Abraham Clark Freeman John Proffatt.

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part of the contract for the carriage of the passenger, for which the carrier it



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222 Pettigrew v. Barnxtm. [Maryland,

compensated by the fare or rate agreed upon. Bat for anything beyond mere
haggage the carrier is entitled to extra compensation; it is not embraced or
compensated for in the fare paid by the passenger; and if he has anything
with him not coming under the denomination of baggage, of which the carrier
is not advised, or for the carriage of which he receives nothing, it is at the
risk of the passenger, and the carrier is not liablo in the event of its loss.
But the occupation of the innkeeper is different. He keeps a place of enter-
tainment for the reception of all who travel, whether in their own vehicle or
otherwise, m which the farmer carrying his produce to market, the trader
vending his wares about the country, the traveler with simply his baggage, or
the passenger journeying on foot, equally find accommodation; and M-here
provision is made, not merely for the personal entertainment of tbo guest, but
for the housing and safe-keeping of the property he brings. with him, wliile
he rests or reposes at the inn.

** In the modern times great changes have taken place in respect to the
accommodation afforded by inns. Anciently the inn was a kind of a warehouse
or hotel, in which travelers in journeying from one part of the country to the
other for the purposes of trade or commeree found a temporary accommoda-
tion for their merchandise. But now that the superior faciliti^ exist for the
transportation of merchandise as respects the cost, the speed, and the security
of its transport, this description of inn has fallen very much into disuse, ex-
cept in remote or sparsely settled districts. In cities and large towns to which
travelers journey by railroad or steamboat, inns, or, as they are commonly
known in this conntry, hotels, are simply establishments for the reception of
travelers accompanied merely with their ordinary baggage. The proprietors
of such establishments, as they make no provision for the kind of accommo-
dation that was afforded by the ancient mns, are under no obligation to receive
a traveler with merchandise, and may, if they think proper, refuse to house-
»r take care of it. But whatever may be the nature of the inn, or the kind of
acoommodation afforded, if the innkeeper receives the guest and his goods,.
te charges himself with their safe-keeping.

" The moment the goods are infra hoepitium the liability of the innkeeper at-
taches, and that liability extends to goods, chattels, and movables of any kind
or description which the traveler brings with him:" Van Wyd^a Case, 11
How. Pr. 147, 151; see also TrUber v. Burrows, 27 Md. 131; Stanton v. Le-
land, 4 E. D. Smith, 8S; Kellogg v. Sweeny, 1 Lans. 397. But no liability
attaches until the goods are infra hospitium; Calye^s Case, 8 Co. 32; Dickin-
son V. IVinchester, 4 Cush. 114; and as to the goods the relation must be that
of innkeeper and guest; Mowers v. Fethei-s, 61 N. Y. 34; Mateer v. Brown, 1
Cal. 221. If, therefore, an innkeeper, at the request of his guest, sends his
horse to pasture, and the horse is stolen, or if sheep should be put in a pasture
by or under the direction of the guest, and they should be injured by eating
poisonous plants, being so placed at the guest*s direction, they are not tT^ra
hospitium, and the innkeeper is not liable: Ca2ye*s Case, 8 Co. 32; Bawley v.
Smith, 25 Wend. 642. Undoubtedly, for whatever personal property the
guest may have brought infra hospitium the innkeeper is liable. Not only
the guest's animals and private equipage may thus claim protection, his-
wearing apparel and personal jewelry, his baggage and traveling neces-
saries, but indeed money and valuables to an unlimited amount: Armistead
V. WhiU, 17 Q. B. 261; Kent v. Shuckard, 2 Bam. & AdoL 803; Berkshirt
Woolen Works v. Proctor, 7 Cush. 417; Sassen v. Clark, 39 Ga. 242. Where a.
•ervant of a guest was robbed in the hotel of his master's goods, it was held
that such goods were infra hospitmm, and the innkeeper liaUe: Tawmi^ v..
Havre de Grace Bank, 14 Am. Dec. 254.



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Dec. 1867.] Pettigeew v. Barnum. 223

No limit was made as to the kind of property under the common-law rule,
except that the liability extended only to movables. Thns in Calye** Case^ 8
Co. 32, 1 Smith's Lead. Cas. 135, '* if one brings a bag or chest of eWdences
of debt, or obligations, deeds, or other specialties, and by default of the inn-
keeper they are taken away, the innkeeper shall answer for them.'* The lia-
bility extends to horses received by the innkeeper, and stolen: Newson v.
Axon, 10 Am. Dec. 685; or injured or killed: Washburn v. JofntB^ 14 Barb.
193; HUl V. Owen, 35 Am. Dec. 124; Dicheraon v. Bogera, 40 Id. 642; and to
the theft of the harness on the horse: Mason v. Thompson, 20 Id. 471. So
where the innkeeper receives cattle driven on the road to keep over night, he
is responsible as such for the safety of the place provided for them: BiUon v.
Adams, 71 Me. 49.

The liability of the innkeeper attaches to money of the guest as well as to
his other goods: Kent v. Shudcard, 2 Bam. & AdoL 803. An innkeeper has
been held liable where a satchel containing coin was given to him to take
charge of, without any statement being made of its contents: Kellogg v.
Sweeny, 1 Lans. 397; so where a guest ordered his trunk, containing money,
to be taken to his room at an inn, and during the night the money was stolen,
the innkeeper was held liable: Epps v. Hinds, 61 Am. Deo. 528. In Qtanton
T. Courtney, 1 Hayw. 40, an innkeeper was held liable for a sum stolen out of
•addle-bags of the guest, though no notice of the contents of such bags had
been given. For the theft of a diamond pin which the guest was accustomed
to wear, the innkeeper was held liable: WaXsh v. Porterfidd, 6 Week. JTot
Gas. 149.

To make the innkeeper liable for goods of the guest, however, they must
have been received by the innkeeper in his character as such. In Mowers v.
Fethers, 61 N. T. 38, it is said that while the innkeeper is bound to receive
the person and goods of all who come in the character of guests, yet he is not
bound to furnish accommodations for persons desiring to expose commodities
for sale, or permit his establishment to be made a depot for the transaction
of business. He is doubtless bound to receive and entertain strolling ped-
dlers and securely guard their goods and packs of trinkets if brought ii^fra
hotpUium, so long as they remain as mere guests. Thus where a guest se-
cured of an innkeeper a private room to show his goods, the court, per Lord
Eilenborough, says: ** The keeping of these goods hardly falls within the inn-
keeper's duty, .... and the guest is therefore bound to exercise ordinary
c4re in keeping them; and if he fails to do so, and by his negligence the
goods are lost, he himself is liable and the innkeeper excused:" Burgess v.
Clements, 4 Man. & Sel. 306; see also Famsworth v. Packwood, 1 Stark. 249.
The former of these cases was one in which the guest desired a room in which
to show his goods, consisting of jewelry and the like. A room was assigned
him, and a key delivered, with directions to lock the door. He afterwards
went away and left the room for some hours, with the key in the lock on the
ontside, and some of the boxes of jewelry were stolen. The innkeeper was
held not liable. Analogous to this is the case of Myers v. Cottritt, 5 Biss.
465, where a guest at a hotel took to his room valuable articles of merchan-
dise, consisting of jewelry, and exposed them there for show and for sale,
inviting an examination by purchasers. The hotel-keeper, it was held, was
not subject to the special liability of an innkeeper. Drummond, J., says: " I
think Uiis is the true rule of law on the subject: H a person going into a
hotel as a guest takes to his room not ordinary baggage, not those articles
which generally accompany a traveler, but valuable merchandise, such as
watehes and jewelry, and keeps them there for show and sale, and from time



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224 Pettiqrew v. Babnum. [Maryland.

to time invitee partiee into hie room to inspect and pnroheae, onlees there ii
eome special circumstance in the case showing that the innkeeper assumes the
responsibility as of ordinary baggage, as to snob merchandise, the special obli*
gatlons imposed by the common law do not exist, and the goest, as to those
goods, beoomes their vendor, and uses his room for the sale of merchandise,
and really changes the ordinary relations between the innkeeper and guest."
In Clute y, Wiggins, 7 Am. Dec. 448, the innkeeper received the plaintiff as
his guest for the night, with his loaded sleigh, and horses. The sleigh and
contents were put by the innkeeper into an outhouse, where he usually put
such loads. The doors of the outhouse were broken in, and the load, consist*
tng of bags of grain, was stolen. The innkeeper was held liable. In Fiihtr
V. KeUey, 16 Fed. Rep. 71, where a statute provided that the innkeeper's
liability would attach to merchandise only in case of a written notice to the
innkeeper stating the kind and amount of goods, it was held that the notice
was absolutely necessary to fix such liability. In Needle$ v. Howard, 1 £. D.
Smith, 54, an innkeeper was held liable for a package of lace merchandise
bought by a guest at a store, and sent by the seller of the goods to the hotel
for l^e guest, the package having been received by the inkeeper for the guest,
l>ut stolen before delivery to the guest. Where the owner of a stallion gave
notice that on a certain day in each week the stallion would stand for mares
at defendant's inn, the party coming on such day and stabling the stallion at
the inn was held not to be a guest so as to render the innkeeper liable for an
injury to the animal: Mower$ v. Fethers, 61 K. Y. 34. Where an innkeeper
kept a sea-bathing establishment, but separately from his inn, he was held
not liable as an innkeeper for clothes of his patxons left while they went in
bathing: Minor v. Staples, 71 Me. 316.

An innkeeper may object to receiving within his prednots goods and chat-
tela of the guest which he perceives to be injurious and offensive for such
custody, or improperly secured, or such in kind, bulk, or value that no trav-
eler otight rightfully to make his host answerable for them: Kellogg v. Sweemg,
1 Lans. 397; Mgers v. OoUrill, 5 Biss. 465; Queen v. Hffnier, L. R. 2 Q. B. D.
136; Nf^iee v. Howard, 1 £. D. Smith, 54. In Howe Machine Co. v. Peaee,
49 Vt. 477, an innkeeper was held not liable for goods of a perishable ohanu)-
ter, it being stated that the loss in such case would be presumed to have been
in the ordinary and natural course of afiairs.

By statute, in many states, the responsibility of innkeepers for money and
valuables has been curtailed, by requiring the guest to deliver them into faSs
special custody; while upon the suggestion that the guest's own imprudence
has occasioned his loss, our courts have mitigated the rigor of the legal rule.
It has been held that an innkeeper is liable for money left by hb guest in the
hotel, even though it was not placed in the safe kept for that purpose, and of
which the guest had notice; but the innkeeper may excuse himself by diowing
due diligence on his part, and that the loes was not the result of his negli-
gence. The burden of proof, however, is on the innkeeper. Where the guest
is shoMoi to have had an unnecessarily large amount with him, or where he
has unnecessarily exposed his property or money to danger of loss, the inn-
keeper has been held not liable: Johnson v. Bichardson, 63 Am. Dec 369.
In Elcox V. Hill, 98 U. S. 218, a guest delivered to the baggage cleric as ordi-
nary baggage a valise containing six thousand three hundred dollars' worth of
jewelry, without notifying any one of the contents. The innkeeper was held
not liable.

Where the goods or articles are retained in the immediate control and di-
rection of the guest, the innkeeper has been held not liablei Oo^s Case, t



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Dec. 1867.] Pettigrew v, Babnuil 22B

Co. 32; HcaoUy t. SmUhy 25 Wend. 642. Thus in Weiamger y. TaylWy 1
Both, 277» it has been held that if a gaest brings into the ion an article of
e x tra ord inary Talne, not attached to hia.person nor earned with him for per-
•onal conTenienoe, as, for example, a bag of gold, case of jewelry, or package
of paper currency, the fact that he does not either notify the host or offer to
place it in his actnal castody will imply that he trusts it to his own care, and
if stolen, the innkeeper is not liable, unless for dishonesty of his own household.

Innkeepers haTO been allowed to make regulations which, if reasonable^
may in a measure restrict their liability. Thus it has been held that an
innkeeper may require guests to put their goods, or certain of their goods,
in a particular place, and that if they fail to do so the innkeeper is not lia-
ble: WUmm V. Haljm^ 1 Daly, 496; FuUer t. Ooat$, 18 Ohio St. 343. Bui
see Packard ▼. Northcrqft, 2 Met. 439. An innkeeper may specially require
and make regulations that goods of special value, money, jewelry, etc, not
required for daily use and convenience, shall be deposited in his custody, and
if actual notice is brought to the guest, and he fails to comply therewith, the
innkeeper will not be liable for such articles: Sianion v. Leland, 1 K D«^
Smith, 88; Fope v. HaO, 14 La. Aim. 324; Johuon ▼. Bidkurdaon^ 63 AmT
Deo. 360; Pr^fiki^. ffaU, 14 La. Ann. 524; Vam Wyckv. Howard^ 12 How.
Pr. 147; PwrvU v. Co2efium, 21 N. T. Ill; a C, 1 Bosw. 321; RownptaaUmr
T. RoampUumUr, 64 N. Y. 262; HyaU t. Taylor, 51 Barb. 632. But there
can be no rule exempting an innkeeper from liability for money or jewelry
which has been left in the guest's room in his trunk, unless he brings home to
the guest notice of a regulation that they must be deposited in such a plaoe
as he directs: Kdlogg ▼. Sweeny, 1 Lans. 397. The mere posting of the
notice is not sufficient: BodweU ▼. Bragg, 29 Iowa, 232. The innkeeper Is
liaftle, however, for necessary baggage, the guest's watch and personal ap-
parel, and for money which he has about him for his personal use, even though
a regulation exists requiring a deposit of valuables in the safe: Pope v. HeUl,
14 La. Ann. 324.

In Maryland and some other states the strict conmion-law rule has been'
relaxed, and innkeepers held liable for actual and necessary baggage only.
And in determining what constitutes such baggage, the station, life, and
habits of the guest may be taken into consideration: Trieber v. Burrows, 27
Md. 130; OiUe v. Fnmntleroy, 13 Id. 132, 139, both citing the principal case;
Prqftei v. HaU, 14 La. Ann. 129, 139. It should consist of only such ar-
ticles of neoessity and personal convenience as are usually carried by pas-
sengers for their personal use: Saseen v. Clark, 37 Oa. 242. What is proper
ba^ggage is a question for the jury. Money in a trunk for necessary traveling
expenses is proper baggage: MaJUby v. Chapman, 25 Md. 310; Ta^flor v.
Motmot, 4 Duer, 116; Van Wyck v. Howard, 12 How. Pr, 152; Stanton v.
Leiand, 4 E. D. Smith, 88. The jury will of course determine in each case
whether a sum is reasonable or not. A traveler about the country was held
properly to have forty dollars in his trunk: Noble v. MtUihen, 74 Me. 225.
8o, a traveler from Europe having four hundred and fifty dollars in his trunk:
Van Wyck v. Howard, 12 How. Pr. 152; and another having five hundred
dollars and a gold watch: Murchison v. Sergent, 69 Oa. 206 — were held to
properly have the same as part of their baggage, and the innkeeper was held
liable for its loss. An ordinary watch, chain, and jewels are properly part of
the guest's baggage: MaUby v. Chapman, 25 Md. 310; Bamaley v. Leiand, 6
Bobt 358. But a Colt's revolver and silver tea-spoons are not embraced'in
the term ** baggage," nor are surgical instruments, unless the guest is a physi
dan or surgeon, or a student of medicine: Oilee v. Fauntleroy, 13 Md. 126.
Am. Dao. Tol. LXIX— 1ft



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226 Keller u State. [Marylaoi^

By statute in Engbuid and in some of the United States, qnalificationa of
the innkeeper's liability have been introduced. This legislation is in most
cases intended to exempt the innkeeper from liability for valuable articles,
money, jewelry, and the like, and is also aimed to exempt the innkeeper
from losses by fire occasioned by no fault or negligence on his part. Where,
however, a statute so limits the innkeeper's liability as to certain goods or
in certain cases, in all other cases or as to other classes of goods the full com-
mon-law liability attaches; and where a deposit of valuable articles in the
office safe is required, if the deposit is so made the full oonimon-law liability
attaches to such articles, whether of minor or large value, and whether neces-
sary baggage or not: Wilkins v. EarU, 44 N. Y. 172; Ramaley v. Lelaitd^ 43
Id. 539; Pinharton v. Woodioard, 33 Cal. 557; Shoterajl v. BaUey, 25 Iowa,
553. Under statutes requiring the deposit with the innkeeper of gold and
silver articles and jewelry, the innkeeper has been still held liable for watches
and money for ordinary use: See Krone v. Sweeny, 2 Daly, 200; Bernstein v.
Stoeeny, 33 N. Y. Super. Ct. 271; Milford v. Wesley, 1 Wil. Super. Ct. 119;
Jiamaley v. Leland, 43 N. Y. 639; but see, contra, Stewart v. Parson, 24 Wis.
241; HyaU v. Taylor, 42 N. Y. 259.

General Objection to Evidence, Part of Which is Admissible: Smith
V. Causey, 65 Am. Dec 372; Barlow v. Lambert, Id. 374; Smoot t. Ealava,
58 Id. 310; and an objection to the admissibility of evidence must be con-
fined to the particular evidence claimed to be inadmissible: Everett v. N^,
28 Md. 185, citing Ifie principal case.

Refusal to Repeat Instruction alreadt Given in Substance is no
ground of reversal: TaJber v. Huston, 61 Am. Dec 96, and note collecting
prior cases in this series; Holbrook v. Utica etc /?. /?., 64 Id. 502; Bower v.
Webster, 66 Id. 96; Treat ▼. Lord, Id. 298, and note; Spencer v. Trafford,
42 Md. 21; SmUh v. Wood, 31 Id. 299; Kershner v. Kersher, 36 Id. 335, cit-
ing the principal case Nor will the judgment be reversed for refusal of a
correct instruction, if the others given cover the ground of controversy, and
give the law to the jury as favorably for the appellant as he is entiUed to
ask: Baltimore etc R. B. v. Worthington, 21 Id. 281; Philadelphia etc R, R.
V. Weaver, 34 Id. 434, both citing the principal case.

The principal case is cited in State v. Baltimore etc Steam Co., 13 Md.
188, to the point that if one of two persons must suffer from the acts of a
third, the loss should fall upon him who oould most easily have preventsd it.



KetiTiEr v. State.

(11 ICabtlakd, 636.]

TrrsM OF yUsrucxD Act of 1856, Chapter 353, Rbquibiho LiGBrsss oi
Vendors of Lager-beer Manttfactured bt Themselves is Suffi-
oikntlt Descriptive of its Subject-matter, within the constitntional
provision, 'which requires that *' every law enacted by the legislature
shall embrace but one subject, and that shall be described in the title,**
the title being " an act to raise additional revenue to pay the debts of the
* state, by increasing the rates of license to ordinary keepers and traders.**

8fATE Law Requiring Taking out of Licenses by Those Who Sell
their Own Manufacture of Laokr-bber in Small Quantities n
CkwsT l T U T l ONAL; such a law being but the exercise of the right to . m^h*



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Dec. 1857.] Keller v. State. 227

Ute intenuJ police and everything that relates to the morali and health
of the community.

ICanuvactured DoMEsno Abtiolb is Subject to Taxation and Liobnss
Laws on Same Rooting with Impobtbd Abticlbs; and while the
state may not prevent the manufacture of a deleterious article, it is not
bound to furnish a market for it, nor to abstain from the passage of any
law which it may deem advisable or necessary to guard the health or
morals of its citizens.

Mabtland License Laws of 1856 and of 1827, and Those Supplement-
ABT TO Latter, are to be Ck)NSiDERED tn pari materia; and the
absence of a penalty in the later act leaves those failing to take out a
license under it amenable to the penalties of the earlier act, the later act
being passed with the design of subjecting the vendors of lager-beer to
the same restraints as those selling other liquors.

Pinal Laws are not to be so Construed as to Defeat Obvious Inten-
tion OF Legislature, and though they are not to be extended, they
should receive a rational construction.

Udictment Lies for Disobeting Injunction of Legislature, though no
mode of punishment is pointed out by the statute enjoining the doing of

anact.

f
Indiotment for yiolation of the license laws. Six dififerent

persons were prosecuted under separate indictments, and were
conTicted, and the cases on appeal were all argued and sub-
mitted at the same time. The act of 1856, chapter 353, is en-
titled ''An act to raise additional revenue to pay the debts of
the state, by increasing the rates of license to ordinary keepers
and traders/' and enjoined it as a duty upon all desiring to sell,
in quantities less thaoi a pint, spirituous or fermented liquors or
lager-beer, to take out a license in the manner specified therein,
but does not provide for any penalty for a failure so to do. The
other facts are stated in the opinion.

John H, Ing and Charles F. Mayer, for the appellants.
MUUm Whitney, for the state.

By Court, Tuck, J. These cases were argued and will be de-
cided together, as they all depend on the same condition of facts
and law. In view of their importance, as affecting the public in-
terest, we have considered them upon the merits, and having con-
cluded that the parties were properly indicted and convicted,
it is TTT)T"f^^^"ftl to them whether we affirm or dismiss the appeals.
The latter point we have not examined.

These appellants were indicted, each in eight several counts,
for violating the license laws, from which they claim exemption,
because they "are manufacturers of lager-beer, which they
retail in mnsSl quantities, lees than a pint, in lager-beer saloona^
without license."



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228 Keller t;. State. [Maryland.

And firsts it is contended that the title of the aot of 1856,
chapter 686, is not sufficientlj descriptiTe within theseTenteenth
flection of the third article of the constitution, which declarea
that '* every law enacted by the legislature shall embrace but
one subject, and that shall be described in the title/' In the
<sase of Davis y. State, 7 Md. 161 [61 Am. Dec. 831], a construc-
tion was placed on this clause of the constitution which, we
think, maintainfl the yalidity of this act of assembly against the
objection now under consideration. This law relates to licensee
to ordinary keepers and traders as the subject of legislation.
The purpose is declared to be the raising of additional reyenue
to pay the debts of the state by increasing the rates of license.
The subject of the act would have been sufficiently indicated by
the title, if this purpose had not been declared. The act does
not dispose of the fund raised from these licenses, or in any
manner treat of the rcTcnue or debts of the state. It might,
with as much reason, be said that because a person violating
the act may be punished by indictment, three subjects are em«
braced, to wit, revenue, licenses, and crimes. The evils de-
signed to be prevented by this clause of the constitution are
well stated in Davis v. State, supra, and we do not perceive that
the act is multifarious in the sense of that instrument, or calcu-
lated to contravene its purposes. It is also contended that the
act is unconstitutional, because it lays a tax by way of license
on manufacturers of lager-beer, which, it is said, compels them
to pay more than their fair proportion towards the support of
government; that it is a revenue measure, and not an exercise of
legislative power under the last clause of the thirteenth article
of the bill of rights, '' with a political view, and for the good
government and benefit of the community." We might dispose
of this objection by referring to the case of Burton v. Staie, 3
Oill, 1, in which several questions were decided and points
ruled, upon the act of 1844, chapter 280, entitled ''An act
imposing . duties on promissory notes, bills of exchange, spe-
cialties, and other instruments of writing, to aid in paying the
debts of the state," and which act, as to some of the instruments



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 69 → online text (page 26 of 119)