*278ISAAC M. WEISS VS. SUCC'N. of A. MONTELEONE, Appellant.

Mo. 8182.

Plaintiff sued the defendant, keeper of a hotel, for -$230.00 which he alleged had been stolen from the room he occupied in the hotel. He alleged that on April Sth. and 7th, 1919, he was a guest in defendant's hotel and was assigned a room; that he was not.furnished with any key, although he repeatedly asked for one; that on retiring at night he "had in his right hand pant's pocket the sum of $230" which he counted; that when he awoke the next morning he found that his money had been stolen during the night; that he is a traveling salesman covering the territory of the Southern and Middle Western States from Washington to Texas and from Oklahoma to Pittsburg, for the Empire State Ladies' Underwear Corporation of New York, and that the said sum of $230 was not an unreasonable amount of pocket-money for him to carry about his person to defray his current expenses of traveling; and he prayed for judgment for $230.00.

The defendant pleaded a general denial and further averred;

"that respondent's hotel was provided with.an iron chest and vault or safe deposit for valuable articles, including money, belonging to its guests and customers, and that it has always kept posted, particularly before, on, and since April 6, 1919, upon its doors and other public places id said Hotel Konteleone, printed notices to all of its guests and customers, that they must leave their; valuables with respondent, its agents, or clerks, for *279safe keeping, in order that respondent may make safe deposit of the same in said iron chest and other safe deposit vault provided for that purpose; that said printed notice was conspicuously posted upon said doors and other places in respondent's-hotel, and notwithstanding said notices, the plaintiff failed to leave with respondent or its clerk or agents, for deposit, any moneys or other articles of value, at any time whilst he was a guest at said hotel; that respondent has complied with all the requirements of the law in the premises,and for which it is not responsible to the plaintiff for any loss that he may have sustained -; respondent further avers that it had posted, as above specified, in a conspicuous manner in the room occupied by the plaintiff herein, before, on, and since the month of April 1919 a notice requiring plaintiff to deposit his money, jewels, and ornaments in the office safe and to bolt his door, or on leaving to lock his ddor and leave the key in the office, bureas on whereof your respondent is not liable, x x x Further answering respondent says that Article 2971 of the Revised Civil Code of 1870 as amended and reenacted by Act 231 p 519 of the General Assembly of Louisiana of 1912,was conspicuously posted in the guest rooms of said hotel, and particularly in the guest room occupied by the plaintiff, before, on, and since the month of April 1919 in the following words and figures, to-wit: "Article 2971. No landlord or innkeeper shall be liable under the provisions of the foregoing six articles to any guests or party of guests occupying the same apartments for any loss sustained by such guests*' or Party of guests, by theft or otherwise, *280in any sum exceeding one hundred dollars, unless by special agreement in writing with the proprietor, manager or lessee of the hotel or inn a greater liability has been contracted for".Provided that no ©jest shall be held bound by the limitation of value established in this Article unless this Article is conspicuously posted in the gaest room".

There was judgment in favor of the plaintiff for one hundred dollars, and the defendant has appealed.

It is not disputed that the Aot of 1912 copied herein-above limits the liability of the innkeeper to $100, and that no judgment can be rendered herein in excess of said sum.

But the defendant relies upon Articles 2968 and 2969 of the Civil Code which are a reproduction of Act No. 5 of 1860 p 7, entitled1'an act for the protection of Hotel Keepers" and read as follows:

C. C. 2968: "Every landlord or keeper of a public inn or hotel, shall be required to provide with an iron chest or other safe deposit for valuable articles belonging to his guests or customers, and each landlord or hotel keeper shall keep posted upon his doors and other public places in his house of entertainment, written or printed notices to his guests and customers that they must leave their valuables with the landlord, his agent, or dark, for safe keeping, that he may make safe deposit of the same in the place provided for that purpose".

C. C. 2969: "Every landlord, hotel, or inn keeper who shall comply with the requirements of the preceding articles, shall not be liable for any money, jewelry, watches, plate, or other things made of gold or silver, JU or of ra^e and precious stones, or for other valuable articles of such description as may be contained in small compass, which may be abstracted or lost from any such *281public inn or hotel, if the same shall not b*i■laf t-,W)LtÍi¡¿ the landlord, his clerk, or agent, for deposit,: «mies» such loss shall occur through the fraud or negliger-s&• wf the landlord, or some clerk or servant employed by;bbfc' in such inn or hotel; provided, however, that the.pravi-sions of this Article shall not apply to a wigring wAelt or such other articles of jewelry as ars ordinarily na» about the person".

We have found no interpretation of these Articles by thi. Supreme Court, But in 18 A. 156 (157), the Supreme Court, said?

"Defendants mi$it have easily avoided the responsibility imposed upon them by the Articles of the Code referred to, (2965, 2967, 2970) by giving the notice authorized in an Act of the Legislature passed on the 16th. of uary, 1860 for the protection of hotel keepers".

The evidence establishes that the defendant complied with the Articles 2968 and 2969, and it is not disputed. Having' complied, tn the language of the law, he is not liable for any money that may be abstracted from his hotel-, unless the loss occurred through the negligence of the hotel keeper.

The only negligence charged to the defendant is his failure to provide the plaintiff with a key with which he might have locked the door of his room when he retired at night. That might have raised a serious question if the unlocked door had been the immediate cause of the loss. But we consider that it was the remote cause, and that it was plaintiff's fault which was the immediate cause of his loss. He was negligent in not depositing his money with the hotel felerk. He left it in the pocket of his trousers upon the chair, the very place wheie a thief would be likely to look for it on entering his room. The door of his room was not locked. If subsequent, to the negLigenoe of the defendant, plaintiff, by the exercise of due diligence, could have avoided the effect of such negligence, but failed to *282do ao, he will not be able to -recover. 38 S. E. 82; 140 Mass. 123; 2 N. E. 934.

In the 14 A. 526, 528, it was said that a traveler who contributes to his loss cannot recover. 14 A. 526, 528. Leaving a watch and chain and other valuables upon the dresser in his room instead of concealing them "under the mattress or in some part of the room" was negligence. 14 A. 528. One of the witnesses in this case has said "sometimes I put it in my shoe, sometimes tie it aroung my ankle". -See also 7 A. 361.

Counsel, in his brief, urges the argument,

"that, under the law, Mr. Weiss was entitled to have upon hia person a reasonable amount of money for his expenses x x and that for a traveling salesman to have $230 on his person is not an excessive or unreasonable amount of money".

We apprehend that such was the view taken by the District Judge. He would have been right prior to the Amendment of 1860 under Article 2971 of the Civil Code as interpreted in 18 A. 156, 5 Ct. App. 61, 14 A. 326 and 527.

"According to the circumstances of the fact and the condition of the parties".

But Article C. C. 2969 says that the hotel keeper"shall not be liable for any money", without any qualification; the Court has no right to create any to suit its own views upon the subject.

In Hyatt vs Taylor, 51 Barbour 632 (New York Supreme Court) under a statute similar in may respects to out Articles of the Bivil Code, the trial judge charged the jury

"that they (the hotel keepers) were not protected as to money sufficient for traveling expenses of the plaintiff".

The Supreme Court said;

"there is no exception in the Act of any portion of the guest's money. Hot a word that indicates an intention-.. *283to except money necessary for traveling expenses. On the contrary, every word used in the Act denotes an intention to relieve them from liability, as to all money, jewels, and ornaments in the possession of the guests. The language i's so plain that 1 think & c".

See also 44 N. Y. 172; 9 Ohio Dec. 372; 24 Wisc. 241; Stewart vs Parsons.

In 42 N. Y. 258 (Court of Appeals) same Hyatt vs Taylor, the Court said:

"An innkeeper who provides a safe for the reception of money, jeweis, or ornaments, and posts up in the room of his guest a notice that they may be deposited in the safp pursuant to a statute declaring that he shall not be liable for any loss thereof in case the guest negLects to so deposit them, is not liable for the loss of any money, jewels, or ornaments not deposited in a safe. The protection to innkeepers given by the statute is not limited to money or valuables in excess of whit the gpest may reasonably require for his traveling expenses or personal convenience, but embraces all money, jewels, or ornaments which the guest brings with him without reference to the amount or value". Affirmed in 43 N. Y. 539.

Any other construction would absolutely abrogate the Articles 2968 and 2969 of the Civil Code and reinstate Article 2965 (2936) prior to its Amendment by the Act of 1860 as interpreted in 18 A. 156 and prior decisions. But it must be remembered that the title of the act of 1860 is "An Act for the protection of Hotel Keepers", and that it was intended to extend to them a protection which they had not enjoyed heretofore. Under the law as it existed prior to 1860 they were responsible for 3uch money as was necessary to meet traveling expenses; under the new law they were not liable for any money, ¿g trav*284elers usually carry only such an amount of money as they will need, and as those needs always exceed $100, the success of plaintiff's argument would mean, that'hotel keepers would be liable in all cases, safe deposit or no safe, notice or no notice, and thus the Act of 1860 would be repealed by judicial interpretation and become a dead letter. The title of the Act indicates that it was passed for the benefit of the hotel keepers and not to assist travelers.

It is now ordered that the judgnent of the District Court be reversed and set aside and that there be judgnent in favor of the defendant rejecting plaintiff's demand at his cost in both Courts.

January 16th, 1922.