pleasure of hearing the judge tell the jury that they should consider whether the loss would or would not have happened if O. had used the ordinary care which a prudent man might reasonably be expected to have used under the circumstances.”
“And the jury said what?”
“Why, they said the hotel company were not liable; and the Court of Common Pleas, at Westminister, said that the judge had put the law correctly, and that the jury had done their duty.”
“But then the guest had been guilty of other acts of negligence besides leaving his door unlocked; he showed his purse—”
“Et tu Brute!” I remarked.
“I forgot,” was the confession.
“The whole facts of the case must be looked at; and the judges thought there was evidence of negligence on Oppenheim’s part which contributed to the loss. One of my Lords said that he agreed in the opinion that there is no obligation on a guest at an inn to lock his bedroom door; but the fact of the guest having the means of securing himself and choosing not to use them is one which, with the other circumstances of the case, should be left to the jury. The weight of it must, of course, depend upon the state of society at the time and place; what would be prudent at a small hotel in a small town might be the extreme of imprudence at a large hotel in a city like Bristol, where probably three hundred bedrooms were occupied by people of all sorts.[299] And one of the other judges remarked that Lord Coke, in the case to which I first referred,[300] only meant that an hotel-keeper could not get rid of his liability by merely handing his guest a key, and that he by no means laid it down that a guest might not be guilty of negligence in abstaining from using it.”[301]
“Well, what am I to do?”
“Do! Why let the past bury the past, and in future remember three golden rules whenever you are at an hotel. First, under any circumstances lock your bedroom door when you retire for the night. Secondly, do not display your cash in public places; and, Thirdly, consider whether there are not special circumstances calling for special caution on your part, and if there are, act accordingly. But you have not told me yet how much you lost.”
“Only $2; but it is the principle involved that I look at.”
“You rascal! if I had known that it was such a paltry sum, I would not have taken the trouble to tell you all that I have.”