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was unsafe, and that there was not due and reasonable diligence on the part of the defendants; for the reason that the property was not in the custody of the carriers. In my view of the case, this question does not arise, and I shall not discuss it. But admitting the premises, I am by no means satisfied that the conclusion drawn by the court would follow.

My reasoning upon the main question in the case sufficiently indicates my opinion against the admissibility of the evidence offered to show that it was usual for occupants of staterooms to leave their windows open during the night, which, however, when given, only tended to show that in warm weather (which probably did not prevail in April), some left them open and some closed them. . If other passengers chose to disregard the means of safety in warm weather, it is difficult to see why the plaintiff should be denied the right of resorting to those means, especially when the weather was not likely to be warm .enough to induce even others to open their windows. This error, however, was of little, if any, importance in this case ; because under the charge given upon the main question in the case, the plaintiff could not possibly have recovered, though this evidence had been excluded; and if the charge upon the main question had been correct, it would have cured the error of its admission.

When the foregoing opinion was written, I was not aware of the decision in Mudgett v. Bay State Steamboat Co. 1 Daly (N. Y. Com. Pleas), 151, which has just been * received here.

This was a case in which the plaintiff sued to recover the value of a valise (and its contents ), which he, as a passenger upon the defendants' steamboat, had deposited in his stateroom, the key of which had been given him by the clerk. He had left the room locked, and the valise was stolen from it. The defendants were held liable for the loss; and their liability is placed on the same grounds,

MCKEE V. OWEN.

and declared to be the same as that of an innkeeper. This is a well reasoned case. It fully sustains the views I have expressed, and goes much further than is necessary to sustain the liability of the defendants in the present

case.

I think the charge of the court was erroneous, and that the judgment should be reversed, with costs, and a new trial granted.

COOLEY J. concurred.

CAMPBELL J.

The only important question in this case is, whether a steamboat owner is liable for articles carried about upon the person of a passenger, in her pockets, and which she professes to have had stolen from her in her stateroom, which she occupied with another passenger, to whom it was allotted with her.

It is not claimed by any one that there is any authority which covers such a case, and, in the absence of some such decision, it seems to me we should not be justified in importing new liabilities into contracts for the carriage of passengers. If we could imagine that a person had never been, or pretended to have been, robbed in a cabin or stateroom before, we might perhaps suppose that in settling the law this contingency had been overlooked; but, inasmuch as this can not be regarded as an event without numerous precedents, the fact that the decisions thus far made do not sanction the imposition of such a liability, furnishes an almost irresistible argument against enlarging the responsibilities of such carriers.

It is very well known that, until a recent period, there was no such thing as a common carrier's liability attached to the carriage of passengers, so as to cover their baggage, and that a separate contract was made

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for that as freight, in order to hold the carrier. And it is very well settled now that the only thing which passenger carriers are liable for, as common carriers, is the same baggage, which is regarded by usage as covered by the passage money, and which is in its nature nothing more nor less than freight accompanying the traveler. Ingalls v. Bills, 9 Metc. l; Hollister v. Novolen, 19 Wend. 236; Camden and A. Railroad Co. v. Burke, 13 Id. 626; Boyce v. Anderson, 2 Pet. 150; Stokes v. Saltonstall, 13 Id. 181; Angellon Carriers, 8 521; Story on Bailm. § 390. And, while it is recognized by the text writers that attempts have been made from time to time to enlarge the liability of passenger carriers, it. is also agreed that the support of such a coctrine has been uniformly resisted. Angellon Carriers, g 522; Story on Bailm. $ 590; Boyce v. Anderson, 2 Pet. 150. And it is a matter of familiar knowledge, that, while many acts have been passed limiting the liabilities of carriers by sea and land, there has been no attempt in any direction to increase them. In the case last cited, it was said by Chief Justice Marshall: “The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and policy, we do not think it ought to be carried further, or applied to new cases.”_ P. 153. In confining themselves to the settled law, the courts have, it seems to me, done wisely. To bring new cases within the category of absoluteliability for everything except inevitable accident, or the assaults of public enemies, · would be to break down all legal bar. riers. For no one can deny that there are many employments and avocations, wherein there is as much opportunity for fraudulent combination as in this species of bailments. The liability laid by the civil law upon carriers and innkeepers did not purport to depend upon

MCKEE 0. OWEN.

their obligation to receive persons and property. It is expressly stated by the digest that they have no reason to complain of the rule, because they are not bound to receive any against their will; and that the rule is established, because they have so many opportunities for combining with thieves. Story on Bailm. $ 464. It is certainly difficult to see how a common carrier has greater opportunities for embezzlement, or collusion with thieves, than a private carrier, or a warehouseman, or any other bailee of valuables. Nor does there seem to be any reason for supposing that an innkeeper will rob transient guests, rather than boarders. If the rule were to be framed now, for the first time, I can not persuade myself that any legislative body would assume that the two classes of innkeepers and common carriers required this extreme and exceptional treatment. I think that the rule which singled them out must be regarded as strictly confined to its common law force, and that courts are not authorized to extend it.

Such, at least, has always been understood to be the rule in regard to passengers. The passenger and his baggage generally travel together. If a coach is attacked and robbed by highwaymen, the carrier must pay for the baggage, but it was never supposed he was responsible for what was on the persons of the passengers. Yet in such a case he would certainly be as able to protect the one as the other. The only principle holding him in the one case, and discharging him in the other, is that the baggage is freight in his custody, and he is bound to respond for freight, and for nothing else.

It is decided also, that the property must be delivered in some way into the custody of the carrier, and that if it is retained by the owner under his own supervision the carrier is not responsible. Brind v. Dale, 8 C. & P. 207; Tover v. Utica and Schenectady R. R. Co. 7 Hill 47; Cohen v. Hume, 1 Mc Cord, 439.

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In both of these American cases the articles lost were outer garments, and such as the carriers might have been compelled to take and care for as baggage, if delivered to them.

The course of decision as to what constitutes baggage, is of some value in throwing light on this subject. It has now become settled, by a predominance of authority, that a reasonable sum of money for traveling expenses, and any articles of daily personal use and convenience, may be recovered for as baggage, if contained in the ordinary luggage, whether they are articles usually kept on the person or not. But this doctrine was long disputed upon the specific ground that the carrier could not fairly expect to be held liable for articles which are usually kept upon the person, as he could not suppose they would be put among baggage.

In Hawkins v. Hoffman, 6 Hill, 586, where the doctrine of implied liability for luggage is fully discussed and maintained, Bronson J. says that “this implied undertaking has never been extended beyond ordinary baggage, or such things as a traveler usually carries with him for his personal convenience in the journey. It neither includes money nor merchandise. Orange Co. Bank v. Brown, 9 Wend. 85; Pardee v. Drev, 25 Id. 459. It was suggested in the first case that money to pay traveling expenses might perhaps be included. But that may, I think, be doubted. Men usually carry money to pay traveling expenses about their persons, and not in their trunks or boxes; and no contract can be implied beyond such things as are usually carried as baggage.* * * “ An agreement to carry ordinary baggage may well be implied from the usual course of business; but the implication cannot be extended a single step beyond such things as the traveler usually has with him as a part of his luggage.” In Merrill v. Grinnell, 30 N. Y. 594, the Court of Appeals reaffirmed the

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