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Lewis v. New York Central Sleeping

Car Co., supra.

So far, the cases, to which attention has been drawn, have related solely to actions brought against sleeping car companies strictly so called, but inasmuch as the question, whether or not the liability of an innkeeper attaches to the owner of a steamboat, is so closely connected with the subject that an examination of the cases upon this side of the question seems necessary.

There would seem to be more reason for holding the owner of a steamboat to the responsibilities of an innkeeper than in holding a sleeping-car company, purely so called, thereto. In a steamboat, a person occupying a state-room, has the means of protecting himself by lock and bolt against the thief; and a cloak room is provided; he is also furnished with meat and drink upon the premises, in the same manner as at an inn. Yet here, the courts have differed in their opinions.

In the case of Steamboat Crystal Palace v. Vanderpool (1855), 16 B. Mon. (Ky.) 302, a case in which a theft had been committed, of articles from the passenger's state-room in the night, CRENSHAW, J., says, "Steamboats are, in some respects, analogous to inns, and it would greatly promote the ease, comfort, and safety of the traveling community if their owners were held responsible to the same extent that innkeepers are; but, so far as we know, they have never been held accountable upon the principles applied to innkeepers." He regarded them however

as common carriers and held them not liable, as the articles were not entrusted to their safe keeping.

In Macklin v. New Jersey Steamboat Co. (1869), 7 Abb. Pr. (N. Y.) 229; s. C. 9 AMERICAN LAW REGISTER 239, which was also a case of theft, DAILY, Į, applied the law upon the question of the lia. ility of innkeepers to the case of

a steamboat, in which the traveler is carried, lodged and fed," and may "with some liberty of speech, be called a traveling inn." Here again the Court found the defendants liable as common carriers of passengers.

Crozier v. The Boston, New York and Newport Steamboat Co. (1871), 43 How. Pr., (N. Y.) 466, was also a case of larceny of articles from the plaintiff's stateroom in the night, although he had taken the precaution to lock the door before retiring. In this case CARTER, J. C., as referee says, "1 perceive in it all the elements of that form of liability which, under the cir cumstances analogous, attaches to an innkeeper. The rule of law applicable to such a case, I think to be this,that if any of the

articles or money

which the passenger properly has with him in the state room are stolen, the presumption is, that the theft was in consequence of the default of the carrier and that this presumption can be rebutted only by proof that the loss was attributable to the negligence or fraud of the passenger, or to the act of God, or of the public enemy. All the considerations of public policy, which have operated to fix upon innkeepers the rigorous liability above indicated, apply, as it seems to me, with increased force to the case of carriers of passengers under these circnmstances."

Thus the cases above cited apply the strict rules of law relative to innkeepers, to the owners of steamboats, while, in the following the contrary opinion is held.

In Clark v. Burns (1875), 118 Mass. 275, defendants were sued, for the value of a watch stolen from plaintiff's state-room, as common carriers, with counts charging them with negligence and charging them as innkeepers. Here GRAY, C. J., said: "The liability of an innkeeper extends

only to goods put in his house as keeper of a public house, and does not attach to a carrier who has no house, and is engaged only in the business of transportation. The defendants carrying passengers and goods for hire, were not innkeepers." He further held that in order to enable plaintiff to recover, negligence must be proved.

The view taken in this case is supported by the case of American Steamboat Co. v. Bryan (1887), 3 W. N. C. (Pa.) 528, where it was held that they could not be held as innkeepers; nègligence must be proved.

These last two cases are supported by the opinion of RICHARDS, J., in Pullman Palace Car Co. v. Gaylord (supra), wherein, in speaking of a sleeping car, he says: "It could no more be said that a sleeping car was an 'inn on wheels' than that a steamboat was an inn on water.'"

The fact, that such personal belongings of the traveler as he may reasonably carry with him are lost in, or stolen from, a sleeping car, does not relieve the railroad company from responsibility therefor. This was decided by the case of Kinsley v. Lake Shore and Michigan Southern R. R. Co. (1878), 125 Mass. 54, where the plaintiff, a traveler on the defendant's road, occupied a berth in a sleeping car owned by another company. On stopping at a depot for the purpose of taking dinner, plaintiff asked an employe whether his baggage would be safe if left in such car, and on being informed that it would, left it, and went to dinner. On his return he found the car had been taken off the train, and was told he would find his baggage in another car on the train. Boarding such car, he found some portion missing, and brought an action against the railroad company. In the opinion of the Court, GRAY, C. J., says: "The fact that the car was not

owned by the defendant, but was used on its road under a contract with other parties who furnish conductors and ser. vants to take charge of such car, there being no evidence that the plaintiff knew of that contract, or had any notice that the car was not owned by the defendant and under its exclusive control, could not affect the measure of the defendant's liability to the plaintiff." The same result was reached in the case of Pennsylvania Co. v.. Roy (1880), 102 U. S. 452, where personal injuries were received by the plaintiff, riding in a sleeping car, through the falling of a berth. Holding the railroad company liable, HARLAN, J., remarks, "The law will not permit a railroad company, engaged in the business of carrying people for hire, through any device or arrangement with a sleeping car company whose cars are used by, and constitute a part of the train of the railroad, to throw off the duty of providing proper means for the safe conveyance of those whom it has agreed to carry." See to the same effect, Louisville, Nashville & Great Southern R. R. Co. v. Katzenberger (1886), 16 Tenn. 380.

Reference may here be made to the annotation to the cases of Walling v. Potter (1868), 9 AMER. LAW REG. 618; Pullman Palace Car v. Smith (1874), 15 Id. 95; and Lewis v. New York Central Sleeping Car Co. (1887), 26 Id. 359, as further supporting the view here taken.

This annotation has, as far as possible, been confined to the question of holding sleeping car companies liable as innkeepers, and has not touched, or if so, very slightly, upon the question of their liability as common carriers of passengers, inasmuch as that question did not arise, nor was it even mooted in the principal case.

ERNEST WATTS.

ABSTRACTS OF RECENT DECISIONS.

BAILMENTS.

Deposit of grain for storage is a bailment, the title remaining in the depositor so that he is deemed to be the owner of grain in the warehouse to the amount of his deposit, although the identical grain he deposited has been removed, and other grain, of like kind and quality, substituted in its stead. Hall v. Pillsbury, S. Ct. Minn., Feb. 18, 1890.

BANKS AND BANKING.

Depositary of taxes collected to satisfy county bonds issued in aid of a railroad company, which depositary has been duly selected. cannot be held responsible, on the ground that an excess of bonds has been issued, for money which it pays out by order of the committee having charge of the fund, in the absence of any fraud or collusion between the bank and the committee, and the facts that the president of the bank was also president of the railroad company, and that one of the committee was cashier of the bank and secretary of the railroad company, do not impose upon the bank the duty of knowing which of the bonds are valid and which invalid. Deposit Bank of Owensboro v. Daviess County Court, Ct. App. Ky., Jan. 16, 1890.

Depositor drew his own check upon a bank and deposited it with another bank where he also had an account; the latter, instead of collecting the check, exchanged it for a bank-draft, which was not paid, and then notified the depositor that the draft was held subject to his order; the latter, with knowledge of all the facts, directed the bank to hold the draft a few days and then send it to him; the depositor's action amounted to a condonation of the bank's negligence and released it from liability for not collecting the check. Hazlett v. Commercial Nat. Bank, S. Ct. Pa., Feb. 3, 1890.

BILLS AND NOTES.

Indorsement is constituted by the payee writing upon the back of a promissory note, "For value received, I hereby guaranty payment of the within note, and waive demand and notice on the same when due," and signing the same. Helmer v. Commercial Bank, S. Ct. Neb., Jan. 7, 1890; Weitz v. Wolfe, S. Ct. Neb., Jan. 14, 1890.

President of corporation indorsed a promissory note .or discount in the name of the corporation; he had no direct authority to do so, but the corporation was without working capital, which could be gotten only by borrowing, and the president conducted all of its business, paid its expenses and had for a number of years been accustomed to procure discounts for its benefit, with the knowledge of the directors, by indorsing in its name; a finding by a jury that the president had authority to bind the corporation by such an indorsement, would be sustained. Fifth Nat. Bank of Providence v. Navassa Phosphate Co., Ct. App. N. Y., Feb. 25, 1890.

Time of payment, as fixed by a promissory note, may be controlled by a separate written agreement, made and entered into by the parties at the time of the execution of the note. Jacobs v. Mitchell, S. Ct. Ohio, Dec. 3, 1889.

CHATTEL MOrtgages.

Retention of possession by a mortgagor of a stock of goods, with the understanding that he shall continue to sell them at retail in the ordinary course of trade, is fraudulent and void as to creditors of the mortgagor attaching the goods while in the hands of the latter. Huschle v. Morris, S. Ct. Ill., Jan. 21, 1890.

COMMON CARRIERS.

Fire clause in a bill of lading, which exempts from liability for loss by fire, a railroad company which has made no reduction in its freight rates in consideration of such clause, is not a valid limitaCion of the carrier's common law liability, and will not be enforced, and where the carrier has given its customers no choice as to whether they would ship with or without the fire clause, the acquiescence of the shipping public in the form of a bill of lading which contains such clause, does not establish the reasonableness of the exemption. Louisville & N. R. R. Co. v. Gilbert, S. Ct. Tenn., Jan 30, 1890.

Limitation of liability of a railroad company to a shipper to a certain specified amount, in case of loss or damage arising through the negligence of the company, in consideration of a reduced rate of transportation, is valid, though the property is worth much more than that amount and though it is provided by statute that any agreement to exempt the company from liability occasioned by its own neglect, shall be invalid. Richmond & D. R. R. Co. v. Payne, S. Ct. App. Va., Jan. 30, 1890.

CONSTITUTIONAL LAW.

Appointment of municipal officers, under an act authorizing the mayors of all the cities in the State to make such appointments, the act to take effect only in such cities as shall accept it at a popular election, is not unconstitutional; such act is not special or local legislation. In re Cleveland, Mayor of Jersey City, Ct. Err. and App. N. J., Feb. 6, 1890.

Decree of State Court restraining citizens of that State from prosecuting attachment suits begun in another State, and brought therein in order to evade the laws of the first State, is not in violation of the constitutional provisions that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State," or that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Cole v. Cunningham, S. Ct. U. S., Jan. 20, 1890.

DEBTOR AND CREDITOR.

Acceptance of note of a third party for a pre-existing debt, and the surrender of the original notes which represented such debt,

followed by suit and recovery of judgment upon the new note, will estop the creditor from pursuing the original debtor. Dick v. Flanagan, S. Ct. Ind., Feb. 25, 1890.

EASEMENTS.

Stairway, leading from the street to the second story of a threestory building, erected upon a corner lot, and covering the whole of it, was constructed in the corner room of the first story; at the landing of the stairway, and connected with it, a hall was made, extending over the room next to the corner room and connecting, with the room over the next adjoining room; the rooms in the second story were intended for offices, and, to adapt them for such use doors were made opening into this hall; another stairway was also put in, running from the hall to the third story; the stairway leading from the street to the second story was the only means of access to the hall above and to the rooms opening into it, and its use was necessary to their proper enjoyment; while the premises were in this condition, the owner sold and conveyed a part thereof, described by metes and bounds, which included the hall connected with the landing of the stairway leading from the street, and the office rooms on the second floor opening into the hall, and the purchaser, with the knowledge of his vendor, who retained the corner room in which was the stairway, immediately entered upon and continued the use of such stairway as his only means of access to the hall and connecting rooms purchased on him : a right to the use of the stairway passed by the conveyance to the purchaser as an easement appurtenant to the premises conveyed. Nat. Exchange Bank v. Cunningham, S. Ct. Ohio, Nov. 19, 1889.

FIRE INSURANCE.

Delivery by agent, who has been informed by the assured that the building covered is on leased land, of a policy in which this fact is not noted in writing, amounts, in the absence of collusion, to a waiver of the condition requiring it to be so noted, although the policy provides that, "the use of general terms, or anything less than a distinct agreement indorsed on the policy, shall not be construed as a waiver of any restriction therein." Home Ins. Co. v. Stone River Nat. Bank, S. Ct. Tenn., Jan. 14, 1890.

Mortgage placed upon the insured property is of itself an increase of the risk and a decrease of the security of the insurer, since it lessens the interest of the insured in the property, even though no right of action has accrued upon such mortgage, which is given to secure a surety on a debt not yet due. Lee v. Agricultural Ins. Co., S. Ct. Iowa, Feb. 6, 1890.

Transfer of property, covered by a policy of fire insurance, in a mutual company, the policy-holder retaining an insurable interest in the property, will not prevent recovery for a subsequent loss, although a by-law of the company provides that "policies of insurance may be assigned with the consent of the president and secretary, the parties paying fifty cents recording fees, at the same time giving his undertaking to the company, and the company

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