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pockets in a place other than that designated by the rule of the inn, which is reasonable, known to the guest and not specially waived, the innkeeper is not liable for the loss. Fuller v. Coats, 18 Ohio St. 343.
§ 5. Limits and exceptions to liability. Unless the relation of innkeeper and guest exist, the innkeeper is under no liability as such. Ingalsbee v. Wood, 36 Barb. (N. Y.) 452. An innkeeper is not liable for the clothing of a boarder, which may be stolen from the boarder's room without the innkeeper's fault, although it would be otherwise as to the clothes of a guest. Manning v. Wells, 9 Humph. 746. Where a regular boarder delivers valuables to an innkeeper for safe-keeping, the innkeeper is liable only as a depositary without reward. Johnson v. Reynolds, 3 Kans. 257.
The innkeeper is responsible only for his guest's baggage, and that term does not include merchandise or other valuables, such as silver knives, forks and spoons (Pettigrew v. Barnum, 11 Md. 434); and if the baggage of a guest is carried away by one whom the owner has allowed to exercise over it acts of ownership, without informing the innkeeper whose baggage it was, the innkeeper is not liable. Kelsey v. Berry, 42 Ill. 469.
REMEDIES OF INNKEEPER.
Section 1. In general. An innkeeper may bring an action for the recovery of his compensation for the accommodation and entertainment he furnishes a guest. 1 Bouv. Law Dict. 714. And, like a common carrier, he is entitled to a right of lien upon the goods of the guest as a security for the payment of such compensation, and he may detain the goods for what is due to him for the lodging and entertainment provided for the guest until the entire debt is paid. York v. Grindstone, 1 Salk. 388.
But an innkeeper has no lien on the goods in possession of his guest, as against the true owner, unless there be charges upon the specific article on which the lien is claimed. Domestic Sewing Machine Co. v. Watters, 50 Ga. 573.
§ 2. Lion for charges, how enforced. An innkeeper has no right to enforce his lien on the baggage of a guest, by sale, without due process of law. Case v. Fogg, 46 Mo. 44. And a petition to enforce a lien on the baggage of a guest for board and lodging must allege that the petitioner is a tavern keeper; an averment that he is "landlord and proprietor" of the house is insufficient. Southwood v. Myers, 3 Bush (Ky.), 681; Peet v. McGraw, 25 Wend. 653.
REMEDIES FO GUEST.
Section 1. Action to enforce innkeeper's liability. An action may be maintained against an innkeeper to recover the value of personal property left in his charge by a guest and subsequently stolen. Rockwell v. Proctor, 39 Ga. 105; People v. Willett, 15 How. (N. Y.) Pr. 210; S. C., 6 Abb. Pr. 37; 26 Barb. 78. In such action, at common law, it must appear, 1st, that defendant kept an inn; 2nd, that the goods were lost at his inn; and 3rd, that at the time of the loss the relationship of innkeeper and guest existed between the defendant and the plaintiff. Carter v. Hobbs, 12 Mich. 52.
For the requisites of the petition under Swan & C. (Ohio) Stat. 1425, to recover of an innkeeper for lost baggage, see Prescott v. Bruce, 2 Cin. (Ohio) 58. An innkeeper is not liable in trover for property intrusted to him in the line of his business, unless an actual conversion is shown. Hallenbake v. Fish, 8 Wend. (N. Y.) 547.
A hotel guest, if he have property in his possession as a gratuitous bailee, and deliver it into the custody of the landlord, he may have an action in his own name against the landlord to recover for its loss. Kellogg v. Sweeney, 1 Lans. (N. Y.) 397.
§ 2. Rule as to damages. The remedies against an innkeeper for the loss of goods are similar to those against a common carrier (Jones on Bailm. 95); and the measure of damages would doubtless be the same; that is, the value of the goods at the time of their loss. Interest on such value might be allowed by way of damages. Spar v. Welman, 11 Mo. 230. As to damages for wrongfully turning a guest out of an inn, ante, 3, art. 2, § 1.
OF FIRE INSURANCE.
NATURE OF INSURANCE.
Section 1. In general. Insurance is a contract, whereby one person undertakes to compensate another, if he shall suffer loss. It must, like other contracts, have a sufficient consideration. "All that is requisite to constitute such a contract is the payment of the consideration by the insured, and the promise of the insurer to pay the amount of the insurance, upon the happening of injury to the subject by a contingency contemplated in the contract.” Commonwealth v. Weatherbee, 105 Mass. 160. It is applicable to every form of possible loss. It cannot justly be made a subject of profit to the insured, as it is in its nature only a contract of indemnity. If the insured has sustained no damage, the contract is not broken. Wilson v. Hill, 3 Metc. (Mass.) 69. It ought to furnish protection only against a real loss, and to the precise amount of that loss. Kemp v. Vigne, 1 T. R. 309; Carpenter v. Providence Ins. Co., 16 Pet. (U. S.) 503. It is a contract which, though different in its nature from all other contracts, is governed by the same principles which apply to other contracts. Cornfoot v. Fowke, 6 Mees. & Wels. 379. The contract being for indemnity against some peril, is conditional on the risk attaching. Where the subject is never put at risk, no premium is earned (Stevenson v. Snow, 3 Burr. 1237; Tyrie v. Fletcher, Cowp. 668); and if it has been paid, it must be repaid. But, if the risk has once attached, there is no apportionment of the premiums afterward. The contract is personal, and is not annexed to or transferable with the thing insured, except by special agreement. Wilson v. Hill, 3 Metc. (Mass.) 66; Sadlers' Co. v. Badcock, 2 Atk. 554; Adams v. Rockingham Ins. Co.,
29 Me. 292; Alexandria v. Lawrence, 10 Pet. (U. S.) 512. It is the loss which the person insured may sustain which is insured against, and when he parts with the thing insured, his liability to injury ceases, while the new owner can claim no indemnity, as he is a stranger to the contract. Lynch v. Dalzell, 4 Bro. Par. Cas. 431.
By special agreement the insurance may be made to run with the title. There may be several independent interests in the same property. Carpenter v. Providence Ins. Co., 16 Pet. (U. S.) 501. Thus a mortgagee may insure, and if he receives the amount insured, the mortgagor can get no advantage from it, in the absence of special contract. White v. Brown, 2 Cush. (Mass.) 412; Cushing v. Thompson, 34 Me. 496; Leeds v. Cheetham, 1 Sim. 146; Mildmay v. Folgham, 3 Ves. Jr. 472 ; Honore v. Lamar Ins. Co., 51 Ill. 409. Where the amount of indemnity is fixed by the agreement of the parties, the policy is called a valued one, and in this class are life, and most accident policies, but where the indemnity is to be measured by the amount of loss, as determined after its occurrence, the policy is an open one. May on Ins., § 7. There is always an element of chance involved. If the amount, time and nature of the loss were certain, the person in danger could provide his own indemnity. The uncertainty may be either in the time when the loss will occur, if it occurs at all, or in the amount of damage, or in both combined. In life insurance, for instance, the event, the death of the party insured, must occur, and there is no uncertainty about its nature, but the date is unknown. The person who has insured a risk may himself seek indemnity against the chance of loss which he has assumed, by reinsuring the risk. This is in theory a legitimate original insurance, but actually amounts to a transfer of part of the liability assumed. Merry v. Prince, 2 Mass. 176. The party who is originally insured is a stranger to this contract which binds the reinsurer to reimburse to the first insurer the loss which may occur to the subject insured to the extent agreed. Hone v. Mutual Ins. Co., 1 Sandf. (N.Y.) 137; S. C., 2 N. Y. (2 Comst.) 235; Strong v. Phanix Ins. Co., 62 Mo. 289; 21 Am. Rep. 417. The reinsurer can make any defenses which are open to the insurer, but must pay him, whether he has paid, or is able to pay, the loss. N. Y. Ins. Co. v. Protection Ins. Co., 1 Story (C. C.), 458; Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443; Hone v. Mutual Ins. Co., 1 Sandf. (N. Y.) 137; S. C., 2 N. Y. (2 Comst.) 235. The reinsured must observe good faith with the reinsurer, and if he conceals material facts, he cannot enforce the contract. Bowery Ins. Co. v. N. Y. Ins. Co., 17 Wend. (N. Y.) 359. If the insurer is not liable himself, he can recover nothing from the reinsurer, for no loss has come to him. Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443; N. Y. Ins. Co.
v. Protection Ins. Co., 1 Story (U. S.), 458; Delaware Ins. Co. v. Quaker City Ins. Co., 3 Grant's Cas. (Penn.) 71. As the contract is an aleatory one, where the equivalent consists in chances of gain or loss, and not a commutative one, in which the thing given, or the act done, is regarded as an exact equivalent of the money paid, it is possible for the insured to enter into separate contracts of insurance with several parties. This is called double insurance. Australian Agricultural Ins. Co. v. Saunders, L. R., 10 C. P. 668; 14 Eng. R. 501. But by the nature of the contract it is never a source of absolute gain to the insured, but only an indemnity, and therefore he can never collect more than his loss, but he may elect of which insurer he will take his indemnity. In case of double insurance, the several concurrent insurers are considered as identical in interest, and have a right to demand contribution between themselves, so that they may equitably share the loss. Godin v. London Ass. Co., 1 Burr, 492; Lucas v. Jefferson Ins. Co., 6 Cow. (N. Y.) 635; Stacey v. Franklin Ins. Co., 2 W. & S. (Penn.) 506; Newby v. Reed, 1 W. Bl. 416; Peoria Ins. Co. v. Lewis, 18 Ill. 553; Baltimore Ins. Co. v. Loney, 20 Md. 20; Sloat v. Royal Ins. Co., 49 Penn. St. 14; Merrick v. Germania Ins. Co., 54 id. 277.
CONTRACT; PARTIES; CONSTRUCTION.
Section 1. Form of the contract. Like all other contracts which are not required by statute to be in writing, the contract of insurance may be made by parol. Dodd v. Gloucester Ins. Co., 120 Mass. 468; Ins. Co. v. Colt, 20 Wall. 560; Ide v. Phænix Ins. Co., 2 Biss. (C. C.) 333; Mobile Ins. Co. v. McMillan, 31 Ala. 711; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; 15 Am. Rep. 612; Relief Ins. Co. v. Shaw, 94 U. S. 574. Thus it is said in McCulloch v. Eagle Ins. Co., 1 Pick. (Mass.) 278, that if a contract be actually made, the mere want of a policy will not prevent a recovery. Walker v. Met. Ins. Co., 56 Me. 371; Ellis v. Albany Ins. Co., 50 N. Y. (5 Sick.) 402; 10 Am. Rep. 495. In Sanborn v. Fireman's Ins. Co., 16 Gray, 448, HOAR, J., says: "No principle of the common law seems to require that this contract, any more than other simple contracts made by competent parties upon a sufficient consideration, should be evidenced by a writing. Upon principle, therefore, we can find no authority in courts to refuse to enforce an agreement which the parties have made, if sufficiently proved by parol testimony." In Baptist Church v. Brooklyn Ins. Co., 19 N. Y. (5 Smith) 308, the court assert that to deny that