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breakfast, and that during the interval of about twentyfive minutes' absence of the plaintiff from his berth in sleeping car, between the time when he left the car for breakfast and the time when he returned into it, his berth was made up, and his overcoat abstracted.

"CONCLUSION OF LAW.

"I find, as a conclusion of law, that defendant was guilty of negligence in not properly guarding and taking care of property of plaintiff during his necessary absence from defendant's car, and that plaintiff was not guilty of negligence in the matter.

"I therefore find that defendant is liable to the plaintiff for the value of the overcoat, to-wit, $50, with interest thereon from April 20, 1887, to the first day of this term, $3.75."

The rules of the company were also introduced in evidence in its behalf, but as the defendant in error had no notice of them, they do not enter into the case. The question presented, therefore, is the liability of a sleeping car company for the loss of necessary wearing apparel of one who had paid the necessary sleeping car charges, and was lawfully riding in one of its cars, which apparel had been placed in the care of the employes of the company. We find no case exactly in point; and as the question is a new one, not only in this state but to a great extent in the other states of the nation, we are practically without precedents to aid us, and must adopt such rule as may seem just and equitable. It may be well to consider what the company undertakes to perform, and also what it does not undertake. The latter proposition will be considered first. It does not undertake to furnish the railway for its cars to run upon, nor the motive power to propel them, and hence is not entitled to compensation for the ordinary carriage of passengers. It does invite, for hire, all passengers holding first class tickets to occupy its cars. In effect it says to all

Pullman Co. v. Lowe.

such passengers, We will furnish you safe, pleasant, commodious cars, with all possible facilities to prevent weariness and fatigue, with comfortable sleeping accommodations and the necessary toilet facilities, if you pay the price demanded in addition to the ordinary fare.

The nature of this undertaking is the question for consideration. On the one hand it is claimed that so far as the company holds itself out as performing the duties of an innkeeper, so far it should be charged with the strict liability of the same. On the other, it is sought to make the liability of the company merely that of a lodginghouse keeper. In the very able and carefully prepared briefs of the attorney for the plaintiff in error we find the following objections to charging the company with the liability of an innkeeper. He says:

"It undertakes:

"(1.) To furnish accommodations to 'first class' passengers exclusively.

"(2.) To furnish toilet accommodations to such passen

gers.

"(3.) To furnish a certain specified seat or bed to such a passenger.

"(4) To furnish a servant who will respond to all proper demands on his service by such passengers promptly and politely."

But to do these four things for a limited time which is agreed upon between it and each passenger in advance.

It does not make even this agreement with all those who travel by rail. It makes this agreement with first class passengers exclusively.

The distinction between an innkeeper and a lodginghouse keeper is set forth in many cases, but is very well drawn in the case of Cromwell v. Stevens, 2 Daly's Reports, 15 (1867), from pages 21 to 26 inclusive.

After quoting the definition of an inn as given by Chief Justice Oakley in Winte, mute v. Clark, 5 Sandf., 247, to

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wit: "Where all who come are received as guests, without any previous agreement as to the duration of their stay or as to the terms of their entertainment," and from Willard v. Reinhardt, 2 E. D. Smith, 148, in which the distinction between a boarding-house and an inn was declared to be this : "In a boarding-house the guest is under an express contract at a certain rate for a certain period of time, but in an inn there is no express engagement, the guest being on his way, is entertained from day to day according to his business, upon an implied contract;" and from Carpenter v. Taylor 1 Hilt., 195, as follows: "Mere eating-houses cannot be considered as inns. They are wanting in some of the requisites necessary to constitute them inns.”

It will be seen that a distinction is attempted to be drawn between the sleeping car company and an innkeeper because only a certain class can occupy such cars, viz., persons holding first class tickets, whereas at an inn all who conduct themselves properly may be entertained. There is great confusion in the decisions as to what constitutes an inn. In Calye's case, 8 Coke, 32, it was held that inns were instituted for passengers and wayfaring men. In another case an inn is defined to be a house where the traveler is furnished all he has occasion for while on the way. (Thompson v. Lacy, 3 B. & Ald., 283.) Bouvier defines innkeeper to be "the keeper of a common inn for the lodgment and entertainment of travelers and passengers, their horses and attendants, for a reasonable compensation." The innkeeper is bound to take in and receive all travelers and wayfaring persons and entertain them if he can accommodate them, and the same is true of a sleeping car company as to all passengers holding a first class ticket. The fact that persons holding second or third class tickets agree in effect in consideration of lower fare to waive their right to enter a sleeping car does not enter into the case any more than that of a traveler who, to avoid the expense of an inn, should stop at a private house. In any event the company

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which sells sleeping car tickets to all first class passengers that may pay the price, to that extent stands in the same relation as an innkeeper who must for hire entertain those asking for entertainment.

A more difficult question is to properly define the word "guest" at a hotel. Parsons defines a "guest" to be one who comes "without any bargain for time, remains without one, and may go when he pleases." (2 Parsons on Contracts, 151.) This is not sufficiently comprehensive to be a proper definition. In Walling v. Porter, 9 Am. Law Reg. (N. S), 618 (35 Conn., 183), the supreme court of Connecticut defines the word "guest" as follows: "A 'guest' is one who patronizes an inn as such. But it is said that none but a traveler can be a guest at an inn in a legal sense." We do not suppose that the court intended in the definition above quoted to lay stress upon the word traveler.

It is used in a broad sense to designate those who patronize inns. In Wintermute v. Clark, 5 Sandf., 247, the court say, that in order to charge a party as an innkeeper, it is not necessary to prove that it was only for the reception of travelers that his house was kept open, it being sufficient to prove that all who came were received as guests without any previous agreement as to the time or terms of their stay. A public house of entertainment for all who choose to visit it, is lo true definition of an inn. These definitions are really in harmony with each other. Webster defines a traveler as 66 one who travels in any way." Distance is not material. A townsman or neighbor may be a traveler, and therefore a guest at an inn, as well as he who comes from a distance, or from a foreign country. If he resides at the inn, his relation to the innkeeper is that of a boarder; but if he resides away from it, whether far or near, and comes to it for entertainment as a traveler and receives it as such, paying the customary rates, we know no reason why he should not be subjected to all the duties of a guest, and entitled to all the rights and privileges of one.

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In short, anyone away from home, receiving accommodations at an inn as a traveler is a guest, and entitled to hold the innkeeper responsible as such.

This we think is a correct definition of the word "guest," and we adopt the same. (Berkshire Woolen Co. v. Proctor, 7 Cush., 417.)

In the latter case the guest made an arrangement as to the price to be paid per week, and it was held that this did not take away his character as a traveler and guest. (See also, Hall v. Pike, 100 Mass., 495; Norcross v. Norcross, 53 Me., 163; Pinkerton v. Woodward, 33 Cal., 557, and a valuable article in 14 Cent. Law Journal, 206; Hancock v. Rand, 17 Hun, 279.)

In Dunbier v. Day, 12 Neb., 597, this court held that an innkeeper was bound to take all possible care for the safety and security of the goods, money, etc., of his guests while in his house. And if the goods or money of a guest be stolen from the inn through no fault or neglect of the guest, nor by a companion guest, and there is no evidence to show how it was done, or by whom, the innkeeper is liable for the loss. This, we think, is a correct statement of the law.

A lodger is defined by Bouvier to be "one who inhabits a portion of a house of which another has the general possession and custody."

There is some confusion in the decisions, arising mainly from the want of a clear definition of what constitutes a guest as distinguished from a mere lodger. Generally, however, a lodger is one who, for the time being, has his home at his lodging place. (Phillips v. Evans, 64 Mo., 17.) The rule under the decisions is not of universal application, but nearly so. (Phillips v. Henson, 30 Moak, 19; Thompson v. Ward, L. R. 6 C. P., 327; Bradley v. Baylis, 8 Q. B. D., 195; Ness v. Stephenson, 9 Q. B. D., 245; Hickman v. Thomas, 16 Ala., 666; Ullman v. State, 1 Texas, Court of App., 220.