Giles v. Fauntleroy

Eccleston, J., delivered the opinion of this court. This is an action on the case, instituted in the Court of Common Pleas for Baltimore city, by the appellee against the appellant, to recover the value of a trunk and its contents, ah leged to have been lost whilst the plaintiff was a guest at the defendant’s inn. The declaration contains two counts, each charging the defendant as an inn-keeper. The plea is not guilty.

At the trial it was admitted that the plaintiff lodged, as a guest, at the hotel of the defendant^ that the articles enumerated in the list annexed to the agreement were in the plaintiff’s trunk at the time the same was alleged to have been broken open, and that the value of said articles is the value set opposite to them, respectively, in said list. The list alluded to contained— 1 Prime case surg. instruments, - |30.00 1 Tonsil cutter, - 5.00 1 Large sized Colt’s pistol, - 30.00 1 Dozen silver tea spoons, - - 15.00 1 Pocket bible, gold clasp, - 2.50 1 Travelling trunk, - 5.00 And sundry articles of clothing, list being $102.55. The amount of the whole A witness named Gwinn testifies, that on or about the 17th of April 1855, as the agent of the plaintiff, he called upon the defendant in relation to the loss of the plaintiff’s trunk, when he stated that it had been delivered to Barnum’s porter, according to the usage of the house. And that if there was any loss, he, defendant, would hold Barnum’s porter answerable for it.

This conversation was about a month after the trunk had been lost. Some weeks afterwards, whilst passing the hotel, the defendant’s clerk called the witness in and showed him a black leather trunk, and asked him if it belonged to the plaintiff. He could not identify it. The plaintiff also proved by Harback, that during the mouth of March 1855, the witness was the clerk in the office of the hotel kept by the defendant, on Baltimore street, and that ¹³³ from the 14th day of said month, until the morning of the 17th, the plaintiff was a guest in said house.

Upon cross-examination this witness states, that on the morning of the 17th day of March 1855, before 12 o’clock, M., the plaintiff called at the office, and told witness that he intended to leave, and then paid his bill up to that time, and that what he paid for the room entitled him to its use for the entire day. When the bill was thus paid, the plaintiff requested witness to keep his trunk for him “until 4 o’clock, P. M., in the afternoon of said day, and then have it sent to the steamer Virginia, or Gladiator,” witness does not remember ■which, but that they both belonged to the same line. The plaintiff left with the witness twenty-five cents to pay the porter, and then left the said hotel and did not return again. Sometime after the plaintiff had left, witness sent word to Barnum’s porter to call at 4 o’clock for said trunk, there being no regular porter connected with said hotel, and it being the custom of the house to employ said porter when baggage was to be taken away.' At 4 o’clock the porter called and witness had the trunk brought down by servants and delivered to him, and told him to take it to the steamer which the plaintiff had named; witness cannot now recollect whether it was to be taken to the steamer Virginia or Gladiator, but is certain, that at the time he directed the porter to carry it to the right boat, and gave the porter twenty-five cents, the sum which the plaintiff had left with him to pay the porter.

This witness further states, that when he caused the trunk to be delivered to the porter, he believes that it contained all the articles mentioned in the schedule filed by the plaintiff in this cause, and that none of them were lost while the trunk was in the hotel. He did not particularly examine the trank when brought down, but saw it and was near it, and thinks it was in order. He saw no marks of its having been opened. That when the witness Gwinn called about the loss of the trunk, the defendant, on being informed of its loss, sent for the said porter and told him that it must be found; that after some time the trunk was found in the office of the Norfolk boats, in this city, broken open and the contents stolen, and was, in that condition, brought by said porter to the defendant’s house. ¹³⁴ The plaintiff also proved by Mr. Cassin, that before the present action was brought, he, as attorney for the plaintiff, called upon the defendant in relation to the loss of the trunk, when the defendant said to witness, that there was the trunk, pointing at a trunk lying there; the defendant made no further offer to deliver it, nor did witness demand its delivery.

The defendant then gave in evidence the following as the rules of his hotel, at the time when the plaintiff was a guest: “Rules of Giles’ Hotel. “1st. Lock and bolt your door on retiring, and on leaving your room lock your door and leave the key at the office. This course the proprietor has adopted for safety, and hopes it will be strictly observed, as he will not be responsible for any loss, except when given to him or his clerk for safe keeping. “Terms of lodging 50 cts. perday. “2nd. Parties or families can be furnished with private par-lours at an extra charge. “3rd.

Any person taking a room will be charged by the day, until notice shall be given at the office of vacating the same. “4th. All meals served in chambers will be charged extra, except in cases of sickness. t “5th. Persons wishing to have clothes washed will give notice of the same at the office, the number of pieces, and at what time they will be wanted. “6th. Persons intending to leave by the steamboats, cars, or other conveyances, will be pleased to give notice at the office in time for their bills to be ready, and the porter in attendance to convey their baggage. “7th.

Permanent boarders will be expected to settle their bills weekly. “8th. Gaming of every kind prohibited. “9th. A regular watch will be maintained during the night to admit travellers, furnish them with beds, and protect the establishment. “The proprietor, ever anxious to promote and add to the comfort of his guests, will take it as a great favor to be informed of any inattention or neglect in any department of the establishment.” ¹³⁵ The plaintiff then prayed the court to instruct the jury, “(hat if they shall find .from the evidence, that the defendant kept a house in the city of Baltimore, where persons were provided with food and lodging, for money, and that the plaintiff was a guest in said house, and that he had with him, at the time, in the house, the trunk and articles of value claimed by him, and that the defendant did not deliver said trunk and its contents to the plaintiff, but that, the same was lost or stolen by the negligence or mistake of the defendant, or his agent or servant, whether in said house or while being conveyed by the defendant, or his servant or agent, to any other place where the defendant had undertaken to deliver them, that then the plaintiff is entitled to recover.” Which prayer being granted by the court, the defendant excepted, and this constitutes his first bill of exceptions. The defendant then prayed the court to grant the following 'instruction: “That if the jury shall find from the evidence, that the defendant was a regularly licensed hotel keeper, in the city of Baltimore, and that on the 14th day of March 1855, the said plaintiff became the guest of the said defendant, and continued his guest until the 17th day of said month; and shall further find, that on the morning of said last mentioned day, the said plaintiff gave notice to the agent of the defendant, that he intended to leave said hotel, and paid his bill to said agent, and at said time requested the said agent to have his trunk sent to the steamer Virginia, or Gladiator, and left with him twenty-five cents, the fee to be paid for the porterage of said trunk, and that the said agent, in accordance with said request, did deliver to a porter the said trunk, with direction to carry the same to said steamer, and gave the porter the said fee therefor; and shall also find, that at the time when said trank was delivered as aforesaid, to said porter, it had not been broken open, but that the contents mentioned in the sched-ule were in the same trunk, at the time it left the hotel, the said plaintiff is not entitled to recover, even although they may find, that the said trunk was subsequently broken open and the contents stolen, provided they further find, that said loss was not occasioned by any collusion or fraud on the part of the said defendant or his agents.” ¹³⁶ This instruction the court refused to give, to which refusal the defendant excepted, and this is the ground of his second bill of exceptions. .

The jury gave a verdict in favor of the plaintiff for $102.55, on which judgment was rendered, and the defendant appealed. The defendant contends: “That the plaintiff