Dickinson v. Winchester

Shaw, C. J.

This is a case of new impression, and it may perhaps be doubted, whether, upon the evidence, the verdict upon some of the grounds should not have been the other way. But it is not certain that we have a full report of the evidence, and our concern is only with the correctness of the instructions, under which the case went to the jury. We are of opinion, that the directions were right, except as to the clothes purchased by the son with the money furnished to him by the father, when the son left home, for general purposes, and without any specific directions to purchase clothes with it. Those clothes, therefore, which were pur *119 chased with this money, were not, we think, the property of the father at the time of the loss, and damages should not have been given for them. If the other clothes had been given to the son, or the son had been emancipated, the verdict should have been the other way, and so the judge directed.

The true ground, we are of opinion, on which the claim of the plaintiff rests, is that of an implied contract, and not the mere negligence of the driver of the coach as the defendants’ servant. The defendants, by then: card, had given previous notice to passengers generally, and to the plaintiff’s son in particular, that a free passage should be furnished to their hotel, for all passengers arriving by the cars, who should choose to come there, and they had in fact engaged with the owner of the carriage, which the plaintiff’s son entered, and to whom he delivered his trunk, to bring passengers at their expense. When, therefore, such coach owner or his driver thus employed undertook to carry the plaintiff’s son, and took charge of his baggage accordingly, such person became the agent of the defendants pro hac vice, and they became responsible that he should exercise due care and skill in performing the duty, which the defendants had undertaken to do for the plaintiff.

Whether it be considered that the defendants are to be charged as innkeepers, who assume the care of the guest and his baggage at the station, instead of waiting for his arrival at their own door or stable, or whether they are to be considered as common carriers of persons, who are responsible for the care of passengers’ baggage as incident, is perhaps immaterial. In the latter character, such responsibility attaches. Brooke v. Pickwick, 4 Bing. 218. In either case, the consideration for the undertaking is the profit to be derived by the innkeeper from the entertainment of the traveller, as a guest, and an implied promise is founded upon such consideration. It was argued for the defendants in the present case, that the proprietor of the carriage, whose servant the driver was, who lost the trunk, was carrying on a separate employment, and that he, and not the defendants, *120 was the person to whom the plaintiff must look for redress; and, in support of this view, the cases of Bush v. Sleinman, 1 B. & P. 404, Laugher v. Pointer, 5 B. & Cr. 547, and Milligan v. Wedge, 12 Ad. & El. 737, were cited. If the gravamen of the plaintiff’s complaint had been the negligence of the driver, in committing a tort on his person or property by careless driving, or other negligence, there would be much force in this argument, which is founded on the rule, that every man is responsible for damage done by his servant to another, in the conduct and prosecution of his business; as if, in the present case, the driver, in passing from the station to the inn, had negligently run over a person, the remedy might have been against the carriage owner, and not against these defendants. And it is often a difficult question, in complicated cases, to ascertain who is the im mediate employer, and to whom the maxim respondeat superior applies, as it was found to be in the cases above cited. In the cases of Laugher v. Pointer, and of Milligan v. Wedge, no element of contract, of promise on the one side, or confidence reposed on the other, entered into the relations of the parties. They were cases of damage done by one stranger to another, and the question was, who employed the person who did the wrong. But in the present case, travellers are directed by the defendants to come to their inn by carriages employed and paid for by them; confidence is reposed in the driver of such carriage, whether employed immediately by themselves or another; and they are estopped to deny that the person thus actually employed is their agent for that purpose.

If it be a question, whether the plaintiff should declare in case or assumpsit, we are inclined to the opinion, that either is good. There are many cases in which a plaintiff has an election in this respect. Originally every action of assumpsit treated a breach of promise as a tort; and even on a plain note of hand, the old form was, to declare that the defendant, subtly and wilfully contriving and intending to defraud, &c., made a promise and refused to keep it. This iorm of action was resorted to, as we all know, to avoid 1 he *121 defence of wager of law, to which the plaintiff was liable in a formal action of debt. The same rule applied to warranties of personal property, and to the performance of other duties. The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise. But upon the right of the plaintiff to recover, the court are of opinion, that though the case is new in regard to the facts, the rule is settled by the salutary principles of the common law. The practice of travelling on railroads is recent; from its nature it must necessarily give rise to new usages, and must create some new interests and relations between travellers and inn-holders, requiring a just and reasonable adaptation' of the rules of the common law. Travellers cannot by this mode of conveyance be carried to the doors of inns and hotels ; it is therefore for the mutual interest and benefit of both, that some confidential relations should be established between them, the mutual duties of which should be regulated by the plain dictates of convenience, policy and justice.

On the question, whether the father can sustain the action, we think it is not necessary that' the plaintiff himself should have been the traveller and guest; so far as his property is affected, he may recover, though the traveller and guest be his agent or servant, or a party standing in that relation. Mason v. Thompson, 9 Pick. 280 .

On the ground of misdirection in regard to damages, if not adjusted by the parties, there must be a new trial.