Churchill v. Pacific Improvement Co.

Paterson, J. —A judgment in favor of defendant on demurrer to the complaint was entered in the court below, and plaintiff has appealed therefrom. The question is, whether the cause of action stated in the complaint was barred by the statute of limitations.

It is alleged in the complaint that the defendant is engaged in the business of keeping a public inn; that on April 1, 1887, the plaintiff and his wife were guests in said inn, and plaintiff had taken there with him as such guest, and placed under the care of the defendant, as innkeeper, certain described personal property belonging to him, of the value of $3,492; that on the night of said first day of April, the inn and plaintiff’s said property were, through the negligence of the defendant, destroyed by fire. Another and separate cause of action is set forth in the complaint, but it is the same as the first, except in two particulars, namely, it is alleged that a portion of the property, valued at $3,040, was the personal effects of the plaintiff’s wife, and that before the commencement of the action she assigned to the plaintiff all claim for damages against the defendant. The complaint was filed March 5, 1890.

The defendant filed a demurrer to the complaint, oa [492]the ground that “it clearly and affirmatively appears upon the face of said complaint that the cause of action therein set forth is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.” This section provides that an action upon an obligation not founded upon an instrument of writing may be brought within two years.

We think that the ruling of the court in sustaining the demurrer to the complaint was correct. Section 1859 of the Civil Code provides that “ an innkeeper is liable for all losses of or injuries to personal property placed by his guests under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn.” Appellant contends that the liability established by this section is one “created by statute”; and that the time within which an action can be commenced upon such a liability is governed by subdivision 1 of section 338 of the Code of Civil Procedure, which provides that “ an action upon a liability created by statute, other than a penalty or forfeiture,” must be commenced within three years.

We do not agree with the appellant in this contention. The rule stated in section 1859 is simply declaratory of the common law, and section 5 of the Civil Code provides that the sections of the code, “ so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” In Pinkerton v. Woodward, 33 Cal. 600, 91 Am. Dec. 657, the court said: “ But the preponderating weight of authority, from the time of the decision in Gayle’s Case, 8 Coke, 32, to the present time, is in favor of the rule that he [the innkeeper] is liable as an insurer.” In Wilkins v. Earle, 44 N. Y. 172, 4 Am. Rep. 655, the court said: “ His liability extends to wearing apparel, jewelry, money, and even to the horses, wheat, butter, and other articles of bulk belonging to the guest, if received by the innkeeper into his care, and within his place of entertainment. This is the rule of the