26 Vt. 316 | Vt. | 1854
The opinion of the court was delivered by
The first question arising in this case is in regard to the plaintiff being a guest of defendant, at the time he deposited the $4,000 in gold with him to keep. The plaintiff’s testimony tended to show he came to Bennington, on business, on the 26th of February, and put his horse into defendant’s stable, he being a common innkeeper, leaving his wagon, harness, and buffalo skins in defendant’s custody, where they remained without interruption till the 6th of March, the money being lost on the night of the 5th of March. The plaintiff took a room, became a guest in the strictest sense, and continued to lodge and board constantly at defendant’s inn till Saturday the 1st day of March, after breakfast, when he went to his brother’s in the vicinity, and remained over Sunday. On Monday he returned to the inn, and dined there, occupying the same room as before. Monday night he took tea, lodged with his brother, and took breakfast the next morning. The plaintiff then returned to defendant’s inn, occupying the same room continuously, night and day, till Wednesday evening, about half past five o’clock. In the course of the day, Wednesday, he received the $4,000 in gold, being 200 double eagles, and delivered them to the defendant, in a shot-bag, in plaintiff’s room. Defendant said, at the time of receiving the money, he did not like to be accountable for so much money. Thereupon plaintiff took it, -wrapped it in a newspaper and handed it back to defendant, saying, there was no danger, and requesting him at the time to put it in the tick of the straw bed in which he, defendant slept, and there to keep it through the night, and not to let any
I. In regard to the question, how far the plaintiff can be regarded as a guest of defendant, at the time the money was put into the defendant’s hands, and up to the time of the loss, the eases are not
It is observable that no case has yet arisen where a traveler, putting his horse at an inn, has left other goods than such as pertain to the horse and carriage. But upon principle, if the relation of guest is thereby created, and the host consents to take other portions of the traveler’s necessary luggage, like his overcoat, which it is most'common to leave with the horse, but usually within the inn, or even one’s trunk or money, if put into the custody of the
This case, on the evidence put in by the plaintiff, seems to present, in the first instance, the relation of guest, in the strictest sense. And we do not think it necessary to continue that relation, that the plaintiff should have continued his dwelling, for the time even, within the inn. The relation of guest was clearly created by putting the horse at the inn, and it was undeniably extended to all the plaintiff’s goods left at the inn by his taking a room, and taking som<Uof his meals at the inn, and lodging there a portion of the time. This matter seems to be perfectly settled by the custom in the cities. It is there considered that taking a room is the decisive act to create the relation. That being done, the guest is charged, as such, for his meals and lodging, whether he take them at the inn or with his friends, as any one may know who has had experience in such matters. And this seems to us well enough. One in so extensive a city as New York, might find it convenient to have a room for his parcels, and to take his dinner at a downtown hotel, while he might choose to have his lodging, and most of his personal apparel and baggage at an up-town house. And it would certainly be unreasonable, if one chose to be at this expense that he should not have the same security for his goods left at the one hotel as the other. Or if one took lodgings at -a hotel, and should subsequently find it more comfortable to lodge with a friend, and for any reason should not choose at once to give up his room, and break up his connection with the hotel, it would certainly sound very strange that he should not have the same security for his goods as if he made the hotel his constant abiding-place for the time. He would certainly be bound, ordinarily, to pay till he gave up his room, and in all the books, pay, or the right to charge, is made the criterion of the innkeeper’s liability. But after one has given up his room, and closed his connection with the hotel, then, indeed, it is generally understood, and no doubt correctly, that for any baggage left at the inn the landlord is only liable as
In the view we here take of the case, the testimony of the plaintiff to his purpose of returning to defendant’s house on the morning of the 6th was important, and should have been received. The parties being made witnesses, as the law now stands, are witnesses to every point material to the determination of the case. And the plaintiff saying to defendant, when he left the evening before, he should not return till morning, was equivalent to saying he should then return, and his bona fide purpose of then returning seems to be very significant upon the point of the continuance of the relation of guest, , so far as it depended upon the intention and expectation of the plaintiff.
II. In regard to .the general liability of an innkeeper, it is surprising that the law should still be so indeterminate. But the cases are fewer and less decisive upon this important subject than might have been expected. Even the absurd dictum in Newton v. Trigg, 1 Shower’s 269, where Eyres, J., says, “ They (innkeepers) may detain the person of the guest who eats,” has been constantly quoted to establish the existence of such a right in the landlord, and without much examination, (although the point decided in the case is, whether an innkeeper may become a bankrupt,) until the comparatively recent case of Sunbolf v. Alford, 3 M. & W. 247, where Lord Abinger says, “ I would be sorry to have it thought I entertain any doubt in this case, or required any authority to support the j udgment I propose to give,” — that no such-right to detain the person of the guest can be for a moment tolerated in a free country. So, too, we find numerous creditable judges, and some decisions, carrying the liability of an innkeeper to the full extent of a common carrier, and thus making him an insurer against all losses not caused by the act of God or the public enemy. But such is clearly not the general course of the decisions in Westminster Hall, and that extreme responsibility was
It is there held that an innkeeper is not liable for loss of goods of the guest by fire from without, the probable act of an incendiary, and without any fault or negligence on his part, or on the part of any inmate of the house. But we have never intimated that we were prepared to put the liability of an innkeeper upon the same ground as that of other bailees, j On the contrary, we regard it as well settled that the liability of an innkeeper is more severe than that of any other bailee, with the single exception of common carriers. In Richmond v. Smith, 8 B. & C. 9, (15 Eng. Com. Law R. 144,) Lord Tenterden, says, in regard to goods stolen from the custody of an innkeeper, “ The situation of an innkeeper is precisely analogous to that of a carrier.” This may be too strongly expressed, if applied to all cases of goods taken from the custody of an innkeeper. For it may be done by superior force, and without his fault, and still not the force of a public enemy, which is necessary to be shown to excuse a carrier. But in regard to goods stolen from the custody of an innkeeper, and no evidence to show how it was done, or by whom, the liability is the same as that of the carrier. The innkeeper is bound to keep his house safe from the intrusion of thieves, day and night, and if they are allowed to gain access to the house, and esjiecially without the use of such force as will show its marks upon the house, it is fairly presumable that it was either by the negligence or connivance of the host, and such is the judgment of the law thereon.
Perhaps the rule of law as applicable to such a case is better expressed by Mr. Justice Bailey, in this same .cause: “It appears to me that an innkeeper’s liability very closely resembles that of a carrier. He is prima facie liable for any loss not occasioned by the act of God, or the king’s enemies.” And Mr. Justice Story, lays down the rule in regard to this liability as correctly as it can well be stated, in his work on Bailments, § 472: “ But innkeepers are not responsible to the same extent as common carriers. The loss of goods while at an inn will be presumptive evidence of negligence on the part of the innkeeper or his domestics. But he may, if he can, repel the presumption, and show that there has been no negligence whatever, or that the loss has been occasioned
But I do not think a jury could be allowed to exonerate an innkeeper from the loss of the goods of his guest upon presumption merely, or indeed without proof of some of the circumstances or
And if his house is properly secured, and the goods properly guarded, as such an amount of money would be likely to be by the owner, it is fairly supposable that some trace of its departure may ordinarily be found. And when a case occurs that possibly or probably professional robbers may have succeeded in eloining money or other goods without leaving foot-prints, it is better that the innkeeper should be held liable until he can prove the mode of the loss, than that so beneficial a rule of law, and one so indispensable to the quiet and comfort of travelers, should be virtually . demolished.
And with every disposition to' take a reasonably favorable view of the case for the defendant, it seems to us that if he really held the money, as innkeeper at the time, he should have shown something more definite as to the mode of the loss than any thing detailed in the bill of exceptions, to excuse himself from restoring it. On the bill of exceptions, it seems to be the common case of goods left at an inn and lost by theft of some unknown person, which is the common case of such loss. The manner of the loss should be stated, if known, in order to raise the proper question of law, as it regards this portion of the case, the law reversing its ordinary presumption of innocence in this case, and presuming the liability in the first instance; for if the fact of loss may be left to a jury, together with the ordinary negative evidence which may be supposed to attend such a case, as a sufficient ground upon which to excuse the innkeeper, the practical benefit of the rule of his presumptive liability is at once abandoned. A presumption which may be encountered and overcome by a counter presumption, without proof, is of no avail in its practical application to the business of life. It thus becomes neither an absolute or probable presumption, but a mere conjecture, good enough till some counter conjecture springs up, which is not what is meant, in law, by a “ presumptive liability.” It may more properly be likened to the
III. In regard to the agreement to deliver the money to Dr. Swift, it may be viewed in two lights: 1st. Was the promise upon sufficient consideration ? Of this we entertain no doubt. The delivery and acceptance of the goods are a sufficient consideration for any undertaking in regard to them, even where the service is merely gratuitous, as was held in Coggs v. Barnard, Ld. Raymond, 909, Com. 143, Salk. 26, and which has not been questioned since; and the goods being, at the time of the undertaking, in the power of the parties, is the same thing, since it is presumable that but for the promise the guest would have reclaimed his goods; he was therefore, -by the new promise, induced to forego an advantage, which is a sufficient consideration. 2nd. Was this promise reasonably performed ? Did the defendant do all he ought reasonably
IY. If the defendant held the money, as innkeeper, and made this contract upon sufficient consideration to deliver to Dr. Swift, the inquiry will arise, what effect this contract will have upon his former obligation. That will depend upon the probable intent of the parties, which may ordinarily be gathered from the terms of the contract and attending circumstances. If the new contract was intended to supersede the former one, and come in its place, so as to have the defendant hold the money at once, in a new relation, then, of course, the former one will cease. As, for instance, if the plaintiff had consented to have defendant loan the money to some one, or had employed him to carry the money to Troy, or to New York, and he had entered upon this duty in either case, and had lost the money upon the road, or before it was actually loaned, or if in any other way the new contract was inconsistent with the continuance of the former one, the old contract is released by entering into the new, although of the same grade, and not creating a technical merger.
But when the new contract is consistent with the continuance of the former one, and only provides a n'ew mode of discharging the former one, it produces no effect upon it unless or until performed ; and this latter seems to have been the probable purpose of the parties in this case. It is hardly supposable that if defendant held the money, as innkeeper, the parties could have expected his
Judgment reversed, and case remanded.
Note. — A more extended examination of the cases upon this subject, especially the American cases, develops nothing at variance, so far as the general course of decision is concerned, with the leading views put forth in the opinion in this case. And in some points where, at the time of writing the opinion, I was not aware of any express authority, I find almost precise coincidence and confirma tion. The case of Wintermute v. Clark, (5 Sandford’s Superior Court R. N. Y. city, 242,) seems a rather remarkable confirmation of our views upon the question of what is requisite to determine the relation of guest and host. Oakley, Ch. J says, “ It is plain that the liability of an innkeeper continues no longer than the continuance of the relation between him and the guest. That relation ceases when the guest pays his Kll, and leasees the h'ouse, with the declared intention of not returning. In this case the guest had carried his trunk to an inn, and taken a room, putting his trunk below, in some place pointed out by the servant as a safe and suitable place, and then had gone out to lodge with a friend. He returned in the morning and paid for the room, though somewhat objecting, and left the hotel . His trunk was never taken from the hotel by the guest. The testimony was conflicting whether it was lost before the guest settled his bill, or afterward, and Judge Oakley’s remarks had reference to this point chiefly. This case had not cometo my notice at the time of writing the opinion.
In a considerable number of the states, the courts have shown a disposition to put the liability of innkeepers upon the same high ground as that of common carriers. In Massachusetts the case of Mason v. Thompson, and some others per
The right of a guest to maintain his relation to an inn, notwithstanding temporary absence, is very clearly recognized in Grinnell, v. Cook, by Bronson, J. “ If a traveler leave his horse at an inn, and then go out to dine or lodge with a friend, or if he leave the inn and go to another town, intending to be absent two or three days, the rights and liabilities of the parties remain the same as if the traveler bad not left the inn.” In Thickston v. Howard, Smith, J., speaking of the comparative responsibility of carriers and innkeepers, says: “ The rule oflaw is near
In the case of Shaw v. Berry, (31 Maine 478,) the rule laid down seems certain-i ly more stringent than the oases will justify. Tenney, J., says: “ He (the host) is bound to keep the goods and chattels, so that they shall be actually safe, inevitable accidents, the acts of public enemies, the owners of the goods and their servants excepted. Proof that there is no negligence in the' innkeeper or his servants, is not sufficient for his immunity.” If this were to be understood in its i. most extensive signification, it certainly conflicts with the view taken by this ■ court in Merritt v. Claghorn, (23 Vt. 177.) But the case of Shaw v. Berry, required no such extreme view. It was that of a traveler’s horse breaking a leg in defendant’s stable during the night, .in a manner unknown to any one. In principle, the ease was much the same with the present, and seems to have been tried, in the first instance, much as was this ease, with a similar result. And there can be no doubt of the tavernkeeper’s liability in such a case. And he could not ask a jury to exonerate him, upon the presumption of faithfulness, until he could show by evidence, either positive or circumstantial, how the injury did accrue, that the courband jury might determine whether it arose from any defect in the stable, or neglect of the innkeeper or his servants. Until that is made to appear, the law .«presumes, that it was the fault of the host, either mediately or immediately.
' The case of Berkstme Woolen Co. v. Proctor, (7 Cushing 417,) seems to be an . elaborate and satisfactory exposition of the law, but it does not come directly within the range of the present discussion. It is said in Jones v. Thurlow, (8 Mod. 1172,) that the innkeeper has a lien upon the horse of his guest “for the meat of the horse,“but not for tbe meat of the guest.” But this distinction seems not to have been preserved in tlie later cases. It seems now to be considered that this lien extends to all the goods put into the keeping of the host, or forming the proper ' luggage of the traveler and his family, and the equipage and accompaniments of the horse and carriage. The lien and the liability seem to be co-extensive. {Thompsons. Lacy, 3 B. & Aid. 288: Proctor v. Nicholson, 7 Car. & P.67.) It has recently been decided by the English courts (Law & Eq., Armistead v. Wilde, 17 Queen’s Bench R. 261,) that if a guest is grrossly negligent in exposing money, whereby it is stolen, he cannot recover for it. We have thus examined, in detail, almost every ease bearing upon the points involved in the present one.