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Opinion of the Court, per PORTER, J.

The defendant on the trial moved for a nonsuit, and in the end the judge ordered the complaint to be dismissed. His decision was affirmed on appeal to the General Term, and the present appeal is from the judgment of affirmance.

Isaac W. Thompson, for the appellant.

James Gibson, for the respondent.

PORTER, J. As there was no negligence on the part of the intestate, he was not liable for the loss, unless he was an insurer of the property. There was no express contract of insurance, and none can be implied, unless it sprung from the relation of innkeeper and guest. No such relation existed between the parties. The horse was left at the stable by one who was not, and did not expect to be, a guest at the inn. There was no contract, either express or implied, except for the keeping of the animal for the night; and this created no other or greater liability than if the intestate, instead of being an innkeeper, had been the proprietor of a livery stable. The liveryman, like the agistor, has no lien on the property committed to his charge. (Grinnell v. Cook, 3 Hill, 486, 492; Fox v. McGregor, 11 Barb., 41; Wallace v. Woodgate, 1 Car. & Payne, 575; Jackson v. Cummins, 5 Mees. & Wels., 342.)

The liability of the innkeeper as an insurer presupposes the relation of host and guest. It had its origin in an ancient custom of the realm, which fixed the correlative rights and obligations of the parties, by securing to the traveler a special remedy for his goods, and to the host a specific lien for his charges. These were peculiar and mutual rights accessory to the particular relation. But an innkeeper is not restricted to the special business of his calling, and he is free to contract with those, who do not care to become his guests. When he receives property from one, who is neither a guest nor a traveler, the custom of the realm has no application. The property is subject to no lien and protected by no insurance. His obligation is simply that of an ordinary bailee for hire. (Binns v. Pigott, 9 Car. & Payne, 208; Grinnell v. Cook, 3 Hill, 485; Hickman v. Thomas, 16 Ala., 666; Thickston

Opinion of the Court, per Davis, J.

v. Hooard, 8 Blackf., 535; Towson v. Havre de Grace Bank, 6 Har. & Johns., 47.)

The theory of the appellant, that one who contracts for the stabling of his horse by an innkeeper, is constructively an inmate of his house, is supported by a case reported in Massachusetts, but we think that decision was made under a misapprehension of the law. (Mason v. Thompson, 9 Pick., 280.) Its correctness has since been questioned by the court in which it was pronounced. (Berkshire Woolen Co. v. Proctor, 7 Cush., 425–6.) The authorities, on which it rests for support, were fully considered in the able opinions delivered by Judge Bronson, in the case of Grinnell v. Cook, and by Judges POTTER and Bockes in the present case in the court below, and we think their reasoning conclusive against the doctrine, that an innkeeper can be held as an insurer of property, received from one who is neither traveler nor guest.

The judgment should be affirmed, with costs.

Davis, J. No question was submitted to the jury in this case, except as to the value of the property, which was assessed by them at $125. All other questions were reserved for consideration by the court, with consent of counsel. The court made no special finding of facts, but after hearing counsel, directed judgment to be entered for the defendant. The correctness of this practice is not now in question. There was no conflict in the testimony as to the material facts, and this court is to regard them as having been found as favorably to the defendant as the evidence would have permitted. The defendant's intestate was an innkeeper at Hartford, Washington county. The plaintiff's assignor was a farmer, residing a few miles from that village. He drove into the village on a Sunday morning for the purpose of attending church, and hitched his horse under the innkeeper's shed. After church, he went to his mother-in-law's, who lived in the same village, where his wife was then remaining, and became her guest for the night. He afterwards went to the inn and gave directions to put his horse into the stable for the night, which was done. On the fol

Opinion of the Court, per Davis, J.

lowing morning the stable of the inn was destroyed by fire without fault of the innkeeper or his servants, and with it the property, for which this action was brought, was lost.

Upon these facts the court held that the plaintiff's assignor was not a guest of the inn of defendant's intestate, and for that reason gave judgment for defendant. The General Term of the fourth district affirmed the judgment.

The decision was correct. The person who left the property in the innkeeper's care for the night, never became a guest of the inn, either actually or constructively. The authorities all agree that this relation must exist before the extraordinary liability of the innkeeper arises. The only difference between them is as to the state of facts necessary to create the relation.

The question was very fully discussed in the late Supreme Court in the case of Grinnell v. Cook (3 Hill, 485), where the authorities are commented upon at length by Justice Bronson; and although the facts of that case were different in some respects from those of the present case, yet the rule there laid down is the controlling one in this State, to wit, that one, who has neither been at an inn as a guest, nor intends going there in that relation, cannot be regarded as a guest, although he sends goods there to be taken care of by the innkeeper. The question was very fully considered in the court below in the admirable opinion of Mr. Justice POTTER, in which I fully concur.

I am for affirmance of the judgment.
All the judges concurring, the judgment was affirmed.

Statement of case.

ALMA BEDELL v. TIMOTHY S. CARLL and WALTER SCUDDER,

Executors, &c., of Aaron H. Bedell, deceased.

The possession of a promissory note by the plaintiff, indorsed in blank by the

payee thereof, is prima facie proof of ownership, and sufficient, in the absence of other evidence, to entitle the holder to recover on proving the indorse

ment, &c. The allegation in the complaint, that the holder acquired title thereto by gist

from the payee, is unnecessary; and being alleged, need not be proved. It seems, the promissory note of a third party is the subject matter of a gift inter

vivos; and the delivery thereof into the immediate possession of the donee

is sufficient to uphold such gift. The rule being, that all that is essential to uphold a gift of personal property

by parol, is an expression to that effect by the donor, accompanied by a delivery of the thing to the douee.

APPEAL from judgment of the Supreme Court.

The action was on a promissory note made by one Edward Berry, and delivered for value to Aaron H. Bedell in his lifetime. The plaintiff, who was the daughter of Aaron H. Bedell, claimed to be the owner and holder of the note, and as such, to recover in this action. The action was originally commenced against Berry, but on motion, Carll and Scudder, executors of Aaron H. Bedell, who had died subsequently to the alleged transfer of the note to the plaintiff, were substituted as defendants in his place, under sec. 122 of the Code. Berry paid to the clerk of the court the amount directed by the order, viz: the note and interest due thereon, and the action proceeded against the substituted defendants.

The plaintiff, in her complaint, alleged that Berry, on the 29th of March, 1855, by his promissory note, in writing, dated that day, for value received, promised to pay, on demand, to Aaron H. Bedell, or order, the sum of $200 with interest thereon, at the rate of seven per cent per annum, from the date of the note; that Berry paid the interest thereon up to the 29th of March, 1859, in several payments; that the plaintiff is the daughter of Aaron H. Bedell, the payee in said note, and that after the making of the same,

Statement of case.

and the payments of the interest thereon as aforesaid, her father, the said Bedell, indorsed said note, and delivered the same to her as a gift, to be her sole and separate property; and that she is now the lawful owner and holder of said note.

The defendants, in their answer, admitted the making of the note by Berry, and that the amount claimed was due upon it, but denied that Bedell, the payee, indorsed it, or delivered the same to the plaintiff as a gift, to be her sole and separate property, or that she is now the lawful holder and owner of the same, on information and belief. As an affirmative defense, the answer alleged that at the time of the pretended gift, indorsement and delivery of said note by the payee therein named to the plaintiff, the said Aaron H. Bedell was in such a state and condition, by reason of sickness, that he was incapable of transacting business of any kind, performing any legal act, or making any sale, gift or other disposition of any property then belonging to him, by then being of unsound mind, and incapable of judging of the effect of his acts, or distinguishing between right and wrong.

The cause was tried before Mr. Justice Lort and a jury, at the Suffolk Circuit, in October, 1864. On the trial the plaintiff produced the note, and, as the case states, through her counsel claimed to be entitled to recover in the action on the ground of an alleged gift of said note by the said Aaron H. Bedell to the plaintiff, who was his daughter, during his last illness, and three or four days before his decease. After producing the note and proving the indorsement, the note and indorsement were read in evidence, and after an admission of the amount of interest, the plaintiff rested her case.

The defendants, as executors of Aaron H. Bedell, thereupon moved the court for judgment directing that said moneys belong and be paid over to the said defendants, on the ground of the insufficiency of the proof on the part of the plaintiff to establish a gift, causa mortis, of the note in question to the plaintiff. The court overruled and denied the motion, and the defendants excepted.

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