Noble v. Milliken , 74 Me. 225 ( 1882 )

DaNEORt'h, J.

On-the tenth day of September, 1880, the (defendant was an innkeeper in the city of Augusta. At that ■•time the plaintiff with his wife and children were received as ■guests at the defendant’s house. After their arrival, but before their baggage was carried into the house, one trunk was taken from the sidewalk, and when found a portion of its contents were missing, and have never been recovered. This action was brought to recover their value.

No objection is made to the maintenance of the action on the ground that the baggage had not been sufficiently delivered to the defendant or his servants. The articles lost consisted mainly of gloves, jewelry, and money. The jewelry is conceded to have been the property of the wife. ' The ¡aarties at that time resided ■.in this State. In Green v. North Yarmouth, 58 Maine, 54, it was held that the husband could not alone maintain, an action for -an injury to his wife’s personal property, though at the time he may have the exclusive possession and full control of it. There is less ground upon which to support this action for the jewelry, for the husband had neither possession nor control of it. What ■he ‘did in relation to it was but an act of courtesy, while in ■reality the property was in the wife’s custody, for her use, and subject to her direction. There are cases where persons are entrusted with property by the owner for a special purpose, as •to perform some service upon or in relation to it, as in the case of common carriers, so as to give them a special ownership in it; In such cases, undoubtedly, the bailee may maintain an action for an injury to, or for the loss of it. But in thiS'Case, the husband had neither general nor special property in the jewelry, nor any interest in it such as would enable him to support an action for it.

The coin and gloves claimed, did belong to the plaintiff. It is, however, contended that the gloves were not lost. Both the plaintiff and his wife testify that they were. The only evidence in conflict with this, is the statement of the same witnesses made on examining the contents of the trank after its return, that no clothing was missing. This statement was not such as would estop them from asserting the truth, if, on refreshing their recollection and upon further examination they found they were in error, and under the circumstances of the case, the latter positive statement is entitled to greater weight- than the former negative one. Hence the preponderance of evidence is clearly in favor of the loss.

It is further claimed, that the coin was not "personal baggage, or money necessary for traveling expenses and personal use,” and should have been especially delivered to the innholder or his servants as required by c. 174, of the acts of 1874, otherwise no liability would attach.

There appears to be nothing peculiar about this coin which would render it especially valuable for keeping, for purposes other than money. The testimony of the plaintiff "that it was kept thinking 1 might use it, and if I went back to Europe, I might use it there,” leads inevitably to the conclusion that it was to be used as money, and taken upon this journey, to be used as a last resource in case of need, for the payment of expenses when other resources should fail.

The ten dollar bill is claimed to have belonged to the wife. True, it was given to her by the husband, not absolutely, but for her use and that of the children, or "to be given back as occasion might require.” It was therefore given in trust to pay bills for which the husband would be liable, and if lost, the loss would be his rather than that of the wife or children.

, The statute referred to, does in certain cases, relieve innhold-ers from their common law liability, unless the property is specially delivered to the innkeeper or his servants. But from its operation, among other things, "personal baggage, and money necessary for traveling expenses and personal use” are excepted. Such necessary amount of money is classed as personal baggage and may be carried as such baggage. Dunlap v. Steamboat Company, 98 Mass. 371. For such money, the liability of the innholder is the same as before the statute. The word "ñecos--■sary” in this connection, is not to be construed in its restricted meaning, but rather as indicating an amount of money, which a man of common prudence would deem it proper to take for such -•a journey, including the ordinary expenses, as well as the liabilities on account of sickness, accidents and necessary delays. Merrill v. Grinnell, 30 N. Y. 594.

That the amount of money taken in this case, was no more than reasonable prudence would dictate is sufficiently shown by the fact that in consequence of the loss, the plaintiff found it necessary to borrow before reaching his journey’s end. .

The result is, the plaintiff is entitled to recover for the gloves and money, the sum of forty-six dollars, to which should be add-’ •ed a sum equal to the interest on that amount from the tenth day mf September, 1880, to the time when judgment is rendered.

Judgment for the plaintiff, for the sum of forty-six dollars, and interest from September 10, 1880, till judgment.

Appleton, C. J., Walton, Barrows, Virgin and Peters, .JJ., concurred.