Mateer v. Brown

• Decision Date: 01 December 1850
• Citation: 1 Cal. 221
• Court: California Supreme Court
• Parties: MATEER v. BROWN.

1 Cal. 221

MATEER v. BROWN.

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the District Court of the Fourth Judicial District. The action was brought to recover $5500 worth of gold dust, claimed to have been lost in the inn of the defendant, while the plaintiff was staying there as a guest. All the important facts of the case will be found in the opinion of the Court.

Calhoun Benham, for Plaintiff.

Mr. Parburt, for Defendant.

By the Court, BENNETT, J. It was decided, at the last term, in the case of Ringgold v. Haven & Livingston, that the power of compulsory nonsuit exists. We think the rule convenient, reasonable, and well supported by authority, and we shall adhere to it. On the trial of this cause, after the plaintiff had closed his evidence, the defendant moved for a nonsuit, "on the ground that the plaintiff had not proved by competent testimony the loss of any property of definite value." This being the only position taken in support of the motion, unless that be tenable, the nonsuit was properly refused, notwithstanding there may have been other good and sufficient reasons, for which, if urged at the proper time, it might have been demanded. A party making his motion on one ground, thereby impliedly waives all others. He cannot avail himself of a different position, on appeal, from that which he assumed in the Court below. This doctrine is well established, and is necessary to be sustained, in order that the plaintiff may not be misled in the course of the trial, and in the settlement of his bill of exceptions in case the nonsuit should be ordered.

The general rule by which Courts should be guided in determining whether a nonsuit, when applied for, should be ordered, is, that if the evidence given by the plaintiff would not authorize a jury to find a verdict for him, or, if the Court would set it aside, if so found, as contrary to evidence, in such case it is the duty of the Court to nonsuit the plaintiff. (1 Wend. 336; 6 Id. 436; Ringgold v. Haven & Livingston, above cited.)

Let us apply these rules to the case before us. We must, however, first remark, that the question of admissibility of the evidence objected to, is one with which, in determining the point now under consideration, we have nothing to do. Assuming, then, that the evidence was admissible for the purpose of affecting the defendant, was it of such weight that a jury might legally and properly infer from it that the plaintiff had "lost any property of a definite value?"

Dexter, one of the witnesses for the plaintiff, testified that Higgins, the barkeeper of the defendant, stated in a conversation between them, "that the plaintiff had made his pile," and that, on opening a closet and raising a bundle, he said "it was the plaintiff's, and that it was about six thousand dollars." If this be legal evidence for any purpose, then, certainly, a jury might infer from it the value of the contents of the bundle. The evidence to prove the loss is not quite so strong; but it seems, from the course of the trial, that this was an uncontested and admitted point, and that the jury would have been warranted in finding the affirmative from the circumstances proved. The nonsuit was therefore properly refused.

We cannot review the propriety of the refusal to nonsuit on the ground that the plaintiff did not show himself to have been a guest in the house, because the motion for nonsuit was put upon a different ground.

The next question is as to the admissibility of the evidence objected to. Higgins was the barkeeper of the defendant when the gold dust, as is claimed, was received into the inn, and during the subsequent time down to the loss. It was argued by the plaintiff's counsel that, as Higgins was the agent of the defendant, the latter was bound by his declarations touching the subject-matter in controversy. The following questions were put to the witness, Dexter: "State what you heard Higgins the barkeeper say with regard to any money or gold dust received from Mateer;" and "state what Higgins said at the time about the robbery." These questions or directions, the Court, after objection by the defendant, permitted to be answered. It is asserted that the testimony given in reply to these directions was admissible as a part of the res gestœ. At the same time it is conceded that the declarations of Higgins, thus proved, were not made at the time of the delivery of the gold dust by plaintiff and the receipt of it by the defendant. Thus, the question is presented, whether the declarations of an agent or servant made to a third person concerning a deposit of which he has charge for his principal, at any time during the continuance of such charge, are competent evidence against the principal.

Greenleaf (1 Law of Ev. 126), says that "where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject-matter, will, also, bind him, if made at the same time, and constituting a part of the res gestœ. They are of the nature of original evidence, and not of hearsay; the representation or statement of the agent, in such cases being the ultimate fact to be proved, and not an admission of some other fact. But it must be remembered that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act and part of the res gastce, that it is admissible at all; and therefore it is not necessary to call the agent himself to prove it; but wherever what he did, is admiisible in evidence, there it is competent to prove what he said about the act while he was doing it." As to any other facts, in the knowledge of the agent, he must be called to testify, like any other witness. (Id. 134.)

Were the declarations of Higgins a part of the res gestœ, according to the above rules? We think not. There was no act done by him, in his character of agent, at the time of making them, which would have been admissible evidence against the defendant, and which such declarations were calculated to qualify or explain. They were not made at the time he received the deposit; had they been then made, they would, perhaps, have been competent. They were made when Higgins took the bundle out of the closet to exhibit it to a stranger. This was not done by him in the discharge of his duties as agent, and the declarations accompanying that act were but hearsay. It is impossible to tell what weight this improper evidence had on the mind of the Court, in forming its judgment. We cannot clearly see that it had no effect, and consequently, a new trial must be granted.

As the cause is to be retried, it is proper that we should express our views in relation to the other points in the case. The defendant insists that he is not liable in consequence of certain rules, adopted by him for the government of his house, and a copy of which he kept posted up in his barroom. The eleventh of these rules was as follows: "The proprietor will not be accountable for any boxes, bundles, bags, trunks, chests, clothing, specie, gold dust, bullion, or any other articles or material whatever, unless delivered to his special care, and a receipt given for the same."

It is unnecessary to determine whether an inkeeper, any more than a common carrier, can limit his legal responsibility by notice, or, if he can, whether it is not essential that actual knowledge of the notice should be brought home to his guest; inasmuch as we think that the requirement of the notice in this case was, so far as the plaintiff had anything to do, complied with. The delivery of the bundle to the barkeeper and agent of the proprietor, was a delivery to the "especial care" of the proprietor, within the meaning of his regulation; and the plaintiff ought not to suffer from the neglect of the barkeeper to give a receipt.

The remaining questions relate to the general principle on which the liability of inkeepers is based. It is claimed by the defendant that his house was burglariously entered, the barkeeper overcome by force, and the property carried off by robbers; and that these circumstances exonerate him from liability. The question, then, is, whether robbery from without, or burglary, will excuse an innkeeper for the loss of the goods of his guest; and the answer to it does not appear to be settled by the authorities.

Chancellor Kent (2 Comm. 591), says that innkeepers are responsible to as strict and severe an extent as common carriers, while, in another place (Id. 593), he limits their responsibility to losses occasioned otherwise than by inevitable casualty, or by superior force, as robbery. Judge Story, in his work on bailments (Sec. 472), says, that innkeepers are not responsible to the same extent as common carriers; that the loss of the goods of a guest, while at an inn,...