Pettigrew v. Barnum, 11 Md. 434 (Md.)

Tuck, J.,

delivered the opinion of this court.

The appellant sued the appellees to recover damages for the

robbery of his wife’s trunk, while a guest at their hotel. After having offered evidence tending to prove the robbery, the plaintiff proposed to show by his own testimony, taken under a commission, that the articles alleged to have been stolen were in the trunk, and the value of them. The entire deposition having been objected to, and rejected, he offered the second interrogatory propounded to himself, and the answer thereto, which were also objected to, and excluded, and to this last ruling the first' exception was taken.

The question therefore is, how far, if at all, inn-keepers may be charged with such losses, upon the evidence of their guests ? and when we consider the amount of travel in this country, the subject is of great interest to the community as well as proprietors of hotels. As the loss happened before the passage of the act of 1854, ch. 323, the case must be disposed of according to the law as it stood at that time.

The exception to the general law of evidence on which the appellant relies, was applied many years ago, in England, to the liability of carriers, and also in other actions, where the nature of the transaction did not admit of better evidence. It is said, however, that the rule which excludes a party from testifying in his own case, was relaxed in these instances, in odium spoliatoris, and that, as these appellees did not commit the wrong complained of, the case is not an exception to the rule. We are not satisfied that this is the only ground on which the admissibility of such proof depends. One of the earliest decisions was against a carrier, where it did not appear that he had converted the box to his own use; and in another, under the Statute of Winton, the inhabitants of the hundred were as guiltless of the robbery, with the consequences of which they were charged, as are the appellees here. As against a defendant who had himself committed the act, and possessed the means of showing the damage, by producing the articles, the strongest presumptions would arise, and in such a case the plaintiff’s oath would be received with greater-propriety, in odium spoliatoris. And the same reason would apply in criminal prosecutions. *6 Md. Rep., 88. Broon’s Maxims, 425. 1*16 Peters, 203. But even then the admissibility of

the proof in civil actions would depend on the nature of the case; for there are many torts which go unredressed, by defect of competent evidence, though the acts complained of are of the most grievous and oppressive character; for the reason, that as a general rule, actions ex delicto as well as those ex contractu, must be supported by the oaths of disinterested witnesses. Where these are not to be had justice often fails, and the wrong-doer succeeds, unless the case be excluded from the operation of general principles.

But the cases which appear to be the foundation of this doctrine, do not place it on the ground suggested in argument. Ch. Baron Gilbert, (Ev., 128, 129,) speaking of actions under the Statute of Winton, says: that the exception was introduced, because the remedy would be totally denied to the party, if he were not accepted os a witness, inasmuch as, “no person can be supposed present in such transactions to give their evidence.” As showing early authority for this exception, now for the first time applied in this court, and to place its introduction on what we consider the proper basis, we give at length two cases which we find referred to, and recognized in almost all the elementary works, and in most of the reported decisions, on this branch of the law.

In 12 Viner, 24, pl., 34, it is said: “On a trial at Bodmyn, Coram Montague B., against a common carrier, a question arose about the things in a box; and he declared that this was one of those cases where the party himself might be a witness, propter necessitatern rei. For every one did not know what ho put into his box.” The case of Bennet vs. Hundred of Hertford, 2 Rolle, 685, is thus rendered, in Norris’ Peake, 223, note: “Ln an action against a hundred, brought by the master, being a carrier, for a robbery committed on his servant in the absence of the master, quere, whether the master, being the plaintiff in the action brought, may be a witness to prove that he delivered the moneys, of which his servant swears he was robbed, before his servant set out on his journey in which he was robbed ? for this might be proved by any other, and no person is to be a witness in his own cause, but for necessity; as if he himself liad been robbed, although that

he was plaintiff, yet he might be a good witness to prove himself to have been robbed, and of what sum or things, and also to prove that he gave notice to the next ville and levied hue and cry, for this is of necessity for default of other proof. But as to proving the delivery of the money to his servant before the robbery, and before he set out on his journey, this might be proved by any other as well as by him, although it was objected, that it is not safe nor usual for men to call witnesses, when they deliver money to carry on a journey, on account of the danger of discovery, and for this reason per curiam, against my opinion, it was ruled that he should be received as a witness.” And in the same note, it is said, that a similar case occurred before Mr. Justice Chambre, (in 1802, M. S.,) where a mob having robbed the plaintiff’s barge of corn, which was carried in it, that part of the case was proved by the servant, but he not knowing the quantity on board, and this case (in Rolle,) being cited, his lordship, on the authority of it, allowed the plaintiff to be examined to prove that fact. Butters N. P., at page 289, states as an exception to the general rule, that “a party interested will be admitted, where no other evidence is reasonably to be expected,” and in Lancum vs. Lovell, 9 Bingh., 465, (23 Eng. C. L. Rep., 335,) it was held, by the fourteen judges, that the case before them, an action for toll claimed on a road, came expressly within this exception of Mr. Justice Buller, because the nature of the case was such, that no other proof could reasonably be expected than that offered. See also 1 Phillip's Ev., 59.

These cases show, that the admissibility of such proof is recognized in England as established law, and that this exception is founded upon necessity, and was allowed for the attainment of justice, in certain cases, in which it would fail if the ordinary rules were applied.

The same point has been frequently ruled in this country, where the question appears to have arisen oftener than in England, and with a single exception, as far as we are informed, the decisions have followed the English doctrine. The only case the other way is that of Snow vs. The Eastern Rail Road Co., 12 Metcalf, 44. The cases referred to by the ap

pellant’s counsel, indicate that inn-keepers, carriers, railroad and steam boat companies, and stage owners, have been deemed as coming within the exception, and that necessity has been considered as fully justifying a departure from the general rule. Greenleaf, (Vol. 1, sec. 348,) says: “Such evidence is admitted, not solely on the ground of the just odium entertained, both in equity and at law, against spoliation, but also because, from the necessity of the case and the nature of the subject, no proof can otherwise be expected; it not being usual even for the most prudent persons, in such cases, to exhibit the contents of their trunk to strangers, or to provide other evidence of their value.” Ibid., sec. 349. Clark vs. Spence, 10 Watts, 335. United States vs. Murphy, 16 Peters, 203.

This application of the law of evidence to inn-keepers, is quite compatible with, nay, in most cases necessary, to insure the performance of the duties assumed by the landlord. In considering the rights and obligations arising out of particular relations, it is competent for courts of justice to regard considerations of policy and general convenience, and to draw from them such rules as will, in their practical application, best promote the safety and security of all concerned. Hence, common carriers and inn-keepers, are made liable without regard to actual fault or neglect, because they can best guard against danger, and because, in case of loss, it would be difficult for the owner to adduce proof of embezzlement or other actual fault or neglect on the part of the defendant. Landlords can secure the attendance of faithful servants and guard their houses against thieves. “The rule is founded on the expediency of throwing the risk upon those who can best guard against it.” Farwell vs. Boston Worcester R. R. Co., 4 Metcalf, 49. When a person opens an inn, he assumes a relation to the public which renders this mode of proof necessary to the protection of his guests. Whilst at large they may take measures to secure their baggage, but arrived at the hotel, the traveller has little agency in the means employed to that end. These depend on the regulations of the house, with which he has nothing to do. The baggage comes under the care of the establishment, and this custody is assumed as part

of the service to be rendered for the price to be paid. The proprietor stipulates for the honesty of his servants, and for the safety of baggage, except as against losses by means not necessary to'mention in this case. And, because it is not tolerated that trunks shall be subjected to inspection, nor indeed supposed that landlords desire such exposure of private baggage; and because travellers are not expected in anticipation of probable loss, to have persons attending their movements, and noticing what they put in, and what they remove from their trunks, from time to time, the law, upon grounds of necessity and general convenience, allows a party to be his own witness. If this were not so, it would be a complete immunity to the inn-keepers; contrary to one of the conditions on which he and his guest are presumed to come together, viz., that his baggage shall be safe. For, we may as well declare, at once, that the guest shall be his own insurer, while at the inn, as to deny to him the only evidence which he can reasonably be expected to furnish in case of loss.

It may happen, as suggested in the argument, that'mischief will result, by enabling dishonest persons to perpetrate frauds. This, however, may occur in any case where controversies are to be determined by oral testimony; for all suitors subject themselves to the risk and consequences of false swearing by the witnesses of their adversaries. It is true, that the interest which a party feels in the result, is a greater temptation to perjury than is presented to witnesses in general, but this consideration must yield to the necessity of the case, and the peculiar relations of persons in the predicament of these parties. The defendant, however, is allowed the benefit of the new character which the plaintiff assumes on taking the witness’ stand. He maybe cross-examined, impeached or rebutted, nd dealt with, in all respects, like other witnesses; and, in many cases, a searching examination of the party himself, as to his position, means and habits, will furnish the most certain test as to the probability, that the trunk contained the articles in respect to which the action may be brought.

The introduction of a party’s oath, as we have seen, depends on the nature of the subject, and the necessity of the

case. If he has disinterested witnesses to prove what the law \vould otherwise allow him to show by his own oath, they should be produced. Heuce, in this case, the position of the appellees’ counsel, that Miss Pettigrew’s deposition proved all that the plaintiff proposed to establish by his own, would be an answer to the offer of the plaintiff’s oath, if they had proved the same facts. But, on examining her evidence, we find that she knows nothing of the circumstances, (having previously left the hotel.) All that she says, bearing on this point,, is, “I do know that the trunks referred to, contained articles of value.” Again, she says, “the trunks of plaintiff mid his wife, contained jewelry and other articles.” She nowhere states that the wife’s trunk contained all these articles, or any specified portion of them. She knew nothing of the alleged robbery, and not knowing which of the trunks had been opened, she could not say that the one said to have been robbed contained the articles mentioned by her. The amount of her proof is, that her brother and his wife had these things in their trunks; and was of little effect in the cause, except to show that they had owned such articles, and the value of some of them. It is a case, then, where it does not appear, that the plaintiff had other proof to which he might have resorted, as to the contents of this particular trunk.

A question sometimes arises, as to the extent to which a party will be allowed to testify; that is to say, what articles he may prove to have been in his trank. As a general rule, a landlord is liable only for wlmt is considered baggage, and not for every article that the guest may choose to carry with him. But what is the baggage of a traveller, depends so much on circumstances, such as his position, habits, taste and mode of living and travelling, that it is easier to say, in a given instance, whether an article is embraced, than to lay down a general rule that will apply to all cases. We do not think the term embraces merchandize or other valuables not designed for use, or personal convenience, on the journey. It is not within the implied contract of the landlord, that he will be responsible for all goods which may be brought, to his house, merely because they happen to be in a trunk. If so, it is not easy to

define to what extent the power of the guest may be abused, and advantage taken by him, as against the landlord. 10 Watts, 335. *25 Wend., 459. Story on Bailments, 499. 11 Humph., 419. 12 Georgia, 224. 9 Wend.,* 115. 6 Hill, 589.

In the present case, we find that the trunk contained silver knives, forks and spoons. For them the appellees were not responsible. If a party may recover for these, why may lie not for many dozens of the same articles, or for any description and amount of plate? This we take to be in accordance with the reason of the case, and is supported by authority. But, for personal ornaments, appropriate for a traveller’s wardrobe, a landlord may be liable. And, inasmuch as the answer to the second interrogatory, contained evidence admissible under the pleadings, namely, proof of the jewelry, as part of the contents of the trunk, it should not have been altogether .excluded.

It was contended, on the part of the appellees, that this answer also contained evidence of the robbery, and that the plaintiff being incompetent for that purpose, it should have been rejected for that reason. We are not prepared to say, that a guest cannot, in any case, prove the loss of his baggage, by his own oath. The general rule is, that he cannot; but instances may occur, where the reception of such testimony would be necessary to the ends of justice, and also within the reason of the rule which governs this class of cases. For example, it is in proof in this record, that the chamber-maid had a master-key to the rooms under her care; and that there were notices in the rooms for lodgers to leave their keys at the office. What security would locking the door by the guest afford against the improper use of the master-key, or of the one left at the office ? If the room be entered and robbed, in his absence, and no signs of violence appear, ought the guest to be required to produce other proof of a fact that it is quite manifest he cannot so establish ? And yet it is plain, that under this hypothesis he might be injured by the very agents of the landlord, who, of course would not testify against themselves. The case supposed, would be within the reason assigned by Oh. Baron Gilbert, “that no person can be supposed present in such transactions to give their evidence.” These remarks

are made, not as applying to this action, but to avoid a conclusion hereafter. As we have said, the plaintiff had offered other evidence of the robbery, and his own oath, if admissible under a different state of case, was not necessary for that purpose. And so also we may add, in reference to this deposition, as containing evidence of the value of the jewelry, if relied upon for that purpose, that the party’s oath of the value, if received at all, can only be whore the nature of the subject and the necessity of the case are within the reason of the exception. There appears to be some diversity among the cases, and as this record does not need any expression of opinion by us, there being other proof of the fact by the plaintiff’s sister, we confine ourselves to admitting the answer to the second interrogatory, as evidence of the contents of the trunk.

There is, to be sure, difficulty, sometimes, in separating what is admissible from what the law rejects, so as to enable the party objecting to bring the precise point before the court, and this is more likely to occur in offering interrogatories and answers under a commission. Where, however, it can be done it should be, as in Calvert vs. Coxe, 1 Gill, 95. If the matters are so blended as to be inseparable for the purpose of distinct objections, the party may accomplish his object by asking an instruction as to the applicability of the evidence, and its effect on the case or any branch of it. Pegg vs. Warford, 7 Md. Rep., 582. Carroll vs. Granite Manf. Company, 11 Md. Rep., 400.

Without expressing any opinion upon the law of the plaintiff ’s second prayer, we may remark, that if correct, its refusal furnishes no sufficient ground for reversing the judgment. His first prayer, granted by the court, had given the law to the jury, as favorably as he could have desired, deciding, among ether points, that the landlord’s liability was not limited by the notice j whether it was read or not, therefore, could make no difference. It has been frequently ruled, that a prayer, the subject of which is covered by previous instructions, ought not, to be granted, because such repetitions are calculated to embarrass the jury and may mislead them. Mutual Ins. Co., vs Cohen, 3 Gill, 459. Stokes vs. Saltonstall, 13 Peters, 181.