R. E. O'BRIEN, APPELLANT,

v.

E. E. VAILL, APPELLEE

The Chief-Justice delivered the opinion of the court:

On the 26th of March, A. D. 1885, plaintiff, O’Brien, went to the hotel of the defendant, E. E. Yaill, in the city of St. Augustine, and stopped there as a guest. The next day plaintiff paid his bill to the clerk in the office of the-hotel and told him he would be gone for a few days, but would leave his baggage, which consisted of two trunks and a valise, until his return, and which he requested the clerk to take care of for him. Plaintiff left his baggage in his room, locked the door and gave the key to the clerk.. Plaintiff told the clerk that on his return he would board, with him. On April 2d plaintiff returned and again became a guest of the hotel. The plaintiff’s baggage had been removed by the proprietor to the main hall of the hotel. On inquiring for his baggage it was found that one of the trunks had been stolen.

It was in evidence that the front door opened into the office, and there was no entrance into the hall besides the entrance through the office; that when the house was not closed there was always some person in charge of the office,, and when the hotel doors were closed there was always a. watchman on duty. A former servant of the hotel was arrested for the theft, and confessing the crime, told the officer where they could find the trunk. Two hasps had been broken, and the most of the contents carried away. Vaill, the proprietor, refusing to pay O’Brien for his damage and loss, the latter brought suit.

The questions presented upon these facts are : 1st. Was Vaill, O’Brien having paid his bill and departed from the house but leaving his baggage saying he would return, liable to O’Brien under the law regulating the liability of an inn-keeper to his guest for the loss of such baggage. Attorney for appellant has called to our attention the case of Adams vs. Clem, 41 Geo., 65. In this case Mrs. Clem was the gnest of the inn-keeper, Adams; her trunk was carried to her room, and was marked with her name ; she paid her bill, saying that a gentleman, whom she pointed out, would call in ten minutes for it and bring it to her in the country, to which Adams assented. She left the inn on Monday and no one called tor the trunk until Eriday, when it was found to be lost. The court held the innkeeper responsible.

The appellant also cites the case of McDonald vs. Edgerton, 5 Barbour, S. Ct., 560. This decision is partly based on the case of Grinnell vs. Cook, 3 Hill, 485. We think the court misconstrued Justice Bronson in the case of Grinnell vs. Cook. In that case Judge Bronson drew a well founded distinction in respect of the inn-keeper’s liability for property left by the guest, as to whether the inn-keeper was to receive compensation for keeping the property during the absence of the guest. The guest had left a horse which required feed and attention, for which the inn-keeper had a right to charge a reasonable compensation. In the case of McDonald vs. Edgerton, the plaintiff left behind his coat and there was no compensation agreed on or ex pected for keeping it. Leaving property for which, a compensation for keeping was to be paid continued the relation of inn-keeper and guest so far as that property was concerned.

We think the current of authority and the weight of reason is opposed to the conclusion reached by the Supreme Court of Georgia and the Supreme Court of N. Y., in 5th Barbour, supra.

The law imposes on an inn-keeper an extraordinary liability for the protection of the baggage of his guest. He can avoid it only on the grounds of the loss being occasioned by the'act of God, the public enemy, the misconduct of the guest, or the friend he brings with him. We can think of no other reason for the imposition of this liability upon the inn-keeper than the profit he receives fronPentertaining his guest. When the traveller ceases to be his guest and the inn-keeper ceases to derive a profit for his entertainment, the relation of inn-keeper and guest have ceased as such and as a consequence their relative liabilities.

O’Brien, when he paid his bill and left the hotel, put an end to the relation of guest to the hotel keeper. See Miller vs. Peoples & Branum, 60 Miss., 819 ; Grinnell vs. Cook, 3 Hill, 485.

The expectation to become a guest again at some other time did not continue the relation of inn-keeper and guest.

The next question is, what was the relation of the parties after the cessation of the relation of inn-keeper and guest as shown by the evidence ? We think it was that of bailor and bailee, and that the defendant was a gratuitous bailee. The statement of the appellant that he expected to return to and board at the hotel could not be considered as a considerstion for taking care of the baggage. A gratuitous bailee is liable only for gross negligence. There is nothing proved in the case that will justify us in the conclusion that defendant was guilty of such negligence in opposition to the finding of the referee.

The judgment is affirmed.