
    Harry C. Adams, Resp’t, v. The New Jersey Steamboat Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    1. Oaeeiehs—Liability.
    A steamboat company is liable for the loss of a passenger’s money to an amount which might reasonably be Carried for traveling expenses, retained by him in his designated stateroom, without proof of negligence upon the part of the company; and, where the contract of carriage and the assignment of the stateroom are undisputed, the passenger, upon showing that the loss occurred without contributory negligence on his part, establishes a prima facie case.
    8. Appeal—Exception.
    An exception to a specific propo.sition or to particular remarks of a judge in his charge to the jury should be so definite as to leave no doubt as to the real character of the exception, or as to what was actually intended.
    Appeal from a judgment rendered upon a verdict and from an order denying a new trial. The action was brought to recover a certain sum of money alleged to have been lost to plaintiff when a passenger upon one of defendant’s steamboats. This money was retained by plaintiff in the stateroom assigned to him by the defendant upon his taking passage, and during the night time an article of clothing containing this property was taken from the stateroom by some unknown person. Snob article of clothing was afterward found in , another room upon the boat, but the money had been abstracted. The door of the stateroom was provided with a lock and the window blind was fitted with a catch.
    
      W. P. & P. K. Prentice (W. P. Prentice, of counsel), for app’lt; Gibson & Davis ( William J. Gibson, of counsel), for resp’t.
   Bischoff, J.

The most important point in the case, and that toward which the argument of counsel upon this appeal have been principally directed, relates to the correctness of a rule with regard to proof, followed by the learned trial judge in his charge to the jury, and in his disposal of requests to charge and of a motion to dismiss the complaint. The rule referred to was, in effect, that the defendant company was liable for the loss of plaintiff’s money, to an amount which might reasonably be carried for traveling expenses, retained by him in his designated stateroom, . without proof of negligence upon the part of defendant, and that, upon showing that the loss occurred without contributory negligence on his own part plaintiff established a prima facie case, the contract of carriage and the assignment of the stateroom in question being undisputed. The above rule is in conformity with decisions rendered by this court in cases of Mudgett v. Bay State S. S. Co., 1 Daly, 151, decided 1861; Gore v. Norwich & N. Y. Trans. Co., 2 id. 254, decided 1867, and Macklin v. N. J. S. S. Co., 7 Abb. N. S. 229, decided 1869, where it was held that a liability, analagous to that of an inn keeper, attached to the class of carriers to which this defendant belongs, with regard to a loss of personal effects taken into' his stateroom by the passenger. In these cases the rule was clearly so expressed, and the facts in the present case afford no basis for a distinction in applying the principle there declared. This same rule of liability was held to obtain in Van Horn v. Kennit, 5 E. D. Smith, 453, and Crozier v. Boston, N. Y. $ N. S. S. Co., 43 How. Pr. 466, and has not as yet been disapproved in this state, so far as research has disclosed. Appellant relies, however, upon the authority of Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53; 34 St. Rep. 854, where the court of appeals held that sleeping car companies are not liable as “carriers or innkeepers ” for the loss of a traveler’s personal effects, when the same are retained by him near his person upon retiring for the night. Of course, in such a case, the word “ carrier ” has reference to a liability for baggage actually placed within the carrier custody, it being the general rule that such retention of his effects by the traveler renders the carrier only liable for their loss when occurring by reason of its negligence. Tower v. Utica & S. R. R. Co., 7 Hill, 47. The question then arises: Does the adoption of such a rule, with regard to sleeping car companies, in effect, overrule the case where an opposite principle of liability has been applied to these carriers by water ?

The rule absolving a sleeping car company from liability as an innkeeper, in the regard considered, is not new to the jurisprudence of this state, for the principle was so declared by the superior court of Buffalo, as early as 1874, in the case of Welch v. Pullman, etc., Co., 16 Abb. Pr. N. S. 352. The courts of our sister states also, whenever the question has arisen, have uniformly enunciated the same rule. Pullman Co. v. Smith, 73 Ill. 360; 24 Am. Rep. 258; Woodruff Co. v. Diehl, 84 Ill. 474 ; 43 Am. Rep. 102; Illinois R. Co. v. Handy, 56 Am. Rep. 846, and note at p. 852; Lewis v. R. R. Co., 143 Mass. 267; 56 Am. Rep. 852, note; Bevis v. Balto & O. R. Co., 56 Am. Rep. 850, note, where mention is made of the unanimity with which the rule has been adopted, See cases there cited. 22 Central Law Journal, 58; Albany Law Journal, Oct. 23d, 1893, p. 354, the authority which appears to have been a leading case upon the subject being Pullman Co. v. Smith, supra, decided in 1874, a few months prior to the Welch case. And here it is expedient to note the grounds upon which the'decisions have proceeded. In the first place sleeping car companies are not carriers at all; the railroad company issuing the ticket to the traveler is the carrier, and the sleeping car company merely supplies extra accommodation to the parties contracting with the carrier for transportation, upon the payment of a certain separate consideration. Moreover, were these companies to be held to the responsibility of carriers, they could not be burdened, with liabilities, as insurers, for loss of the passengers’ effects as “baggage,” for they take no custody of baggage in any way, this duty being assumed by the railroad company, the actual carrier. See Centr. L. J. Vol. 22, p. 52. Failing this responsibility, then, as carriers with custody, a liability as insurer has been sought to be applied to these companies by reason of their analogy to innkeepers, but the courts have denied that the rule relating to innkeepers should be so extended, this denial proceeding upon the ground that in the absence of precedent for applying the common law rule principle in that regard to a new case arising out of circumstances and emergencies developed by the progress of society, the application should not be made, unless it appears to be essential to the enforcement of justice, Welch v. Pullman, etc., Co.; Pullman Co. v. Smith, supra, and various distinctions have been pointed out, as existing between these companies and the innkeeper, which should oppose the application to the former of the latter's common law liability. Thus, in the case last cited, it is said with reference to a sleeping car company, “It does not, like the innkeeper, undertake to accommodate the traveling public, indiscriminately with lodging and entertainment. 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, we understand.” The court here say, however, thas even if victuals were furnished it would not alter the result of the decision, as this is merely one element of distinction among many. Again the court say, “The innkeeper is obliged to receive and care for the goods and property of the traveler whicli 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 an innkeeper, accessory to the principal contract to feed, lodge and accommodate a ‘ guest for a suitable reward, because no such contract is made.” Further distinction is made with regard to the traveler’s necessity for accepting these extra accommodations and thereby attempting a transfer to the sleeping car company of liability for a loss of baggage, custody of which would have been assumed by the carrier, had control over same been ceded to it. And again it is said that the sleeping car company is not bound to furnish these accommodations, the service not being mandatory by the law, as in the case of an innkeeper. In the Welch case a further distinction was noted with regard to the innkeeper’s lien. The courts being unanimous, as shown above, in enunciating the law with regard to these companies, it becomes important to note the adjudications bearing upon the responsibility of carriers by water in the aspect considered. Here the decisions in the various states are in marked conflict, yet in this state harmony is found where different courts have had occasion to rule upon the question. In Crozier v. Boston., N. Y. & N. S. S. Co., supra, the supreme court held that a steamboat company was liable for the loss of personal effects of ordinary value, (including money) as insurer, when the same were taken from the stateroom of a passenger during the night, the decision proceeding upon substantially the same lines as were followed in the early cases decided in this court, and as remarked above, we have not found that the rule has been questioned by later adjudication. Without the state a different view has in many instances obtained. Steamboat Crystal Palace v. Vanderpool, 16 B. Mon. 302 (Ky.); Abbott v. Bradstreet, 55 Me. 530; Clark v. Burns, 118 Mass. 276; 19 Am. Rep. 456; The R. E. Lee, 2 Abb. U. S. 49. The Steamboat Crystal Palace v. Vanderpool, supra, decided in 1855, it was held that the carrier was not so chargeable, the decision being based upon a lack of precedent for applying the rule of an innkeeper’s liability to the plaintiff in error. The court, however, expressed the opinion that there might be many good reasons for applying such a rule to these carriers, but inclined to the view that it was a matter to be regulated by statute. So, again, in 1868, the court held in the case of Abbott v. Bradstreet, supra, that the steamboat owners were not liable for such a loss, as innkeepers, upon the ground merely that no authority in favor of applying such a rule of liability had been found, and the superior court of Massachusetts, in 1875, enunciated the same doctrine upon the authority of the two cases last cited. Clark v. Burns, supra.

On the other hand the supreme court of Wisconsin in 1878, lent appróval to the views expressed in Mudgett v. Bay State S. S. Co.; Macklin v. N J. S. S. Co.; and Gore v. Norwich and N. Y. Trans. Co., while holding that where the door of the stateroom was not provided with a lockthe room could not' be considered as a place designated for the deposit of personal effects and that, in such a case, the carrier was not liable prima facie without proof of its negligence. Gleason v. Goodrich Co., 32 Wis. 85; 14 Am. Rep. 716. In Mc Kee v. Owen, 15 Mich. 115, direct approval was given to the rule as laid down by this court in Mudgett v. Bay State S. S. Co., in a carefully considered opinion devoted to a discussion of the duties and liabilities of these carriers by water. In the case of the R. E. Lee, supra, this rule of liability was not approved but that authority did not alter the court’s favorable view of our earlier cases in Gleason v. Goodrich, supra. From the foregoing it will be seen that the same unanimity with which the courts have adopted the rule, now approved by the court of appeals, with regard to sleeping car companies, has not obtained in cases where the liability of a carrier by water has been considered (see note 20 Fed. Rep. 433) and it appears in this state, apart from the cases in this court upon the subject, the strict rule referred to was early applied to steamboat companies, Crozier v. Boston, N. Y. & N. S. S. Co., and its application denied in the case of a sleeping car company within a few years later, Welch v. Pullman, etc., R. R. Co. Some instances of distinction pointed out by the courts when refusing "to apply the innkeeper’s rule to sleeping car companies may be regarded as applicable to the class of carriers whose liability is now considered but in other of these instances the analogy of the latter to innkeepers strongly obtains, and it is in view of these elements that the rule has been thus extended by the courts. Attention should be directed to the fact that the steamboat company is actually the carrier, see Mudgett v. Bay State S. S. Co., providing sleeping accommodations as an incident, in practical effect, to the main contract of carriage, instead of merely furnishing special facilities to parties contracting with an independent carriel1 for their transportation. Thus the character of a “ traveling inn,” Macklin v. N. J. S. S. Co., supra, is, with regard to liability for loss of baggage or personal effects, borne out strongly in the case of these carriers where, in one essential particular it fails when sought to be applied to the sleeping car companies ; for the steamboat company as carrier, is charged under its contract with the passenger to transport such passenger’s baggage, and, in other main essentials giving accommodation as an innkeeper, the analogy of the flatter’s position, with regard to personal effects placed in a designated locked room appears. This, again, is a possible distinction between the classes of transporters' considered as noted in Gleason v. Goodrich, supra. What value other distinctions, which might be suggested, would have as bearing upon the question of liability ponsidered we need not now determine, for in view of the present aspect of authority in this and other states, stare defisis would require that effect to be given to the rule as heretofore laid down, in the absence of a contrary expression by the court of last resort. That the case of Carpenter v. N. Y., N. H. & H. R. R. Co., may be taken as such an expression is not an authorized assumption, and the rulings of the learned trial judge in this aspect of the case are therefore to be supported. An examination of the other points relied upon discloses no prejudice to appellant. In the rulings upon evidence and in the instructions to the jury, relative to the amount of money which the plaintiff was justified in carrying' upon his journey, the law was followed as laid down by the authorities, Merrill v. Grinnell, 30 N. Y. 594, 609; Carpenter v. N. Y., N. H. & H. R. R. Co., supra, and so with regard to instructions bearing upon the effect of the notice claimed by defendant to have been placed in the plaintiff’s stateroom, and which plaintiff denied having seen. Macklin v. N. J. S. S. Co., supra; Hollister v. Nowlen, 19 Wend. 241. In ruling upon a question as to what watch was kept upon the boat during the night the court said, addressing counsel; “ I think I shall have to charge in accordance with the decisions of this court, that the responsibility is that of a hotel keeper and that the mere fact of the loss would make the defendant liable to pay for it unless the jury are convinced from the evidence that it arose through negligence of the plaintiff. .Defendant's counsel;—“I accept to that.” The court s —“ I am only stating now what I think I must do under the decisions.” Appellant now claims that the use of the word “ convince" might well have misled the jury in fixing a standard by which they were to weigh the evidence, and there would indeed be force in the contention had the jury been actually so charged, under a proper objection. B.ut this remark was addressed to counsel in the course of argument, at some time before the case was closed and was entirely unconnected- with the charge itself, wherein the jury were most fairly instructed upon this question of plaintiff’s contributory negligence. Moreover were this statement, to be in any way construed as an instruction, the exception was obviously too general in character to present error in this choice of a word. “When it is intended to except to a specific proposition or to particular remarks of a judge in his charge to the jury, the counsel making the exception should put his finger on the proposition clearly and distinctly, beyond any question, and employ language antirely plain, so that there can be no doubt as to the real character of the exception, or as to what was actually intended. This is essential to enable the judge to correct, modify or change the language used, if he deems it proper and to prevent any misconception or misapprehension as to what portion of the charge the exception was intended to apply.” Mc Ginley v. U. S. Life Ins. Co., 77 N. Y. 497 ; see Walsh v. Mead, 8 Hun, 387, 394. There was sufficient evidence in the case to justify a submission of the question of plaintiff’s contributory negligence to the jury and the verdict is to be supported. No further points are found which would require discussion.

Judgment affirmed, with costs.

Daly, 0. J. and Pryor, J., concur.  