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practised there that a clerk other than the one on duty when she registered, from the character and appearance of her signature, which was without prefix or other indication that it was that of a woman, inferred that the person entitled to occupy the room was a man, and that she was an intruder therein and had gone there for immoral purposes.

The question of the rights and liabilities of an innkeeper toward his guests was discussed in the case of DeWolf v. Ford (1908) 193 N. Y. 397, 21 L.R.A. (N.S.) 860, 127 Am. St. Rep. 969, 86 N. E. 527, reversing (1907) 119 App. Div. 808, 104 N. Y. Supp. 876, wherein it appeared that a servant of the innkeeper entered the room of a female guest without her consent, her brother being in the room at the time, and accused her of improper and immoral conduct. It was held that the innkeeper was liable for the acts of the servant, the court saying: “Upon the facts of record, considered in the light of this very general statement of the rules which govern the relation of innkeeper and guest, it is clear that the defendants were guilty of a most flagrant breach of duty towards the plaintiff. As a guest for hire in the inn of the defendants, the plaintiff was entitled to the exclusive and peaceable possession of the room assigned to her, subject only to such proper intrusions by the defendants and their servants as may have been necessary in the regular and orderly conduct of the inn, or under some commanding emergency. Had such an emergency arisen, calling for immediate and unpremeditated action on the part of the defendants or their servants, in conserving the safety or protection of the plaintiff or of other guests, or of the building in which they were housed, the usual rules of decency, propriety, convenience, or comfort might have been disregarded without subjecting the defendants to liability for mistake of judgment or delinquency in conduct; but for all other purposes their occasional or regular entries into the plaintiff's room were subject to the fundamental consideration that it was, for the time

being, her room, and that she was entitled to respectful and considerate treatment at their hands. Such treatment necessarily implied an observance by the defendants of the proprieties as to the time and manner of entering the plaintiff's room, and of civil deportment towards her when such an entry was either necessary or proper. Instead of acting according to these simple rules, the servant of the defendants forced his way into the plaintiff's room under conditions which would have caused any woman, except the most shameless harlot, a degree of humiliation and suffering that only a pure and modest woman can properly describe.”

So, in McCarthy v. Niskern (1875) 22 Minn. 90, wherein it appeared that the plaintiff engaged and paid for a room at the defendant's hotel, and that, at the time he wished to retire, the defendant refused to let him have the room and ejected him from the hotel, it was held that the defendant was liable for punitive as well as compensatory damages.

So, in Morningstar v. Lafayette Hotel Co. (1914) 211 N. Y. 465, 52 L.R.A.(N.S.) 740, 105 N. E. 656, wherein it appeared that an innkeeper refused to serve a guest who refused to pay a disputed charge, it was held that if the bill was in fact unjust the innkeeper was liable.

In McHugh v. Schlosser (1894) 159 Pa. 480, 23 L.R.A. 574, 39 Am. St. Rep. 699, 28 Atl. 291, it appeared that an innkeeper caused a guest to be removed from the hotel during his illness, and that the death of the guest resulted. It was held that the innkeeper was liable if he removed the guest in a manner unsuited to his condition.

In Morris Hotel Co. v. Henley (1906) 145 Ala: 678, 40 So. 52, a hotel keeper was held to be responsible for an assault by him on a guest, though he had no knowledge that the person whom he assaulted was a guest of the hotel.

But if an innkeeper has a sufficient reason for interfering with or moving a guest, he will not be held liable for the damages resulting there


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from. Holden v. Carraher (1907) 195 II. Liability for act of servant. Mass. 392, 81 N. E. 261, 11 Ann. Cas. It is generally held that an act of 724; Hurd v. Hotel Astor Co. (1918) wrongful interference with a guest, 182 App. Div. 49, 169 N. Y. Supp. 359; committed by a servant of the innLamond v. Richard (1897] 1 Q. B. keeper while engaged in his employer's (Eng.) 541, 66 L. J. Q. B. N. S. 315, business, or endeavoring to enforce a 76 L. T. N. S. 141, 61 J. P. 260, 45 rule of the house, is within the scope Week, Rep. 289, 61 J. P. 260.

of his employment, and the innkeeper In Holden Carraher (Mass.) is liable for his act. Florence Hotel supra, it was held that an innkeeper Co. v. Bumpas (1915) 194 Ala. 69, was not liable for using the force 69 So. 566, Ann. Cas. 1918E, 252, necessary to remove a guest from the 10 N. C. C. A. 144; Wade v. Thayer hotel, where the guest was conducting (1871) 40 Cal. 578; Newcomb Hotel himself improperly, and refused to Co. v. Corbett (1921) - Ga. App. , leave when requested to do so by the 108 S. E. 309; Lehnen v. Hines innkeeper.

(1912) 88 Kan. 58, 42 L.R.A. (N.S.) 830, So, in Lamond v. Richard (Eng.) 127 Pac. 612; Overstreet v. Moser supra, it was held that a person who (1901) 88 Mo. App. 72; Dalzell v. Dean remained at a hotel for ten months, Hotel Co. (1916) 193 Mo. App. 379, and had no intention of leaving, 186 S. W. 41; De Wolf v. Ford (1908) ceased to be a guest of the hotel, and 193 N. Y. 397, 21 L.R.A.(N.S.) 860, the innkeeper, after giving her reason 127 Am. St. Rep. 969, 86 N. E. 527, able notice to leave, could not be held reversing (1907) 119 App. Div. 808, liable for excluding her from the hotel, 104 N. Y. Supp. 876; Boyce v. Greeley she having lost her status as a tran Square Hotel Co. (1920) 228 N. Y. 106, sient, and the innkeeper being, there 126 N. E. 647, affirming (1917) 181 fore, under no obligation to continue App. Div. 61, 168 N. Y. Supp. 191. to entertain her.

And see the reported case (FREWEN In Hurd v. Hotel Astor Co. (1918) v. PAGE, ante, 134). 182 App. Div. 49, 169 N. Y. Supp. 359, Thus, in Lehnen v Hines (1912) an innkeeper was held not to be liable 88 Kan. 58, 42 L.R.A.(N.S.) 830, for the alleged humiliation and shock 127 Pac. 612, it appeared that the to a guest, where an employee, on plaintiff, while a guest at the defendlearning that the guest had received a ant's hotel, was disturbed in the night man in her room contrary to the rules by the defendant's clerk, who forced of the hotel, interrogated her, and, on his way into the plaintiff's room, and, learning that the man was her hus on her refusing to leave the hotel at band, stated that he regretted having his request, had her placed under spoken to her about it. The court said: arrest and taken to jail. It was held "If a man visits a hotel in which his that the clerk in ejecting the plaintiff wife is a guest, and desires to meet was acting for the defendant, and her and visit her, surely the obvious, within the apparent scope of his audecent thing for him to do, for the pro

thority, and that the defendant was retection of all concerned, is to announce

sponsible to the guest for the acts of his relationship. And if he for some

the clerk. And see the reported case

(FREWEN V. PAGE, ante, 134.) reason, or through carelessness, omits

In Wade v. Thayer (1871) 40 Cal. to do so, can he complain if the hotel

578, wherein it was alleged that a managers object to his presence in the

servant and an employee of the defendbedroom of the woman?

ant, a hotel keeper, entered the room In Malin v. McCutcheon (1903) 33

of a guest and assaulted him, it was Tex. Civ. App. 387, 76 S. W. 586, it was

held that, if the assault was committed held that the plaintiff could not re

by the servant and employee while in cover damages for humiliation, loss of

the performance of their duties as credit, etc., for being wrongfully ex such, the defendant would be liable for cluded from a room in a hotel, where the injuries suffered by the guest, no actual damages were shown.

though he was not present.

The inference that the clerk and took a different view of the case, and night watchman, or house man, were in (1904) 131 Fed. 161, held that the acting within the scope of their em defendant was not liable, on the theory ployment, so as to make the innkeep that an innkeeper is not an insurer of er responsible for their conduct, was the safety of his guests against injury, held in Newcomb Hotel Co. v. Corbett and that the employee was not, at the (1921) - Ga. App.

108 S. E. 309, time of the accident, engaged in the to be a permissible if not a necessary discharge of any duty for the defendone, where the house man, who car ant. ried pass-keys to the rooms, and who In Rahmel v. Lehndorff (1904) 142 was charged with the duty of keeping Cal. 681, 65 L.R.A. 88, 100 Am. St. Rep. order and looking after things gener 154, 76 Pac. 659, 16 Am. Neg. Rep. 7, ally, including “anything that comes it was held that an innkeeper was not up," at the request of a clerk, who liable to a guest who was assaulted by told him that there was something a waiter while seated at the dining wrong in a certain room, went to the table, since assault was not authorroom and opened the door with a pass ized or within the scope of the waiter's key in order to ascertain what was employment, and it was not shown going on there.

that the innkeeper was negligent in So, in Overstreet v. Moser (1901) employing or retaining the waiter. 88 Mo, App. 72, wherein it appeared But compare Duckworth v. Apposthat a guest at the defendant's hotel talis (1913) 208 Fed. 936, wherein an was assaulted and injured by one of innkeeper was held to be liable for the his servants while the guest was at act of his servant, who committed an tempting to locate the room of a assault on a guest, it being shown that friend, it was held that the hotel the innkeeper had knowledge of the keeper was properly held liable for the violent disposition and quarrelsome acts of his servant.

characteristics of the servant, and still Likewise, in Florence Hotel Co. v. retained him as an employee. Bumpas (1915) 194 Ala, 69, 69 So. 566, So, it was held in Moon v. Conley Ann. Cas. 1918E, 252, 10 N. C. C. A. (1918) 9 Ohio App. 16, that it is the 144, a hotel proprietor was held liable duty of the proprietor of a hotel to for the acts of his servants, who re use reasonable care to protect a guest moved a guest's baggage from his from assault, and in case of failure to room, and insulted and humiliated the

perform that duty, the proprietor is guest by calling him in the night and liable for damages. demanding that he come to the In Stringfellow v. Grunewald (1902) office.

109 La. 187, 33 So. 190, it appeared In Clancy v. Barker (1904) 71 Neb. that the plaintiff, while a guest at a 83, 91, 69 L.R.A. 642, 115 Am. St. Rep. hotel, procured a waiter to sign a 559, 98 N. W. 440, 103 N. W. 446, certain letter bearing on the facts of 8 Ann. Cas. 682, 15 Am. Neg. Rep. 594,

a controversy between the plaintiff and 18 Am. Neg. Rep. 173, it appeared that

the hotel management. Sometime the plaintiff and his infant son were

thereafter the waiter requested her to guests at the defendant's hotel. The

return the letter. The plaintiff became infant son entered a room occupied by one of the defendant's employees, who

frightened at the conduct of the was off duty at the time, and was

waiter, and, while in the act of seeking struck by a ball from a pistol which

protection, she slipped on the steps of was accidentally discharged by the

the hotel and was injured. A judgemployee. It was held that the hotel

ment for the innkeeper was ordered on keeper was liable for the injuries to the grounds that the plaintiff was in his guest caused by the employee, fault for having induced the waiter to although the employee was not, at the sign the letter, and that he was not specific time of the injury, in the active acting within the scope of his employdischarge of a duty connected with his ment when he requested the return of employment. But the Federal court the letter.

L. W. B.



West Virginia Supreme Court of Appeals - October 29, 1918.

(83 W. Va. 20, 97 S. E. 684.) Definition - "mineral.”

1. The term "mineral" is not a definite one, capable of a definition of universal application, but is susceptible of limitation according to the intention of the parties using it, and in determining its meaning regard must be had not only to the language of the deed in which it occurs, but also to the relative position of the parties interested, and to the substance of the transaction which the deed embodies.

[See note on this question beginning on page 156.] Mines grant construction.

showing just what substances the par2. Where a deed grants the coal and ties intended to include by the lanall other minerals in a tract of land, guage of the grant, the intention of as well as certain rights to be enjoyed the parties as to the extent of the by the grantee in the production of minerals granted may be determined such minerals, and the rights so grant from the language of the mining ed are of the character which are rights granted as incident thereto, and necessary to be enjoyed, and which such grant limited to such minerals as are ordinarily enjoyed, in the produc are ordinarily produced by the exertion of minerals from mines, that is, cise of such mining rights as are by the process of shafting and tunnel granted by the deed. ing therefor, and there is nothing else [See 18 R. C. L. 1095.]

Headnotes by Ritz, J.

APPEAL by plaintiff from a decree of the Circuit Court for Raleigh County in favor of defendant in an action brought to enjoin it from removing clay from certain land. Affirmed.

The facts are stated in the opinion of the court.
Messrs. McGinnis & Hatcher for ap-

Hatcher for ap- veyed to the plaintiff "all the coal pellant.

and other minerals of every kind Messrs. Bumgardner & Preston, for

and description, except gas and oil appellee:

in and underlying said land." The right to remove the mineral

The deed also contained the grant without regard to the subjacent support of the surface is strictly limited

of certain mining rights in this lanto the grantee of such rights in plain guage: “Together with the priviterms.

leges to use so much of the stone Griffin v. Fairmont Coal Co. 59 W. and water in and upon the aforeVa. 480, 2 L.R.A.(N.S.) 1115, 53 S. E. said land as may be necessary or 24; White v. Sayers, 101 Va. 821, 45 desirable for the convenient operaS. E. 747; Horse Creek Land & Min.

tion of a coal mining or mineral Co. v. Midkiff, 81 W. Va. 616, 95 S. E.

plant, also including the right to en26.

ter upon said land and to mine, exMr. J. E. Summerfield also for ap

cavate, and remove all the coal, and pellee.

to make and maintain all necessary Ritz, J., delivered the opinion of railroads, excavations, ways, shafts, the court:

drains, drain ways, and openings On the 6th day of August, 1902, necessary and convenient for the 0. P. Riffe, being the owner of a mining and removal of said coal and tract of land in Raleigh county, con other minerals, also the right to

(83 W. Va. 20, 97 s. E. 684.) haul and transport under, through, intent that the language was used in and over said land the coal and oth a different sense. er minerals from adjacent, coter What is meant in a grant like this minous, and neighboring land, with by the term "minerals" has been out being liable for any damages or many times the subject of discusinjury done to the surface or to any

sion by the courts of this country, watercourse in or upon the said as well as the courts of England. property, and these rights and privi It would seem that this word has no leges shall run with the coal and definite and certain meaning which minerals.”

can be attributed to it in all cases. Subsequently the defendant be Its strict scientific definition would came the owner of a part of this include all inorganic matter, but it tract of land, subject to the above cannot be said that in granting the grant of the minerals. It seems minerals in a tract of land the term that the purpose of the defendant is used in any such broad comprein purchasing the land was to manu hensive sense, for if such were the facture brick from brick clay there case a grant of the minerals would on. After its purchase it installed be a grant of the entire estate. a brick-manufacturing plant, and, Originally it seems to have been as alleged in the bill, began the held in England that the term "minmanufacture of brick and the sale eral” would include anything that thereof. The plaintiff avers that was produced from mines or by the the land is underlaid with a seam of ordinary process of mining; that is, clay valuable for the purpose of by excavation by means of shafts manufacturing brick, and other like or tunnels. This definition was admaterials, and that the said seam of hered to by the English courts for clay is not a part of the soil of said many years; but when the question tract of land used for agricultural of whether or not a bed of clay oppurposes. Its contention is that the erated by open workings, and not grant to it of the coal and other by the ordinary processes of mining, minerals except oil and gas passed was a mineral, it was held to be this seam of clay. It is averred that such. It was held that the term the defendant is removing this clay "mineral” means primarily all suband is making brick therefrom, and stances, other than the agricultural the purpose of the suit is to enjoin surface of the ground, which may its removal by the defendant. The be got for manufacturing or meranswer of the defendant does not cantile purposes, whether from put in issue any of the allegations mines, as the word would seem to of the bill, but only exhibits its title signify, or such as stone or clay, to the tract of land upon which its which are got by open workings. operations are being conducted, and Midland R. Co. v. Checkley, L. R. 4 which land was conveyed to it sub- Eq. 19, 36 L. J. Ch. N. S. 380, 16 ject to the grant theretofore made L. T. N. S. 260, 15 Week. Rep. 671; to the plaintiff. No evidence is Hext v. Gill, L. R. 7 Ch. 699, 41 taken by either of the parties, and L. J. Ch. N. S. 761, 27 L. T. N. S. the duty devolves upon us of con 291, 20 Week. Rep. 957, 17 Eng. Rul. struing the grant without the aid Cas. 429, 17 Mor. Min. Rep. 1; Midof anything except the paper itself. land R. Co. v. Haunchwood Brick & It must be borne in mind in constru Tile Co. L. R. 20 Ch. Div. 552, 51 ing this paper that the purpose of L. J. Ch. N. S. 778, 46 L. T. N. S. all construction is to give effect to 301, 30 Week. Rep. 640; Glasgow v. the intention of the parties. Where Farie, L. R. 13 App. Cas. 657, 58 language of certain import is used, L. J. P. C. N. S. 33, 60 L. T. N. S. it will be presumed that the parties 274, 37 Week. Rep. 627, 17 Eng. Rul. intended the language to have its Cas. 485; Great Western R. Co. v. ordinary and accepted meaning, un Carpalla United China Clay Co. less there is a clear expression of [1910] App. Cas. 83, 79 L. J. Ch.

17 A.L.R.–10.

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