Shortly after this, while traveling in a palace car, and during the night, Mrs. Lawyer lost some of her paraphernalia, and felt strongly inclined to make a row about it; but I quoted the sublime words of somebody or other, “Let us have peace,” and then told her that the owners of sleeping cars—who receive pay in advance from travelers merely for the sleeping accommodations afforded by their cars, and this only from a particular class of persons, and for a particular berth, and for a particular trip—are not liable as innkeepers for money or property that may be stolen from the lodgers on their cars; and that, as they only furnish sleeping accommodation for travelers who have already paid the railway company—over whose line the cars run—for their transportation, and receive no part of the fare paid for transportation, they are not common carriers, nor are they liable for property lost or stolen from their carriages. Mr. Chester M. Smith, who lost $1,180 on the Pullman car “Missouri,” in the State of Illinois, in December, 1872, was the innocent cause of the enunciation of the law upon this point. The court held that a Pullman car is not a common inn—that it does not accommodate persons indiscriminately—does not furnish victual and lodging, but only lodging—affords no accommodation but a berth and bed, and a place and conveniences for toilet purposes—does not receive pay for caring, nor undertake to care, for the goods of travelers; but the accommodation afforded is the result of an express contract, and that the liabilities of innkeepers should not be extended to others.[180]
We had passed from one State into another, and had now taken up our quarters at a magnificent hotel (its name will not be mentioned, for I do not desire to injure any of the other houses). As we stepped out of the cab, we entered a vast and handsome office of white marble, and passed up to the splendid parlors and luxurious bed-rooms above. The way I wrote our names in the register, and asked for dinner in our private sitting-room, led the gentlemanly clerk to believe that myself and Mrs. Lawyer had but lately entered into a partnership for weal and woe; this I found when the elegantly attired waiters served our dinner. The whole service was one continued tribute to Love. On the soup tureen were little Cupids, training a huge turtle; on the fish plates, as mermaids and mermen, they were riding on salmon and dolphins; on the other dishes, these naked little rascals flew about among beautiful birds, hid under strawberry vines, or swung in spider-web hammocks from sprays of wild blackberry; they dug in ravines like mountain gnomes, and pried and lifted carrots with comical machinery, as though they were great bars and ingots of yellow gold. Some of the dish-covers were shaped like cabbages, and Cupids peeped from under every curling leaf; others, again, gathered the vintage and trod the grapes. Last of all, on the dessert service was represented the marriage of the queen of the flower fairies, each piece a different flower, with a love perched on it, some with torches, others with instruments of music; while the central stand represented the ceremony itself; a scarlet cardinal-flower was saying mass, and on the highest point of the dish, (which represented a church tower,) a chorus of these sprites of Venus were tugging at the stamens of a chime of fuchsias, like boys merrily pulling the ropes of wedding bells. Each piece differed from the others, but there was a love in every one. My wife was in raptures over the beautiful china, the exquisite elves, the graceful flowers, the delicate sentiments, the poetry in the artist’s soul thus moulded into form—hardened into a thing of beauty, a joy forever. She could not restrain her exclamations of delight, as course succeeded course, even in the presence of the sedate attendants. Each new beauty called forth a new expression of wonder and pleasure. She would scarce allow anything on her plate, so anxious was she to study the devices and designs. I was calmer, being older, hungrier, less ethereal, and feeling an inner consciousness that a heavy bill would be the successor of these fairy scenes.
Even this dinner came to an end, long though we toyed over the dessert. The china afforded a ceaseless topic of conversation, until at length little fairies of another kind began to hang upon the long black lashes which veiled my wife’s beautiful brown eyes, and we passed into our bed-chamber.
Over the mantel-piece of our dormitory hung a card, on which was printed the following:
“TAKE NOTICE.
“This building is fire-proof.
“Several robberies having taken place during the night, in the principal hotels, the proprietor respectfully requests all visitors to use the nightbolt.
“Money, jewelry, or articles of value are requested to be left at the bar, otherwise the proprietor will not hold himself responsible for any loss.
“A. B., Proprietor.”
My wife, who was rapidly increasing in legal knowledge and acuteness under my able instructions, and was filled with the romantic idea of becoming a veritable helpmate to me in my profession as well as in the expenditure of my money, after reading the notice asked me if I was going to hand over my valuables. I told her that Pollock, C. B., had announced to the world that it was his opinion that such a notice did not apply to those articles of jewelry which a person usually carries with him—his watch, for instance—because, as the learned judge puts it, such an article would be of little service to the owner if it were nightly stowed away in the hotel safe.[181] His lordship, however, was inclined to think that if the watch were a richly jeweled one, set in valuable diamonds, it would be wiser to give it to the proprietor to keep.[182]
“But that is an English decision,” remarked my wife, filled with the genuine occidental opinion of oriental notions.
“Well, supposing it is,” I made answer, “it is in accord with the American; and a New York judge once said that although a watch, a gold pen, and pencil-case might in some sense be called jewels, still they should be considered part of a traveler’s personal clothing, or apparel—and one after retiring to rest for the night is not expected to send down his ordinary clothing or apparel to be deposited in the safe.”[183]
“But,” continued Mrs. Lawyer, “this notice is not exactly the same as what one generally sees; it says nothing about the proprietor not being liable for the loss of things above a certain sum.”
“No,” I replied, “and it’s all the better for us; for if the notice required by law is not properly posted up in the office and bedrooms, the proprietor cannot claim the benefit of the provision relieving him from the liability imposed upon him by the common law of making good all losses and damage to his guests’ goods and property, unless caused by act of God, or of public enemies. It has been held in Iowa that such a notice as this one does not affect the landlord’s position.”[184]
“To what extent can he shirk his liability?” queried my wife, glancing at her large and well-filled Saratoga.
“That depends upon the particular statute of the country or State in which he happens to live. If there is not a special law, no notice will bind the guest, unless it can be proved that he has seen it before he takes possession of his room,[185] or has assented to it.[186] In England, an innkeeper, if he cause at least one copy of the law, (printed in plain type,) to be exhibited in a conspicuous part of the hall or entrance to his inn, will not be liable to make good any loss of or injury to goods or property brought to the inn, to a greater extent than £30, (unless it be a horse or other animal, or any gear appertaining thereto, or any carriage) except when such goods have been stolen, lost, or injured, through the willful act, default, or neglect of the publican, or any servant in his employ; or when such goods have been deposited expressly for safe-keeping with mine host, who, in such case, may require them to be placed in a box, or other receptacle, fastened and sealed up by the guest.[187] In New York, the law is very similar,[188] being to the effect that the hotel-keeper shall not be liable for loss of money, jewels, ornaments, or valuables, when he shall have provided a safe for the custody of such property, and shall have posted a notice to that effect in the room occupied by the guest, and the guest shall have neglected to deposit such property in the safe.[189] So particular are the courts upon this point, that when the landlord of the Old Ship Hotel, Brighton, England, unintentionally had the notice misprinted, so that the little word act was omitted in the sentence, which should have been, (as I have just stated) ‘where such property shall have been stolen, lost, or injured through the willful act, default, or neglect of such innkeeper, or any servant in his employ,’ the Court of Appeal held that, as the notice contained no statement which admitted the continuance of the common-law liability for goods or property stolen, lost, or injured through the willful act of the innkeeper or his servant, the proprietor was not protected. But Lord Cairns carefully said that he was not prepared to hold that the omission, in good faith, of a word or two, not material to the sense and to the operation of the statute, would have such a disastrous effect.”[190]
“My husband, remember
‘Brevity’s the soul of wit,
And tediousness the limbs and outward flourishes,’
and be brief. How can my poor brain hold all that you have said?”
“Don’t be alarmed, my dear, there is doubtless plenty of room in your brain yet. But I was going on to say that though there is a tendency in these degenerate days to lessen the great responsibility once imposed upon these publicans and sinners, and to insist upon greater care on the part of the guests, still statutes limiting the common-law liability of innkeepers should not be extended to include property not fairly within the terms of the acts. Where, for instance, as in the New York act, money, jewels, or ornaments are exempted, then all property of a different kind, including all things useful and necessary for the comfort and convenience of the guest—all things usually carried and worn as part of the ordinary apparel and outfit, as well as all things ordinarily used or suitable to be used by travelers in doors or out, are left in statu quo ante the statute.”
“And what may that be?” asked Mrs. L.
“At the risk of the innkeeper.”[191]
“But would not a watch be considered a jewel or an ornament?”
“The law is very watchful—”
“Very watchful, indeed, when it has so many watch cases that it considers pretty little Genevas neither jewels nor ornaments,” murmured my wife sotto voce.
“The law is very watchful,” I went on, “over benighted travelers, and has decided that it is not;[192] nor is a watch and chain,[193] although, by the way, the Wisconsin judges have decided that an innkeeper is not liable for the loss of a silver or a gold watch not handed over for safe keeping, their act speaking of articles of gold and silver manufacture.[194]
The exemption is intended to apply only to such an amount of money and to such jewels and ornaments or valuables, as the landlord himself, if a prudent person and traveling, would put in a safe (if convenient) when retiring at night. No one, possessed of half a grain of that scarce commodity, common sense, would suppose that it was the intention of the act to exempt the hotel proprietors from their old common-law liability, unless the traveler emptied his pockets of every cent of money and deposited it, with his watch and pencil-case, in the safe, for perchance he might want these identical articles ere sweet sleep his eyelids closed.[195] If, however, the innkeeper has complied with the requirements of the act, he is not liable for jewelry stolen from the bedroom, even though the guest has not been guilty of negligence, provided he has had time and opportunity to make the deposit.[196] My old friend, Mrs. Rosenplanter, was terribly unfortunate in this respect. In July, 1863, she and her worthy spouse were en route from Trenton Falls to Saratoga, and arrived at the Delavan House, Albany, at three in the afternoon. As dinner was on the table, they at once dressed and went to dine. In about twenty minutes they returned to their room and found that in the meantime their trunk had been broken open and $300 worth of jewelry taken out. My friend sued the proprietor, but the court ungallantly considered that she had had sufficient time and opportunity to make the deposit, (though she had not been there an hour) and so could not recover; although the judge admitted that no person, under such circumstances, would have been likely to have handed over his valuables to the innkeeper, and that there must always be a brief period after the arrival of a guest before he can make the deposit, and that during those golden moments the statute affords the publican no protection. And, by the way, I remember that in this case the court seemed to think that if a guest, on retiring for the night, removes a watch or jewelry from his person, or leaves money in his pocket, and neglects to deposit the same in the safe, the hotel-keeper, if he has complied with the act, is exempt from all liability in case of loss.”[197]
“You said,” remarked Mrs. Lawyer, whom the mysteries of the toilet had revived, “you said that if the innkeeper put up his notice he would not be liable to make good any loss of goods or property. Surely, if a watch is neither an ornament nor a jewel, within the meaning of the act,[198] it is goods or property, else it is not good for much.”
“It is very questionable whether the words ‘goods or property’ include the necessary baggage of a traveler, his watch or personal effects, or such money as a man in his travels usually carries with him; in fact, down South it was held that it did not comprehend baggage.”[199]
“Well, what would you call baggage?” persisted my wife. “It would be worth while knowing that, if an innkeeper is always responsible therefor.”
“Just wait until I comfortably settle myself, and I will dilate on that fruitful topic until you are satisfied.”
“What a base slanderer is Jules Verne,” said my spouse, as she daintily nestled between the sheets.
“What do you mean?” I asked.
“Don’t you remember that he says that American beds rival marble or granite tables for hardness. I am sure he never stopped at a good hotel.”
“Now for a Caudle lecture as to the baggage,” I said. “Imprimis, whatever a traveler on this sublunary planet takes with him for his own personal care and convenience, or even for his instruction and amusement,[200] according to the habits and wants of the station of society to which he belongs, either with reference to the immediate necessities or the ultimate purpose of his wanderings, must be considered personal luggage;[201] and the rules of law governing the innkeeper’s liability for the safety of a guest’s baggage, are the same as those which regulate the responsibility of common carriers as to a passenger’s baggage.[202] Articles of jewelry, such as you would usually wear, are baggage;[203] but not the jewels and regalia of a society.[204] A watch,[205] except in Tennessee;[206] finger-rings,[207] but not silver spoons,[208] come within the same category. One man was allowed to have two gold chains, two gold rings, a locket, and a silver pencil-case.”[209]
“He must have been on his way to see his sweetheart, I fancy.”
“Gold spectacles are baggage;[210] so are opera lasses,[211] a silver-mounted pistol, even for a Southern lady,[212] duelling pistols,[213] or a gun;[214] but not a colt.”[215]
“A horse, then?” was facetiously queried.
“Not even a hobby-horse.[216] Brushes and razors, pens and ink, are baggage,[217] and perchance a present.[218] So are the manuscripts of a student;[219] but not the pencil sketches of an artist;[220] on this latter point, however, the doctors of the law disagree.[221] According to one judge, a concertina, a flute, or a fiddle might pass muster; but his fellows, however much music they had in themselves, determined not to be moved with concord of sweet sounds, so they out-voted their musical confrere.[222] Shakespeare saith, ‘Let no such man be trusted;’ so, perchance, we must conclude that these judges were astray in their law. In Pennsylvania, a journeyman carpenter may take his tools as baggage,[223] though in Ontario he cannot,[224] any more than a blacksmith can carry his forge, or a farmer his plow. Nor can a merchant take his wares,[225] nor a commercial his samples,[226] nor a banker his money,[227] nor a lawyer his papers,[228] though an M. D. may take his surgical instruments;[229] nor may a seamstress carry her sewing machine,[230] nor—Hark!
“What strain is this that comes into the room,
At midnight, as if yonder gleaming light,
Which seems to wander like the moon,
Were seraph-freighted? Now it dies away
In a most far-off tremble, and is still;
Leaving a charmed silence.
Hark! one more dip of fingers in the wires!
One scarce-heard murmur struggling into sound,
And fading like a sunbeam from the ground,
Or gilded vanes of dimly visioned spires!”
Here a fantasia on her nasal organ (which my wife always carried with her, despite the decisions of anti-musical judges) vibrating unmistakably through the chamber, dispelled the idea of heavenly visitants, and informed me that my spouse had journeyed off to that land of Nod, from whose bourn no baggage returns. Snoring, like yawning, is infectious—sometimes; and this was one of the times.
* * * * * *
“’Tis sweet to see the day dawn creeping gradual thro’ the sky,” and feel that there is for one yet a little sleep, a little slumber, a little folding of the hands to sleep; but even in the most fashionable hotel the hour will at length come when one must shake off dull sloth and burst the bonds of sleep, which at night are but as spider’s webs, but in the morning have become even fetters of brass; and that miserable hour came in time to me.
When I went down stairs to examine the register to see who had arrived during the night, I found some excitement existing around the office. On inquiry, (and who except a German savant ever beheld a row, small or great, without seeking to know the wherefore thereof,) I learned that a gent had the day before given the clerk a pocket-book to keep, and that it had been stolen out of the desk; the owner was demanding restitution, dollar for dollar and cent for cent, if not eye for eye and tooth for tooth. The landlord said that the man had been negligent in not telling the clerk there was money in the book.
“No, I wasn’t,” was the reply, “there was only $136 in it; and what but money would you expect to be in a pocket-book—a tooth-pick?—a cigar? I know that in Iowa an innkeeper had to cash up in a similar case,[231] and I’ll make you do it if there is law or justice in this part of the American eagle’s eyry.”
“In Kentucky,” said a by-stander, who seemed to hail from that State, “an hotel-keeper was held liable for the loss by robbery of pocket money retained by a guest in his own possession.”[232]
“And in Maryland,” said another Southerner, “it has been decided that a traveler need not deposit in the office safe any money reasonably necessary for his expenses that he may have with him.”[233]
“Yes,” I said, “there are other cases, also, which appear to establish the point that a sojourner at an hotel may keep in his pocket or in his room money enough to pay his daily way, and that if his purse be surreptitiously disposed of, the landlord must make good his loss;[234] yet still there is a very late New York decision, where my friend Hyatt found to his cost, that where a landlord provides a safe, and puts up the usual notices about it, and the visitor chooses not to place his money in it, the proprietor of the establishment is not responsible for the loss of any of the cash, not even for what would be required for the guest’s ordinary traveling expenses.”[235]
“You speak of money enough for one’s daily wants and traveling expenses being all that for which an innkeeper is liable,” said a gentleman who had hitherto been a quiet listener.
“Well, sir, I do not like to speak dogmatically, but it seems that the tendency of some modern decisions is to hold that the innkeeper should not be liable for any money beyond that amount, even though put in a safe, unless a special contract has been made, or it has been actually delivered to the proprietor or his servant, with notice not only of the kind of property it was, but also of the amount. It is not sufficient to mark a package ‘money,’ for it is argued that it would be highly unjust, and not founded upon any principle on which an innkeeper’s liability rests, for a traveler to bring into an inn, unobserved, any amount of valuables, without notice to the innkeeper, and hold him responsible for their safe keeping. There should be a restriction or qualification of such liability, if it exists; and that must be a warning to the innkeeper of the extra risk he is about to run.[236] But the Court of Appeals in New York State takes a different view, and holds that if one complies with the law, and deposits his money in the safe, the innkeeper is liable for the full amount, irrespective of the question whether or not it was all required for the purposes of the journey.[237]
“And, I might add,” said my interlocutor, “the celebrated Story made no exception, and seemed to consider it one of the A B C principles of law that an innkeeper is liable for the loss of the money of his guest, stolen from his room, as well as for his goods and chattels, and that such liability extends to all the money of the guest placed within the inn, and is not confined to such sums only as are necessary and designed for ordinary traveling expenses.[238] Then, sir, our great Chancellor Kent lays it down as admitting of no peradventure, that an innkeeper is bound absolutely to keep safe the property of his guest within the inn, whether he knows of it or not, and that his responsibility extends to all his guest’s servants, and to all the goods, chattels, and moneys of the guest, their safe custody being part of the contract to feed and lodge for a suitable reward.[239] If you are not satisfied with the words of these men—alike the pride and the ornament of America—let us cross the ocean and hear what Sir Wm. Blackstone saith; he speaketh after this wise: that an innkeeper’s negligence in suffering a robbery of his guest is an implied consent to the robbery, and he must make good the loss.[240] Then Lord Tenterden held that there was no distinction between money and goods; and all the other judges of the court said ‘amen.’”[241]
“Excuse my interrupting you in your interesting remarks,” said I.
“Quite excusable, sir, for I am only speaking in the cause of right, and because I think some judges are inclined to cut loose from the safe moorings of the old common law, rendered dear to us by the adjudications of the learned men of the Bench for generations past, both in the old and new worlds; and I am satisfied that a contrary doctrine will be terrible in its effects in this great commercial community of ours, where our business men spend so large a portion of their time at inns in pursuit of their calling.[242] But what were you going to say?”
“Simply,” I remarked, “that in the case before Tenterden the amount lost was only £50, and it was stated to have been kept to meet daily expenses only. He said he could see no distinction in this respect between an innkeeper and a carrier; and there are many cases to the effect that a carrier will not be responsible for any money of a passenger except what is needful for traveling purposes and personal use,[243] unless the loss was occasioned by the gross negligence of the carrier.”
“Well, other English judges have likewise held that an innkeeper’s liability is not restricted merely to the guests’ travelling expenses;[244] and if we recross the mighty ocean we find our judges in firm accord with their confreres.”[245]
“But,” I said, “but in one case the amount was only two hundred dollars,[246] and in another it was but twenty-five dollars.[247] And in still another case decided, as you say, although the cash lost was more than sufficient to pay the expenses of the man from whom it was taken, still it was not his own; he merely held it to pay others, who were stopping at the same house, and were witnesses in a suit which the money-holder was superintending, or to pay their expenses at the inn.”[248]
“On the other hand,” said the defender of the rights of the people, “in a California hotel there was this notice: ‘Deposit your valuables and money in the safe at the office;’ and a guest accordingly deposited a large amount of gold dust and coin, which the proprietor received without objection. Afterwards, the clerk was knocked down and the safe robbed, it not being locked, and the publican was held liable for the whole amount.[249] And where a man had stolen from his room a package of jewelry, which the clerk had told him would be quite safe there, the host was held liable, even in New York State.[250] And so, in Kentucky, where a safe was robbed by a discharged clerk, although in this last case the innkeeper had told the guest that he would not be responsible for any money put in it.[251] It seems to me to be somewhat absurd that the law should say that unless you deposit your money in the hotel safe the proprietor will not be liable for its loss, and then when you have placed it in the absolute and immediate control of the innkeeper, and, perhaps, his dishonest servant, you should be met the next day, when asking for your own, by the smirking and bowing proprietor, remarking, suaviter in modo: ‘True, sir you gave me twenty thousand dollars for safe-keeping, and I put it in my safe; but, like all riches, it has take