
    Thomas Wintermute, Respondent, v. Oliver Clark, Appellant.
    To charge a defendant, as an innkeeper, it is sufficient to prove, that he received, as guests, all who chose to visit his house, without any previous agreement, as to the duration of their stay, or the terms of their entertainment.
    The liability of an innkeeper, as such, ceases, when the relation between him and the guest, is dissolved.
    That relation ceases, when the guest pays his bill, and leaves the house, with the declared intention of not returning. In such a case, it is, at his own peril, that he leaves his baggage behind him.
    The innkeeper is not then responsible for its safe keeping, unless it is specifically committed to his charge, and then, only, as an ordinary bailee.
    Held, that in the case before the court, the question, whether the liability of the defendant, as an innkeeper, had not ceased, before the loss of a trunk and its contents, for the recovery of the value of which, the suit was brought, directly arose upon the evidence, and ought, upon the trial, to have been submitted to the jury.
    Ques., whether a father is, in judgment of law, the owner of the wearing apparel of a son, who, although a minor, was not a member of his father’s family, and was endeavoring, by his own labor, to provide for his own support?
    Jugdment, at special term,, reversed, and new trial granted.
    (Before Oakley, Ch, J.; Sandfokd and Due a, J.J.)
    (November 19, 29, 1851.)
    This was an appeal by the defendant, from a judgment rendered at a special term, upon a verdict in favor of the plaintiff.
    The action was brought to recover of the defendant, as a common innkeeper, the value of a trunk and its contents, alleged to have been lost by his negligence, or that of his servants.
    The complaint charged, that on the 12th March, 1850, and before that time, the defendant was an innkeeper, keeping a common inn in Chambers street, in the city of New York, and that on that day, Sandford Wintermute, the son and servant of the plaintiff, an infant under the age of twenty-one years, was received into the said inn, as a traveller or guest, and then and there, brought into the said inn, a trunk, containing wearing apparel, and other articles, of the value of $100, and that after-wards, and whilst the said Sandford was still abiding in the said inn, the said trunk and its contents, through the mere carelessness and negligence of the defendant, and his servants, were wrongfully taken away, by some person or persons, to the plaintiff unknown, and were thereby wholly lost to the plaintiff.
    The answer, after taking issue upon the principal averments in the complaint, alleged that Sandford Wintermute, on the 13th of March, 1850, paid his bill, and departed from the house of the defendant, and that all the property of the plaintiff, which, before that time, he had placed in the care, or custody, of the defendant, or his agents, was thereupon delivered to him.
    The reply took issue upon this alleged delivery.
    Upon these pleadings, the cause was brought to a trial before Mr. Justice Duer, and a jury, on the 15th of May, 1851.
    It was proved, on the part of the plaintiff, that his son, Sand-ford Wintermute, then about nineteen years of age, left his father’s house, in New Jersey, in the early part of March, 1850,. and came to the city of New York, with the intention of becoming a clerk in a store—that he took with him a trunk, containing the wearing apparel, and other articles mentioned in the complaint, and which were worth between sixty and seventy dollars—that on some day, about the middle "of March, between the hours of 9 & 10 P. M., he, and one Beamer, went to. the-public house- in Chambers street, kept by the defendant, and! engaged lodgings for the night—that the trunk in question, was then placed in the charge of the defendant, who directed where-it should be placed, and declared it would be safe—that some days thereafter, Sandford Wintermute called upon the defendant, and inquired whether his trunk was found, that the defendant replied that it was not, that it had probably gone with the baggage of passengers in the Ohio, and that if not brought back, he would satisfy Wintermute for it.
    Upon this testimony, the plaintiff’s case was rested.
    The defendant then called as a witness, Burr Clark, who-testified that he was the brother and clerk of the defendantthat he knew Sandford Wintermute ; that he, together with Beamer, put up at the defendant’s house on the evening of the 12th of" March, 1850; that they came about 11 o’clock; that they brought with them a trunk • that' he directed them to set it down in the room where the office of the house was kept, near the door between it and the corner of the wall; that the defend1•ant was at'the time in bed ; that'Beamer took breakfast and left the‘house' in the morning 'between 9 and 10 ; that' shortly: after, Sandford came into the office, when the witness was alone, and called for breakfast,' that witness replied it was too late for breakfast; that witness thereupon demanded pay "for his dodging, that Sandford replied he had not lodged there but had ■ slept elsewhere,'to which-witness answered that it was not material,-as a room'had been taken by, amPkept for him, and that he must pay for it; that there was-no other person in-the room at the time ; that he did pay witness, therefor, stating that he was about to have the house and not to return, and thereupon turned round and proceeded towards his trunk, which sat there in the same place it had been placed in:.by'Sandford and Beamer,'the ■ night before, and that the witness thought, but was not certain, that Sandford proceeded to open it; that- he, witness, passed out of -the room and was engaged in an adjoining room fifteen-minutes, or half an hour, and that on his return he did-not'-look "for, or notice the trunk, nor had he seen it since.
    “And here the defendant rested his case.
    ' The plaintiff then produced Sandford "Wintermute, who, being sworn, testified that on his arrival, after engaging a room at defendant’s house, and leaving his trunk in the place where he was direCte'd, he spent the night With his'friends, he returned tie next day and paid for his lodgings, he came there again in the afternoon and then missed his trunk, he had intended to have stayed there until he got a place as clerk l when he missed it, defendant stated he thought it had gone with the Californians; he did ■not' take his trunk from said house, nor did he ever see it again; that he called again several days afterwards with Baxter and-asked for his trunk ; that defendant then' told him they had not found it,, that "if had no doubt gone with the Californians, and if.it did ■ not come back, he would- satisfy him. ' On -his cross-examination, -he-said he had lodged there before ; that it was customary to - pay for lodgings and other things as you got ■ them; that he cotild -not'say whether he had-stayed there-more than one-night -before; he paid for each meal as he got it, and for his -night’s • lodgings as he got them ; that -he did not remember that he saw Bis'trunk when he paid his'- bill-in-, the morning, nor-that Be then -said- that • he - would ■ return. His direct - ■ examination - being,- resumed, he testified that he did not pay the witness, Clark, at all, on the morning of the 13th day of March, that he paid the defendant in person for his lodging, in. silver, .a two shilling piece. Nobody else was then by.
    The plaintiff then re-called Burr Clark, who testified that defendant keeps lodgers and boards by the plate, that persons can come there and lodge without having meals ; can stay without paying at the time ; there is no such custom as that of paying for things when one gets them, except that persons' usually paid for the articles ordered for their meals at the time¡ eaeh article being a separate charge ; am positive that I saw him go to the trunk, that it was there at the time he paid his bill, and that Sandford said he was going out of town, and should not return ; I directed Sandford to set the trunk down the night before; Sand-ford was not there in the afternoon to my knowledge; I cannot say whether the trunk was there when I returned; I did not look for it; I came back in about half an hour, he was not there when I returned ; he recollects that the young man was there before.
    When the testimony was closed, the judge charged the jury that upon the evidence the defendant must be regarded as a common innkeeper, and that the only question for their determination was, whether the trunk had been taken by Sandford Wintermute, since, if they believed it had been taken by any other person, even after Sandford had paid his bill, the defendant was liable. That as it was clearly proved that the trunk had been placed in the charge of the defendant, the burden of proving its restoration rested upon him, and consequently unless the jury believed that Sandford had taken the trunk with the fraudulent intent of charging its loss upon the defendant, and was guilty of perjury in swearing that he had not taken it, they must find for the plaintiff.
    To each and every portion of this charge the counsel for the-, defendant excepted.
    The jury found a verdict for the plaintiff for $55, for which sum, with costs, judgment was duly entered.
    
      C. N. Potter, for the appellant (the deft.).
    The defendant was not a common innkeeper, for the proper definition of an inn is a house for the reception of travellers •only, or, if other guests are received, it is only in favor of travellers that the common law liability of an innkeeper attaches, and Sandford Wintermute was not a traveller. The counsel cited Thompson v. Lacy, 3 B. & Ald. 283; 2 Lord Raymond 867; 3 Hill. 491; Story on Bailments, §§. 475, 477 ; Bacon’s Abridg. Title Inn (C.), 1, 3, 5, 6.
    If this point is against me, still, upon other grounds, the plaintiff was not entitled to a verdict. The young Wintermute was not the guest of the defendant when the loss happened ; he •had paid his bill and gone away with the intention of not returning. The relation between him and the defendant, and with it the liability of the defendant as an innkeeper, had wholly ceased, and it is only as an innkeeper that he is, or can be charged. If the delivery of the trunk was necessary to be proved, it was sufficiently proved by the testimony of Burr Clark. In addition to the authorities before cited, the counsel referred, to 1 Salk. 388; 5 Term R. 213: 9 Wend. 114; 5 Barb S. C. R. 560; 10 Metcalf 472.
    
      J. Anthon, for plaintiff.
    The admissions in the answer, and the unquestioned testi mony in the case, justified the judge in his charge that the defendant was an innkeeper. On this point, two of the cases cited by my learned opponent, Thompson v. Lacy, 3 B. & Ald. 283; and McDonald v. Egerton, 5 Barb. 560, are direct authorities in our favor.
    In all other respects the charge of the judge was correct. The material issue made by the pleadings was the actual restoration of the trunk, and of this there was no proof whatever. The judge was therefore right, in saying that the only question to be determined by the jury, was whether the trunk had been taken by young Wintermute, for, if taken by a stranger, the defendant was certainly liable.
   By the Court.

Oakley, Ch. J.

In order to charge the defendant as an innkeeper, it was not necessary to prove that it was only for the reception of travellers that his house was kept open. It was sufficient to prove that all who came were received as guests, without any previous agreement as to the duration of their stay or the terms of, their entertainment, and such was the proof actually given. There may be a distinction between the liability of the keeper of an inn and of a mere boarding-house, where transient persons are not received at all, and none are received but for a certain time and upon certain terms. But it is not pretended that' the defendant’s house was a mere boarding-house. It was a public house of entertainment for all who chose to visit it, which is the true definition of an inn.

It is plain, however, that the liability of an innkeeper, as such, in any particular case, continues no longer than the continuance of the relation between him and the guest. That relation ceases, when the guest pays his bill and leaves the house,, with the declared intention of not returning. In such a case it is at his own peril, we apprehend, that he leaves his baggage or other property behind him. The innkeeper has a right to believe that he has taken it with him, and is, therefore, no longer responsible for its safe keeping, unless it is specially committed to his charge ; and then, only, as an ordinary bailee. His common law liability is at an end.

Whether young Wintermute, in the case before us, had not ceased to be the guest of the defendant, before the trunk was lost, and, consequently, whether the liability of the defendant for its safe keeping, had not then ceased, was a question that directly arose upon the evidence, and which, therefore, as the turning question in the cause, ought to have been submitted to the jury. That it was, in fact, submitted, is not asserted, and the charge of the judge, as stated in the case, clearly shows that it was not. To repair this omission, a new trial must be granted, and an opportunity thus be given to the defendant, of obtaining the verdict, to which, under a proper direction, a jury may think him entitled.

It has occurred to us, that there is a difficulty in the way of the plaintiff’s recovery, which, it is proper, should be stated, for the consideration of the counsel. It seems to have been conceded, upon the trial, that as Wintermute, the son, was a minor, the property in the trunk, and its contents, was vested in the father,-in whose name,-therefore,-this suit wasproperly brought, ■ but, whether this concession' was necessary to have- made/We 'think, may bé- seriously- doubted. The'son whsnoTbnger a member of his' father’s family, but had left- his home With the intention of providing for his own support; and whether, under these circumstances, the father continued to be the owner of the’ wearing apparel, and Other articles; which the son' had been permitted" to take With him, for his own- exclusive'use,-is a question, that may' deserve to bé considered.-

Duer, J.

The grounds of the charge, which I gave to the jury, were, that, under the pleadings,-the defendant wgs bound to prove, affirmatively1,- the- redelivery df the trunk,- and that' the requisite proof of this fact, had' not been given: I am U'oW satisfied,-that there was evidence, from Which, the jury, if they credited'the defendant’s Witness, would have been-warranted'to infer the fact of a redélivery, and consequently, that'the question ought' to have been submitted t'o the jury. If is upon' this ground; that 1 concur in granting a tiew trial.

The difficulty,-which the Chief Justice has suggested, as to the right of the plaintiff, to maintain this action, I am inclined to think-, will not be overcome,- unless, .upon' the next trial, further and mofe satisfactory evidence- of the ownership of the father shall be given. As the- case stands,-the prestimption; it seems' to me, is" against his title:

Judgment reversed: and' new trial granted', with costs to abide the évent.  