Pettigrew v. Barnum

Tuck, J., delivered the opinion of this court. The appellant sued the appellees to recover damages for the ⁴⁴⁴ 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 ⁴⁴⁵ 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 ⁴⁴⁶ 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 ⁴⁴⁷ 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 ⁴⁴⁸ of the