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Colonial Cases

Davis v. Walter, 1864

[innkeeper liability]

Davis v. Walter

Consular Court, Shanghai
22 February 1864
Source: The North-China Herald, 27 February 1864



SHANGHAI, 22nd February.

Before - J. MARKHAM, Esq., H.B.M.'s Consul.


The Plaintiff claimed Tls. 350, the value of certain property which he lost in the Hotel, of which the Defendant is proprietor.

ALEXANDER DAVIS: - I arrived on the 23rd or 24th January last, by the Lotus, and took up my abode at the Clarendon.  I occupied a room on the upper floor.  When I first went there, I called Mr. Walter's attention to the fact of there being no key in the door.  He said it was all right.  Two days after, he asked me to sleep on the ground floor, to oblige a lady.  I consented, but again called his attention to the absence of a key.  He again said it was all right.  When I went to bed, I placed a chair against my door, and placed my coat at the head of my bed.  When I woke up it had disappeared.  I immediately got up and called the barman, and the coat and vest were found in the lobby outside. Mr. Walter was called, went to the police station, and brought a policeman.  The boys were brought up and examined.  A key which Mr. Walter recognised, as that of his store-room, which had been lost, was found on one of them.  I suggested that he should be given in charge.  Mr. Walter said he would give him in charge, but not prosecute, as he would not waste his time at the Consulate.  The boy was given in charge, but Mr. Walter not appearing, he was discharged.

I saw Mr. Lay in the hope that the boy could be brought up again, on the charge of the stolen key.  He was ultimately sent into the city.  The Tls. 350 were in the pocket book in my coat pocket.  As I came out in the morning and saw my coat and waistcoat outside, I at once looked to see whether the pocket book were there.  It was gone, I have been able to learn nothing of it since.  I have asked Mr. Walter to reimburse me; but he declined, saying he did not consider himself liable. I saw a notice stuck up the first time this morning, behind the bar - to the effect that the landlord would not be liable for loss of property unless it were put in his charge. There was another robbery in the house the same night.  The outside gate is locked, but the house is open.  There is no watchman.  There is no compradore.

TO MR. EAMES: - I have stayed at the Clarendon ever since I have been in Shanghai.  I board by the month.  I am not in business.  I never had any caution not to leave things about at Chinese New Year.  I considered the room unsafe when I entered it, inasmuch as there was no key on the door.  I did not consider it unwise to keep the Tls. 350 in the room, seeing that I placed the coat close to my head.  On the day previous, I received Tls. 240 from then Mercantile Bank; of the remaining Tls. 110, I can give no account.  I simply had them in my possession.  Mr. Walter said he was not there in time to appear against the boy in the morning.  I never stated my loss at Tls. 500.  I had no testimony against the boy, except that he had a key which had been missing for some time.  I had paid Mr. Walter one week's board Tls. 20) in notes on the previous day.  I can only account for the fact of the door having been opened without rousing me, by the fact of it having been done lightly.

TO COURT: - My coat was found thrown down immediately outside the bed room door.  I did not think it necessary to give a perfect stranger, as Mr. Walter was, L. 100 to take care of.  I swear that I never saw a notice until this morning.  I have no servant of my own.  Mr. Walter charges $60 a month for board and lodging.

MR. EAMES would have taken an objection at an earlier stage of the proceedings, but was unwilling to take up the time of the Court further than was necessary.  His objection was that Mr. Walter could not be described as an innkeeper.  The meaning of innkeeper had now been clearly established.  He was a man who kept a house for the accommodation of travellers.

The COURT thought the fact that Mr. Walter had taken out a license as innkeeper, was sufficient proof that he was an innkeeper.

MR. EAMES admitted that Mr. Walter was an innkeeper; but he did not stand in that relation towards those of his lodgers with whom he made arrangements for their monthly board.  It had been settled moreover that all which travellers staying at an inn could recover, in case of loss, was the value of their clothes and necessary travelling expenses.  But in this case no clothes had been lost, and no travelling expenses appeared to be necessary.  Besides, the loss was not owing to Mr. Walter's neglect; but to the plaintiff's own.  It was gross negligence and carelessness to leave Tls. 350 in his pocket.  But here he must again insist that, in his relations with Mr. Davis, Walter was not an innkeeper.  An innkeeper was only liable for the goods of a passing traveller.  But this could not apply to a boarding house, which was the primary character of the Clarendon.  Mr. Davis evidently stood in the light of lessee of his room; for when Walter wished him to move to a lower floor, he had to ask him as a favour to consent to the exchange.  He could not turn him out.  Then again, as regarded the sum lost by Mr. Davis; it was indispensable that the traveller's testimony should be the principal in such a case; but there was generally evidence of some sort to support his statements.  It would be a bad precedent to establish that a man could recover Tls. 350 from a landlord, on his own unsupported testimony that he had lost it.  He could as w ell recover Tls. 5,000.  Mr. Walter would show, moreover, that Mr. Davis had, in the first instance, stated his loss at Tls. 500.

WILLIAM BURCHARD WALTER. I keep the Clarendon.  The barman came up to my bed and said there had been a robbery.  I went down and saw Mr. Davis, who said he had lost Tls. 500.  U did not prosecute the boy, because I was too late.  I met the boy coming home.  I had no other grounds for suspecting the boy, than the fact of his possessing the key.  There always has been a notice up.

TO MR. LAWRANCE. - When people come to my house on board, I am not in the habit of calling attention to the notice.  My charges are $100 for a single room and $60 for a double room.  Mr. Davis pays exactly the same as any other boarders.  I am sure I was told he had lost Tls. 500.  Plenty of persons have asked me to take care of their property.  I have had complaints of there being no keys to the doors; but I cannot say that I specially remember Mr. Davis complaining.  I do not require a certificate of character from lodgers, though I think it would be a good plan in some cases.  The notice is to the effect that I am not liable, unless things are placed in my charge.  I had no reason to suspect that Mr. Davis had no money.  He has always paid his bill correctly.

TO COURT. - All my doors open with the same key - a Chinese one, and therefore perfectly useless.  I thought one notice in the bar was sufficient.  My lodgers have several times given me their money.  I have no reason to doubt Mr. Davis' assertion that he was robbed; but I have only his own word for it.

Mr. EAMES said that closed the defence.  He wished however to reiterate that Mr. Walter could not be considered a common innkeeper, as indicated in the plaint, and that he would be willing to rest the whole case on that point.

The COURT, however, could not see that the argument bore on the case; a traveller might stay at a hotel two days or two months.

Mr. LAWRANCE, in summing up for the plaint, submitted that Mr. Eames' argument could not stand.  Innkeepers were bound to take in all who applied to them for lodging, and the fact that Mr. Walter had taken out a license as innkeeper, was sufficient to show that he was such.  A boarding-house keeper did not want a license.  Mr. Eames would seem to suggest that a man might be both boarding-house keeper and innkeeper; but he did not think an argument could rest on such grounds. The definition given by Chitty of the law as affecting the responsibility of innkeepers for their lodgers' goods, was as follows:-

1st.  The inn must be a common inn.

2ndly. The party ought to be a traveller or passenger.

Now Mr. Davis was not established in Shanghai, and might go elsewhere.  Therefore, he came under the definition of a traveller.  Mr. Walter had admitted that he was stopping under ordinary conditions; and he (Mr. L.) thought it was quite clear that for all the purposes of the law he was a traveller.

3rdly. - The goods and chattels must be in the inn.

4thly. There must be a default, express or implied on the part of the inn-keeper; and such default is to be imputed to him, when the loss or injury cannot be ascribed to any other known cause.

It was quite clear Mr. Davis did not steal his own money; so there was a fault on the part of the innkeeper, because Mr. Walter was bound to us ordinary precautions.  He should either have cautioned his guest as to the danger to property at New Year time, or should have supplied them with keys.  But Mr. Eames had insinuated a doubt as to whether Mr. Davis had any money at all.  It was not likely that Mr. Davis would come forward and attempt to saddle Mr. Walter withy Tls. 350, without any ground for bthe claim.  If every guest in the Clarendon were to be robbed on one night, he contended that Mr.  Walter would be liable for each individual's loss, unless he could prove that he had taken better precautions than putting his guests into rooms without keys.  An act had been passed last July, of which his friend might or might not be aware, limiting the liability of innkeepers to L. 30 under certain circumstances.  But there was an exception where the property was lost through the wilful neglect of the innkeeper, and such neglect he (Mr. L.) thought there was in the present case.  The word inn, as defined by the present law was:-

Any hotel, inn, tavern, public house, or other place of refreshment, the keeper of which is now by law responsible for the goods and property of his guests.

He was aware that newspaper evidence was not admissible; but he would mention, for the information of the court, a case that had lately occurred at home in which Lady Glantyre had lost a valuable box of jewellery and some money at a hotel.  The existence of a notice was there, also, pleaded by the proprietors, but the judge had ruled that it was of no value and could not take away the responsibility of the innkeepers, and the jury had found a verdict for the plaintiff.  He (Mr. L.) thought it had been clearly established that Mr. Walter was a "common innkeeper," and that Mr. Davis' property had been lost though his neglect; which two points only were necessary to prove his client's case.

The Court gave judgment for the plaintiff with costs, remarking that even ordinary precautions to ensure the safety of the house did not appear to have been taken.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School