BECKERt7. BAYNES.
441
BECKER t7. HAYNES.
(GVrcuit Gowrt, D. Ma88aehuseU8. January 14,1887.) U:flXEEPERS-LIABILITY-GOODS FOR SALE"7'BpECIAL DEPOSIT FOR KEEPlNG. .Pun. ST. M,Ass. CR. 102, 12. .' .
BUB:.
Under Pub. St. Mass. e.102, § 12, where there is no evidence tending to show that the loss resulted from the willful default or neglect of the innkeeper or his servalj.ts. the innkeeper is'Dot liable for the loss. of a trunk belongu)g to a commerCial traveler, and containing goods for sale, unless there was the' special agreement or deposit for safe-keeping contemplated by the statute; 9. WITNESS-IMPEACJlMENT-FAlLURE TO MAKE CoNSISTENT STATEMENT. The admissibility of testimony, for· the purpose of impeaching a witness, showing .his failure to make statements consistent with his testimony. is in the discretion of the trial judge, subject to the power of the court to grant a new trial, if it should appear on a review of the testimony that there was no ground. for the inference that the witness whose credibility was. in issue would have IUade the statements in question to the impeaching witnesses, if they had bElen true.
At Law. Ball, Storey &: Tawe:r, for plaintiff. Prentiss Cnmmings, for defendant. CARPENTER,J. This is the plaintiff's motion for a new trial of an action at law brought against the defendant, who is an innkeeper, to cover damages for the loss of a package of merchandise. The statutes of Massachusetts exempt inllholders from liability for the loss of goods, whicpllre,not personal baggage and effects, unless such goods shall be delivered by the traveler to the.innholder for sak&-keeping. Pub. St. c. 102, § 12. rhe testimony showed, without contradiction, that one Weilli, the servant of the plaintiff, came to Boston by rail, having in his possession a trunk full of valuable goods of the plaintiff for sale; that he delivered the trunk to the agent of an express company to be transported to the defendant's inn, taking therefor a paper, check, oneceipt; that he proceeded to the defendant's inn, and registered his name, and was'assigned to a room, and delivered to the clerk the paper, check, or receipt, with the statement that it wasa check for his trunk which 'vollid shortly arrive; that the agent of the express company brought the trunk to the inn, and deposited it with others on the sidewalk in front of the inn, having first summoned the porter by ringing a bell; that this method of delivering the trunk at the inn was the method which was usually practiced in such cases, as was well known to the defendant; !ind· that. the trunk "Vas never brought into the inn, but was stolen from the sidewalk. Wemi testified that when he delivered the check to the clerk he told him that it was the check for a trunk containing valuable goods, and put the trunk under his care for safe-keeping, and that the clerk. accepted the trust. The clerk denied that the trunk was so inThe jury found a verdict for the defendant. presiding judge instructeq The first ground of the motion is thl,tt the jury that the plaintiff must prove a special agreement for the
FEDERAL. REPORTER.
keeping of the trunk, whereas the jury should have been instructed that, if the trunk was lost by the carelessness or negligence of the defendant, the plaintiff is entitled to recover. In answer to this,it is sufficient to say that the trnnk came into the custody of the defendant only in his capacity as an innkeeper, and therefore with no other liability except .such as' 'attached to him iri"that capacity. He was not liable for the loss, however inquJ.:red,.unless there was the special agreement or deposit contemplated by the statute.· There was no evidence tending to show that the loils resulted, from the willful default or neglect of the defendant or of his servants. .' ';l'he second ground of the motion is-that "the court misdirected the jury in' matter of law, in that the' court should have instructed the jury t}lIit, if they should find thllt the trtl-ok was delivered at the hotel, and the plaintiff'sagent,Weilli,:had no opportunity after the arrival of the tpln:\t potelpeople' for safe-keeping, the plaintiff is entitled to recover. But the coutt, though thereto requested by the plaintiff, declined so to rule." There is, doubtless, good authority for holding that in a case like this the innkeeper is holden under his general liability until a reasonable time has elapsed within which the traveler may deliver the goods for safe:-keeping.. But the plaintiff is not entitled to the benefit of this rule. The jury were instructed that, on the undis'puted evidence in the case; .the trunk was delivered to the defendant. The only question left to them was whether or not it was delivered under a special deposit for safe-keeping. There was, as has been stated, a dispute between the Witnesses as to whether such special deposit has been made; butthere was no doubt that there was ample time and opportunity in which such a deposit might have been made. The jury were instructed that the plaintiff was entitled to the verdict if they believed that Weilli,when he delivered the check to the clerk, stated to him, as he testified he did, that it was a check for a valuable package, which he desired to be held in safe-keeping, and that the clerk accepted the trust. The third ground of the motion is that "the court should have ruled that, upon the undisputed testimony in the case, the trunk was delivered to the hotel." This statement is, perhaps, grounded on a misap,prehension of the charge. The jury were instructed on this point precisely as desired by the plaintiff. The credibility of the witnesses, indeed, was left to the jury; but they were told that, if they believed the uncontradicted witnesses, they should find that the trnnk was delivered to the defendant. . I think this instruction is as favorable as the plaintiff could rightly ask. The fourth ground of the motion is stated in the motion as follows: Fourth. That the court admitted incompetent testimony in behalf of the defendant therein, in that Weilli, a witness in the plaintiff'.s behalf, having testified that, on ,the night of his arrival at the defendant's he had a c!Wv,ersatIon w.ith the defendll!ut's clerk. in substance as follows: "t told him that I (Weilli) was in ,t4,e business; that I would like a stock room. McKeen replied that several hair men stopped there,-l\ir. Kimball and Mr. ,Weiss,-and suggested that I take a reception room in front of the o1Dce,'stating that the goods would beperfeetly safe in there: that he would
BECKERf'. BAYNES.
4:48
assign me a room on the first floor, temporarily, as I decided that I would not let him know until morpinK. McKeen said that they had other sample-rooms; but that the trunk was very safe in there. I had some conversation with him as to who were the best dealers. I said that I had a valuable stock, and that I wanted iUo be perfectly safe; that it might be sent to my room or kept in the office. He said he would take care of it. I don't think I stated any special amount. I stated that they were very valuable goOds. He said he knew that,because both Kimball and Weiss stopped there. He said that they were to perfectly safe in that room. There was conversation that the trunk be sent to my room or to the office. It depended on how soon it got there. If brought before a short time, I should like to have it sent to my room; if Dot, he would take care of it during the night." That, Weilli having so testified,the court, against the plaintiff's objection, permitted the defendant to show, by certain Witnesses called in the defendant's behalf, namely, Webber and McKeen and McCausland and Frank, the two latter being police officers in the. employ of t.he city of Boston, that, while they were endeavOring. to find the contents of the trunk. and to discover the persons supposed to have stolen it, they had conversations with Weilli in relation to the loss of the trunk; and that Weilli did not mention to them the conversation with the clerk above set fOl,"thto which Weilli had testified; but they were unable to recall.what those conversations between themselves, respectively, and Weilli were. The contention of the plaintiff is that, although it is competent to contradict a witness by proving statements made by him inconsistent with his stat ments on the stand, yet it is not admissible to prove his failure to make cpnsistent statements, unless it appears that the circumstanr.es testimony were true, would \naturally were such that the witness, if have the facts. Perry v. Breed, 117 Mass; I take the doctrine of that case to be tha.t the admission of evidence such as that here stated is in the discretion ofthe trial judge, subject to the power of the court on motion to grant a new trial, if it shoultl appear, on a review of the testimony, that there was no ground for the inference that the witness wouldbave made the statement in question,'if it had been true. It seemed to me when I tried the case that there was good ground in the testimony for such an inference. I have now carefully reconsidered the whole ease, referring to such parts of the testirilonyas are reported to me by the plaintiff, and also to my own notes and recollection, and I see no reason to change my opinion. The'fifth ground of the motion is that the verdict is against the evidence and the weight of evidence. The whole testimony, as already intimated,dsnot reported to me j but there can be nodoubt, I think, that the only question on which the jury could have hesitated was the question of veracity between Voleilli and McKeen. On this question it seems to me therewaB, to say theleast ofit, no preponderance of evidence for the plaintiff. The motion must therefore be denied.
FEDERAL REPOR'1'ER.
UNITED STATES t1. BERGENTHAL. f
(Diab'ict Oourt, E. D. Pennsylvania. December 18, 1886.) '·1;
INTEmq'AL REVENUE-BoND OF INDEMNITy-JUDGMENT.
. The goods of A. were seized for a.breach of the revenue laws. He gave a bond conditioned to abide the judgment of the court, and pay the amount named therein, or the appraised value of the goods, upon condemnation. He was convicted of the criminal olfense which caused the seizure, and subsequently pardoned. In So proceeding to condemn the goods, the pardon was pleaded as So full and sufficient to the claim. This was denied, and a . judgment of condemnation entered.A. did not comply with the judgment of the court, and pay tbe amount of money required, and judgment was conse· quently entered upon the bond. 'Defendant moved to open the judgment on the ground that the court erred in denying the sufficiency of the pardon. Held, that that question could not be raised in a suit upon the bond, and that while the judgment of condemnation stands unsatisfied, the obligation to pay is ab· solute, and cannot be avoided.
Sur Motion to openjudgment, and let the defendant into a defense. John K. Valentine, U. S. Dist. Atty., for plaintiff. David W. seUers, for defendant.. . BUTJ.ER, J. The object of the bond of the petitioner was the release of the property seized, and the substitution for it of the money secured. The condition of the bond is that the principal, Bergenthal, shall abide the judgment of the court, and, on condemnation of the property, shall forthwith pay the money secured by. the bond, or the appraised value of the property condemned. This condition was broken. The property was condemned,and Bergenthal did not abide the judgment of the {lourt, and pay the money required. Judgment was consequentlye1;1tered on the bond in pursuance of the authority accompanying it. The petitioner now seeks relief, principally on the ground (in effect) that the property should not have been condemned; that the pardon granted Bergenthal for the. criminal offense of which he was convicted in the lltate of Wisconsin (and on account of which ,the property was seized and the condemnation claimed) was a full and sufficient answer to the claim. This answer was,however, set up as a defense in the forfeiture proceed. ings, was fully considered by the court, and its sufficiency denied. It is how urgedthaUhis decision was erroneous,-shown to be $0 by more recent decisions of the courts. It, would seem quite plain, however, that the question could hot be raised in a suit upon the bond, and cannot, therefore, .properly be considered in this application. The remedy for such error, if it existed, was by review in the circuit court. While the judgment of forfeiture stands unsatisfied, the petitioner's obligation to pay is absolute, and cannot be avoided. The judgment cannot be attacked collaterally. The alleged understanding and expectation with which the bond Wal signed, based upon conversations with the collector or others, could not I
Reported by C. Berkeley Taylor, Esq., of the Philadelphia bar.