C. W. Clifford, W. Clifford, and H. H. Crapo, for defendant.

The plaintiff's money was never in defendant's custody. Therefore defendant cannot be a bailee, as the whole doctrine of bailment grows out of the idea of possession. The defendant is neither a common carrier nor an innkeeper, and is under such liability either as insurer or bailee as the law imposes on such persons. Pullman Palace Car Co. v. Gaylord, 23 Amer. Law Reg. (N.S.) 788; Same v. Smith, 73 I11.360; Welch v. Pullman Palace Car Co., 16 Abb. Pr. (N.S.) 352; Blum v. Same, 3 Cent. Law J. 591. There is no obligation from an express contract to watch and guard such property. The only express contract here shown, as evidenced by the ticket, is merely to furnish the plaintiffs with a section in defendant's car. There is no obligation arising from a contract implied in law to watch and guard the plaintiffs' money, as the law will only imply a promise when there is a legal duty resting on the defendant to make such a contract, which is yet to be shown, and cannot be assumed. See Cohen v. Frost, 2 Duer, 335; Tower v. Utica, etc., R. R., 7 Hill, 47. It is too well settled to be controverted that, for property stolen from the possession of a passenger on a steam-boat or common railway car, the common carrier is not liable. Story, Bailm. § 498; Redf. Rys. § 171, par. 3. In what respect does a sleeping-car company differ from a carrier as to its relation to property retained in the possession of those who occupy its cars? A common carrier who contracts to carry a passenger for seven consecutive days and nights must be held to contemplate the fact that such traveler will sleep a portion of that time. There is no evidence of negligence, even though a contract to exercise ordinary care can be implied. The burden rests upon the plaintiffs to show defendant's negligence at the time the loss occurred, and that such negligence contributed to his loss.

H. M. Knowlton and A. E. Perry, for plaintiffs.

The instructions given by the presiding justice were sufficiently favorable to the defendant. The defendant was bound to exercise ordinary care to protect, their sleeping guests from theft. Woodruff S., etc., C. Co. v. Diehl, 84 Ind. 474; Pullman Palace Car Co. v. Gardner, 3 Penny. 78; Same v. Gaylord, 23 Amer. Law Reg. (N.S.) 788; Dargan v. Pullman Palace Car Co., 2 Willson, Tex. Ct. App. Civ. Cas. 607. The question has not come up in the appellate courts in the other states, in the supreme court of the United States, or in England, but there are several cases holding the same doctrine. Palmeter v. Wagner, (Mar. Ct. N. Y.) 11 Alb. Law J. 149; Tracy v. Pullman Palace Car Co., (City Ct. N. Y.) 67 How. Pr. 154; Blum v. Southern P. P. C. Co., (U. S. Cir. Ct. Tenn.) 1 Flip. 500; 3 Wood, Ry. Law, 1442 et seq.; Thomp. Carr. 530; Hutch. Carr. § 60, note 2. No case, so far as we are advised, decides differently, where the issue has been made. The only cases which intimate anything different are those where it has been attempted to make the proprietors liable as innkeepers. Pullman Palace Car Co. v. Smith, 73 Ill. 360; Welch v. Pullman Palace Car Co., (Sup. Ct. Buffalo,) 1 Sheld. 457; Keuth v. Pullman Palace Car Co., 17 Chi. Leg. News, 196; Pfaelzer v. Pullman Palace Car Co., 4 Wkly. Notes Cas. 240. The plaintiffs therefore assume that the unbroken weight of authority is with them. Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54; Com. v. Temple, 14 Gray, 74.

The evidence was amply sufficient for the jury to find want of ordinary care. The facts in this case are stronger than the case cited, and they were clearly for the jury upon the question of ordinary care.

The third instruction prayed for was wholly irregular. Nothing is better settled than that the court is under no obligation to rule or comment upon a single fact in a case, or its legal effect, if proper instructions be given. McDonough v. Miller, 114 Mass. 94; Packer v. Hinckley, etc., Works, 122 Mass. 484; Littlefield v. Huntress, 106 Mass. 121; Young v. Durgin, 15 Gray, 264. St. 1885, c. 384, makes no specific provision as to when writs shall be returnable. But this appeal, being from the judgment of a court upon a plea

in abatement, cannot be entertained in this court. Pub. St. c. 152, § 10; Willard v. Stone, 13 Gray, 475; Bartol v. Stanwood, 7 Cush. 115.

MORTON, C. J. The use of sleeping cars upon railroads is modern, and there are few adjudicated cases as to the extent of the duties and liabilities of the owners of such cars. They must be ascertained by applying to the new condition of things the comprehensive and elastic principles of the common law When a person buys the right to the use of a berth in a sleeping car, it is entirely clear that the ticket which he receives is not intended to and does not express all the terms of the contract into which he enters. Such ticket, like the ordinary railroad ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning the car, by which he is entitled to passage in the car named on the ticket. Ordinarily, the only communication between the parties is that the passenger buys, and the agent of the car company sells, a ticket between two points; but the contract thereby entered into is implied from the nature and usages of the employment of the company. A sleeping-car company holds itself out to the world as furnishing safe and comfortable cars; and, when it sells a ticket, it impliedly stipulates to do so. It invites passengers to pay for and make use of its cars for sleeping; all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself, or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has with him from danger from thieves or otherwise.

The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, yet it is its clear duty to use reasonable care to guard the passengers from theft; and if, through want of such care, the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable for it. Such a rule is required by public policy and by the true interests of both the passenger and the company; and the decided weight of authority supports it. Woodruff S., etc., C. Co. v. Diehl, 84 Ind. 474; Pullman Palace Car Co. v. Gardner, 3 Penny. 78; Same v. Gaylord, 23 Amer. Law. Reg. (N. S.) 788. The notice by which the defendant company sought to avoid its liability was not known to the plaintiff, and cannot avail the defendant.

The defendant contends that there was no evidence of negligence on its part. The fact that two larcenies were committed in the manner described in the testimony is itself some evidence of the want of proper watchfulness by the porter of the car. Add to this the testimony that the porter was found asleep in the early morning; that he was required to be on duty for 36 hours continuously, which includes two nights-and a case is presented which must be submitted to the jury.

We have considered all the questions which have been argued in the two cases before us, and are of opinion that the rulings at the trial were correct. Exceptions overruled.

(143 Mass. 243)

WHITNEY V. PULLMAN PALACE CAR Co.

(Supreme Judicial Court of Massachusetts. Suffolk. January 6, 1887.) CARRIERS-OF PASSENGERS-PALACE CAR COMPANY-LOSS OF VALUABLES-CONTRIBUTORY NEGLIGENCE.

The plaintiff, who had purchased a ticket to ride in a day parlor car of the Pullman Palace Car Company, had in her possession, and kept under her own personal control, a satchel containing valuables; and, on reaching a station on the railroad on which the car was run, she, with her husband, left the car, for a period of sev

eral minutes, leaving the satchel upon the window sill in the car, from which place it was stolen. Held, that the plaintiff was guilty of negligence in the care of her property, and that the car company was not liable.1

Contract, to recover the value of certain articles stolen from plaintiff while a passenger in one of defendant's cars. Trial in the superior court without a jury, before STAPLES, J., who ruled that the plaintiff could not maintain her action, found for the defendant, and reported the case to the supreme judicial court. The facts are stated in the opinion.

Brown & Alger, for plaintiff, cited Brown v. Eastern R. R., 11 Cush. 97; Malone v. Boston & W. R. R., 12 Gray, 388; Com. v. Gallagher, 126 Mass. 54. The defendant company were at fault and were negligent, at the stop at said Portsmouth for refreshments as stated, in not having a porter and conductor upon the said car Hebe, as it was an important station, in order to give that protection to the passengers in said car, and their personal property with them in said car, as the rules of said company prescribe, and as the company's contract with each one required, in order to protect the same, and prevent thieves from stealing the same. Not having done this, the defendant company is liable in law to make good her loss, as she was in the exercise of due care, as stated, and the defendant company was negligent for not having and not exercising the protection she was entitled to of her said property, as stated, on that occasion. The rules of said company required that both conductor and porter should have been upon said car at that time.

B. N. Johnson, for defendant.

There is no evidence that the defendant has ever carried, or agreed to carry, a passenger during its corporate existence. The only contract between the plaintiff and defendant was subsequent to her having established full relations with the Eastern Railroad Company as its passenger. This was a contract for a reserved seat in the parlor car. The defendant contends (1) that there was no evidence of due care on the part of the plaintiff in the custody and preservation of her property; (2) that there was no evidence of any failure on the part of the defendant in its duty to the plaintiff. The plaintiff was plainly careless. There was no failure of duty on the part of the defendant to the plaintiff. Kinsley v. Railroad Co., 125 Mass. 54. This case does not present the question of the liability of a sleeping-car company for losses in a sleeping-car. Even a common carrier would not be liable for this loss. The Crystal Palace v. Vanderpool, 16 B. Mon. 302; Tower v. Utica, etc., R. R., 7 Hill, 47; Abbott v. Bradstreet, 55 Me. 530; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Clark v. Burns, 118 Mass. 275. The plaintiff having retained exclusive possession of her property, and, there being no evidence that it was lost through any failure of duty on the part of the defendant, she cannot maintain her action.

MORTON, C. J. The plaintiff bought of the Eastern Railroad Company a ticket which entitled her to ride from Boston to the White Mountains in a day parlor car, owned by the defendant, and in use by the Eastern Railroad Company, under a contract with the defendant. She had with her a small satchel or reticule, which she did not deliver to the defendant, or any of its agents, but which she kept in her personal control. There was evidence tending to show that it was stolen while the train was stopping at Portsmouth for refreshments. It is clear that she cannot hold the defendant liable as a common carrier. She can only hold it liable upon the ground that her property was lost by some negligence of the defendant, and without any fault on her part, Clark v. Burns, 118 Mass. 275; Kinsley v. Lake Shore, etc., R. Co., 125 Mass. 54. We are of opinion that, upon the evidence, the plaintiff fails to show the exercise of due care on her part. When the train stopped at Ports

1See Lewis v. New York Cent. S. C. Co., (Mass.) ante, 615

mouth she and her husband left the car for 10 minutes, leaving her reticule upon the sill of one of the car windows, a conspicuous and exposed place, which could be reached from the outside through an adjoining window, which was open. This was not the exercise of common prudence, or proper care of her property, and thus her own negligence contributed to the loss. This is decisive against her right to recover, and we need not consider the question whether there is any evidence of negligence on the part of the defendant; nor is it necessary to consider whether the liability of the defendant is different from that of a railroad using its own cars. Exceptions overruled.

(143 Mass. 284)

FALVEY V. FAXON.

(Supreme Judicial Court of Massachusetts. Suffolk. January 7, 1887.)

MALICIOUS PROSECUTION-PROBABLE CAUSE-EVIDENCE.

In an action for malicious prosecution by the defendant, in making a complaint in order to obtain a warrant to search for certain intoxicating liquors in possession of the plaintiff, the latter being charged with an intent to sell the same contrary to law, the defendant is not entitled, on the question of probable cause, to introduce in evidence the testimony of third parties, given at the trial of another complaint against the plaintiff for illegal transportation of liquor, tried subsequently to the complaint declared on.1

Tort to recover damages for alleged malicious prosecution arising by the defendant's acts in making, and procuring to be made, complaints to search for certain intoxicating liquors in the possession of the plaintiff at Quincy, on July 3, 1884, and August 4, 1884. Trial in the superior court, before KNOWLTON, J., where the jury returned a verdict for the plaintiff on the first count of the declaration, and for the defendant on the second and third counts, and the defendant alleged exceptions. The facts are stated in the opinion. B. B. Johnson, for defendant.

Defendant, to negative proof of want of probable cause, and in mitigation of damages, had a right to introduce evidence tending to show what all the facts were at the time of the seizure, and when the complaint was made, as declared upon in plaintiff's first count. Barron v. Mason, 31 Vt. 189; Bacon v. Towne, 4 Cush. 217; Ripley v. McBarron, 125 Mass. 272. The facts attempted to be shown by defendant as to Costello's and plaintiff's conviction in the district court should have been allowed. Bacon v. Towne, 4 Cush. 217; Com. v. Cotton, 138 Mass. 500; Barron v. Mason, 31 Vt. 189. The court should have instructed the jury that it was a justification for the act of the defendant. Wilder v. Holden, 24 Pick. 8; Com. v. Burgett, 136 Mass. 455. J. S. Eldridge, for plaintiff.

The offer to show what the evidence of "the several claimants was at the trial of the second complaint, the malicious prosecution of which was alleged in the second count, and on which the verdict was for the defendant, was properly rejected. The evidence was not offered in mitigation of damages, but to show "actual guilt." The offer was too indefinite, and contained no statement of evidence "tending to show actual guilt" of what. Morville v. American Tract Soc., 123 Mass. 129. Bacon v. Towne, 4 Cush. 217, does not support the defendant's claim. The requests as to the habits of Costello and the plaintiff were rightly refused. Tillotson v. Warner, 3 Gray, 574; Bullock v. Lindsay, 9 Gray, 30.

DEVENS, J. The plaintiff's declaration contained three counts, the first for alleged malicious prosecution by the defendant in making a complaint, in order to obtain a warrant to search for certain intoxicating liquors in possession of the plaintiff in a certain building in Quincy, with intent to sell

1 See note at end of case.

the same contrary to law, which complaint was made on the third of July, 1884; the second count was for alleged malicious prosecution by defendant in making complaint on August 4, 1884, in order to search for certain intoxicating liquors in the possession of the plaintiff, illegally transported by him, he having reasonable cause to believe that they were intended to be sold in Quincy in violation of law; the third count alleged a wrongful conversion by the defendant of certain personal property of the plaintiff. As the verdict was for the defendant on the second and third counts, the exceptions are only to be considered as they relate to the first count, and the first complaint made by defendant on the alleged malicious prosecution on which that count is founded.

That which the plaintiff has to establish in an action for malicious prosecution is that the prosecution was instituted without probable cause to believe him guilty, and with malice, in its legal acceptation; that is, in bad faith, and with want of any sincere belief in the guilt of the party against whom it is commenced. While malice may be inferred from a want of probable cause, it is not a necessary inference, and the issues are distinct; as, even if it be proved that the prosecution was without probable cause, it is still a sufficient defense to show that it was instituted in good faith, and in the honest belief of the guilt of the party charged. Ripley v. McBarron, 125 Mass. 272. Whatever legitimately tends to show probable cause for the prosecution or the good faith of the complainant is therefore admissible on his behalf to meet the evidence of the plaintiff, who in such action has the burden of establishing the want of probable cause and the malice of the defendant.

That the defendant had a right to introduce evidence of all the facts as they existed, or appeared to exist, at the time of the seizure under the first warrant, and when the complaint was made, cannot be controverted. As this is so, he contends that he had the right to introduce the evidence of the claimants, other than the plaintiff, as given at the trial of the second complaint in the district court, after the failure of the first complaint, to thus justify his act in swearing to the first complaint. The issues raised by the two complaints were different,-in the one the charge was for keeping liquors with intent to sell; the other was for unlawful transportation. The defendant may have been fully justified in making the second complaint, while he had no justification for the first. It may be that this evidence would have been admissible under the second count, where the verdict was for the defendant, as the facts there testified to by witnesses may have been most influential in inducing a man of proper prudence and caution to believe that the plaintiff was guilty of the offense there charged, and that there was good cause to believe him so. Bacon v. Towne, 4 Cush. 217. But the evidence taken upon a subsequent trial, for a different offense, even if one of a similar character, would not have any legitimate tendency to justify the first complaint made by the defendant, which had previously been tried and decided; nor was the conviction of Costello at a still later period, for illegally selling a portion of the liquors being transported into Quincy by the plaintiff, admissible as evidence of probable cause on the defendant's part. It does not appear that any evidence of the facts showing the relations of Costello and the plaintiff was refused. The fact of a subsequent conversation of Costello would not certainly, in any way, afford evidence of probable cause to believe the plaintiff guilty when the first complaint was made. It could in no way have operated on the defendant's mind.

The defendant further contends that the plaintiff collected money in Quincy for liquors brought there in Costello's name, and for liquors brought to fill orders given to Costello in Quincy, and therefore the court should have ruled that the defendant had a justification for his act in making the complaint. But the defendant could not be justified, on these facts, in making the first complaint, without evidence that the plaintiff was informed, or had knowl