INN DISTINGUISHED. 223 sengers; nor are they carriers of passengers. They simply provide certain conveniences for passengers carried by another carrier, so that the difficulties and hardships of travel may be ameliorated to a certain extent. "I should be glad to follow any authority that allowed me, in the interest of the public, to hold sleeping car companies to a stricter liability than such corporations have yet been held subject to; but there is no authority that permits me to do it, and the weight of authority, it seems to me, is in the other direction. But I doubt whether in any event I should want to hold, if there were authorities that authorized me to, that from the simple fact that this money was presumptively in the possession of the doctor when he got into his berth and went to sleep that night, after the vest had been returned to him, and eighty dollars of it was gone in the morning, that that proof alone would charge the defendant with liability. I think this would be an unjust and unreasonable result. seems to me that such a result would be disastrous, and instead of being in the interest of the public, would ultimately destroy any sleeping car company in existence. There would be no possible means for them to protect themselves against fraud. Any person who saw fit to represent the next morning that he had been robbed the night before; that he had had a certain sum of money-not too much, so it would be an unreasonable sum to carry as a passenger-and that he lost it during the night, would place the sleeping car company at the mercy of the jury or tribunal which decided the question of fact. Without 16 It elaborating my views, I think this motion should be granted." The counsel for plaintiff asked the court to hold that it was negligence on the part of defendants in not providing a proper place to care for the valuables of their guests; but the court declined to hold such a doctrine, stating that that was for the legislature to provide.1 In charging a jury in the United States Court, District Judge Brown made the following distinctions between sleeping cars and inns: "There are good reasons for not extending such liability (the liability of inn-keepers) to the proprietor of a sleeping car: 66 1. The peculiar construction of sleeping cars is such as to render it almost impossible for the company, even with the most careful watch, to protect the occupants of berths from being plundered by the occupants of adjoining sections. All the berths open upon a common aisle, and are secured only by a curtain, behind which a hand may be slipped from an adjoining or lower berth, with scarcely a possibility of detection. "2. As a compensation for his extraordinary liability, the inn-keeper has a lien upon the goods of his guests for the price of their entertainment. I know of no instance where the proprietor of a sleeping car has ever asserted such a lien, and it is presumed that none such exist. The fact that he is paid in advance does not weaken the argument, as inn-keepers are also entitled to prepayment. 1, NOTE--An appeal has been taken from this decision and is pending in the General Term, but has not been brought on fo argument. INN DISTINGUISHED. 225 "3. The inn-keeper is obliged to receive any guest who applies for entertainment. The sleeping car receives only first-class passengers traveling upon that particular road, and it has not yet been decided that it is bound to receive those. "4. The inn-keeper is obliged to furnish food as well as lodging and to receive and care for the goods of his guests. The sleeping car furnishes a bed only, and that, too, usually for a single night. It furnishes no food and receives no baggage in the ordinary sense of the term. The conveniences of the toilet are simply an incident to the lodging. "5. The conveniences of a public inn are an imperative necessity to the traveler, who must otherwise depend on private hospitality for his accommodation, notoriously an uncertain reliance. The traveler by rail however is under no obligation to take a sleeping car. The railway offers him an ordinary coach and cares for his goods and effects in a van especially provided for that purpose. "6. The inn-keeper may exclude from his house everyone but his own servant and guest. The sleeping car is obliged to admit the employees of the train to collect fares and control its movements. "7. The sleeping car cannot even protect its guests, for the conductor of the train has a right to put them off for non-payment of fare or violation of its rules or regulations." * I UNAUTHORIZED ACTS OF SERVANTS. A principal is only liable for the acts of his servants or agents when they are done in the course of the employment in which they are engaged. Accordingly I, Blum vs. Southern Pullman Co., 1 Flippin, (U. S..) 500; where the porter of defendant threw out a bundle containing his own soiled clothing for the purpose of having it washed, and plaintiff, a track hand at work near by, was struck by the bundle and injured, it was held that he could not maintain an action against the sleeping car company by which the porter was employed. The court held that a corporation owning a parlor car in use on a railroad, under an agreement between it and the railway corporation, is not liable for an injury caused a person not a passenger by the porter, while doing something not in the course of his employment, as servant of the defendant.' RAILWAY COMPANIES LIABLE TO SLEEPING CAR PASSENGERS. The sleeping car is a modern innovation in traveling, and as such vehicles are usually owned by a corporation entirely independent of the railway company which owns the tracks over which they are run, there has been considerable difference of opinion as to which company is liable for any losses or injuries to passengers in sleeping or palace cars. As sleeping coaches were used in this country long before their introduction into England, we cannot, as in the case of inns, seek for instruction in the common law of the mother country. We must depend upon the decisions of our own courts, and, as the invention of such coaches is so recent, the law can hardly be said to be firmly established. In a leading text book it is stated that: "It is a matter of common knowledge, that these cars I, Walton vs. N. Y. C. Sleeping Car Co., 139 Mass., 556, 21 WHERE LIABILITY RESTS. 227 run by a corporation entirely distinct from the railway corporation over whose roads they run, and therefore they are not open to any passenger upon the train but only to such as pay the requisite extra compensation therefor and are accepted by such company. These corporations, standing alone, cannot be said to be common carriers in any sense, or subject to the rules applicable to common carriers. They do not 'carry' the passengers, or undertake to do so, nor do they become responsible for their safe carriage, beyond the implied guaranty that their cars are sound, safe, and roadworthy, which is an implied obligation arising from their contract, which applies to any person or corporation who lets a vehicle for hire. It is held, and with great propriety, that the liability of the railway company for the safe carriage of a passenger in one of these cars remains unchanged; that by accepting and adopting these cars as a part of its train, it is responsible for any defects therein, and a passenger who is injured by reason of their defective condition may have his remedy against either or both corporations. The palace car company merely furnishes the car and says to the traveling public that upon the payment of the sum charged for seats therein, we will furnish you with accommodations which you cannot obtain on the regular trains, to wit, roomy and comfortable chairs by day, and a bed at night, with toilet arrangements, etc. It simply contracts to furnish these attractive and additional accommodations during the trip. It does not undertake to carry the passenger, nor does it hold itself out as having any authority or control over the train or its passage over the rails. No one understands, or has any right to |