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McLennon v. Richardson, 15 Gray, "justified in assuming" that he can, 74, 77 Am. Dec. 353; Jacobs v. Mea- with impunity, encroach on the legal sures, 13 Gray, 74.
rights of others. An officer has no right to make an Meagher v. Driscoll, 99 Mass. 281, 96 arrest without a warrant upon mere Am. Dec. 759; Shute v. Barrett, 7 Pick. information of a third person, or mere 82; Blair v. Forehand, 100 Mass. 136, suspicion that a misdemeanor has been 97 Am. Dec. 82, 1 Am. Rep. 94; Sampcommitted. A misdemeanor must have son v. Henry, 11 Pick. 379; Dalzell v. been actually committed to justify ar- Dean Hotel Co. 193 Mo. App. 379, 186 rest without a warrant, and the officer S. W. 41; Neville v. Southern R. Co. 40 must determine at his peril whether an L.R.A.(N.S.) 1023, note; Lehnen v. offense has been committed or not. Hines, 88 Kan. 58, 42 L.R.A.(N.S.) 830,
Eldredge v. Mitchell, 214 Mass. 483, 127 Pac. 612; 6 Cyc, 568; Lexington & 102 N. E. 69; Com. v. Wright, 158 Mass. E. R. Co. v. Lyons, 104 Ky. 23, 46 S. 149, 19 L.R.A. 206, 35 Am. St. Rep. W. 209; Bleecker v. Colorado & S. R. 475, 33 N. E. 82; Coburn v. Travelers' Co. 50 Colo. 140, 33 L.R.A.(N.S.) 386, Ins. Co. 145 Mass. 228, 13 N. E. 604; 114 Pac. 481; Knoxville Traction Co. v. Com. v. Cooley, 6 Gray, 350; Phillips Lane, 103 Tenn. 376, 46 L.R.A.(N.S.) v. Fadden, 125 Mass. 198; Mason v. 549, 53 S. W. 557; Bryant v. Rich, 106 Lothrop, 7 Gray, 354; Com. v. Carey, 12 Mass. 180, 8 Am. Rep. 311, 8 Am. Neg. Cush. 246; Com. v. McLaughlin, 12 Cas. 392; Levins v. New York, N. H. & Cush. 615; Krulevitz v. Eastern R. Co. H. R. Co. 183 Mass. 175, 97 Am. St. 143 Mass. 228; Delafoile v. State, 16 Rep. 434, 66 N. E. 803, 13 Am. Neg. L.R.A. 500, note.
Rep. 533; Jackson v. Old Colony Street The officer having unlawfully en- R. Co. 206 Mass. 477, 30 L.R.A. (N.S.) tered plaintiffs' room in company with 1046, 92 N. E. 725, 19 Ann. Cas. 615; the defendant and his servants, and at Hayne v. Union Street R. Co. 189 Mass. defendant's request, he is, of course, 551, 3 L.R.A.(N.S.) 605, 109 Am. St. liable for acts and conduct of the of- Rep. 655, 76 N. E. 219; Vannah v. Hart ficer, whether on grounds of agency, Private Hospital, 228 Mass. 132, L.R.A. or, here, as an active abettor.
1918A, 1157, 117 N. E. 328, 17 N. C. C. 10 Cyc. 1217; Cooper v. Johnson, 81 A. 85; Ash v. Childs Dining Hall Co. Mo. 483; Pow v. Beckner, 3 Ind. 475; 231 Mass. 86, 4 A.L.R. 1556, 120 N. E. Hamilton v. Hunt, 14 Ill. 472; Cody v. 396; Friend v. Childs Dining Hall Co. Adams, 7 Gray, 59; Brown v. Perkins, 231 Mass. 65, 5 A.L.R. 1100, 120 N. E. 1 Allen, 89; Miller v. Butler, 6 Cush. 407; DeWolf v. Ford, 193 N. Y. 397, 21 71, 52 Am. Dec. 768; Krulevitz V. L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, Eastern R. Co. 143 Mass. 228, 9 N. E. 86 N. E. 527; Dalzell v. Dean Hotel Co. 613.
193 Mo. App. 379, 186 S. W. 41. In an action of slander, admittedly, one of the elements, and the chief ele- Braley, J., delivered the opinion ment, of damage is mental suffering, of the court: irrespective of any injury to person. The only reference to the evidence
Finger v. Pollack, 188 Mass. 208, 74 in the record is the "statement of N. E. 317; Leonard v. O'Reilley, 137 facts," from which it appears that Mass. 138; Marble v. Chapin, 132 Mass. 225; Hastings v. Stetson, 130 Mass. 76;
the plaintiffs, who are husband and
wife, were accepted as guests at the Stowe v. Heywood, 7 Allen, 118; Treanor v. Donahoe, 9 Cush. 228; Mark
Hotel Langham, managed and kept ham v. Russell, 12 Allen, 573, 90 Am.
by the defendant, George H. Page, Dec. 169.
and the question whether they had Evidence of acts and circumstances been properly registered, as reof outrage or insult accompanying an quired by Stat. 1918, chap. 259, § 5, assault, which wound the feelings and has been answered in the affirmative tend to lower the plaintiff in the esti- by the jury. A finding would have mation of society, is admissible, and
been warranted that while in bed in enhances the damages.
a room assigned to them, to which Tyson v. Booth, 100 Mass. 258; Sampson v. Henry, 11 Pick. 379; Rich
they had been escorted and given a mond v. Fisk, 160 Mass. 34, 35 N. E. key, three employees of the defend103.
ant entered, followed by the defendBecause of some negligent error in ant with a police officer, and, alhis own records a defendant is never though ordered to leave the hotel,
(- Mass., 131 N. E. 475.) the plaintiffs refused compliance fendant had no intention of frightwith the order, and that evidence ening the plaintiffs, but merely went was offered “of an assault, of false to the room to ascertain whether imprisonment, and slander, all in- they "had a right to be there," he is cidental to the plaintiffs' right to not responsible “for her fright, or the quiet enjoyment of their room, the consequent injury to her health," but the defendant offered evidence is not supported by any legal preto dispute this." We assume that sumption. The defendant was not this summary refers to what took justified in assuming the plaintiffs place after the defendant came in, were not registered. The hotel regand that the jury could find he acted istry disclosed their names, and he as the proprietor in control of the could not for this reason intrude hotel, and the employees and police upon their privacy.
Innkeeperofficer were present at his direction Sampson v. Henry, right to and solicitation.
11 Pick. 379, 387. Intrude on The action is in tort or contract. It is necessary, howBut at the plaintiffs' election, by or- ever, to ascertain the respective der of the court on motion of the de- rights of the parties upon which the fendant, the cases were submitted to defendant's remaining requests must the jury on the counts in contract, rest. The defendant urges that conand general verdicts were returned sequential damages for breach of for the plaintiffs. The jury having contract are limited to such damages specially found that the plaintiffs as were within the contemplation of had duly registered, they were right- the parties at the time of entering ly in occupation. The defendant's into the agreement. But it was held fifth and sixth requests, that, if the in Dickinson v. Winchester, 4 Cush. defendants were violating the law in 114, 121, 50 Am. Dec. 760, that a occupying a room without having plaintiff who had lost a trunk and been properly registered, “they are its contents while a guest at the precluded from recovering for any defendant's hotel could declare in injury suffered while in the room,' case or assumpsit. and the defendant was "justified in "The plaintiff may set forth a entering the room for the purpose of duty, and aver a fact in violation of learning whether the law had been it as a tort, or aver an implied promcomplied with, and, if the occupants ise to perform it, and a failure to refused to assist him, he is justified perform that promise." Vannah v. Trial
in assuming that Hart Private Hopsital, 228 Mass. instruction- their presence is un- 132, L.R.A.1918A, 1157, 117 N. E. materiality.
lawful, and can use 328, 17 N. C. C. A. 858; Norcross v. any reasonable means to remove Norcross, 53 Me. 163. them," are no longer material. See The contract was not merely for Stat. 1918, chap. 259, $ 5.
the use of the room and enterThe questions raised by the sev- tainment, but for immunity from enth request, whether the defendant rudeness, personal abuse, and unwas "responsible for the acts of the justifiable interference, whether expolice officer done by the police of- erted by the defendant, or his ficer while in the performance of his servants, or those
-contract rights lawful duty,” and “that the police under his control or officer was acting within the scope acting under his orof his lawful duty in entering the ders. The plaintiffs, having duly room
to investigate into the registered and been put in posses
right of their pres- sion of a room for their exclusive -question for jury-acts of ence there,” were use, had the right of occupation for police oflicers.
for the jury under all lawful purposes until vacated, suitable instructions.
subject only to the Jacot, 235 Mass. 521, 127 N. E. access of the de- right of guest 331.
fendant, at reasonThe eighth request, that if the de- able times and in a proper manner,
for such purposes as might be neces- abuse or insult the guest, or engage sary in the general management of in any conductor
Innkeeperthe hotel, or upon the happening of speech which may guest's right to some
civil treatment. unanticipated, controlling unreasonably subemergency. Com. v. Power, 7 Met. ject him to physical discomfort, or 596, 601, 41 Am. Dec. 465; Holden
distress of mind, or imperil his safev. Carraher, 195 Mass. 392, 81 N.
ty. Lehnen v. Hines, 88 Kan. 58, E. 261, 11 Ann. Cas. 724; DeWolf
42 L.R.A.(N.S.) 830, 127 Pac. 612; v. Ford, 193 N. Y. 397, 21 L.R.A.
De Wolf v. Ford, 193 N. Y. 397, 21
L.R.A.(N.S.) 860, 127 Am. St. Rep. (N.S.) 860, 127 Am. St. Rep. 969, 86
969, 86 N. E. 527; Morningstar v. N. E. 527; Lehnen v. Hines, 88 Kan.
Lafayette Hotel Co. 211 N. Y. 465, 58, 42 L.R.A.(N.S.) 830, 127 Pac.
52 L.R.A. (N.S.) 740, 105 N. E. 656; 612.
McHugh v. Schlosser, 159 Pa. 480, If, without any sufficient reason 23 L.R.A. 574, 39 Am. St. Rep. 699, appearing in the record, the defend
28 Atl. 291; 13 R. C. L. Innkeepers, ant, who is not shown to have given § 11, and notes. any previous notice or made any re- And he can recover injury to feel. quest for their departure, entered damages for injury ings of guest in the room for the purpose of compel- to his feelings reling them to vacate, he is liable in sulting from the humiliation to
damages if exces- which he has been subjected. Clan-liability for
sive force, or coer- cy v. Barker, 71 Neb. 83, 69 L.R.A. insult.
cion, or intimidation (N.S.) 642, 115 Am. St. Rep. 559, 98 was used, or his conduct towards N. W. 440, 103 N. W. 446, 8 Ann. the plaintiffs was abusive, insult- Cas. 682, 15 Am. Neg. Rep. 594, 18 ing, and wanting in ordinary re- Am. Neg. Rep. 173; Aaron v. Ward, spect and decency. And his tenth 203 N. Y. 351, 38 L.R.A.(N.S.) 204, request, that, if as owner of the ho- 96 N. E. 736; Gillespie v. Brooklyn tel he entered the room "for the Heights R. Co. 178 N. Y. 347, 66 purpose of inspecting the same and L.R.A. 618, 102 Am. St. Rep. 503, 70 seeing that the rules of the hotel N. E. 857, 16 Am. Neg. Rep. 181; and all statutory regulations were
DeWolf v. Ford, 193 N. Y. 397, complied with, then he was acting 401, 21
401, 21 L.R.A. (N.S.) ) 860, 127 within the scope of his legal right
Am. St. Rep. 969, 86 N. E. 527; and was not a trespasser,” is not
Head v. Georgia P. R. Co. 79 Ga. supported by the record. The
358, 11 Am. St. Rep. 434, 7 S. E.
217. The plaintiffs are not shown judge's instructions are not stated, and it must be inferred as against
to have annoyed or disturbed other the excepting party
guests, or to have improperly deAppealsuficiency of that they were cor
meaned themselves, or to have virect and sufficient.
olated any rules of the hotel, and Khron v. Brock, 144 Mass. 516, 519,
under suitable instructions the jury, 11 N. E. 748. The jury could find
on conflicting evidence, could find that after entering the room he en
the defendant had been guilty of asgaged in the wrongful acts charged, sault, false imprisonment, and slan
der, by “words spoken without justification or excuse. See Holden v. Carraher, 195 Mass. 392,
It follows that the plaintiffs' four 81 N. E. 261, 11 Ann. Cas. 724. The
requests, that if they were unlawfulgeneral law is well settled.
The ly restrained of their liberty the guest is entitled to respectful and
defendant is liable considerate treatment at the hands
in damages, and if liability for of the innkeeper and his employees he incited, encour- false imprison: and servants, and this right creates aged, or countean implied obligation that neither nanced the presence and acts of the the innkeeper nor his servants will officer he is liable therefor, and that
(- Mass. 131 N. E. 475.) damages may be assessed for humil- man v. Southern P. Co. 97 Cal. 1, iation and injury to the plaintiff's 33 Am. St. Rep. 157, 31 Pac. 1112, feelings, as well as for unwarranted 8 Am. Neg. Cas. 69. In uttering indisturbance of his right of privacy criminating words in the presence and exclusive use of the room for of his servants and the police officer, himself and wife, and that even if the lefendant vi
the entry of the de- olated his contrac- -charging guest -mistake with respect to fendant arose from tual obligation to records.
some mistake made the plaintiffs, as guests, of courtesy by him or his agents "in his rec- and respectful treatment, and freeords," such mistake would not dom from humiliation, contempt, amount to a justification-were un- and ridicule arising from slanderexceptionable. The defendant's ous verbal attacks. ninth request, that if the plaintiff We are therefore of opinion that suffered no physical injury "she the cases come within the doctrine cannot recover for mental suffer- of Bryant v. Rich, 106 Mass. 180, 8 ing," was properly denied. As we Am. Rep. 311, 8 Am. Neg. Cas. 392, have said, he could not treat the and kindred decisions, and the plainplaintiffs with contumely by the use tiffs can recover in contract as fully of insolent language concerning as if they had sued
Action-contract them, specifically set forth in the in tort. The final scope of declaration, and referred to and request, that they characterized in the record as "slan- “could not recover on their counts der," which the jury could say in contract for any damages resultcaused the plaintiffs not only phys- ing from words spoken, the slander, ical annoyance and discomfort, but the false imprisonment, assault and also worry and distress of mind. De battery, or for the humiliation, but Wolf v. Ford, 193 N. Y. 397, 401, 21 could only recover for the value of L.R.A.(N.S.) 860, 127 Am. St. Rep. the room,” even when read in con969, 86 N. E. 527. The defendant's nection with the special answers of duty in this respect is analogous to the jury to questions propounded that of a common carrier of pas- by the defendant and submitted at sengers. Com. v. Power, 7 Met. 596, his request, is covered by what has 601, 41 Am. Dec. 465; Jackson v. been said, and, the defendant havOld Colony Street R. Co. 206 Mass. ing failed to show reversible error, 477, 485, 30 L.R.A.(N.S.) 1046, 92 the exceptions should be overruled. N. E. 725, 19 Ann. Cas. 615; Gor- So ordered.
Liability of innkeeper for interference with guest.
I. Generally, 139.
United States.—Duckworth v. Appostalis (1913) 208 Fed. 936.
Alabama.-Morris Hotel Co. v. Hen
ley (1906) 145 Ala. 678, 40 So. 52; Florence Hotel Co. v. Bumpas (1915) 194 Ala. 69, 69 So. 566, Ann. Cas. 1918E, 252, 10 N. C. C. A. 144.
California. -Wade v. Thayer (1871) 40 Cal. 578.
Georgia.--Newcomb Hotel Co. v. Corbett (1921) Ga. App. 108 S. E. 309.
Kansas.-Lehnen v. Hines (1912) 88 Kan. 58, 42 L.R.A.(N.S.) 830, 127 Pac. 612.
Massachusetts. See FREWEN V. PAGE (reported herewith) ante, 134.
Minnesota.-McCarthy v. Niskern room which the guest was occupying, (1875) 22 Minn. 90.
and as a result the guest was required Missouri. Overstreet Moser to leave under circumstances which (1901) 88 Mo. App. 72; Dalzell v. Dean subjected her to insult and humiliaHotel Co. (1916) 193 Mo. App. 379, tion. It was held that the hotel keeper 186 S. W. 41.
was liable, the court saying: “One of Montana.—Jones v. Shannon (1918) the things which a guest for hire at a 55 Mont. 225, 175 Pac. 882.
public inn has the right to insist upon Nebraska.—Clancy v. Barker (1904) is respectful and decent treatment at 71 Neb. 83, 91, 69 L.R.A. 642, 115 Am. the hands of the innkeeper and his St. Rep. 559, 98 N. W. 440, 103 N. W. servants. This is an essential part of 446, 15 Am. Neg. Rep. 594, 18 Am. the contract, whether it is express or Neg. Rep. 173.
implied. This right of the guest New York.-DeWolf v. Ford (1908) necessarily implies an obligation on 193 N. Y. 397, 21 L.R.A. (N.S.) 860, the part of the innkeeper that neither 127 Am. St. Rep. 969, 86 N. E. 527; he nor his servants will abuse or insult Morningstar v. Lafayette Hotel Co. the guest, or indulge in any conduct (1914) 211 N. Y. 465, 52 L.R.A.(N.S.) or speech that may unnecessarily 740, 105 N. E. 656; Boyce v. Greeley bring upon him physical discomfort or Square Hotel Co. (1920) 228 N. Y. 106, distress of mind.” 126 N. E. 647, affirming (1917) 181 The same rule was applied in Boyce App. Div. 61, 168 N. Y. Supp. 191. v. Greeley Square Hotel Co. (1917)
Ohio.-Moon v. Conley (1918) 9 181 App. Div. 61, 168 N. Y. Supp. 191, Ohio App. 16.
affirmed in (1920) 228 N. Y. 106, Pennsylvania.—McHugh v. Schlos- 126 N. E. 647, wherein it appeared that ser (1894) 159 Pa. 480, 23 L.R.A. 474, the innkeeper's servant forcibly en39 Am. St. Rep. 699, 28 Atl. 291.
tered the room of a guest, and removed Canada.-Whiting v. Mills (1848) her husband, who had obtained per7 U. C. Q. B. 450.
mission from the innkeeper's clerk to Thus, in Jones v. Shannon (1918) visit her in the room. The court said: 55 Mont. 225, 175 Pac. 882, it appeared “While an innkeeper has the right to that the plaintiff and her husband make and enforce proper rules to were assigned to a room in the defend- prevent immorality or any other form ant's hotel, and after they had retired of misconduct tending to injure the the defendant entered and wrongfully reputation of his house, or which ejected the plaintiff from the hotel. violates the recognized moralities and Holding that the defendant was liable, proprieties of life, and has the right the court said: “If, therefore, the of access to the room of a guest under proprietor himself, or by his servant reasonable and proper circumstances or agent, trespasses upon the rights of and at proper times, such rule has no the guest by forcing an entry into his application to the facts presented by room and ejecting him therefrom, and the record in the case at bar, and does from the house, without just cause, he not furnish a defense to the plaintiff's is liable to the guest for compensatory cause of action, for the reason that the damages. The recovery
defendant had notice that the plaintiff include exemplary damages, if the and the man who accompanied her to ejection is accomplished by circum- the hotel, and to the room assigned stances indicating that it was prompt- her, were husband and wife, and the ed by malice, fraud, or spirit of oppres- further fact that she was an invalid sion."
requiring treatment at times, which In Dalzell v. Dean Hotel Co. (1916) had to be given her by her husband." 193 Mo. App. 379, 186 S. W. 41, an In Newcomb Hotel Co. v. Corbett action brought by a guest of a hotel (1921) - Ga. App. 108 S. E. 309, against the hotel keeper for her ejec- it was held no defense to a suit by a tion from the room she was occupying, guest against a hotel keeper for unit appeared that one of the clerks of lawfully entering her room to ascerthe hotel, by mistake, checked out the tain if immoral conduct was being