Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant appeals, by leave of this court, from the denial in the Law Division of its motion for summary judgment in an action by a former patron to recover for the loss of her fur coat while staying at defendant's hotel in Lakewood on February 6, 1963.
Plaintiff's two-paragraph complaint simply recited the disappearance of her mink coat from her hotel room in defendant's
premises when she was a "guest" (presumably at a charge), wherefore she demanded damages. Inter alia , the defendant's answer pleaded the exculpatory effect of N.J.S.A. 29:2-2. That statutory provision is to the effect that whenever a hotelkeeper provides a "safe or other depository" for safekeeping valuables of types specified in the statute, including furs, belonging to a guest, and "shall place, in a conspicuous position in the room or rooms occupied by such guests, a notice stating the fact that such safe or other depository is provided," in which such valuables "may be deposited," and a guest neglects so to deposit the articles, the hotelkeeper is not liable for loss of the property. If the goods are thus deposited the liability of the hotelkeeper for loss is limited to $500 unless the parties agree in writing otherwise.
Defendant made a motion for summary judgment, relying upon an affidavit dated November 29, 1963 by Charles Schoenfeld, "operator and manager" of the hotel on the day of the loss. Paragraphs 2 to 7, inclusive, of the affidavit read as follows:
"2. I am personally familiar with the location and physical setup of each of the rooms in this hotel and am in charge of the management and supervision of all rooms in this hotel.
3. It was reported to me that the plaintiff, Rose Platt, allegedly claimed the loss or theft of a coat from the room which she occupied on or about February 6, 1963, being room number 228, at this hotel.
4. I know of my own personal knowledge that on and before said date and during the complete occupancy by the plaintiff of said room, there was posted in a conspicuous position in said room a poster, attached hereto as Exhibit A, informing our guests that a safe or other convenient place is available as a depository for money, jewels, furs, etc, of said guests.
5. Said poster is located in the guests' room at eye level, being posted on the outside of the bathroom door. This door opens into the bathroom from the bedroom and this poster is at all times visible when coming into the bedroom or entering the bathroom. This becomes more obvious upon examination of diagram of said room number 228, attached hereto as Exhibit B.
6. This hotel did provide a safe or other depository within the hotel for the safekeeping of any money, jewels, furs, etc. as set forth in Revised Statute 29:2-2.
7. This affidavit is made for the purpose of presenting to the court facts to indicate that the defendant has complied with the Revised
Statute 29:2-2; that the fur coat was not delivered to the defendant and that the plaintiff is not entitled to recovery as a matter of law."
The notice-poster referred to was approximately 8 3/4 by 7 1/2 inches in size. It contained three headings at the top, reading successively as follows: (a) "NOTICE TO GUESTS"; (b) "NOT RESPONSIBLE FOR MONEY, JEWELRY, ETC., DEPOSITED IN EXCESS OF FIVE HUNDRED DOLLARS"; and (c) "A safe is provided in this hotel for the safe keeping of the following property belonging to guests: money, jewels, bank notes, precious stones, railroad tickets, ornaments, negotiable or valuable papers and furs." These several headings were printed in type of descending degree of prominence, in the order just stated, but we are satisfied that it could not be reasonably found that any of the headings are not prominently set out as against the background of the poster as a whole. The remainder of the poster consists of verbatim quotations, in relatively small print, of the texts of N.J.S.A. 29:2-2, R.S. 29:2-3, N.J.S.A. 29:2-4 and N.J.S. 2A:111-19. The last three statutory provisions deal with liability of hotels for property other than valuables, liability thereof for loss by fire or other force over which the proprietor has no control, and criminal liability for defrauding hotels.
In answer to interrogatories plaintiff said she did not know whether any notice of depository was posted in the room she occupied. She filed no ...