Pullman Palace-Car Co. v. Freudenstein

• Decision Date: 09 October 1893
• Citation: 3 Colo.App. 540,34 P. 578
• Parties: PULLMAN PALACE CAR CO. v. FREUDENSTEIN.
• Court: Colorado Court of Appeals

34 P. 578

3 Colo.App. 540

PULLMAN PALACE CAR CO. v. FREUDENSTEIN.

Court of Appeals of Colorado

October 9, 1893

Error to Arapahoe county court.

Action by Charles A. Freudenstein against the Pullman Palace Car Company for the loss of property by plaintiff while on a car belonging to defendant. Judgment for plaintiff, and defendant brings error. Reversed.

Rogers Cuthbert & Ellis, for plaintiff in error.

W.P Hillhouse and Ralph Landon, for defendant in error.

BISSELL P.J.

In April, 1890, Freudenstein took passage on the Rio Grande road for Sargent, Colo. He was the holder of a first-class railway ticket, and bought Pullman transportation on what is called a "tourist sleeper" between Denver and Sargent. The car was "No. 462," and in charge of a porter named Allen. The tourist sleeper differs slightly from the first-class Pullman, in that they have no drawing rooms and no lavatories which interfere with the general structure of the car. As in the case of all sleepers, the berths opened on a center aisle, were provided to a certain extent with head and foot boards, which separated the occupants, and the sleepers were protected by curtains from the general view. There was nothing to obstruct the observation of the porter in charge, and he could see the entire car from door to door and observe the movements and conduct of the passengers. Some evidence was offered concerning the movements of Freudenstein from the time he got on the car until the loss, but it is sufficient to state that he went to bed after his berth was made up, and hung his overcoat inside of the curtains which protected his berth, and went to sleep. Later in the night he discovered that it was gone, got up, and complained to the porter, and together they made a search to find it, and observed the passengers alighting at Salida, (which was a way station,) to see if some person had taken it by mistake. The coat was not found, and the porter was unable to explain its disappearance. Some passengers got off at intermediate stations, but what they took with them does not transpire. Freudenstein, at the trial of the case, proved the loss of the overcoat, and rested. The company moved for a nonsuit, but the motion was denied. They then put the porter on the stand, and he gave evidence that he was on duty, and engaged in continuous watch of the car, from the time it left Denver, through the night, until after the loss. On this proof judgment was entered for the value of the coat and its contents, and the case was brought here on error. The liability of the company, if any, under these facts must of necessity spring from the terms of some express contract between the company and the passenger, or a contract to be implied from the circumstances of the accidental relation of passenger and carrier. This relation must measurably determine the obligations of the Pullman Company, and fix the extent to which the proof must go if they are to respond to losses of this description. It is familiar learning that nothing would excuse the innkeeper or the common carrier when called on for a guest's goods, or what may have been delivered for transportation, except proof that the loss was occasioned by the acts of God or the king's enemies. They were both adjudged to be practically insurers of the property. Storms and armed enemies in open rebellion alone operated to excuse default in performance. The law to this day has practically remained unchanged. With the exceptions and reservations contained in modern bills of lading, and admitted by the courts to be binding as contracts under some circumstances, or with the force and effect of notices, agreements, or statutes by which keepers of inns seek to limit what they are pleased to term the "rigors of the common law," we have nothing to do. Without these, such servants of the public are held to a legitimate, advantageous, and entirely proper accountability; an accountability fully warranted by their status and their profits. But the groundwork of the liability was found in the facts which gave rise to the relation, and in the correlative advantages of the innkeeper and the carrier in the collection of their charges. The keeper of the inn was bound to receive the guests, and had a lien on his guest's goods for the price of the entertainment. He furnished him food and lodging, and had the right to exclude from his house all but guests and servants of his own choosing. The carrier had the possession, sole custody, and control of goods delivered to him for carriage, could enforce his lien for freight and retain possession until it was paid, and only his employes could interfere with it during the journey. The courts in a long series of adjudications have held that the Pullman Company cannot be made liable for lost baggage on these grounds. They have held the rules governing innkeepers to be inapplicable, because of the difference in the existing conditions, The law of the carrier has been adjudged to be equally unsuitable, because the possession was not exclusive. The latter difficulty does not seem to me to be entirely insurmountable. The possession...