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McLennon v. Richardson, 15 Gray, 74, 77 Am. Dec. 353; Jacobs v. Measures, 13 Gray, 74.

An officer has no right to make an arrest without a warrant upon mere information of a third person, or mere suspicion that a misdemeanor has been committed. A misdemeanor must have been actually committed to justify arrest without a warrant, and the officer must determine at his peril whether an offense has been committed or not.

Eldredge v. Mitchell, 214 Mass. 483, 102 N. E. 69; Com. v. Wright, 158 Mass. 149, 19 L.R.A. 206, 35 Am. St. Rep. 475, 33 N. E. 82; Coburn v. Travelers' Ins. Co. 145 Mass. 228, 13 N. E. 604; Com. v. Cooley, 6 Gray, 350; Phillips v. Fadden, 125 Mass. 198; Mason v. Lothrop, 7 Gray, 354; Com. v. Carey, 12 Cush. 246; Com. v. McLaughlin, 12 Cush. 615; Krulevitz v. Eastern R. Co. 143 Mass. 228; Delafoile v. State, 16 L.R.A. 500, note.

The officer having unlawfully entered plaintiffs' room in company with the defendant and his servants, and at defendant's request, he is, of course, liable for acts and conduct of the officer, whether on grounds of agency, or, here, as an active abettor.

10 Cyc. 1217; Cooper v. Johnson, 81 Mo. 483; Pow v. Beckner, 3 Ind. 475; Hamilton v. Hunt, 14 Ill. 472; Cody v. Adams, 7 Gray, 59; Brown v. Perkins, 1 Allen, 89; Miller v. Butler, 6 Cush. 71, 52 Am. Dec. 768; Krulevitz v. Eastern R. Co. 143 Mass. 228, 9 N. E. 613.

In an action of slander, admittedly, one of the elements, and the chief element, of damage is mental suffering, irrespective of any injury to person.

Finger v. Pollack, 188 Mass. 208, 74 N. E. 317; Leonard v. O'Reilley, 137 Mass. 138; Marble v. Chapin, 132 Mass. 225; Hastings v. Stetson, 130 Mass. 76; Stowe v. Heywood, 7 Allen, 118; Treanor v. Donahoe, 9 Cush. 228; Markham v. Russell, 12 Allen, 573, 90 Am. Dec. 169.

Evidence of acts and circumstances of outrage or insult accompanying an assault, which wound the feelings and tend to lower the plaintiff in the estimation of society, is admissible, and enhances the damages.

Tyson v. Booth, 100 Mass. 258; Sampson v. Henry, 11 Pick. 379; Richmond v. Fisk, 160 Mass. 34, 35 N. E.

103.

Because of some negligent error in his own records a defendant is never

"justified in assuming" that he can, with impunity, encroach on the legal rights of others.

Meagher v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Shute v. Barrett, 7 Pick. 82; Blair v. Forehand, 100 Mass. 136, 97 Am. Dec. 82, 1 Am. Rep. 94; Sampson v. Henry, 11 Pick. 379; Dalzell v. Dean Hotel Co. 193 Mo. App. 379, 186 S. W. 41; Neville v. Southern R. Co. 40 L.R.A. (N.S.) 1023, note; Lehnen v. Hines, 88 Kan. 58, 42 L.R.A. (N.S.) 830, 127 Pac. 612; 6 Cyc. 568; Lexington & E. R. Co. v. Lyons, 104 Ky. 23, 46 S. W. 209; Bleecker v. Colorado & S. R. Co. 50 Colo. 140, 33 L.R.A.(N.S.) 386, 114 Pac. 481; Knoxville Traction Co. v. Lane, 103 Tenn. 376, 46 L.R.A. (N.S.) 549, 53 S. W. 557; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311, 8 Am. Neg. Cas. 392; Levins v. New York, N. H. & H. R. Co. 183 Mass. 175, 97 Am. St. Rep. 434, 66 N. E. 803, 13 Am. Neg. Rep. 533; Jackson v. Old Colony Street R. Co. 206 Mass. 477, 30 L.R.A. (N.S.) 1046, 92 N. E. 725, 19 Ann. Cas. 615; Hayne v. Union Street R. Co. 189 Mass. 551, 3 L.R.A. (N.S.) 605, 109 Am. St. Rep. 655, 76 N. E. 219; Vannah v. Hart Private Hospital, 228 Mass. 132, L.R.A. 1918A, 1157, 117 N. E. 328, 17 N. C. C. A. 85; Ash v. Childs Dining Hall Co. 231 Mass. 86, 4 A.L.R. 1556, 120 N. E. 396; Friend v. Childs Dining Hall Co. 231 Mass. 65, 5 A.L.R. 1100, 120 N. E. 407; DeWolf v. Ford, 193 N. Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527; Dalzell v. Dean Hotel Co. 193 Mo. App. 379, 186 S. W. 41.

Braley, J., delivered the opinion of the court:

The only reference to the evidence in the record is the "statement of facts," from which it appears that the plaintiffs, who are husband and wife, were accepted as guests at the Hotel Langham, managed and kept by the defendant, George H. Page, and the question whether they had been properly registered, as required by Stat. 1918, chap. 259, § 5, has been answered in the affirmative by the jury. A finding would have been warranted that while in bed in a room assigned to them, to which they had been escorted and given a key, three employees of the defendant entered, followed by the defendant with a police officer, and, although ordered to leave the hotel,

(Mass., 131 N. E. 475.)

the plaintiffs refused compliance with the order, and that evidence was offered "of an assault, of false imprisonment, and slander, all incidental to the plaintiffs' right to the quiet enjoyment of their room, but the defendant offered evidence to dispute this." We assume that this summary refers to what took place after the defendant came in, and that the jury could find he acted as the proprietor in control of the hotel, and the employees and police officer were present at his direction and solicitation.

The action is in tort or contract. But at the plaintiffs' election, by order of the court on motion of the defendant, the cases were submitted to the jury on the counts in contract, and general verdicts were returned for the plaintiffs. The jury having specially found that the plaintiffs had duly registered, they were rightly in occupation. The defendant's fifth and sixth requests, that, if the defendants were violating the law in occupying a room without having been properly registered, "they are precluded from recovering for any injury suffered while in the room,' and the defendant was "justified in entering the room for the purpose of learning whether the law had been complied with, and, if the occupants refused to assist him, he is justified

Trial

instructionmateriality.

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in assuming that their presence is unlawful, and can use any reasonable means to remove them," are no longer material. See Stat. 1918, chap. 259, § 5.

The questions raised by the seventh request, whether the defendant was "responsible for the acts of the police officer done by the police officer while in the performance of his lawful duty," and "that the police officer was acting within the scope of his lawful duty in entering the to investigate into the right of their pres-question for jury-acts of ence there," were

room

police officers. for the jury under suitable instructions. Mason V. Jacot, 235 Mass. 521, 127 N. E. 331.

The eighth request, that if the de

Innkeeper

guest.

fendant had no intention of frightening the plaintiffs, but merely went to the room to ascertain whether they "had a right to be there," he is not responsible "for her fright, or the consequent injury to her health," is not supported by any legal presumption. The defendant was not justified in assuming the plaintiffs were not registered. The hotel registry disclosed their names, and he could not for this reason intrude upon their privacy. Sampson v. Henry, right to 11 Pick. 379, 387. intrude on It is necessary, however, to ascertain the respective rights of the parties upon which the defendant's remaining requests must rest. The defendant urges that consequential damages for breach of contract are limited to such damages as were within the contemplation of the parties at the time of entering into the agreement. But it was held in Dickinson v. Winchester, 4 Cush. 114, 121, 50 Am. Dec. 760, that a plaintiff who had lost a trunk and its contents while a guest at the defendant's hotel could declare in case or assumpsit.

"The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise." Vannah v. Hart Private Hopsital, 228 Mass. 132, L.R.A.1918A, 1157, 117 N. E. 328, 17 N. C. C. A. 858; Norcross v. Norcross, 53 Me. 163.

-contract rights of guest.

The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse, and unjustifiable interference, whether exerted by the defendant, or his servants, or those under his control or contrac acting under his orders. The plaintiffs, having duly registered and been put in possession of a room for their exclusive use, had the right of occupation for all lawful purposes until vacated, subject only to the access of the defendant, at reasonable times and in a proper manner,

right of guest

to room.

for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated, controlling emergency. Com. v. Power, 7 Met. 596, 601, 41 Am. Dec. 465; Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724; DeWolf v. Ford, 193 N. Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527; Lehnen v. Hines, 88 Kan. 58, 42 L.R.A. (N.S.) 830, 127 Pac. 612.

If, without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in

-liability for coercion and insult.

damages if excessive force, or coercion, or intimidation was used, or his conduct towards the plaintiffs was abusive, insulting, and wanting in ordinary respect and decency. And his tenth request, that, if as owner of the hotel he entered the room "for the purpose of inspecting the same and seeing that the rules of the hotel and all statutory regulations were complied with, then he was acting within the scope of his legal right and was not a trespasser," is not supported by the record. The judge's instructions are not stated, and it must be inferred as against the excepting party sufficiency of that they were correct and sufficient. Khron v. Brock, 144 Mass. 516, 519, 11 N. E. 748. The jury could find that after entering the room he engaged in the wrongful acts charged, without justification or excuse. See Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724. The general law is well settled. The guest is entitled to respectful and considerate treatment at the hands of the innkeeper and his employees and servants, and this right creates. an implied obligation that neither the innkeeper nor his servants will

Appeal

instruction.

civil treatment.

abuse or insult the guest, or engage in any conduct or Innkeeperspeech which may guest's right to subunreasonably ject him to physical discomfort, or distress of mind, or imperil his safety. Lehnen v. Hines, 88 Kan. 58, 42 L.R.A. (N.S.) 830, 127 Pac. 612; DeWolf v. Ford, 193 N. Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527; Morningstar v. Lafayette Hotel Co. 211 N. Y. 465, 52 L.R.A. (N.S.) 740, 105 N. E. 656; McHugh v. Schlosser, 159 Pa. 480, 23 L.R.A. 574, 39 Am. St. Rep. 699, 28 Atl. 291; 13 R. C. L. Innkeepers, § 11, § 11, and notes. And he can recover injury to feeldamages for injury ings of guest in to his feelings re

Damages

inn.

sulting from the humiliation to which he has been subjected. Clancy v. Barker, 71 Neb. 83, 69 L.R.A. (N.S.) 642, 115 Am. St. Rep. 559, 98 N. W. 440, 103 N. W. 446, 8 Ann. Cas. 682, 15 Am. Neg. Rep. 594, 18 Am. Neg. Rep. 173; Aaron v. Ward, 203 N. Y. 351, 38 L.R.A. (N.S.) 204, 96 N. E. 736; Gillespie v. Brooklyn Heights R. Co. 178 N. Y. 347, 66 L.R.A. 618, 102 Am. St. Rep. 503, 70 N. E. 857, 16 Am. Neg. Rep. 181; DeWolf v. Ford, 193 N. Y. 397, 401, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527; Head v. Georgia P. R. Co. 79 Ga. 358, 11 Am. St. Rep. 434, 7 S. E. 217. The plaintiffs are not shown. to have annoyed or disturbed other guests, or to have improperly demeaned themselves, or to have violated any rules of the hotel, and under suitable instructions the jury, on conflicting evidence, could find the defendant had been guilty of assault, false imprisonment, and slander, by "words spoken puting crime."

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It follows that the plaintiffs' four requests, that if they were unlawfully restrained of their liberty the defendant is liable

Innkeeper

ment of guest.

in damages, and if liability for he incited, encour- false imprisonaged, or countenanced the presence and acts of the officer he is liable therefor, and that

-mistake with respect to records.

(Mass., 131 N. E. 475.)

damages may be assessed for humiliation and injury to the plaintiff's feelings, as well as for unwarranted disturbance of his right of privacy and exclusive use of the room for himself and wife, and that even if the entry of the defendant arose from some mistake made by him or his agents "in his records," such mistake would not amount to a justification-were unexceptionable. The defendant's ninth request, that if the plaintiff suffered no physical injury "she cannot recover for mental suffering," was properly denied. As we have said, he could not treat the plaintiffs with contumely by the use of insolent language concerning them, specifically set forth in the declaration, and referred to and characterized in the record as "slander," which the jury could say caused the plaintiffs not only physical annoyance and discomfort, but also worry and distress of mind. De Wolf v. Ford, 193 N. Y. 397, 401, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527. The defendant's duty in this respect is analogous to that of a common carrier of passengers. Com. v. Power, 7 Met. 596, 601, 41 Am. Dec. 465; Jackson v. Old Colony Street R. Co. 206 Mass. 477, 485, 30 L.R.A. (N.S.) 1046, 92 N. E. 725, 19 Ann. Cas. 615; Gor

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"could not recover on their counts in contract for any damages resulting from words spoken, the slander, the false imprisonment, assault and battery, or for the humiliation, but could only recover for the value of the room," even when read in connection with the special answers of the jury to questions propounded by the defendant and submitted at his request, is covered by what has been said, and, the defendant having failed to show reversible error, the exceptions should be overruled. So ordered.

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Missouri. · Overstreet V. Moser (1901) 88 Mo. App. 72; Dalzell v. Dean Hotel Co. (1916) 193 Mo. App. 379, 186 S. W. 41.

Montana.-Jones v. Shannon (1918) 55 Mont. 225, 175 Pac. 882.

Nebraska.-Clancy v. Barker (1904) 71 Neb. 83, 91, 69 L.R.A. 642, 115 Am. St. Rep. 559, 98 N. W. 440, 103 N. W. 446, 15 Am. Neg. Rep. 594, 18 Am. Neg. Rep. 173.

New York.-DeWolf v. Ford (1908) 193 N. Y. 397, 21 L.R.A.(N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527; Morningstar v. Lafayette Hotel Co. (1914) 211 N. Y. 465, 52 L.R.A. (N.S.) 740, 105 N. E. 656; Boyce v. Greeley Square Hotel Co. (1920) 228 N. Y. 106, 126 N. E. 647, affirming (1917) 181 App. Div. 61, 168 N. Y. Supp. 191.

Ohio.-Moon v. Conley (1918) 9 Ohio App. 16.

Pennsylvania.-McHugh v. Schlosser (1894) 159 Pa. 480, 23 L.R.A. 474, 39 Am. St. Rep. 699, 28 Atl. 291.

Canada.-Whiting v. Mills (1848) 7 U. C. Q. B. 450.

Thus, in Jones v. Shannon (1918) 55 Mont. 225, 175 Pac. 882, it appeared that the plaintiff and her husband were assigned to a room in the defendant's hotel, and after they had retired the defendant entered and wrongfully ejected the plaintiff from the hotel. Holding that the defendant was liable, the court said: "If, therefore, the proprietor himself, or by his servant or agent, trespasses upon the rights of the guest by forcing an entry into his room and ejecting him therefrom, and from the house, without just cause, he is liable to the guest for compensatory damages. The recovery may also include exemplary damages, if the ejection is accomplished by circumstances indicating that it was prompted by malice, fraud, or spirit of oppression."

In Dalzell v. Dean Hotel Co. (1916) 193 Mo. App. 379, 186 S. W. 41, an action brought by a guest of a hotel against the hotel keeper for her ejection from the room she was occupying, it appeared that one of the clerks of the hotel, by mistake, checked out the

room which the guest was occupying, and as a result the guest was required to leave under circumstances which subjected her to insult and humiliation. It was held that the hotel keeper was liable, the court saying: "One of the things which a guest for hire at a public inn has the right to insist upon is respectful and decent treatment at the hands of the innkeeper and his servants. This is an essential part of the contract, whether it is express or implied. This right of the guest necessarily implies an obligation on the part of the innkeeper that neither he nor his servants will abuse or insult the guest, or indulge in any conduct or speech that may unnecessarily bring upon him physical discomfort or distress of mind."

The same rule was applied in Boyce v. Greeley Square Hotel Co. (1917) 181 App. Div. 61, 168 N. Y. Supp. 191, affirmed in (1920) 228 N. Y. 106, 126 N. E. 647, wherein it appeared that the innkeeper's servant forcibly entered the room of a guest, and removed her husband, who had obtained permission from the innkeeper's clerk to visit her in the room. The court said: "While an innkeeper has the right to make and enforce proper rules to prevent immorality or any other form of misconduct tending to injure the reputation of his house, or which violates the recognized moralities and proprieties of life, and has the right of access to the room of a guest under reasonable and proper circumstances and at proper times, such rule has no application to the facts presented by the record in the case at bar, and does not furnish a defense to the plaintiff's cause of action, for the reason that the defendant had notice that the plaintiff and the man who accompanied her to the hotel, and to the room assigned her, were husband and wife, and the further fact that she was an invalid requiring treatment at times, which had to be given her by her husband."

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