Moore v. Westervelt.

negligence. It follows, if I am right in the view previously taken, as to the evidence upon the question of negligence, that the court erred in refusing to permit the defendant's counsel to address the jury and in giving positive instructions to the jury to find for the plaintiff,

But were it otherwise, the judgment must still be reversed for an error in the charge of the court in respect to the effect of the bill of lading as evidence. Whether this document may not have been admissible for some purpose, is a question which it is unnecessary in this case to decide. In the case of Haddow v. Parry (3 Taun., 303), which was an action upon a policy of insurance, the bill of lading which was offered in evidence, to show that the plaintiff had an insurable interest in the property, was rejected at nisi prius, by Sir JAMES MANSFIELD, Ch. J., before whom the cause was tried. But upon motion for a new trial, the Chief Justice thought the bill, might, under some circumstances, be evidence upon the question of title in the consignee, in a suit between him and a third party. The person who signed the bill of lading in that case was dead, and reliance was placed upon that fact. Mr. PHILIPS, however, seems to think such evidence admissible to prove title in the consignee; as I should infer from his language, without regard to the death of the person who signed the bill. (2 Phil. Ev., 37, 39.)

Such evidence can only be admissible, if at all, in connection with proof of possession, by the party signing the bill of lading.

It being unnecessary, however, to pass upon this question in the present case, I shall express no opinion upon it. Even if the evidence was improperly admitted upon the question of title, I should not think the error sufficient to reverse the judgment; for the reason, that it was wholly unnecessary for the plaintiff to give any evidence of title, beyond the fact that the defendant had taken the property in a suit in which he was plaintiff; it not appearing that any claim of title had been made on the part of any other person. The sheriff was responsible, prima facie at least, to the plaintiff, and he shows no responsibility to any other party.

But whether the bill of lading was or was not properly admitted in evidence, upon the question of title, it clearly afforded no evidence whatever in regard to the quantity of the coal. If evidence on the question of title, it is because it goes to qualify what would otherwise be prima facie evidence of absolute ownership by the master of the vesssel, viz.: the possession. But the bare possession of the master affords no evidence as to quantity; and hence the bill of lading in that respect is nothing more than his mere naked declaration, unconnected with anything which can give it force as against a third party. It is undoubtedly good as an admission to charge the master himself; but is of no more force as against third per sons than any other declaration he might make bearing upon their rights.

The court charged the jury "that the bill of lading was some evidence of the amount of coal on board the vessel; that it appeared that the vessel was heavily laden, and her tonnage at cus tom house weight one hundred and thirty-four tons; and the jury were to determine upon the bill of lading, in connection with the evidence as to her being heavily laden, and her tonnage, how much coal was on board."

This part of the charge, which was excepted to, was very material. There was no other evidence of quantity in the case, except that here alluded to. Without the bill of lading, the jury would have been left on that subject entirely to the uncertain inference to be drawn from the capacity of the vessel.

The verdict was based undoubtedly upon the statement in the bill, and as that was clearly incompetent for that purpose, the judgment cannot be sustained.

Were it not for the necessity of reversing the judgment upon the point last considered, we should have felt bound to give to the facts a more critical examination; and might perhaps have come to the same conclusion with the Superior Court at general term, that the proof of negligence was so clear as to justify the court in taking the case altogether from the jury. Our conclusion, however, on that subject is, under the circumstances, of no controlling importance.

Purvis v. Coleman & Stetson.

The judgment must be reversed and there must be a new trial, with costs to abide the event.

All the judges concurred except COMSTOCK, Ch. J., who thought that the Superior Court was right in holding that the proof of negligence was too clear to leave any question for the jury. He was for reversal on the point last considered in the opinion of SELDEN, J.

Judgment reversed, and new trial ordered.

PURVIS v. COLEMAN & STETSON.

Personal notice to a guest at an inn that a safe is provided for keeping money, jewels, &c., and that the innkeeper will not be liable for their loss, unless given to him for deposit therein, is equivalent to the posting in the guest's room of a written or printed notice, under the statute (ch. 421 of 1855).

Independent of the statute, the leaving by the guest of $2,000 in gold coin

in his trunk in a room, with no person therein, in a hotel in the city of New York, after such actual notice, is such negligence as to discharge the innkeeper from any liability.

APPEAL from the Superior Court of the city of New York. Action to recover money abstracted from the plaintiff's trunk while a guest of the defendants. On the trial it was proved that the defendants were proprietors and keepers of an inn or hotel in the city of New York. On the 23d of January, 1856, they received the plaintiff as a guest. He was assigned a room in the house, and was escorted to it, with his baggage, by a waiter or porter of the defendants, in the early part of the day. About 5 o'clock, on the day of his arrival, the plaintiff left his room for dinner, locking his door, and leaving the key at the office of the hotel. On his return, at about 6 o'clock, he found his room had been broken into, his trunk broken open, and 400 sovereigns taken therefrom.

The jury, in answer to specific written interrogatories, found the following facts:

Purvis v. Coleman & Stetson.

1st. That the money sought to be recovered was in the plaintiff's trunk at the time it was broken open. 2d. That a printed notice that the defendant kept a safe, pursuant to the statute (Laws of 1855, chap. 421), in which guests at the hotel were required to deposit their valuables, was not posted up in the room assigned to the plaintiff at the time he took possession of it. 3d. That notice in fact was given to the plaintiff at the time of his arrival and occupancy of his room, of the provision by the defendants of a safe for the deposit of the valuables of the guests of the hotel, and that they would not be liable for the loss thereof, unless so deposited therein. 4th. That the plaintiff was guilty of negligence on his part, under the cir cumstances, in not availing himself of the notice given to him to deposit his valuables in the safe provided by the defendants for that purpose.

The jury assessed the damages of the plaintiff at $2,058. Upon this finding, a judgment was entered for the defendants at special term in the Superior Court, and was affirmed, on appeal, at the general term. The plaintiff appealed to this court.

John K. Porter, for the appellant.

John H. Reynolds, for the respondents.

DAVIES, J. At common law, the defendants were liable for all losses of the property of their guests infra hospitium. The legislature of this State, in 1855, for reasons which might easily be suggested, and which were satisfactory to them, modified this strict liability of the common law, which had been uniformly enforced by the courts with rigidity, and its appli cation in many cases involved peculiar hardship.

The act of 1855 provides that whenever the proprietor of any hotel shall furnish a safe in the office of such hotel, or other convenient place, for the safe keeping of any money, jewels, or ornaments belonging to the guests of such hotel, and shall notify the guests thereof by posting a notice, stating the

Purvis v. Coleman & Stetson.

fact that such safe is provided in which such money, jewels or ornaments may be deposited, in the room occupied by such guest, in a conspicuous manner, and such guest shall neglect to deposit such money, jewels, &c., in such safe, the proprietor of such hotel shall not be liable for any loss of such money, jewels, &c., sustained by such guest by theft or otherwise.

It is seen from an examination of this statute, that two things are to be done by the proprietor of the hotel to relieve himself from his common law liability:

1st. He is to provide a safe in his office or other convenient place in the hotel, for the safe keeping of the money, &c.

2d. He is to notify the guests thereof, by posting a notice in a conspicuous place in the room or rooms occupied by the guests, stating the fact that such safe was provided in which such money, &c., might be deposited.

There is no doubt that in this hotel the proprietors had provided the safe in their office for the safe keeping of the money of their guests. So far they had undeniably conformed to the

statute.

The notice, by posting in the room, required by the statute, was not given, as found by the jury; but the jury has found as a fact that this plaintiff had actual and full notice that such safe was provided for that purpose.

The actual notice given to the plaintiff was far more full and ampie than the constructive one provided for in the act of the legislature. The notice to be posted by the act was only to state the fact that such safe was provided in which such money, &c., might be deposited. That was all the constructive notice the act required. It is easy to perceive that if such notice was brought to the attention of a stranger, he might well fail to perceive that there was anything in it changing or modifying the duties or liabilities of the proprietor, in respect to the safety of the property of his guest. He would see from this statutory notice, if he read it, that a safe was provided in which his money might be deposited, but it would fail to inform him of any consequences attending his not availing himself of its use. The notice actually given in the present case distinctly brought to his SMITH.-VOL. VII.

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