Treiber v. Burrows

Weisel, J., delivered the opinion of this Court. This case came before this Court on a former appeal, in which the present appellee was .then the appellant, and which was sustained upon an error in the only ruling of the Court below then under examination, and that was the want of evidence to support the instruction relative to the neglect and carelessness of the guest himself hy which the trunk was lost. That being an appeal by the present appellee, no objection was of course taken hy him to the fact that the prayer covered the trunk and all its contents set out in the declaration, and consequently the particular question which has been raised and discussed in the present appeal was not brought to the notice of the Court in that case or passed upon. See Burrows vs. Treiber, 21 Md., 320. What constitutes in Maryland the baggage of the guest of an inn is distinctly presented hy the prayers in this appeal, and this Court is called upon in this examination to review its own decisions upon this somewhat difficult and yet practically important branch of the law. The verdict of the jury in the present case was for the sum of $1,980.25, which included the sum of $1,500 in the notes of the Bank of Upper Canada in the trunk, and the value of a separate chest of tea. The prayer of the appellee, which was granted by the Court below, contained the instruction that the innkeeper, Treiber, was answerable for the value of the trunk and all — 143 — its contents, including tlie money or bank notes, and tlie tea chest and its contents, if they found that the appellee was his guest, and brougnt the same with him into his hotel, and that they were there lost to him while such guest. The defendant’s second and fifth prayers exempt the defendant from responsibility for the loss of these articles, unless the jury should find that they were designed by the plaintiff for his use while on his journey, or while a guest in the hotel, or unless they should find that they were lost by the fraud or negligence of the defendant. His third prayer claimed exemption from responsibility for the money in the trunk, if the jury should find that the plaintiff had four or five hundred dollars in money of this country on his person, which was intended by him for use on his journey, and was sufficient for that purpose, unless they found it was lost by the fraud or negligence of the defendant. These three prayers of the defendant were rejected by the Court below. The defendant took two exceptions; the first, to the admissibility of certain proof taken in Canada under a commission; the second, to the ruling of the Court in granting the prayer of the plaintiff, and rejecting the second, third and fifth prayers of the defendant as noticed above. An innkeeper at common law is bound to take more than ordinary care of the goods, money and baggage of his guest brought within his inn, {infra hospitium,) and is responsible for loss or damage to the same by his servants, domestics, other guests or persons unknown; and whether delivered into the custody of the innkeeper or not, so that they be brought within the inn, actually or constructively, according to the character of the articles to be kept. This is the law established by Calye’s Case, in the time of Elizabeth, 8 Coke, 32, and adhered to in England and in this country, until departed from more — 144 — recently in this State. Bennet vs. Mellor, 5 Term., 273 ; Burgess vs. Clements, 4 Mau. & Selw., 306 ; Kent vs. Shuckard, 2 Bar. & Ad., 803 ; Richmond vs. Smith, 8 Bar. & Cress., 9 ; Armistead vs. Wilde, 17 Ad. & Ellis, N. S., 261 ; Clute vs. Wiggins, 14 John., 175 ; Berkshire Woolen Company vs. Proctor and another, 7 Cush., 417 ; Towson vs. Havre-de-Grace Bank, 6 Har. & John., 46 ; Story on Bailments, secs. 470 to 487 ; 2 Kent’s Comm., 592-596, side, and cases there referred to. The ground of this responsibility is the profit which the landlord, or, more technically, the innkeeper receives for entertaining his guest, and its rigor is justified and maintained, as observed by Sir William Jones “oh the great principle of public utility, to which all private considerations ought to yield.” The rigor of this.rule has, however, been materially relaxed in Maryland by the decision of this Court in the case of Pettigrew vs. Barnum, 11 Md., 434, and subsequent cases. That was a suit by a guest of Barnum’s City Hotel against its proprietors for the loss of various articles from the trunks of the plaintiff whilst such guest, and this Court, in full bench, unanimously determined (Tuck, J., delivering the opinion) that the defendants were not responsible for silver knives, forks and spoons, which were among the missing or stolen articles. These were wedding presents received whilst on a bridal tour abroad, from which the plaintiff had returned, and was then on his way home in South Carolina. The Court in this case departed from the rigor of the common law, and incorporated the principle which governs carriers of passengers in reference to their baggage, limiting or restricting the responsibility of the innkeeper for the baggage of his guest to that of the carrier of a passenger — putting both, indeed, upon the same ground in this respect. “It is not within the implied contract of the landlord,” said the learned Judge, “that he will he — 145 — responsible for all the goods which may be brought to his house, merely because they happen to be in a trunk.” (p. 449.) And the citations made by the Court (p. 450) in support of the position taken and enunciated in that case, are all, without exception, cases of carriers of passengers, and of American authority. This case was decided at December Term, 1857, but originated in the inferior Court on the 15th of Eebruary, 1854, a few days prior to the passage of the Act of 1854, chapter 323, to the introduction and enactment of which this occurrence at Barnum’s Hotel most probably led. The same question arose in the case of Giles vs. Fauntleroy, hoard and again decided by a full Court at December Term, 1858, 13 Md. Rep., 126, when, upon the ruling in the case of Pettigrew vs. Barnum, the landlord was held not to be reponsible for silver teaspoons and a Colt’s revolver, part of the contents of a rilled trunk, and also for a case of surgical instruments and a tonsil cutter, inasmuch as there was no proof in that case that the plaintiff was either a physician, surgeon or student of medicine, (p. 139.) In this view of the law it is no easy matter to determine what constitutes the baggage proper of a traveller or the guest of an inn. All the authorities agree in pronouncing it difficult. Yet their definitions and explanations must furnish us with the proper idea conveyed by that term. The opinion of this Court, in Pettigrew vs. Barnum, states that “ the baggage of a traveller depends so much on circumstances, such as his position, habits, taste and mode of travelling and living, that it is easier to say, in a given instance, -whether an article is embraced, than to lay down a general rule that will apply to all cases. We do not think (adds the Court) the term embraces merchandize or other valuables not designed for use or personal convenience on the journey.” 11 Md. Rep., 449. What is usually carried as baggage, is said by Bros"soít, J., to be a good test for determining what things — 146 — fall within the rule. He was not for extending it beyond what a traveller usually carries with him for his personal convenience in the journey, and said it neither included money nor merchandize, and doubted even whether money to pay travelling expenses was embraced, as that was generally carried about the person and not in trunks or boxes. Still he would not confine the rule to wearing apparel, brushes, razors, writing apparatus and the like, deemed indispensable by most persons, but would extend it to books for instruction or amusement by the way, a gun or fishing tackle. 6 Hill, 589, 590, Hawkins vs. Hoffman. And Nelson, J., endeavoring to define the same subject, observes, “it may be safely asserted that money, except what may be carried for the expenses of travelling, is not included in the word baggage.” Orange County Bank vs. Brown, 9 Wend., 117. In the case of 10 Watts, 335, Clarke & Co. vs. Spence, the Court, in determining to what extent the plaintiff should be allowed to prove the contents of a lost trunk, would not extend the privilege beyond its legitimate limits, applying it with great force to wearing apparel and every article necessary or convenient to the traveller, a lady’s jewelry and other articles more easy to conceive than enumerate. “Nor is it proper,” remarked the Judge delivering the opinion, “to restrict the articles which the plaintiff can thus prove within narrow limits. Much is left to the jury in judging of the witness’ credibility to prevent injury to the defendant.” In Tennessee the term baggage has been defined as including articles of necessity and personal convenience, usually carried by passengers for their personal use ; and what these may be will very much depend upon the habits, taste and resources of the passenger ; it also includes money to that extent which may be convenient to meet the travelling expenses. 11 Hump., 419, Johnson vs. Stone. The various examples from these and'other cases are — 147 — well grouped aud subjected to much critical observation in the case of Dibble vs. Brown, 12 Georgia, 224, 227. The conclusion arrived at in that case is, that “ the quantity and character of baggage must depend very much upon the condition in life of the traveller, his calling, his habits, his tastes, the length or shortness of his journey, and whether ho travels alone or with a family.” And then the Court adds: “If we agree further with Judge Story, and say the articles of necessity or convenience must be such as are usually carried by travellers for their personal use, we are still at fault, because there is in no State of this Union, nor in any part of any one State, any settled usage as to the baggage which travellers carry with them for their personal use. The quantity and character of baggage found to accompany passengers are as various as are the countenances of the travellers.” Judge Story’s deduction from all the cases, and commented on in the case cited from the Georgia Eeports, is that “by baggage we are to understand such articles of necessity or personal convenience as are usually carried by'passengers for their personal use, and not merchandize or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for-other purposes, such as a sale and the like.” Story on Bail., sea. 499 ; and see also 25 Wend., 459, Pardee vs. Drew. Upon these authorities this Court based their decisions in the cases of Pettigrew vs. Barnum and Giles vs. Fauntleroy ; and with their aid we are of opinion that money in the trunk of a guest at an inn, to constitute a part of his baggage for which the innkeeper is responsible, should be of such an amount only as would be convenient to meet his travelling expenses; and to arrive at this the condition of the guest, his mode of life, his habits, tastes, the nature, character and objects of his journey, must be taken into consideration by the jury ; for it is the province of the jury, in such a case, to determine the question of suffl — 148 — ciency, under such directions and limitations as the Court can prescribe. And the same observations will apply to the chest of dea, as an article necessary and suitable, or not, for the journey under the circumstances. That such an inquiry is for the jury, under proper limitations to be explained by the Court, this Court has more'recently determined in the case of Maltby vs. Chapman, decided in June, 1866, and which was a case in which the landlord claimed exemption under the 5th and 6th Sections of Article 70 of the Code of Public General Laws. In applying the law as thus settled in Maryland to the case now before us, we think the Court below erred in granting the plaintiff’s prayer, and the defendant’s second, third and fifth prayers, which were rejected, were correct and ought to have been granted. Whatever inconvenience or loss the travelling community may be subjected to in Maryland, by these adjudications, as not furnishing the strict proteption to the moveables which they may carry with them as baggage, afforded by the rule of the common law applicable to the relation of innkeeper and guest, may be obviated by an observance of the 5th and 6th sections of the 70th Article of the Code, which is a codification, and in some particulars, an enlargement of the Act of 1854, chapter 323. The first exception taken to the admissibility of testimony returned with the commission to Canada was not i'elied upon by the appellant in his brief or in the argument. We can see no objection to that proof, and think it was properly admissible. It may he proper to state that a member of this Court, as now constituted, presided in the Court below when the case between these litigants was first tried, and he was then governed in his rulings by the common law, as understood before the decision of Pettigrew vs. Barnum. Upon a more full examination of the law as declared in — 149 — Maryland by that decision, and since followed, be now concurs with his brethren on the bench, that it is the duty of this Court to adhere to these decisions, and place innkeepers, in relation to the baggage of their guests, on the same footing with the carriers of passengers. The travelling public will be subject to the same law at hotels and in the public conveyances, affording the same protection in both cases, and operating hardship to none. He, who has valuables .beyond ordinary baggage, always has it in his power, by special contract or arrangement, and for a suitable compensation, to secure their safety, if he is unwilling to take the risk upon himself. (Decided 29th May, 1867.) Judgment reversed <*■ and procedendo awarded.