16 Ind. App. 271 | Ind. Ct. App. | 1896
Lead Opinion
The appellant sued the C., C., C. & St. L. E. W. Co. and the Wagner Palace Car Company
To this complaint a demurrer was overruled, but as no question is made upon this ruling we need not determine the sufficiency of the complaint to withstand the demurrer. The palace car company answered the general denial, as did also the other appellee. The cause was submitted for trial to the court, and at the request of appellee, the court made a special finding of facts in the cause and conclusions of law thereon. One of the errors assigned is that the court erred in its conclusions of law on the special finding of facts.
The essential parts of the special finding are as follows:
That appellant had with her in the car two hand valises, one dressing case, one umbrella, and a sealskin cape, all of which were placed in the section occupied by plaintiff.
Prior to entering the Union Station at Indianapolis, the porter, with the knowledge of the plaintiff, placed the sealskin cape on the back of the seat she occupied, and arranged the balance of her baggage in two bundles, preparatory to carrying the same out of the car.
The appellant, though not seriously ill, was suffering from a temporary headache and fatigue owing to
After said baggage was so collected and arranged and the cape placed upon the back of the seat occupied by appellant, she paid no further attention whatever to her baggage or to said article of wearing apparel, but left them all to the care of the porter, who agreed to remove all of her baggage to the depot on the arrival of the train.
The agreement and attempt of the porter to remove said luggage of the plaintiff, including said sealskin cape, was in accordance with the'rules of the company in such cases.
All the rules upon this subject are set out in the findings, though it is also found that appellant had no knowledge of such rules. '
Upon the arrival of the car at the Union Station, one door was locked and the other continuously guarded by the conductor during the absence of the porter in assisting the appellant, and upon the return of the porter he immediately entered the car and looked into the section which had been occupied by appellant, but did not find the cape, nor was the same thereafter found by either the porter or the conductor.
During the entire trip- of appellant her sealskin cape and other luggage with her upon the car were in her own possession.
During all of said journey the plaintiff was traveling alone, and upon the arrival of the train at the station at Indianapolis the porter of said car attempted to remove from the car to the station all of the said luggage of the plaintiff, including said sealskin cape or coat, which was so undertaken with the knowledge, consent, and express permission of the conductor of
The plaintiff was the only passenger in said car for said point, Indianapolis, and in accordance with said attempt and while in the discharge of his duty as such porter, the latter assumed to remove the said luggage of the plaintiff from the car to the station, and having in his possession all of said luggage, except said cape, alighted from the car, the plaintiff immediately behind him; and the plaintiff preceded by the porter proceeded from the car through the gates of the train shed and into the waiting room of said station, and to a point near the north door of said waiting room of said station; in doing which the porter and the plaintiff were at all times within the railroad station, and the plaintiff all this time supposing that the porter had in his possession said cape with the balance of the luggage.
. The porter deposited the luggage at said point near the north door of said waiting room, and then and there turned over and delivered so much thereof as he had carried from the train to the plaintiff, and immediately the porter returned to the said car. Said train was destined for St. Louis, and on said day remained at said station fifteen minutes.
Said porter left in the section so occupied by the plaintiff in said Wagner palace car, the said sealskin cape or coat, and did not carry the same therefrom with said other luggage, and did not at any time deliver the same to the plaintiff, but, on the contrary, failed and omitted to remove the same from the car, and failed to deliver the same to the plaintiff.
Upon the facts found by the court, and in the light of the averments of the amended complaint, are the appellees, or is either of them, liable to the appellant
As a general rule, sleeping-car companies are not liable as insurers of the wearing apparel and effects belonging to passengers upon their cars, as innkeepers would be liable, or as common carriers of passengers are usually held liable for baggage intrusted to them, and who incidentally undertake to forward the same to the place of destination of the passenger and there deliver to him. In the case of a common carrier, the passenger usually consigns to its entire and exclusive care and custody the baggage he desires to have forwarded, by himself ceasing to exercise any oversight or supervision over the same whatever, while it is in transit, or at least while it is in the carrier’s control, and the carrier becomes an insurer for the safe delivery of the property, as in cases of shipment of freight by carriers of goods. All that the passenger has to do in that kind of a case, in order to create a liability by the carrier, is to show the delivery of the goods to the carrier, and that they were accepted by the latter under an agreement, express or implied, to carry and to deliver them, and the failure to do so. Toledo, etc., R. R. Co. v. Tapp, 6 Ind. App. 304.
Sleeping-car companies do not usually receive into their sole custody the effects or luggage of the pas
In the case of Woodruff Sleeping and Parlor Coach Co. v. Diehl, 84 Ind. 474, our Supreme Court very clearly defined the duties and liabilities of sleeping-car companies toward occupants of berths upon their coaches. It was there held that such companies are not liable, either as innkeepers or common carriers, for the loss of goods or money, but that they are responsible for such losses when the same occurred through the negligence of the company or its servants. Further than this the case referred to does not go. It only defines the duties and liabilities of sleeping-car companies while the passenger is occupying the berth or section assigned to him. What relation they sustain to bim respecting his baggage while the same is being taken to and from the car by the company’s servants is not determined.
Negligence being but a failure to discharge a duty which one person owes to another, the question of whether there was or was not negligence on the part of the sleeping-car company would seem to depend upon the further question whether the company had failed to discharge some duty owing to the passenger or occupant of the berth from it.
It would seem that where, as in this case, the porter of the car taires charge of and undertakes to remove all of the passenger’s effects from the car to the waiting room of the station, or even to the foot of the steps outside of the car, the failure to remove all of such property aud consequent loss of any part thereof, ■would constitute negligence in the sleeping-car company. The Diehl case, above cited, declares that the case of an occupant of a berth upon a sleeping-car is
The rule laid down by our Supreme Court seems to be supported by the weight of authority, although at least one case has been brought to our attention which holds the sleeping-car company liable in such a case as an innkeeper. Pullman Palace Car Co. v. Lowe. 28 Neb. 239, 44 N. W. 226.
In Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 34 Am. and Eng. R. R. Cases, 217, it was held that a sleeping-car company, while not liable,as a common carrier of passengers for baggage, in its coach when the traveler himself has possession of it, or as an innkeeper as to guests, it is responsible as a common carrier of passengers would be in relation to the baggage of a passenger not given into its exclusive custody; and if, through failure of the carrier to exercise reasonable care, the baggage is stolen, the company is liable therefor, although the train to which the car is attached belongs to another company.
In a Massachusetts case practically the same rule was laid down, that although a sleeping-car company is not liable as an innkeeper for baggage stolen, still if the loss occurs through the want of proper care of such company it is liable, and any rule to the contrary, if not known to the passenger, cannot avail the company. Lewis v. New York Sleeping Car Co., 143 Mass. 267; 28 Am. and Eng. R. R. Cases, 148, 9 N. E. 615.
Of course the company’s liability cannot be said to
Moreover, while it is true that a sleeping-car company, acording to the authorities cited, is not liable as an innkeeper or common carrier while the passenger is occupying the berth assigned him in the car, and is himself in charge of his baggage, it does not follow, we think, that such company may not become responsible as a common carrierwhen it undertakes to discharge the duties of such before the end of the passenger's journey. It seems to us that when the appellant in this case delivered to the porter of the car her baggage to be by him carried to the reception room of the Union Depot at Indianapolis, and he undertook to do so, and took the same in his possession, the company became responsible as a common carrier for the safe delivery of the baggage intrusted to him, including the cape. The taking of the baggage by the porter was the acceptance of it by the company for the purpose of its delivery at the station. When the company by its porter undertook to deliver the baggage a.nd the latter failed to deliver it, the company became liable the same as a common carrier would be liable to a passenger who had kept his baggage in his own custody on the train until he arrived at his destination, where it was taken in charge by a servant of the company, whose duty it was to take charge of it, and who never delivered it. Hence, granting that sleeping or palace car companies are not common carriers in the ordinary sense, and that as long as the baggage is retained by the passenger, such a company cannot be held accountable for it in case of loss, except it be through the negligence of the company, yet if they take the baggage into their possession or custody, they may, we think, in proper circumstances, be held to the duties and liabilities of common carriers.
In Richards v. Railway Co., 7 Man. G. & S., 62 E. C. L., 839, the facts were that plaintiff’s wife was a passenger on a railway carriage, and that a dressing case which she was taking with her was placed in the carriage under the seat, and upon arrival at the station the porters undertook to carry the baggage from the railway carriage to the hackney carriage, which was to convey her to her residence, and that in this process of moving, the dressing case was lost. The question was whether it had ever been delivered to the company so as to make the latter liable, and the judges were all of the opinion that it had been, and that the plaintiff was entitled to a verdict.
A similar holding was made in Bunch v. Great Western R. W. Co., 17 Q. B. Div. 215, where the plaintiff’s wife, forty minutes before train time, went into the station where the railway porter took charge of her baggage, a portion of which was to be put in the car with her, of which she informed the porter. While plaintiff’s wife was out of the station for a short time the part of the baggage which was to be taken in the car with her was found missing, and the defendant company was held liable, the court holding that as long as the passenger’s baggage, although intended to be taken into the train with the passenger, is in the custody of the porter for the purpose of transit, either at the commencement or the conclusion of the journey, the railway company is the common carrier of it; but
But if we are wrong in our conclusion. that by reason of the delivery of the garment to the porter by the appellant, the Wagner company became liable as a common carrier, it cannot be denied, we think, that the facts found show a clear case of negligence. Sleeping-car companies are required at least to exercise reasonable care and watchfulness over the effects of their passengers, or guests, and if they are guilty of negligence in this respect, they must in proper cases respond in damages, and this is true even though the company attempt to relieve itself from responsibility by its own rule, posted up in the car, especially where the notice is not brought to the attention of the passenger. For an able discussion of this subject, see an article by W. F. Elliott, in 30 Cent. L. J. 248.
In a recent case decided by the Supreme Court of Georgia, it was held that when a passenger who has paid the customary fare on a sleeping-car, loses his property or the same is taken from his possession, it is prima facie negligence on the part of the company, and the burden is upon the latter to show that the loss did not occur by reason of a failure upon the part of its employes to exercise proper care over the property." Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 S. E. 186.
. The doctrine there announced is eminently just and equitable, and applies with peculiar force, we think, to the case in hand. For an analogous holding in a case
Hence, whether said company was responsible as a common carrier, or whether we regard its failure to deliver the cape to the appellant as a breach of duty, such as must be characterized as negligence, we are of opinion that upon the facts found specially there is a liability.
If we are correct in either view, the court erred in its conclusion of law that the Wagner company was not liable.
Judgment reversed, with directions to the court below to restate its conclusions of law in conformity to the views expressed in this opinion, to the effect that the appellee, The Wagner Palace Oar Company, is liable to the appellant for the value of the cape.
Eoss, J., dissents.
Davis, J., did not participate in the consideration of this case.
Rehearing
On Petition for Rehearing.
The learned counsel for appellee Palace Oar Company have filed able and exhaustive briefs in support of their petition for a rehearing in which they seek to convince us in strong but courteous language that the conclusion reached in our former opinion is radically at variance with the doctrine as declared in the best considered American cases and should, therefore, not be permitted to stand. In view of the earnestness and evident sincerity with which counsel have discussed the questions in dispute, no less than the high regard we entertain for the learned
Counsel insist that we were in error with regard to the fact stated in the former opinion, that there was any agreement between appellant and the porter of the car company that the latter was to remove the appellant’s cape or coat from the car, or that there was a complete delivery of the garment to the porter.
While the writer may have been a little unfortunate in the use of the word “agreement” respecting the circumstances of the removal of the property from the sleeping-car, it still remains true, we think, that the special findings of the court show fully and conclusively that the appellant’s luggage, including the garment referred to, was given in charge of the porter just before the train stopped at the Union Station in Indianapolis, and that he took the same in charge and undertook to remove it from the car for the appellant in accordance with the rules of the company. In support of this statement we refer to the following findings of the court:
“VIII. — That said train arrived at Indianapolis on the day aforesaid about one hour late, and just before the arrival at the Union Station in the city of Indianapolis, the porter of said car, assisted by the plaintiff, collected all of said luggage together, including said seal skin cape or coat, in said section convenient for removing from the train. The porter, with the knowledge of the plaintiff, placed the seal skin cape on the back of the seat she occupied, and arranged the balance of her luggage in two bundles, preparatory to carrying all of the same out of the car.
“X. — During all of said journey plaintiff was traveling alone, and upon the arrival of the train at the station at Indianapolis, the porter of said car attempted to remove from the car to the station all of the said luggage of the plaintiff, including said seal skin cape or coat, which was so unílertaken with the knowledge, consent and express permission of the conductor of said car, and in accordance with the usual rules and custom of said Wagner Palace Car Company in such case.”
If this was not an express agreement it was so by the fairest implication arising from the conduct and acts of the parties. These acts and conduct not only import an agreement but an actual attempt to execute the same by the removal of the property, in furtherance thereof, and they lack no element whatever which goes to make a complete delivery. This is true, unless it can be said that when the porter took charge of the luggage he had no authority to do so and was acting entirely outside of the apparent scope of his employment. That, however, cannot be, if for no
If, as counsel insist, “there is nothing in the record to show that sleeping-car companies make a common practice of removing the baggage of passengers from their cars to stations,” there is nevertheless here an express finding that this sleeping-car company made such a practice and that it was in accordance with “its usual rules and customs” to do so. It will hardly do to say that in spite of this custom and rule the appellant Avould be bound by some rule of the company to the contrary, of which the passenger had no actual knowledge or information, so far as the findings disclose, although it may have been posted in a conspicuous place in the car.
But if there were no such finding, as that the porter undertook to remove the cape in accordance with the rules of the company, we think we could still take judicial knowledge of the fact that sleeping-car companies have porters whose' duty it is to assist the passengers with their baggage on and off the cars, and we apprehend that if the appellee’s porter had refused to remove the luggage of the appellant, under the circumstances of this case, and she had reported him to the company he would have been promptly dismissed from appellee’s employment. We have not said, and do not now declare that the porter must remove all the luggage of every passenger from the car, but we do say, and in this we think every official of the appellee who is connected with the sleeping-car service
Counsel, in the printed brief submitted, earnestly contend that the porter in such a case as this is “a mere gratuitous bailee.” We do not so regard it. We are here dealing with a loss which was the direct re-
Counsel also contend that the mere loss of personal effects by a passenger on a sleeping-car is not prima facie evidence of negligence on the part of the servants of the company. While this may be a correct rule in the abstract, it does not apply to the case in hand. The facts offered show more than “the mere loss” of the appellant’s property. They also disclose the circumstances under which the loss occurred, and we think they are such as to conclusively render the company guilty of negligence.
But counsel complain that we did not state in the former opinion in what manner the porter was negligent. We thought we had made this sufficiently plain. He undertook to remove the appellant’s cape from the car, according to the rules and customs of the company. He took the cape in charge for that purpose, but failed to do so, and it was lost. This was negligence. Moreover, it is difficult to conceive, how
The petition is overruled.
Dissenting Opinion
Dissenting Opinion.
I am unable to concur in holding either that the appellee, the Wagner Palace Car Company is liable as a common carrier, or that a duty was owing to appellee from it, which it neglected to perform.
The substance of the facts found by the jury in their special verdict, after finding that the appellee railroad company, with other railroad companies, formed a line from New York City to Indianapolis; that appellant purchased a ticket from the former to the latter point, and entered a car belonging to the appellee, the Wagner Palace. Car Company, attached to the -train upon which she took passage, having previously purchased a ticket entitling her to the use of a section in said car, are as follows: That at
It is also found in the special verdict that under the rules of the company neither it nor its servants would undertake to be custodians or guardians of the personal effects, wearing apparel, or valuables of passengers, and its servants were forbidden from saying or doing anything that might lead passengers to understand that it would insure absolute security, and that “under no circumstances will baggage, wearing apparel or other property of passengers be taken charge of by any employe of this company.”
From the facts found by the jury it appears that the appellee’s contract with the Wagner Palace Car Com
It is a matter of common knowledge that sleeping-car companies do not undertake to transport either persons or property from one place to another. In fact, the transportation, not only of those who have hired the use of apartments in a sleeping-car, but of the sleeping car itself, is done by a railroad company. The railroad company, and not the sleeping-car company, contracts for the carriage of each passenger and receives the compensation therefor. The sleeping-car company is not therefore a carrier and is not liable as such.
If the appellant had been injured by the derailment of the train on which she was being carried she would have had no right of action against the appellee, the Wagner Palace Car Company, for its contract was not one to carry her safely, but was simply to furnish a berth in which to sleep at night and a seat in which to sit during the day, and her right of action, if any she would have, would be against the appellee, the railroad company with which company she had contracted to be carried safely to Indianapolis.
The obligation resting on the appellee, sleeping-car company, under its contract with the appellant, was to furnish her with the accommodations contracted
In Hutchinson on Carriers (2d ed.), section 700, the author after quoting from a number of cases in which the rule of liability is defined relative to steamship companies, railroad carriers, etc., says: “But that if passengers by land vehicles, such as railway trains, retain in their custody any part of their baggage, to the exclusion of the carrier’s control over it, the latter can be held liable for its loss only when it has been occasioned by his negligence.”
It is true that in the case of Richards v. Railway Co., 7 Man. G. & S. (62 E. C. L.) 839, cited in the majority opinion, it was held that the railway company was liable for a loss of a part of the passenger’s baggage while its servants were assisting the passengers in-transferring such baggage from the car to a hackney coach, but that case was especially disapproved in the later case of Bergheim v. Great Eastern R. W. Co., 3 C. P. Div. 221. In this latter case, the plaintiff Bergheim, after purchasing his ticket, requested the porter of the railway company to take charge of his baggage and put it on the train for him while he went to a refreshment room. The porter put the baggage on the seat of the compartment the plaintiff was to occupy and locked the door of such compartment. When the plaintiff returned the porter unlocked the door and
In the case of Bunch v. Great Western R. W. Co., 17 Q. B. Div. 215, cited in the majority opinion, the doctrines announced in the case of Richards v. R. W. Co., supra, was followed.
In Talley v. Great Western R. W. Co., L. R., 6 C. P. 44, while the case was decided against the plaintiff on account of his negligence in leaving his baggage in the car while he alighted for refreshments, Willis, J., says: “There is great force in the argument that where articles are placed with the assent of the passenger, in the same carriage with him, and so in fact remain in his own control and possession, the wide liability of the common carrier, which is founded on the bailment of the goods to him and his being intrusted with the entire possession of them, should not attach, because the reasons which are the foundation of the liability do not exist. In such cases, the obligation to take reasonable care seems naturally to arise, so that when loss occurred it would fall on the company only in the case of negligence in some part of the duty which pertained to them.” In Stearn v. Pullman Car Co., 8 Ont. 171, the plaintiff sued to recover money abstracted from his pockets while he was asleep in one of the company’s cars, in which he had paid for a berth. On the trial there was no evidence that the company had been negligent in any way, unless that fact was to be inferred from the fact that his money was taken while he was sleeping in the defendant’s
In Dargan v. Pullman Palace Car Co., 2 Wilson (Tex. App.), p. 607, 26 Am. and Eng. R. R. Cases, 149, the court says: “While it is well settled that sleeping-car companies are to be regarded neither as innkeepers nor common carriers, nor subject to the onerous liabilities of either in respect to the property of those enjoying their accommodations, it is equally well settled that it is their duty to exercise ordinary care for the security of passengers’ valuables. * * * The invitation to make use of the berth carries with it an invitation to sleep and an implied agreement to take reasonable care of the guest’s effects while he is asleep.” But, says the court: “Appellant’s right to recover in this action therefore depends upon the want of ordinary care on the part of the appellee to protect the valise and its contents against loss. It devolved upon him to prove such want of care. Failing to make this proof he could not legally claim to recover.”
In Whitney v. Pullman’s Palace. Car Co., 143 Mass. 243, 9 N. E. 619, which was an action to recover for the value of a satchel and its contents, lost by plaintiff from her seat in one of the company’s cars, the court says: “She had with her a small satchel or reticule, which she did not deliver to the defendant or any of its agents, but which she kept in her personal control. There was evidence to show that it was stolen while the train in which she was riding was stopping at Portsmouth, New Hampshire, for refreshments. It is clear that she cannot hold the defendant liable as a common carrier. She can only hold it liable upon the ground that her property was lost by some negligence of the defendant, and without any fault on her part.”
The English cases are all cases arising between railway companies as common carriers, and their pas
It may be conceded as settled, as already stated, that a sleeping-car company impliedly undertakes to use reasonable care to protect the baggage and effects of its patrons from being injured or stolen, and yet it does not undertake that no dishonest person shall
The case which, as heretofore stated, is an exception to the rule is that of Pullman Palace Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226, cited in the prevailing opinion. In that case the court by Maxwell, J., holds that the law imposes upon a sleeping-car company the same duties as are imposed upon an innkeeper, and makes it subject to the same liabilities.
In this State the question is apparently settled in harmony with the great weight of the authorities as above cited, for in the case of Woodruff Sleeping and Parlor Coach Co. v. Diehl, 84 Ind. 474, the court says: “In Pullman Palace Car Co. v. Taylor, 65 Ind. 153, 32 Am. R. 57, it was thought not to be necessary, for the purposes of the case, To determine whether the appellant is to be regarded as a common carrier or otherwise.’ It would seem that this question is not presented for decision in the case at bar; for the court at special term expressly decided in its conclusions of law upon the facts found, that the appellant was not responsible as a common carrier, and that it could not be held to the liability of an innkeeper. * * * But it may properly be remarked that it is apparently settled by the decided cases to which our attention has been directed, that sleeping-car companies are not liable, either as innkeepers or common carriers, for personal goods stolen from the person of an occupant
In the case at bar the appellant’s counsel concedes that there can be no recovery on account of any negligence shown, but they insist “that the property being lost while in possession of the sleeping-car company, that the sleeping-car company is responsible as an insurer in the same manner that an innkeeper is responsible for the safe protection and delivery to the owner of any property put in its possession by a patron.” And they say: “We of course bear in mind that the Supreme Court of this State in Woodruff Co. v. Deihl, supra, declined to hold sleeping-car companies liable, ‘either as innkeepers or common carriers for personal goods stolen from the person of an occupant of a berth in a sleeping-car.’ * * * And so we contend that judgment should be ordered in favor of the plaintiff for the reason that at the time the cape was lost it was in the hands of the defendants as common carriers.”
If the majority opinion does not proceed upon the theory that the appellee, the Wagner Palace Car Company, is liable as a common carrier, as the appellant insists, can it be said that because it agreed to
Judge Thompson in his work on Carriers of Passengers (p. 530, section 20), says: “It seems to be settled by the few adjudged cases upon this subject that sleeping-car companies are to be regarded neither as innkeepers nor common carriers, nor subject to the onerous liabilities of either-in respect of the property of those enjoying their accommodations. It is evident that these flying nondescripts do not come within the definition of an inn: ‘it must be a house kept open publicly for the lodging and entertainment of travelers in general, for a reasonable compensation. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment for the public at large, indiscriminately, it is not a common inn.’ The peculiar liability of the innkeeper is one of great rigor, and should not be extended beyond its proper limits; and it seems that it would be such an extension to apply it to the class of cases under discussion. Thus, the keeper of a coffee house, or private boarding or lodging house, is not an innkeeper in the strict sense of the term.”
In the case of Pullman Palace Car Co. v. Smith, supra, which was an action brought by Smith against the company, to recover a sum of money stolen from him while occxxpying a berth in its car, the trial court instructed the jury that if they found from the evidence that the plaintiff’s money was stolen from him while he was sleeping in the company’s car, he was entitled to recover. On appeal to the Supreme Court, after stating that the question involved was whether or not the company was liable as an innkeeper, says:
“Kent, in defining an inn, says: ‘It must be a house kept open publicly for the lodging and entertainment
“But the keeper of a mere coffee house, or private boarding or lodging house, is not an innkeeper, in the sense of the law. Id. 596; Dansey v. Richardson, 3 Ellis & B. 144 (E. C. L., vol. 77); Holder v. Toulby, 98 E. C. L. 254; Kisten v. Hilderbrand, 9 B. Mon. 72. It must be a common inn, that is, an inn kept for travelers generally, and not merely for a short season of the year, and for select persons who are lodgers. Story on Bailm,, section 475, and cases cited in note. The duty of innkeepers extends chiefly to the entertaining and harboring of travelers, finding them victuals and lodgings, and securing the goods and effects of their guests; and, therefore, if one who keeps a common inn refuses either to receive a traveler as a guest into his house, or to find him victuals and lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages for the injury in an action on the case, at the suit of the party grieved, but also may be indicted and fined at the suit of the king. 3 Bae. Ab. Inns and Innkeepers, C. The custody of the goods of his guest is part and parcel of the innkeeper’s contract to feed, lodge and accommodate the guest for a suitable reward. 2 Kent Com., 592.
“From the authorities already cited, it is manifest that this Pullman palace car falls quite short of filling the character of a common inn, and the Pullman Palace Car Company, that of an innkeeper.
“It does not, like the innkeeper, undertake to ac
“It only undertakes to accommodate a certain class, those who have already paid their fare and are provided with a first-class ticket, entitling them to ride to a particular place.
“It does not undertake to furnish victuals and lodging, but lodging alone, as we understand. There is a dining car attached to the train, as shown, but not owned by the Pullman company, nor run by them. It belongs to another company, the Chicago and Alton Dining Car Association. Appellant, as we understand, furnishes no accommodation whatever, save the use of the berth and bed, and a place and conveniences for toilet purposes. We would not have it implied, however, that even were these eating accommodations furnished by appellant, it would vary our decision; but the not furnishing entertainment is a lack of one of the features of an inn.
“The innkeeper is obliged to receive and care for all the goods and property of the traveler which he may choose to take with him upon the journey. Appellant does not receive pay for, nor undertake to care for, any property or goods whatever, and notoriously refuses to do so. The custody of the goods of the traveler is not, as in the case of the innkeeper, accessory to the principal contract to feed, lodge and accommodate the guest for a suitable reward, because no such contract is made.
“The same necessity does not exist here, as in the case of a common inn. At the time when this custom of an innkeeper’s liability had origin, wherever the end of the day’s journey of the wayfaring man brought him, there he was obliged to stop for the night, and intrust his goods and baggage into the custody of the innkeeper. But here, the traveler was not
“It cannot be supposed that any such measure of duty or liability attached to appellant, as is declared in the quotation cited from Bacon’s Abridgment to belong to an innkeeper. The accommodation furnished appellee was in accordance with an express contract entered into when he bought his berth ticket at Chicago, which was for the use of a specified coach from Chicago to St. Louis, and appellant did not render a service made mandatory by law, as in the case of an innkeeper.
“But if it should be deemed that, on principle merely, this company would be required to take as much care of the goods of a lodger, as an innkeeper of those of a guest, the same may be said with reference to the keeper of a boarding house, or of a lodging house. In Dansey v. Richardson, supra, where the innkeeper’s liability was refused to be extended to a boarding house keeper, it was said by Coleridge, J.: ‘The liability of the innkeeper, as, indeed, other incidents to his position, do not, however, stand on mere reason, but on custom, growing out of a state of society no longer existing.’ In Holder v. Toulby, supra, where it was held the law imposed no duty upon a lodging house keeper to take due care of the goods of a lodger. Calye’s Case, 8 Co. Rep. 32, was designated as fans juris upon this subject, where it was expressly resolved that, though an innkeeper is responsible for the safety of the goods of a guest, a lodging house keeper is not. And in Parker v. Flint, 12 Mod. 255.
“The peculiar liability of the innkeeper is one of great rigor, and should not be extended beyond its proper limits. We are satisfied that there is no precedent or principle for the imposition of such a liability upon appellant.”
In Welch v. Pullman Palace Car Co., 1 Sheld. (N. Y.) 457, it appears that the plaintiff hired a berth in one of the company’s cars to be used by him while traveling from Detroit to Buffalo, When he retired he placed his overcoat in the vacant berth above him and hung up other articles in or over his berth, which was the usual way of disposing of such for the night. When the train arrived at Buffalo his overcoat was missing. There was no evidence of negligence on the part of the company or its servants, except the mere fact of the loss of the coat. The court, by Sheldon, J., says: “It cannot, truthfully, be contended, that there was any delivery of the coat into the custody of the defendant, different from the delivery of it that he would have made to the railroad company, had he elected to travel by the ordinary cars. He carried it with him to wear or to put off, as the exigencies of his health or the weather required. There was no place to deposit it, and he sought none, nor was it expected that one would be provided.
“Upon these facts the defendant should not be held liable. It is unnecessary to remark that the extra payment made to the defendant, procured for the plaintiff, many other comforts and luxuries, besides that of lying down and sleeping if he chose. He ob
“It is sought to charge the defendant with the responsibility of the innkeeper, upon the assumption, that the law implied a contract or imposed a liability of the same nature. That responsibility, was declared by the civil law to be as strict and severe as that of common carriers, and modern jurisprudence has adopted and applied the principle. But it went no further, as is sought to be done in this case. The liability of the innkeeper arises out of facts which do not exist in this case. He cannot lawfully refuse to receive guests to the extent of his reasonable accommodations, nor can he impose unreasonable terms upon them. The necessities of the traveler required these just rules to be adopted. As a compensation for the responsibility thus incurred, he has a lien upon all the property of the guest at the inn for all his expenses there. There are no facts in this case, justifying the application of such rules of law. The defendant could not be compelled to receive and entertain passengers, however amenable it might be upon its contract with the carrier, and it had no lien for the price of the accommodations. The traveler voluntarily, and not of necessity, availed himself of what was placed before him for his comfort, and he cannot cast the burden of care and diligence upon the defendant, neither is it right or just that the law should do so. Unless the courts can determine, after the
In Blum v. Southern Pullman Palace Car Co., 1 Flippin (U. S.), 500, the plaintiff sought to recover for money stolen from him while asleep as a patron in one of the defendant’s cars. The court after alluding to the responsibility and liability of innkeepers says: “There are good reasons for not extending such liability to the proprietor of a sleeping-car.
“1st. The peculiar construction of sleeping-cars is such as to render it almost impossible for the company, even with the most careful watch, to protect the occupants of berths from being plundered by the occupants of adjoining sections. All the berths open upon a common aisle, and are secured only by a curtain, behind which a hand may be slipped from an adjoining or lower berth with scarcely a possibility of detection.
“2d. As a compensation for his extraordinary liability, the innkeeper has a lien upon the goods of his guests for the price of their entertainment. I know of no instance where the proprietor of a sleeping-car has ever asserted such lien, and it is presumed that none such exists. The fact that he is paid in advance does not weaken the argument, as innkeepers are also entitled to prepayment.
“3d.- The innkeeper is obliged to receive every guest who applies for entertainment. The sleeping-car receives only first-class passengers traveling upon that particular road, and it has not yet been decided that it is bound to receive those.
“5th. The conveniences of a public inn are an imperative necessity to the traveler, who must otherwise depend upon private hospitality for his accommodation, notoriously an uncertain reliance. The traveler by rail, however, is under no obligation to take a sleeping-car. The railway offers him an ordinary coach, and cares for his goods and effects in a van especially provided for that purpose.
“6th.' The innkeeper may exclude from his house every one but his own servants and guests. The sleeping car is obliged to admit the employes of the train to collect fares and control its movements.
“7th. The sleeping-car cannot even protect its guests, for the conductor of the train has a right to put them off for non-payment of fare, or violation of its rules and regulations.
“I hold, therefore, that sleeping-car companies are not subject to the responsibility of innkeepers at common law, and that defendant cannot be held liable upon that ground.”
In this case the sleeping-car company, by the terms of its contract with appellant did not in addition to furnishing her with a berth and the accommodations of its car also agree that it would, after her arrival at her destination accept her baggage and wraps and guarantee their safe delivery to her in the waiting room of the station. That was not its duty and al
“What, then, shall be the measure of responsibility of these companies? ° All the cases seem to agree that their duty is to exercise at least ordinary care for the security of passenger’s valuables. Of course, this care must be in proportion to the danger reasonably to be apprehended. Such danger is greater at night, while the passenger is asleep, than in the daytime, when he is awake and can care for himself.” Thomp. Carr. Pass. 531.
In Pfaelzer v. Pullman Palace Car Co., 1 Wkly Notes Cas. (Pa.) 210, the plaintiff sought to recover the value of a valise and contents which he left with the porter of the defendant’s sleeping-car in which he had paid and held a ticket for a berth. He gave his valises to the porter, who was sitting on the steps of the car, saying: “I am going to the water closet for a few minutes, I leave these valises in you charge!” He returned in a few minutes, when he could find but one valise the other being missing. The porter denied all knowledge of it. The plaintiff was nonsuited. Thayer, P. J., in answer to plaintiff’s counsel, said: “In order to recover, you must show negligence, and to do this you must prove the nature and extent of the authority. * * * Your contract of carriage was with the Railroad Company, and the effect of your contract with the Palace Car Company was merely to give you the privilege of sleeping in the car; had there been a
In the case of Tracy v. Pullman Palace Car Co., 67 How. Pr. 154, the plaintiff sued to recover money-stolen from him while occupying a berth in the company’s sleeping-car, there being no evidence of negligence on the part of the company’s servants, it was held that the company was not liable because negligence on its part could not be presumed from the mere fact that the money was stolen while the plaintiff was a patron in its car.
And the Supreme Court of Mississippi, in its opinion in the case of the Illinois Central R. R. Co v. Randy, 63 Miss. 609, which was an action brought to recover $300.00 abstracted from a pocketbook lost by the plaintiff while a passenger in the company’s chair car, says:
“Because of the invitation extended to travelers by-sleeping-car companies to sleep upon their cars, it has been held that they owe and assume to their patrons the duty of exercising such reasonable guard over them, to prevent theft of their personal effects, as the circumstances admit and the passenger has a right to expect. This obligation is not such as pertains to common carriers or innkeepers,. and such companies do not occupy the relation of insurers against all loss under all circumstances. The accommodation offered implies a certain degree of privacy for the passenger upon his retirement to rest, an intrusion on which by the servants of the company would be rightly resented by him. If the company should be held liable to one passenger for a theft committed by another, it must be either upon the ground that it is, under the common law liability of an innkeeper, a view not sanctioned by any court, so far.as we are informed, or because by its contract it may be fairly
In Rott v. New York Cent. Sleeping Car Co., 28 Mo. App. 199, the court says: “The settled law is, that a sleeping-car company is not the insurer of the baggage of the passenger, but that its liability, at most, is that of a bailee for hire. In the case of. the loss of a passenger’s baggage or belongings it is, therefore, liable, if at all, only on the ground of negligence; and, in order to be so liable, it must have been negligent in the performance of some duty which it assumed to perform for the passenger. That duty, so far as adjudged cases seem to have gone, is, that it will maintain in the car a reasonable watch during the night while the passenger is asleep. We now go further, and, speaking with reference to the facts of this case, we hold that the duty of keeping watch does not terminate with the period during which the passenger is actually asleep, but that it extends to keeping a reasonable watch over such of his necessary baggage and belongings as he cannot conveniently take with him nor watch himself while he is absent from his berth in
In the prevailing opinion it is not clearly stated whether the company is liable because it was a duty, owing by the company to its patrons to accept the effects and upon demand deliver them saf ely, or whether the company is bound because its porter entered into a new contract by which he undertook in person to transport her effects from the company’s car to the waiting-room in the station. If it. is based upon the former it is contrary to the holding of the court in Woodruff, etc., Coach Co. v. Diehl, supra, and the many other cases cited except the case of Pullman, etc., Co. v. Lowe, supra, which as I have already stated is contrary to all of the other adjudications in this country on the subject. If the company’s liability is made to depend upon the special undertaking or contract of the porter it is equally untenable for the reason that he had no power to make such contract which would be binding upon the company. At best the porter was but the mere servant of appellant, undertaking without hire, or it might be in anticipation of a tip, to carry her baggage and coat from the car to the waiting room of the station.
Everybody does, or, at least, ought to know that sleeping-car companies do not empower the porters of their cars to make contracts for the company. If this particular porter was vested with special powers and could make contracts for the company, that fact should have been proven and found by the jury. Without such proof the presumption is that he had no such power.
But the majority of the court seem to think that although the rules of the company specially forbid its employes from assuming to take charge of or be responsible for the baggage, wearing apparel or valu
For these reasons I think the judgment of the court below should be in all things affirmed.
