Wilkins v. Earle

By the Court.*—Robertson, Ch. J.

The liability of keepers of inns for property, which travellers, who are guests therein, bring with them, is as old as the existence of inns in England. (Hollingshed’s Chronicle, cited in Edw. on Bailment, App., 620.) The whole doctrine in relation thereto is summarily stated in the recital of an ancient original writ, entered in the Register of Writs (f. 105), among writs of trespass (on the case), and set out at length in Fitzherbert’s Natura Brevium (94 a. b.). Such writ forms the groundwork of the early decision in Calye’s case (8 Rep., 32), in which the general principles embraced in such doctrine are evolved from such writ; all of which have some bearing on this case, and are in substance as follows:

1. The place of loss is required to be an inn (commune hospitium), which is defined to be “ a house where the traveller is furnished with every thing he has occasion for on the way”' (Thompson a. Lacy, 3 B.& A., 283); the keeper of it not being bound to furnish any thing else (Fell a. Knight, 8 M. & W., 276); such as a place of sale for goods (Burgess a. Clements, 4 M. & S., 306); or to receive any one but travellers (Rex a. Luellin, 12 Mod., 445), or any thing but what is usually brought with, or carried by, them (Broadwood a. Granara, 10 Exch., 417; S. C., 24 Law J. [Exch.], 1). Although he is liable to an action for not receiving them (Com. Dig. action on the case; Rex a. Ivens, 7 C. & P., 213; Bacon’s Abr. Inns Court, C., 3; Thompson a. Lacy, 3 B. & A., 283), as well apparently as indictment (Year Book, 5 Edw. 1V., Easter T., fol. 10, by Hogdon, J.; 1 C. & K., 404; Edw. on Bailm., 408); and he cannot make any terms or conditions with his guests (6 T. R., 17, per Ld. Kenyon; Cole a. Goodwin, 19 Wend., 269, per Cowen, J.). A house becomes an inn by the mere custom of receiving persons transiently as guests, without a definite agreement as to time (Wintermunte a. Clarke, 5 Sandf., 242; Taylor a. Monnot, 4 Duer, 116). But a mere restaurant or place of eating is not one (Carpenter a. Taylor, 1 Hilt., 193).

2. The guest must be a traveller (1 Roll. Abr., 394; 2 Brownl., 254; Rex a. Luellin, 12 Mod., 445; Ingolsbee a. Wood, 36 Barb., 452; Bacon’s Abr. Inns, C., 5 ; Parkhurst a. Foster, Salk., 387); the time of his stopping is, however, immaterial, whether it be of some duration or for mere refreshment (Barnell a. Mellor, 5 T. R., 273; Carpenter a. Taylor, 1 Hilt., 193; McDonald a. Egerton, 5 Barb., 560).

3. The loss or injury for which the innkeeper is liable is, that of or to goods and chattels (bona et eatalla) placed within the inclosure and shelter of the inn and its appurtenances (infra hospitium), as laid down in the Year Books (11 Hen. IV., 45 a. b.; 22 Hen. VI., 21 b.; .42 Eliz., 3,11 a. b.; 42 Ap., pl. 1). Although animals put out to pasture at the guest’s request are not so (1 Roll. Abr., 34; 2 Brownl., 255; Hawley a. Smith, 25 Wend, 642); yet vehicles left in the street by the innkeeper’s servant (Jones a. Tyler, 1 Ad. & El., 522), or a wagon-load of goods in like manner placed in an uninclosed shed (Piper a. Manny, 21 Wend., 282), or a sleigh-load of grain in an outhouse where such articles were usually stored (Clute a. Wiggins, 14 J. R., 175), and goods placed in a “commercial” room (Richmond a. Smith, 8 B. & C., 9), were held to be so.

4. The person by whom the articles were taken or the mode of loss, is immaterial (Year Book, 22 Hen. VI, 38, pl. 8; Roll. Abr., tit. Hostler, 7; Clute a. Wiggins, ubi sup. ; Gile a. Libby, 36 Barb., 70; 2 Kent’s Com., 593; Story’s Com., 306, §§ 470, 479; Bell’s Com., 402, 403 (4th ed.), 496 (5th ed.); Edw. on Bailm., 400, 403, 407; Jones on Bailm., 94); unless such person were the servant or companion of the guest (Cro. Eliz., 285; Burgess a. Clements, ubi sup.; Fowler a. Dorlan, 24 Barb., 384); or the negligence of the guest contributed to the loss (10 Eliz., Dyer, 266; Burgess a. Clements, ut ante ; Farnsworth a. Parkwood, 1 Stark, 249).

5. For clothing, ornaments of the person, including a reasonable amount of jewelry, generally worn by travellers, which embraces a gold watch and chain, gold pen and pencil-case (Giles a. Libby, ubi sup.), and for sufficient money to pay the travelling and other reasonable daily expenses of the guest, the innkeeper is held liable (Taylor a. Monnot and Giles a. Libby, ubi sup.; Van Wyck a. Howard, 12 How. Pr., 197; Stanton a. Leland, 4 E. D. Smith, 88).

Beyond that, unless the innkeeper has voluntarily and knowingly undertaken the custody or care of property, no case has adjudged his liability; some elementary writers and some dicta make him liable for every thing a traveller chooses to bring into an inn. Judge Story, in his Commentaries, states the liability in general terms (p. 306, §470); Chancellor Kent, in his, extends it to “ all the movable goods, chattels, and moneys of the guest which are within the inn” (vol. ii., 593). In Calye’s case (ubi supra) it is said to embrace even documents relating to the title of lands and choses in action; in Kent a. Shuckard (2 B. & Ad., 803), the only question raised was, whether the innkeeper was liable for money as well as- other chattels, and it was held that he was; the amount lost in that case was only fifty pounds, and was stated to have been kept to meet daily expenses only. In Quinten a. Courtney (1 Hay. [N. C.] 41), the amount was only two hundred dollars; and the case of Fowler a. Dorlon, in our own court (24 Barb., 384), is in direct conflict with the principle held in that case. In the Berkshire Woollen Company a. Proctor (7 Cush., 417), although the money lost was more than sufficient to defray the expenses of the particular guest in whose charge it was, it was the property of another person, and left with such guest to pay to others who were guests at the same inn, or defray their expenses there, they being witnesses in a lawsuit, whose management was' the errand of such guest at such inn; and all such circumstances are dwelt upon in the opinion delivered in that case. ¡Nothing was said, except in general terms, in Purvis a. Coleman (21 N. Y. 111), about the liability of an innkeeper who had not given any notice to his guests of means provided for the safe-keeping of their property. In that case, he was held to be exempt from liability for a loss, in consequence of the failure of the guest to avail himself of such means after notice. In the case of Giles a. Libby (ubi supra), it was held that ornaments or money usually carried about the person by a prudent man, did not come within the provisions of the statute of 1855 (ch. 421), exempting innkeepers from liability for goods of a guest not deposited in a place of safe-keeping provided by them, after notice of such provision, as the money lost ($25) was held not to be more than a prudent person might carry about with him.

Being thus at sea in regard to direct decisions as to the extent of an innkeeper’s liability for the goods of his guest, we can only have recourse to indirect recognitions of the true doctrine in decided cases, to analogies to the liability of other persons, and to principles drawn from the origin and natnre of the legal relation of the innkeeper and his guests.

It has always been conceded that, upon all the goods for whose safe-keeping he is liable, an innkeeper has a lien for the keeping of his guest (Grinnell a. Cook, 3 Hill, 485; Ingoldsbee a. Wood, ubi supra), even when they are not the property of his guest. (Robinson a. Walter, 3 Bulstr., 269 ; S. C., Poph., 127.) But in the case of Broadwood a. Granara (10 Exch., 417; S. C., 1 Jurist, N. S., 19; 24 L.J. [Exch., 1]), it was held that an innkeeper was not bound to receive a piano with a guest, and therefore had no lien upon it. Counsel in that case said, in argument, that he was “ only compellable to take in such articles as both in nature and quality are reasonable for a traveller ;” to which Parke, B., assented, and .added: “ He is bound to take in those things with which a person ordinarily travels, "... to receive all goods whichby his public profession he engages to receivebut put the pertinent interrogatory, “Is he bound to take in articles of extraordinary-bulk ?” to which I would add, “ or value ?” the principle being precisely the same.

The origin of the liability of an innkeeper to his guest for •the loss of the latter’s property while in his inn, the principle of policy applicable to it, and, indeed, the whole relation, are so analogous to those applicable to a common carrier and a passenger transported by him, in relation to ,what is called his “baggage,” that the extent and conditions of their liability-have been held to be the same. (Orange County Bank a. Brown, 9 Wend., 85; Jones on Bailment, 103 ; Edwards on Bailment, 414.) The definite term baggage, it is true, has been applied only to the property of the passenger carried about with him for travelling purposes, for which the carrier is liable; and probably if the same term had been applied, in legal phraseology, to the goods of a guest at an inn, for whose safe-keeping an innkeeper was liable, the question of liability would have been long since settled. The same obligation is imposed upon both, upon account of the public character of their occupation of receiving travellers, by the carrier as passengers and by the innkeeper as guests, which involves also the necessity of receiving their travelling equipments, although" the carrier escapes liability, if they are not delivered directly into his custody. (Tower a. Utica & Schenectady R. R. Co., 7 Hill, 47 ; Cohen a. Frost, 2 Duer, 335.) Generally, neither receives separate compensation for care in regard to such baggage (Powell a. Meyers,. 26 Wend., 591), except when a carrier receives compensation for it as freight. The same danger, in both cases, of fraud or carelessness on the part of the innkeeper and carrier, or their servants, and the impossibility of the constant attention of the owner of the goods to their safe-keeping, is the ground of liability. Although the carrier has been held to be exempt from liability for money destined to meet travelling expenses (Orange Co. Bank, a. Brown, 9 Ib., 85), yet this rule does not prevail when travelling abroad (Duffy a. Thompson, 4 E. D. Smith, 178); in which case, even a gun carried in a trunk and the tools of a trade have been included. (Davis a. Cayuga & Susquehanna R. R. Co., 10 How. Pr., 330.) Articles usually worn about the person, such as a watch and articles of jewelry, are included in such liability, if in a trunk. (McCormick a. Hudson R. R. Co., 4 E. D. Smith, 181.) And although it is laid down in general terms, that every thing destined for the personal use, convenience, and even instruction and amusement of a passenger, is included in the baggage for whose safe transportation a carrier is liable (Hawkins a. Hoffman, 6 Hill, 586), yet the extent of his liability is very much narrowed; it does-not embráce merchandise (Pardee a. Drew, 25 Wend., 459), or samples of it (Hawkins a. Hoffman, ubi supra), or boxes of jewelry for sale (Richards a. Westcott, 2 Bosw., 589), or silver ware (Bell a. Drew, 4 E. D. Smith, 59), or presents for friends (Ib), or regalia or jewels of a society (Nevins a. Bay State Steamboat Company, 4 Bosw., 225); and it is fully settled that the mere acceptance of a trunk or baggage, containing what is not for personal use, does not bind the carrier, without knowledge of such contents. (Richards a. Westcott, ubi supra) Of course, different rules prevail, in regard to a common carrier of mere freight (Batson a. Donovan, 4 B. & A., 21; Miles a. Cattle, 6 Bing., 743), where goods of all kinds and of any amount of value are received, and a distinct compensation is paid for carrying them. Deceit practised in regard to goods carried as baggage relieves the carrier from liability, which it would not, if carried as freight. (Richards a. Westcott, ubi supra) The presumption in regard to articles brought by travellers to an inn, as well as to the depot of a earner for transportation, when contained in trunks or packages and of unknown value, must be that they consist merely of the ordinary • accompaniments of a traveller when travelling, and not articles or securities for commercial or' other purposes; if they are more, both the innkeeper and the carrier are at least entitled to notice of their value and character beyond that extent.

Previous to the introduction of the law allowing parties to be witnesses for themselves, travellers, in case of a loss at an inn, of their personal effects, were allowed to testify to the contents of their trunks (Taylor a. Monnot, ubi supra); and this was placed on the ground of the necessity of the case, counterbalancing the consideration of any danger arising therefrom by the fact that the loser could only recover to the extent of the value of what usually is carried by travellers. But the evil arising from such, admission of testimony, which would be slight when confined within such limit, would become gigantic if a traveller could .testify to the loss of articles of indefinite value, as to which there would be no power of contradiction.

It is possible that the liability of an innkeeper may be divided into two elements, as well as that of a carrier (Dorr a. N. J. Steam Navigation Co., 4 Sandf.,136); and that he may, under that which makes him liable as a bailee, be so liable for .goods received by him into his inn, when, either from their appearance or actual notice, he knows they are not the usual accompaniments of a traveller as such, and assents to their reception ; but still such notice would be requisite.

It is very plain that it would be highly unjust, and not founded upon any principle upon which an innkeeper’s liability rests, for a traveller to be able to bring into an inn unobserved any amount of valuables without notice to the innkeeper, and hold him responsible for their safe-keeping. There must be some restriction or qualification of such liability, if it exists; and that must be a warning to the innkeeper of the extra risk he is about to run. It is not very material in such cases whether such notice is made a condition of such liability, or the want of it is made such negligence on the part of the traveller as to be assumed to have contributed to the loss, and therebj exonerate the innkeeper. (Mateer a. Brown, 1 Calif., 225 ; Fowler a. Dorlon, 24 Barb., 384.) In the case last cited (Fowler a. Dorlon), it was held; to be such negligence in the traveller, who delivered his valise containing money to a servant of the innkeeper, not to have informed him of the fact, as to deprive him of the right of recovery for its loss. In this case, therefore, unless a special contract was made by the delivery by the plaintiff of the package of valuables in question to the clerk of the defendants on the occasion proved, the question of notice will' be essential. If no special contract was made, and no notice given, the liability of the defendants would depend upon precisely the same principles as if the package in question had been taken from the plaintiff’s room in the inn of the defendants.

If any special contract was entered into by the transaction between the plaintiff and the clerk, on the occasion in question of the delivery of' the package to the latter, it could only have been by virtue of some authority given to the latter to make such contract. The safe in which the plaintiff requested such package to be deposited was on§ provided by the defendants, pursuant to the provisions of the statute of 1855, already referred to, and such clerk was not authorized to make any other contract except that to be implied from the mere receipt and deposit of the package in such safe, exactly in the condition in which it was. Ho authority was proved or found to have been given to him, to agree to become responsible for parcels of unknown value. The notice posted in the hotel of the defendants, required a package to be deposited to be “ properly la-belled,” and the clerk informed the plaintiff “ that they made their guests describe the property before redelivery.” It was, therefore, only for packages properly labelled the defendants undertook to be responsible; and it was only of such property as could be described, their .clerk undertook to take care. If the defendants were not responsible for the contents of such package before' it was deposited in such safe, while in their. hotel, I do not think the clerk who received it was authorized to make, or did make on their behalf, a special contract for its safe-keeping at all hazards, especially when without any compensation commensurate with the risk.

This case, therefore, resolves itself into the question, whether • the plaintiff, by depositing in the safe of the defendants the package which he delivered to their clerk, under the circumstances under which he so deposited it, and with no more notice of its value than was given in his conversation with such clerk at the time of such delivery, was not guilty of such negligence, or did not so violate the implied condition of the liability of the defendants, as to exempt them entirely therefrom. A notice, to be sufficient to relieve the plaintiff from the imputation of negligence, should be not only of the kind of property, but its value. . Otherwise, if the innkeeper was upon other principles not bound to accept its custody, 'he could not fix his compensation for the voluntary risk assumed by him, and would not increase his vigilance and precautions to prevent a loss. The package was sealed up, and marked only with the plaintiff’s name, which furnished no information. The plaintiff, upon being asked what it was, answered merely 66 money,” which is equally unsatisfactory and indefinite. Besides, the defendants notified him that, if their safe was to be used as a depository, packages deposited in it were to be “ properly labelled,” which, of course, involved a description of their contents or a statement of their value. The mere information that a package contained “ money,” without knowledge of the amount, would not necessarily arouse the increased vigilance of the defendants. Indeed, the whole conduct of the plaintiff, including his mode of carrying the property in question, the time and place selected for changing the envelope the sealing up with no external mark but his name, his curt reply to the question “ What it was ?” indicate rather a reluctance to make known its value. Such acts were deficient in candor to the defendants, whose safe he chose to make the depository of his capital in business,' instead of the vaults of a bank. True, he might have lost such package, even if its contents had been disclosed, and yet the defendants might have had their attention attracted to it if it had been properly la-belled. By not giving proper notice, the plaintiff must be presumed to have trusted to the safety of his place of deposit and the honesty of the clerk, rather than the responsibility of the defendants.

I am, therefofe, of opinion, the defendants are only liable for the amount lost by the plaintiff equal to his travelling expenses, as found by the jury ; the general verdict, which is controlled by such special finding, must be reduced to that sum, and the exceptions as to the amount beyond that sustained; the other exceptions, being untenable, must be overruled and judgment rendered for the amount so found.

Garvin, J., concurred.

* Present, Robertson, Ch. J., Garvin and McCunn, JJ.