When the bailee fails to come forward with any evidence to the effect that it has exercised ordinary care and property has been stolen, lost, damaged or destroyed by fire or by an act of God, the bailee's primary liability is established as a matter of law.
A husband and wife, were lodging as paying guests at the Shamrock Hilton Hotel where they took their dinner in the hotel restaurant. After completing the meal, the couple departed the dining area but the wife accidentally left her purse behind, which contained $13,062 in jewelry. The purse was found by the hotel bus boy who dutifully delivered the forgotten item to the restaurant cashier pursuant to the instructions of the hotel. Some short time thereafter the cashier gave the purse to a man other than the husband who came to claim it. The couple sued alleging negligent delivery of the purse to an unknown person. At trial, there is no testimony on the question of whether identification was sought by the cashier. The trial court found for the couple and the case was appealed to the Court of Civil Appeals of Texas.
Is the hotel liable?
The court found that a bailment for the mutual benefit of the parties existed, and held that the hotel owed the couple the duty of reasonable care in the return of the purse and jewelry, and was therefore liable for its ordinary negligence. Furthermore, the actual cause that produced the loss was wholly independent of the couple's negligence, and the hotel's primary duty of ordinary care to its paying guest was clear.