
    Samuel Taylor v. John B. Monnot.
    The decision in Wintermute y. Ciarle, that a hotel in a city, which receives transient persons as guests, is a common inn, approved and followed.
    In an action by a guest against an innkeeper to recover the value of property lost, the plaintiff is a competent witness to prove the character and value of the property lost, so far as it formed a part of his personal baggage, and no farther.
    Money in a trunk, not exceeding a reasonable sum for the personal expenses of a guest or traveller, is a part of his baggage.
    The opinions of innkeepers and others, that a guest who keeps his money in a looked trunk or portmanteau is guilty of negligence, are not admissible in evidence.
    Judgment tor plaintiff, with costs.
    (Before Oaklet, C. J., Dueb and Campbell, J. J.)
    December 6 ; December 23, 1854.
    This was an action to recover a sum of money wMcb tbe complaint averred bad been stolen from tbe portmanteau of tbe plaintiff, in a hotel or inn kept by tbe defendant.
    Tbe answer denied that tbe hotel was a common inn, or that ' tbe money in question bad been stolen or lost, and averred that tbe loss, if any, was owing to tbe negligence of tbe plaintiff.
    Tbe cause was tried before Duer, J., and a iury, on tbe 15th May, 1854
    It appeared on tbe trial that tbe plaintiff was an English gentleman traveling in tbe United States, and be proved by tbe testimony of two of bis traveling companions, that on tbe 10th of January, 1853, be put up as a guest at tbe defendant’s hotel; that on tbe 11th, on. bis return from dinner, be found tbe door of bis chamber unlocked, and bis locked portmanteau broken open and its contents scattered about tbe room, and by tbe same testimony, that be bad been accustomed to keep bis money, which was mostly in gold, in his portmanteau. .
    .The deposition of tbe plaintiff taken de lene esse, was then offered to be read, to prove bis loss, and its amount. Tbe reading was objected to by tbe counsel for tbe defendant; tbe objection was overruled, and tbe counsel excepted.
    Tbe deposition proved that tbe plaintiff’s purse, containing $353.54, chiefly in gold, was stolen from bis portmanteau at tbe time mentioned, and tbat no part of tbe money bad been recovered.
    The defendant then offered to prove by the testimony of hotel keepers .and others, that a portmanteau, even when looked, was an unsafe place in which to deposit money. The evidence being objected to, was excluded by the court, and the counsel for the defendant excepted.
    The jury, under the direction of the court, found a verdict for the plaintiff for $384.80, being the sum, with interest, that was proved to have been lost.
    Judgment on the verdict was suspended, and the exceptions ordered to be heard in the first instance at General Term.
    
      J. W. Edmonds, for the plaintiff,
    moved for judgment on the verdict. To prove the liability of the defendant as an innkeeper, he cited 2 Kent’s Com. 5th ed. 595; Thompson v. Lacy, 3B.& Aid, 283; Richmond v. Smith, 8 B. and Or. 9; Piper v. Manny, 21 Wend. 282, and many other oases. To prove that the plaintiff was a competent witness, he referred to 1 Greenl. on Evid. § 348 p. 2.
    
      E. Logan, for the defendant,
    contended that the testimony of the plaintiff ought not to have been received, and that the question whether he had not been guilty of negligence, ought to have been submitted to the jury. He cited on the first point, David v. Moore, 2 Watts & Sergt. 230, and Snow v. Eastern B. B. Co., 10 Mete. 44; and on the second, Burgess v. Clements, 4 M. & Sel. 306; Foot v. Wiswall, 14 John. 304; Story on Bailments, § 483, 2 Kent’s Comm. 592, 593.
   Bv the Court.

Duer, J.

The question raised in the answer, and upon the trial, whether the hotel of the defendant is in judgment of law a common inn was not pressed upon the. argument before us, and so far as this court is concerned, must be - regarded as settled by our decision in Wintermute v. Clark, 5 Sandf. S. C. Rep. 242. The cases, in regard to this question, are not distinguishable.

The liability of an innkeeper is by no means so restricted as that of a carrier of passengers. It is not confined to the personal baggage of the guest, but probably extends to all the property which, as belonging to the guest, the innkeeper consents to receive. Hence, if in this case the plaintiff’s loss and its amount had been proved by other witnesses than the plaintiff himself, not a reasonable doubt could have been stated as to his right of recovery. Rut if the testimony of the plaintiff must be rejected, it cannot be denied that the proof upon the trial was wholly insufficient to sustain the action. The cause, therefore, turns entirely upon the question whether the plaintiff was properly admitted as a witness.

We are by no means prepared or disposed to say that, in actions like the present, the plaintiff is a competent witness to prove the nature and extent of his loss, whatever may be the character or value of the property which it is alleged the loss involved. On the contrary, we are clearly of opinion that his admissibility as a witness rests upon the same ground, and is subject to the same limitation, as that of a passenger admitted to prove his own loss in an action against a carrier. And after a careful examination of the authorities, we think the law ought to be considered as settled that in such cases the passenger is, to some extent, a competent witness on his own behalf. He is so to prove the contents of a trunk lost or broken open, but only in respect to those articles which may be properly considered as a part of his personal baggage, that is, as intended for his personal use or accommodation. It is presumed that the contents of the trunk, in respect to such articles, are known to the owner alone, and, consequently, that, were his testimony excluded, he would be without a remedy. He is admitted, therefore, as a witness to prevent a failure of justice, — in other words, from a moral necessity. (12 Yiner Ab. 32; Bull, N. P. 181; Story on Bail, § 454, note; 1 Greenleaf on Evidence, §- 348, p. 417, and note 2; Sneider v. Geiss, 1 Yeates, 34; Herman v. Drinkwater, 1 Green. R. 27; Clark v. Spence, 10 Watts, 335 ; Johnson v. Stone, 11 Humphrey, 419.) It is plain that the same necessity exists when the traveller is a temporary guest at an inn, and equally so that it extends no fur■.ther in the one case than in the other.

It is insisted, however, that money in a trunk, although not , exceeding in amount the sum which the traveller in good faith 'has judged to be necessary to defray his personal expenses, cannot properly be regarded as forming a part of his “ baggage” in the limited sense of the term; and, consequently, that in respect to money, tbe testimony of the traveller, whether a passenger or guest, cannot be received to prove the fact or the amount of this loss. But we think that Mr. Justice Nelson, in delivering the judgment of the court in the case of the Orange County Bank v. Brown, (9 Wend. 119,) laid down the true rule, namely, that money intended to defray the personal expenses of the traveller may be justly included in the term baggage,” and we adopt this opinion not only as reasonable in itself, but as best sustained by the authorities. In the case of Cole v. Goodwin, (19 Wend. 251,) the trunk, for the loss of which, and its contents, the defendants, as carriers, were held to be liable, contained a small sum of money, which the verdict of the jury embraced, but which, had it not been considered as forming a part of the “ baggage” of the plaintiff, ought to have been, and we must presume would have been, deducted from the judgment. It may be said that, in this case, the question as to the liability of the defendants for the money was not distinctly raised, but this exception cannot be taken to the case to which I shall next refer, in which the question, whether money in a trunk, not more than sufficient for the travel-ler’s expenses, may be considered, as part of his baggage, was not only raised and argued, but, as we think, positively and affirmatively decided.

In this case, (Weed v. The Saratoga and Schenectady R. R. Co. 19 Wend. 534,) the verdict of the jury was rendered solely for a sum of money, ($285,) contained in a trunk which the defendants, as carriers, had lost; and their counsel, upon the trial, contended that they were not liable, upon the grounds that they had received no reward for carrying the money, and that no notice had been given to them that any money was contained in the trunk. The Judge overruled the motion for a nonsuit, and charged the jury that, if -they were satisfied that the trunk had been committed to the care of the defendants, and was lost by them, the plaintiffs were entitled to recover, unless they should be of opinion that the amount of money in the trunk was so large as to render the want of notice a fraud upon the carriers, or that it was more than a reasonable and sufficient sum for travelling expenses. The jury having found a verdict for the plaintiff, the defendant’s counsel, upon the exceptions which they had taken to the charge of the Judge, moved for a new trial.

In delivering tbe opinion of tbe court, Cowen, J. said, that tbe question wbetber tbe money in tbe trunk “ was more tban sufficient for travelling expenses, and so not a part of tbe baggage, bad been left to tbe jury, in a shape as favorable to tbe defendant as tbe law would require, and perhaps more so.” And be referred in support of bis opinion to tbe case of tbe Orange County Bank v. Brown, thus adopting tbe rule there suggested by Nelson, J., as that by which tbe. court meant to be governed. Tbe motion for a new trial was, however, granted, but granted upon tbe sole ground, that there was no such privity of contract between tbe parties as could entitle tbe plaintiffs in their own names to maintain the. action. Although tbe money belonged to them, it was contained in tbe trunk of their clerk, who was travel-ling as their collecting agent, and was reserved by him for tbe expenses of bis journey. Had tbe action been brought, as it ought to have been, in tbe name, of tbe clerk, it is certain that judgment would have been rendered in bis favor. We see, therefore, no reason to doubt that tbe decision of tbe court upon tbe question we are considering, is entitled to tbe same weight and authority as if tbe action bad been properly brought and a judgment for tbe plaintiff actually rendered.

We cannot think that these authorities are countervailed or at all shaken by tbe doubts expressed by Mr. Justice Bronson, in tbe case of Hawkins v. Hoffman, (6 Hill, 589.) Tbe learned Judge rested bis doubts entirely upon tbe assertion, that men usually carry money to pay travelling expenses about their persons, and not in their trunks and boxes.” But we have no knowledge judicial or personal of any such general usage, as he supposes to exist. We are persuaded on tbe contrary, that tbe usage varies according to tbe character, of tbe journey, tbe sum necessary to be carried, and tbe personal habits of tbe traveller, and that in a large class of cases; including that now before-us, tbe general usage is directly opposite to that of which tbe existence is assumed. Foreign travellers in tbe United States, in order to save themselves from tbe embarrassment and losses they would otherwise incur from their ignorance of tbe local-currency in tbe different states which they .visit, .usually take with them in specie tbe sums which they deem to be necessary for their personal expenses, and that it is safer as well as more convenient to carry a purse of gold or silver in a locked trunk than about tbe person, we think will hardly be doubted. In the absence of proof to the contrary, we have no right to say that such is not the usage.

Since the case of Hawkins v. Hoffman, the exact question has arisen and been determined in the Supreme Court of Massachusetts, in the case of Jordan v. The Fall River Railroad Company, (5 Cushing, 69.) The learned Judge who delivered the opinion of the court, reviews and examines the cases I have cited,, and expressing his dissent from the views of Mr. Justice Bronson, arrives at the conclusion: “ That money in a trunk taken hand fide for travelling expenses and personal use, may properly be regarded as a part of a traveller’s baggage, for the loss of which the carrier is responsible,” and consequently to prove the loss of which the trav-eller is himself a competent witness. The like decision has been made by the Supreme Court of Tennessee, in two cases. Maxwell v. Humphrey, (9 Humphrey, R. 61,) and Johnson v. Stone, (11 Humph. 419.) In the last case the plaintiff was admitted as a witness to prove the loss.

In the case before us, it was sufficiently proved and was not denied upon the trial, that the money lost by the plaintiff was intended for his personal expenses, nor was it assertecL that it exceeded a reasonable amount for that purpose. Hence these questions were not submitted to the jury, nor was there any exception to the charge of the Judge upon the ground of the omission.

The only exceptions that were taken, in addition to that which we have considered and overruled, were, to the refusal of the Judge to submit to the determination of the jury, the question of negligence on the part of the plaintiff, and to his rejection of the offer to prove by the opinions of hotel-keepers and others, that the locked portmanteau of the plaintiff was an unsafe place for the deposit of his money. We are all of opinion that neither of these exceptions was well taken. No facts were proved from which the jury could have been warranted to infer that the plaintiff was guilty of any negligence which contributed to the loss, and upon such a question the opinions of witnesses ignorant of the facts, were certainly not admissible as evidence.

The plaintiff is therefore entitled to judgment upon the verdict as rendered.  