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Cornell University Library
KF 1091.A7M12 1914
A selection of cases on the law of ballm
3 1924 018 926 729
The original of tiiis book is in
tine Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/details/cu31924018926729
A SELECTION OF CASES
ON THE LAW OP
BAILMENTS AND CARRIERS
INCLUDING
ORDINARY BAILMENTS, PLEDGES, WAREHOUSEMEN
WHARFINGERS, INNKEEPERS, POSTMASTERS
AND PUBLIC CARRIERS OF GOODS
AND PASSENGERS
BY
,EMLIN McCLAIN, A.M., LL.D.
THIRD EDITION.
BOSTON
LITTLE, BROWN, AND COMPANY
1914
c:
41.72
Copyright, 1894,
By Bmlin McClain.
Copyright, 1896,
By Emlin McClain.
Copyright, 1914,
By Bmlin McOlain.
Set up and electrotyped by J. S. Gushing Co., Norwood, Mass. , U.S.A.
Presswork by S. J. Parkhill & Co. , Boston, Mass., U.S.A.
PREFACE.
In the preparation of a new edition of " Cases on Carriers " it has
seemed highly desirable not only to incorporate some of the recent
decisions of the courts relating to carriage of goods and of passengers,
but also- to cover, as a new subject, the law of bailments, not by merely
prefixing a few of the old cases which have been stepping stones
in reaching the doctrine of common carriers' extraordinary liability,
but by giving a substantial collection of the cases, old and new, in
which the characteristics of bailment and the resulting relations of
bailee to bailor and to third persons should be made to appear. The
historical development of the bailment conception could not well
be presented without adding to the cases of ordinary bailment those
of the special classes which have in use become known by particular
names, to wit : Pledges, Warehousemen, Wharfingers, Innkeepers, and
Postmasters.
The cases on each of these forms of bailment have contributed to or
illustrated the development of the law of carriers' liability. From the
case of Coggs v. Bernard, and the Treatise of Jones on Bailments to
the present time judges and authors have found an intimate relation
of these various subjects to each other and a comprehensive treatment
of them in one course is not only justifiable, but essential.
The conception of public, service obligations arising out of the pur-
suit of certain callings and the appropriation of property by the owner
to certain pubhc uses, is one which was first formed in bailment cases.
For instance, the exceptional liability of an innkeeper for the goods of
his guest brought with him to the inn has been worked out along
lines parallel to, but not entirely harmonious with, that of the public
carrier of goods entrusted to him for transportation ; and the general
principles of public service obligations can best be reached by follow-
ing this course of development.
IV PREFACE.
There is a historical reason, also, though not, perhaps, a logical con-
sistency, in covering the duty of the innkeeper and the carrier to pro-
tect his guest's or his passenger's person as well as his property,
which justifies the inclusion of these topics in a treatment of the law
of bailments.
EMLIN McCLAIN.
State University of Iowa,
September, 1914.
PEEFACE TO THE SECOND EDITION
OF CASES ON CARRIERS.
Although this collection of cases as now published remains sub-
stantially the same as when the Cases on Carriers of Goods
were pixblished three years ago, and the Cases on Carriers of
Passengers were added a year later, making the first complete
edition, yet there have been such changes in plan as to make an
entirely new preface proper ; and the former one is omitted as
not applicable to the book in its present form, although the gen-
eral purpose and plan have not been materially changed.
Three principal considerations have been borne in mind in the
selection of the cases to be included : First, to secure at least one
case on each question involved in the law of carriers upon which
the instructor would feel that he ought to give his class informa-
tion, so that the collection will serve substantially the purpose of
a text-book. Second, to select cases which present the principles
of the subject by way of adjudication of actual controversies be-
fore a court, and not merely by way of dictum or argument in
laying down the general pi'opositions of law on the subject. These
text-book cases are apparently satisfactory to the novice in the
study of cases, because they seem to serve the purpose of a trea-
tise, but they are not the cases which carry the greatest weight
when cited, and therefore are not the cases which the student
should master in determining what the law is. The writer of a
treatise is in position to state more accurately and reliably the
general propositions of law on a subject than is the judge who
has before him for consideration only a particular question to be
decided under one branch or rule of the subject, although he
VI PREFACE TO THE SECOND EDITION
may think it desirable to illustrate his reasoning by stating
general propositions relating to other branches. Third, to choose
cases which state what is believed to be the correct or preponder-
ating rule as to any particular question, where there is a conflict;
but where the conflict is marked and there are strong reasons or
weighty authorities on each side, then it has been sought to pre-
sent at least one case on each side for the purpose of indicating
the conflict. If this has not been deemed expedient, then the fact
of the existence of a difference of view is indicated by references
contra in a note. But the harmonizing of apparent conflicts and
the collection of authorities upholding opposing views has been
left for the student's own efforts under the guidance of his
instructor, the object of this collection being, not to render un-
necessary or minimize the work of the teacher, but only to
furnish suitable material to be placed in the hands of the student
in connection with a course of instruction on the subject.
In order however to guide the student, as well as the teacher,
in forming some connected plan of the whole subject which shall
serve to indicate the relation of the cases to each other and form
a basis for other reading, the cases have been arranged in ac-
cordance with an analysis which is presented at the beginning
of the book and carried through it by means of headings and sub-
headings. There is no intention by means of tliis analysis to
lessen the labors of either the teacher or the student by stating
in condensed form what the law is, for it is believed that such
condensed and analytical statements, useful as they may be as a
summing up and conclusion of information already acquired, are
entirely misleading when relied upon as sources of information
on the law, and detrimental in that they induce many students to
omit that careful and critical study which gives to a legal educa-
tion its principal disciplinary value. With the same view, all
headnotes or brief statements of points decided have been omitted.
In order to bring the collection within reasonable scope, por-
tions of some of the opinions, which have no bearing on the point
CASES ON CAEBIEKS VU
which the case is intended to illustrate, are omitted, and in most
cases also the arguments of counsel. While the retention of each
case intact would have been in itself advantageous, yet the corre-
sponding advantage of being able to present within the necessary
limits of such a collection other more important matter has been
thought to justify such slight omissions as have been made. But
all omissions, except in case of names and arguments of counsel,
have been in some form indicated. No effort has been made to
edit the opinions or correct the references ; but wherever a case
has been found cited which is included in this collection, the fact
is indicated by a reference in bold-faced type ^o the page where
the case may be found.
EMLIN MoCLAIN.
Iowa City, July, 1896.
ANALYSIS.
I. ORDINARY BAILMENTS.
FAQX
1. Relationb Of Bailor and Bailee 3
a. In general 3
Southcote's Case 3
Coggs V. Bernard 4
Brewster v. Warner 12
TheWinkfield 14
b. Lost chattels 20
Ai'mory v. Delamirie 20
McAvoy V. Medina 20
Durfee v. Jones 21
Danielson v. Roberts 24
South Staffordshire Water Co. v. Sharman 27
2. Possession by Bailee 28
Bretz V. Diehl 28
Woodward v. Seraans 32
National Safe Deposit Co. v. Stead 33
Wamser v. Browning 36
3. Conversion 38
Fletcher v. Fletcher 38
Way V. Davidson 39
Pulliam V. Burlingame 39
Jensen v. Eagle Ore Co 43
Jenkins :;. Bacon 46
Doolittle V. Shaw 49
4. Negligence 53
a. What constitutes 53
Doorman v. Jenkins 53
Wilson V. Brett 56
Knowles v. Atlantic & St. Law. R. Co 58
Bennett v. O'Brien 60
Wiser v. Chesley 61
First National Bank v. Graham 63
Preston v. Prather 66
b. Burden of proof 73
Sanborn v. Kimball 73
5. Lien 75
Burdict v. Murray 75
Arians v. Brickley 76
Grinnell v. Cook 79
Williams v. Allsup 81
Sargent v. Usher 82
Case V. Allen 84
Small V. Robinson 88
Sensenbrenner v. Mathews 89
Doane v. Russell 90
Lambert v. Nicklass 93
X ANALYSIS.
II. PLEDGES.
PAGE
1. Possession Essential 98
Wilson V. Little 98
Walker v. Staples 103
Casey v. Cavarop 104
Geilfuss V. Corrigan 110
2. Duties op Pledgee 115
St. Losky V. Davidson 115
Drake v. White 116
3. Lien 118
Stearns v. Marsh 118
Robinson !i. Hurley : 121
White V. Phelps 123
Boynton ii. Payrow 127
Masonic Sav. Bank v. Bang's Adm'r 129
Moses V. Grainger 133
III. WAREHOUSEMEN.
1. Duties 136
Schmidt v. Blood 136
Gulf Compress Co. v. Harrington 137
2. Receipts 140
Sinsheimer v. Whiteley 140
Anderson v. Portland Flouring MiUs Co 142
DolliflE V. Robbins 147
3. Lien 150
Steinman v. Wilkins 150
IV. WHARFINGERS.
1. As Bailees 153
Rodgers v. Stophel 153
2. Duties 155
Chapman v. State 155
Willey V. Allegheny City 159
V. INNKEEPERS.
1. Public Calling 163
Calye's Case 163
Rex V. Ivens 165
2. Essential Relation op Innkeeper and Guest 167
Kisten v. HUdebrand 167
Hancock v. Rand 170
Orchard v. Bush 175
Walpert v. Bohan 177
Pullman Palace Car Co. v. Smith 179
3. Duty as to Guest's Peksonal Sapety 183
Gilbert v. Hoflman 183
Clancy v. Barker 185
4. Liability por Guest's Property 200
Clute V. Wiggins 200
Quinton v. Courtney 201
Merritt v. Claghom 202
ANALYSIS. XI
PAOK
Sibley v. Aldrich 206
Hulett V. Swift 212
Fauoett «. Nichols 215
Johnson v. Chadborn Finance Co 218
Fay V. Pacific Impr. Co 223
Epps 17. Hinds 226
Weisenger v. Taylor 227
Jalie V. Cardinal 228
Berkshire Woollen Co. v. Proctor 232
Wilkins v. Earle 237
Fisher v. Kelsey 242
5. Kegulations 245
Markham v. Brown 245
State V. Steele 248
6. Lien 254
Cook V. Kane 254
Singer Mfg. Co. v. Miller 257
Robins v. Gray 258
VI. POSTMASTERS AND CARRIERS OF MAIL.
1. Postal Oppicbrs 261
Lane v. Cotton 261
2. Carriers under Contract 270
Sawyer v. Corse 270
Foster v. Metts 278
Boston Ins. Co. v. Chicago, R. I. & P. R. Co 280
The Winkfleld 288
Vn. CARRIERS OF GOODS.
1. Who are Common Carriers 289
a. Nature of public calling 289
Munn V. Illinois 289
b. Who exercise such calling 299
Allen V. Sackrider 29^
Gisbourn v. Hurst n. 300
Gordon v. Hutchinson 301
Citizens' Bank v. Nantucket Steamboat Co 303
Dwight 0. Brewster 304
Flint, etc. R. Co. v. Weir 305
Pierce v. Milwaukee, etc. R. Co 307
Gray v. Missouri River Packet Co 309
Hale V. New Jersey Steam Nav. Co 311
Liverpool Steam Co. v. Phoenix Ins. Co 311
McArthur u. Sears . 312
Hall V. Renfro 313
TheNeaffie 313
Coup V. Wabash, etc. Ry. Co 315
Buckland v. Adams Express Co 318
Roberts v. Turner 320
Transportation Co. v. Bloch 322
c. Baggage of passengers 822
Orange County Bank v. Brown 322
Railroad Co. v. FralofE 829
Kansas City, etc. R. Co. u. Morrison 335
Great Northern Railway v. Shepherd 338
Xll ANALYSIS.
PAGE
Kansas City, F. S. & M. R. Co. v. McGahey 339
Michigan Cent. R. Co. v. Carrow 340
Hannibal Railroad v. Swift 342
Henderson v. Louisville, etc. R. Co 343
First Nat. Bank v. Marietta, etc. R. Co 344
Lewis V. New York Sleeping Car Co 345
Clark V. Burns 347
2. Delivery to Carrier 349
Grosvenor v. New York Cent. R. Co 349
Green v. Milwaukee & St. P. R. Co 352
Michigan Southern, etc. R. Co. v. Shurtz 353
3. Duty to Serve the Public 354
a. Without discrimination 354
Chicago & N. W. Ry. Co. v. People 354
Ayres v. Chicago & N. W. Ry. Co 358
Sargent v. Boston & Lowell R. Corp 36'4
Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. . . . 367
State V. Cincinnati, etc. R. Co 372
b. For a reasonable compensation 376
Bastard v. Bastard 376
Ragan v. Aiken 376
Chicago, B. & Q. R. Co. v. Iowa 377
Reagan v. Farmers' Loan & Trust Co 380
4. Carrier's Liability 383
a. Act of God 383
Proprietors of the Trent Nav. v. Wood 383
Forward v. Pittard 885
Colt V. M'Mechen 392
Friend v. Woods 395
Railroad Co. v. Reeves 398
b. Act of public enemy 402
Morse v. Slue 402
- Southern Express Co. J). Womack 403'
c. Act of shipper 407
Cougar V. Chicago, etc. R. Co 407
Miltimore v. Chicago, etc. R. Co 409
White V. Winnisimmet Co 412
Hart V. Chicago, etc. R. Co 416
d. Nature of goods 418
Clarke v. Rochester, etc. R. Co 418
Evans v. Fitchburg R. Co 421
Kinnick v. Chicago, etc. R. Co 423
Wilke V. Illinois Cent. R. Co 426
Faucher v. Wilson 429
e. Carrier's fault or negligence 430
Scovill V. Griffith 430
Blackstoek v. New York, etc. R. Co 434
Geismer v. Lake Shore, etc. R. Co 437
Davis V. Garrett 439
Constable v. National Steamship Co 443
Steamboat Lynx v. King 445
Brennisen v. Pennsylvania R. Co 449
5. Limitation op Liability 452
a. What valid 452
Gibbon v. Paynton 452
Harris v. Packwood 456
ANALYSIS. xm
PAGE
Riley v. Home 461
HoUister v. Nowlen 465
Judson V. Western E. Co 477
Boon V. Steamboat Belfast 481
Blossom V. Dodd 485
b. In case of negligence 489
Liverpool Steam Co. v. Phoenix Ins. Co 489
Mynard v. Syracuse, etc. R. Co u. 493
The Main v. Williams 498
Calderon v. Atlas Steamship Co 504
Knott V. Botany Mills 510
c. Agreed valuation 516
Graves v. I^ake Shore R. Co 516
MoFadden v. Missouri Pacific R. Co 519
Adams Express Co. v. Croninger 520
Missouri, K. & T. R. Co. v. Harriman 530
d. Time for claiming damages 536
Express Co. v. Caldwell 536
Sprague v Missouri Pacific R. Co 542
Ridgway Grain Co. v. Pennsylvania R. Co 546
e. Consignor and consignee bound 548
Grace v. Adams 548
Shelton v. Merchants' Dispatch, etc. Co 552
Anchor Line v. Dater n. 552
f. Available to connecting carrier 555
Babcock v. Lake Shore R. Co 555
KifE V. Atchison, T. & S. F. R. Co n. 560
6. The Bill of Lading 561
a. As a contract 561
The Delaware 561
Garden Grove Bank v. Humeston & S. Ry. Co 569
b. As a receipt 575
O'Brien v. Gilchrist 575
Relyea v. New Haven Rolling Mill Co 577
Dean v. Driggs 580
The Idaho 588
Pollard V. Vinton 588
Sioux City & P. R. Co. v. First Nat. Bank 592
7. Delivery by Cakbiee 596
A. To Terminate Exceptional Liability 596
Hyde v. Navigation Co 596
Baldwin v. American Express Co 602
Packard v. Earl 605
Witbeck v. Holland 606
Hutchinson v. United States Ex. Co 610
Norway Plains Co. v. Boston & Maine R. R 616
Lewis V. Louisville & N. R. Co 623
Faulkner v. Hart 630
Kansas City, F. S. & M. R. Co. v. McGahey 636
B. Termination of Liability as Bailee 642
a. Delivery to connecting carrier 642
Railroad Co. v. Manufacturing Co 642
Muschamp v. Lancaster & Preston June. R. Co 646
Nutting v. Connecticut River R. Co 652
Galveston, H. & S. A. R. Co. v. Wallace 654
Atchinson, T. & S. F. R. Co. v. Roach 656
Peterson v. Chicago, R. I. & P. R. Co 663
XIV ANALYSIS.
PAGE
b. Delivery to ponsignee .,..-. 668
Sweet V. Barney 668
Bailey «., Hudson River R. Co 672
Armentrout v. St. Louis, K. C. & N. R. Co 675
McEntee v. New Jersey Steamboat Co 678
c. Delivery to holder of bill of lading 680
Pennsylvania R. Co. v. Stearn 680
Weyand v. Atchinson, T. & S. F. R. Co 681
Shaw V. Railroad Co 685
d. Delivery to true owner 690
The Idaho 690
e. Delivery to wrong party through mistake or fraud 696
Powell V. Myers 696
American Express Co. v. Stack 698
Price V. Oswego & S. R. Co 700
Samuel v. Cheney 706
Edmunds v. Merchants' Despatch Transp. Co 710
Wernwag v. Phil. W. & B. R. Co 711
Singer «. Merchants' Despatch Transp. Co 715
f. Stoppage in transitu 718
Newhall V. Central Pacific R. Co 718
Allen V. Maine Cent. R. Co 720
Pennsylvania R. Co. v. American Oil Works 721
Branan v. Atlanta & W. P. R. Co 72S
Brewer Lumber Co. v. Boston & A. R. Co 729^
g. Seizure under legal process 735
Stiles V. Davis .- • 735
Bliven v. Hudson River R. Co 736
Ohio & Mississippi R. Co. v. Yohe 739'
Edwards v. White Line Transit Co 744
Kiffl V. Old Colony & N. R. Co 746
Adams v. Scott 748
Montrose Pickle Co. v. Dodson & Hills Mfg. Co 751
8. Remedies as against Carrier 753
a. Who may sue 753
Davis V. James 753
Dawes v. Peck 754
Finn v. Western R. Corp 758
Krulder v. Ellison 766
Freeman v. Birch 769^
Elkins V. Boston & Maine R 770
b. Form of action - 773-
Dale V. Hall 773
Baylis v. Lintott 775
Pozzi V. Shipton 778
Smith V. Seward 780
c. Burden of proof 783
Transportation Co. v. Downer 783
Shriver v. Sioux City & St. P. R. Co 786
Marquette, H. & O. R. Co. v. Kirkwpod 789
Montgomery & Eufaula R. Co. v. Culver 792
d. Evidence of negligence 797
Empire Transp. Co. v. Wamsutta Oil Ref. etc. Co 797
Kirst V. Milwaukee, L. S. & W. R. Co 800
9. Carrier's Compensation 803
a. Freight charges 803
Curling v. Long 803
Tindal v. Taylor 805
ANALYSIS. XV
PAOK
Bailey v. Damon • , . . . 806
Sayward v. Stevens 809
Westevn Transp. Co. v. Hoyt 817
Wooster v. Tarr 822
Merian v. Funok 823
Scaife v. Tobin 826
Wegener v. Smith 828
Ashmole v. Wainwright 829
Chase v. Alliancef Ins. Co 831
b. Lien 833
Skinner v. Upshaw 833
Phillips V. Rodie 833
Chicago & N. W. R. Co. v. Jenkins 836
Potts u. N. Y. & N. E. R. Co 837
Campbell v. Conner 839
Steamboat Virginia v. Kraft 841
Wells V. Thomas 843
Briggs V. Boston and Lowell R. Co 845
Roberts v. Koehler 849
Robinson v. Baker ... 852
Bassett v. Spofford 856
VIII. CARRIERS OF PASSENGERS,
1. Who Deemed - 860
Boyoe v. Anderson 860
Shoemaker v. Kingsbury 863
Hoar V. Maine Cent. R. Co 867
Houston & T. C. R. Co. v. Moore 870
2. Public Calling 873
Bennett v. Dutton 873
Nevin v. Pullman Palace Car Co 877
The D. H. Martin 885
Thurston v. Union Pacific R. Co 888
Vinton v. Middlesex R. Co 889
Jencks v. Coleman 891
Old Colony R. Co. v. Tripp 894
3. Who Deemed Passengers 900
a. Acceptance 900
Brien v. Bennett 900
AUender v. Chicago, etc. R. Co 901
b. Persons pursuing special callings 904
Noltonu. Western R., Co 904
c. Employees 908
Gillshannon v. Stony Brook R. Co 908
d. For compensation 910
Tarbell u. Central Pacific R. Co 910
Wilton V. Middlesex R. Co 912
Waterbury v. New York Cent., etc. R. Co 914
Duff V. Alleghany Valley R. Co 916
St. Joseph, etc. R. Co. v. Wheeler 917
Toledo, etc. R. Co. v. Brooks 922
Way V. Chicago, etc. R. Co 924
4. Liability for Injuries 928
a. From negligence 928
Christie v. Griggs 928
Ingalls V. BUls 929
Meier v. Pennsylvania R. Co 937
XVI ANALYSIS.
PAGB
Steamboat New World v. King 940
McPadden v. New York Cent. R. Go 945
Grand Rapids, etc. K. Co. u. Huntley 949
Pershing v. Chicago, etc. R. Co 952
Gleeson v. Virginia Midland R. Co 958
b. Negligence or wrong of servants 964
Railroad Co. v. Walrath 964
Ramsden v. Boston, etc. R. Co 967
Chicago, etc. R. Co. u. Flexman 969
Fick V. Chicago, etc. R. Co 972
c. Acts of fellow-passengers or others 975
Putnam v. Broadway, etc. R. Co 975
Pittsburgh, F. W. & C. R. Co. v. Hinds 981
Batton V. South & N. A. R. Co 984
d. Contributory negligence 986
Illinois Cent. R. Co. u. Green " 986
Morrison v. Erie R. Co 990
Filer v. New York Cent. R. Co 995
Buel V. New York Cent. R. Co 996
Waite V. Northeastern R. Co 999
5. Liability for Delay 1003
Sears v. Eastern R. Co 1003
Nunn V. Georgia R. Co 1006
6. Limitation of Liability 1010
Railway Co. v. Stevens 1010
Bates V. Old Colony R. Co 1018
Quimby v. Boston, etc. R. Co 1018
Jacobus V. Saint Paul, etc. R. Co 1023
7. Tickets 1029
Jerome v. Smith 1029
State V. Overton 1032
Keeley v. Boston & Maine R. Co 1034
Auerbach u. N. Y. C. & H. R. R. Co 1036
Boylan v. Hot Springs R. Co 1039
Nashville, etc. R. Co. v. Sprayberry 1042
Central R. Co. v. Combs 1045
Frank v. Ingalls 1047
Sleeper v. Pennsylvania R. Co 1049
8. Regulations 1051
JefEersonville R. Co. v. Rogers 1051
Everett v. Chicago, etc. R. Co 1054
Townsend v. N. Y. Cent. & H. R. R. Co 1057
Frederick u. M. H. & O. R. Co 1060
Bradshaw v. South Boston R. Co 1064
Murdock v. Boston, etc. R. Co • . . 1067
Philadelphia, W. & B. R. Co. v. Rice 1069
Kansas City, etc. R. Co. v. Riley 1072
Swan V. Manchester, etc. R 1075
Illinois Cent. R. Co. v. Whittemore 1080
Chicago, etc. R. Co. v. Williams 1082
TABLE OF CASES.
PAGE
Adams v. Scott 748
Adams Express Co. v. Croninger . 520
Allen V. Maine Central R. Co. . . 720
V. Saokrider 299
AUender v. Chicago, etc. K. Co. . 901
American Ex. Co. v. Stack . . . 698
Anchor Line v. Dater . . . . n. 552
Anderson v. Portland Flouring
Mills Co 142
Arians v. Brickley 76
Armentrout v. St. Lewis, etc. R.
Co 675
Armory v. Delamirie ... .20
Ashmole v. Wainwright .... 829
Atchison, etc. R. Co. v. Roach . 656
Atchison, T. & S. F. R. Co. v. D.
& N. O. R. Co 367
Auerbach u. N. Y. C. & H. R. R.
Co 1036
Ayres v. Chicago, etc. R. Co. . . 358
Babcock v. Lake Shore, etc. R. Co. 555
Bailey v. Damon .... . 806
V. Hudson River R. Co. . . 672
Baldwin v. American Ex. Co. . . 602
Bassett v. Spofford 856
Bastard v. Bastard 376
Bates V. Old Colony R. Co. . . . 1013
Battou V. South & N. A. R. Co. . 984
BaylisB. Lintott 775
Bennett v. Dutton 873
V. O'Brien 60
Berkshire Woollen Co. v. Proctor . 232
Blackstook v. New York, etc. R.
Co 434
Bliven v. Hudson River R. Co. . . 736
Blossom V. Dodd 485
Boon V. Steamboat Belfast . . . 481
Boston Ins. Co. v. Chicago, R. I. &
P. R. Co 280
Boyce s. Anderson 860
Boylan v. Hot Springs R. Co. . . 1039
Boynton v. Payrow 127
Bradshaw v. South Boston R. Co. 1064
Branan v. Atlanta & W. P. R. Co. 723
Brennisen v. Pennsylvania R. Co. 449
Bretz V. Diehl 28
Brewer Lumbe^ Co. v. Boston &
Albany R. Co 729
Brewster v. Warner 12
Brien v. Bennett 900
Briggs D. Boston, etc. R. Co. . . 845
Buckland v. Adams Exp. Co. . . 318
Buel V. New York C. R. Co. . 996
Burdiot v. Murray 75
Calderon v. Atlas Steamship Co. . 604
Calye's case ... . . 163
Campbell v. Conner 889
Case V. Allen 84
Casey v. Cavoroc ... . . 104
Central R. Co. v. Combs . . . 1045
Chapman v. State 155
Chase v. Alliance Ins. Co. . . . 831
Chicago, etc. R. Co. v. Flexman . 969
■0. Iowa 377
V. Jenkins 836
V. People . 354
V. Williams 1082
Christie v. Griggs 928
Citizens' Bank v. Nantucket Steam-
boat Co 303
Clancy v. Barker ... . . 185
Clark V. Burns 347
Clarke v. Rochester, etc. R. Co. . 418
Clute V. Wiggins 200
Coggs V. Bernard 4
Colt V. McMechen 392
Congar v. Chicago, etc. R. Co. . 407
Constable v. National Steamship
Co 443
Cook V. Kane 254
Coup V. Wabash, etc. Ry. Co. . . 315
Curling v. Long 803
Dale V. Hall 773
Danielson v. Roberts 24
Davis V. Garret 439
V. James 753
Dawes v. Peck .... . . 754
Dean v. Driggs 580
Delaware, The 561
Doane v. Russell 90
DoUiff V. Robbins 147
Doolittle V. Shaw 49
Doorman v. Jenkins 53
Drake v. White 116
Duff V. Allegheny V. R. Co. . . 916
Durfee v. Jones 21
Dwight V. Brewster 304
XVUl
TABLE OF CASES.
FAOE
Edmunds v. Merchants' Desp.
Transp. Co 710
Edwards v. White Line Transit
Co 744
ElMns V. Boston & Maine E. . . 770
Empire Transp. Co. v. Wamsutta
Oil, etc. Co 797
Epps V. Hinds 226
Evans v. Fitchhurg R. Co. . . . 421
Everett v. Chicago, etc. R. Co. . . 1054
Express Co. v. Caldwell .... 536
Fauoett v. Nichols 215
Faucher v. Wilson 429
FauUmer v. Hart 630
Fay V. Pacific Improvement Co. . 223
Fick V. Chicago & N. W. R. Co. . 972
Filer v. New York C. R. Co. . . 995
Finn v. Western E. Co 758
First National Bank v. Graham . 63
V. Marietta, etc. R. Co. . . 344
Fisher v. Kelsey 242
Fletcher v. Fletcher 38
Flint, etc. R. Co. v. Weir ... 805
Forward v. Pittard 385
Foster v. Metts 278
Frank v. Ingalls 1047
Frederick v. Marquette, etc. R.
Co 1060
Freeman v. Birch 769
Friend v. Woods 395
Galveston H. & S. A. R. Co. v.
Wallace 654
Garden Grove Bank v. Humeston,
etc. R. Co 569
Geilfuss II. Corrigan 110
Geismer v. Lake Shore, etc. R. Co. 437
Gibbon v. Paynton 452
Gilbert v. Hoffman 183
Gilshannon v. Stony Brook R. Co. 908
Gisbourn v. Hurst n. 300
Gleeson v. Virginia Midland E. Co. 958
Gordon v. Hutchinson .... 301
Grace v. Adams. . . ... 548
Grand Rapids, etc. R.Co. v. Huntley 949
Graves v. Lake Shore, etc. R. Co. . 516
Gray v. Missouri River Packet Co. 309
Great Northern Railway v. Shep-
herd 338
Green v. Milwaukee, etc. R. Co. . 352
Grinnell v. Cook 79
Grosvenor v. New York Central
R. Co 349
Gulf Compress Co. v. Harrington 137
Hale V. New Jersey Steam Nav. Co. 311
Hall V. Renfro 313
Hancock v. Rand 170
Hannibal Railroad i>. Switt . . . 342
Harris v. Packwood 456
Hart V. Chicago, etc. E. Co. . . 416
Henderson v. Louisville, etc. R. Co. 343
Hoar V. Maine C. R. Co. . . . 867
PAGE
Hollister v. Nowlen 465
Houston & T. C. E. Co. ■». Moore 870
Hulett V. Swift 212
Hutchinson v. United States Ex. Co. 610
Hyde v. Navigation Co 596
Idaho, The 588, 690
Illinois Cent. E. Co. v. Green . . 986
V. Whittemore 108O
Ingalls V. BUls 929
Jacobus V. St. Paul, etc. R. Co. . 102S
Jalie V. Cardinal 228
Jeffersonville R. Co. v. Rogers . 1051
Jencks v. Coleman 891
Jenkins v. Bacon 46
Jensen v. Eagle Ore Co 43
Jerome v. Smith 1029
Johnson v. Chadbom Finance Co. 218
Judson V. Western R. Co. . . . 477
Kansas City, etc. E. Co. v. Mc-
Gahey 339, 636
V. Morrison 335
V. Riley 1072
Keeley v. Boston & Maine R. Co. 1034
Kiff V. Atchison, etc. R. Co. . n. 660
V. Old Colony, etc. R. Co. . 746
Kinnick v. Chicago, etc. R. Co. . 423
Kirst V. Milwaukee, etc. E. Co. . 800
Kisten v. Hildebrand 167
Knott V. Botany Mills .... 510
Knowles v. Atlantic & St. Law.
R. Co 58
Krulder v. Ellison 766
Lambert v. Nicklass 93
Lane v. Cotton 261
Lewis V. Louisville & N. R. Co. . 623
V. New York Sleeping Car Co. 345
Liverpool Steam Co. v. Phoenix
Ins. Co 311, 489
MoArthur & Hurlbert v. Sears . 312
McAvoy V. Medina 20
McEntee v. New Jersey Steamboat
Co 678
McFadden v. Missouri Pacific R.
Co. . . ■ 619
McPadden v. N. Y. C. E. Co. . . 945
Main, The, v. Williams .... 498
Markham v. Brown 245
Marquette, etc. R. Co. ». Kirk-
wood 789
Martin, The D. R 885
Masonic Sav. Bank v. Bang's
Adm'r 129
Meier ». Pennsylvania R. Co. . . 937
Merian v. Funck 823
Merritt v. Claghorn 202
Michigan Central R. Co. v. Carrow 340
Michigan Southern, etc. R. Co. v.
Shurtz 353
Miltimore v. Chicago, etc. R. Co. 409
TABLE OF CASES.
PAGE
Missouri, K. & T. E. Co. v. Harri-
man 530
Montgomery, etc. R. Co. v. Culver 792
Montrose Pickle Co. «. Dodson, etc.
Co 751
Morrison ». Erie E. Co 990
Morse ti. Slue 402
Moses V. Grainger 133
Munn V. Illinois 289
Murdock v. Boston, etc. E. Co. . 1067
Muschamp v. Lancaster, etc. E.
Co 646
Mynard v. Syracuse, etc. E. Co. n. 493
Nashville, etc. E. Co. v. Spray-
berry 1042
Ifational Safe Deposit Co. v.
Stead 33
Neaffie, The 313
Nevin v. Pullman P. Car Co. . . 877
Newhall v. Central Pacific E. Co. 718
Nolton V. Western E. Co. . . . 904
Norway Plains Co. v. Boston &
M. R 616
Nunn V. Georgia E 1006
Nutting V. Connecticut E. E.
Co 652
O'Brien v. Gilchrist 575
Ohio, etc. E. Co. v. Yohe ... 739
Old Colony E. Co. v. Tripp . . 894
Orange County Bank v. Brown . 322
Orchard ». Bush 175
Packard v. Earl 605
Pennsylvania E. Co. o. American
OU Works 721
V. Stem 680
Pershing v. Chicago, etc. E. Co. . 952
Peterson v. Chicago, etc. E. Co. . 663
Philadelphia, etc. E. Co. v. Rice . 1069
Phillips V. Eodie 833
Pierce v. Milwaukee, etc. E. Co. . 307
Pittsburg, etc. E. Co. v. Hinds . 981
Pollard V. "Vinton 588
Potts V. New York, etc. E. Co. . 837
Powell V. Myers 696
Pozzi V. Shipton 778.
Preston «. Prather 66
Price V. Oswego, etc. E. Co. . . 700
Proprietors, etc. v. Wood . . . 383
Pulliam ». Burlingame .... 39
Pullman Palace Car Co. v. Smith . 179
Putnam v. Broadway, etc. R. Co. . 975
Quimby v. Boston &, Maine E. Co. 1018
Quinton v. Courtney 201
Ragan v. Aiken 376
Railroad Co. v. Fraloff .... 329
V. Manufacturing Co. . . . 642
V. Reeves 398
V. Walrath 964
Railway Co. v. Stevens .... 1010
FAOB
Eamsden v. Boston, etc. E. Co. . 967
Reagan v. Farmers' Loan & Trust
Co 380
Eelyea v. New Haven EoUing Mill
Co 577
Eex ». Ivens 165
Eidgway Grain Co. v. Pennsyl-
vania E. Co 546
Eiley v. Home 461
Eoberts v. Koehler 849
V. Turner ....... 320
Eobins v. Gray 258
Eobinson v. Baker 852
v. Hurley 121
Eodgers «. Stophel 153
St. Joseph, etc. E. Co. v. Wheeler 917
St. Losky V. Davidson . . . . 115
Samuel v. Cheney 706
Sanbom v. Kimball ..... 73
Sargent v. Boston, etc. E. Co. . . 364
V. Usher 82
Savsfyer v. Corse 270
Sayward v. Stevens 809
Soaife v. Tobin 826
Schmidt v. Blood 136
Scovill B. Griffith 430
Sears v. Eastern E. Co 1003
Sensenbrenner v. Mathews ... 89
Shaw -0. Eailroad Co 685
Shelton v. Merchants' Desp.
Transp. Co. . 552
Shoemaker ». Kingsbury . . . 863
Shriver ». Sioux City, etc. E. Co. 786
Sibley v. Aldrich 206
Singer v. Merchants' Despatch
Transp. Co 715
Singer Manufacturing Co. v. MUler 257
Sinsheimer v. Whiteley .... 140
Sioux City, etc. E. Co. v. First Nat.
Bank 592
Skinner v. Upshaw . ; . . . 833
Sleeper v. Pennsylvania R. Co. . 1049
Small 11. Eobinson 88
Smith V. Seward 780
South Staffordshire Water Co. v.
Sharman 27
Southcote's Case 3
Southern Exp. Co. v. Womack . . 403
Sprague v. Missouri Pao. R. Co. . 542
State V. Cincinnati, etc. R. C. . . 372
V. Overton 1032
V. Steele 248
Steamboat Lynx v. King . . . 445
Steamboat New World v. King . 940
Steamboat Virginia v. Kraft . . 841
Steams v. Marsh 118
Steinman v. Wilkins 150
Stiles V. Davis 735
Swan V. Manchester, etc. E. Co. . 1076
Sweet 0. Barney 668
Tarbell v. Central Pao. E. Co. . . 910
Thurston v. Union Pac. R. Co. . 888
XX
TABLE OF CASES.
Tindal v. Taylor
Toledo, etc. E. Co. v. Brooks .
Townsend v. N. Y. Cent. B. Co.
Transportation Co. v. Block
V. Downer
Trent Nav. Co. v. Wood . . .
Vinton v. Middlesex B. Co. .
PAGE
806
922
1057
322
783
383
889
Waite V. Northeastern R. Co. . 999
Walker v. Staples 103
Walpert v. Bohan 177
Wamser v. Browning 36
Waterbury v. N. Y. Cen. R. Co. 914
Way V. Chicago, etc. R. Co. . . 924
V. Davidson 39
Wegener v. Smith 828
Weisengen v. Taylor 227
PAOB
Wells V. Thomas 84a
Wernwagi). Philadelphia, etc. E.Co. 711
Western Transp. Co. v. Hoyt . . 817
Weyand v. Atchison, etc. E. Co. 681
White V. Phelps 123
V. Wlnnisimmet Co 412
Wilke V. Illinois Central E. Co. . 426
WilMns V. Earle 237
Willey V. Allegheny City . . . 159
Williams v. Allsup 81
Wilson V. Brett 56
V. Little 98
Wilton V. Middlesex E. Co. . . 912
Winkfield, The 14, 288
Wiser v. Chesley 61
Witbeck v. Holland 606
Woodward v. Semans .... 32
Wooster v. Tarr 822
I-YI
BAILMENTS
CASES
ON
BAILMEIS^TS AIN^D CARRIERS.
I. ORDINARY BAILMENTS.
1. RELATIONS OF BAILOR AND BAILEE.
a. In general.
SOUTHCOTE'S CASE.
King's Bench. 4 Coke, 83 b. 1600.
SoTTTHCOTE brought Detinue against Bennet for certain goods, and
declared, that he delivered them to the defendant to keep safe; the
defendant confessed the delivery, and pleaded in' bar that after the
delivery one J. S. stole them feloniously out of his possession : the
plaintiff replied, that the said J. S. was the defendant's servant retained
in his service, and demanded judgment, &c. And thereupon the de-
fendant demurred in law, and judgment was given for the plaintiff :
and the reason and cause of their judgment was, because the plaintiff
delivered the goods to be safe kept, and the defendant had took it
upon him by the acceptance upon such delivery, and therefore he ought
to keep them at his peril, although in sucK case he should have noth-
ing for his safe keeping. So if A. delivers goods to B. generally to be
kept by him, and B. accepts them without having anything for it, if
the goods are stole from him,, yet he shall be charged in Detinue; for
to be kept, and to be kept safe, is all one. But if A. accepts goods of B.
to keep them as he would keep his own proper goods, there, if the
goods are stolen, he shall not answer for them : or if goods are pawned
or pledged to him for money, and the goods are stolen, he shall not
answer for them, for there he doth not undertake to keep them but as
he keeps his own ; for he has a property in them and not a custody
only, and therefore he shall not be charged as it is adjudged in 29 Ass.
28. But if before the stealing he who pawned them tendered the
3
4 ORDINARY BAILMKNTS.
money, and the other refused, then there is fault in him; and then
the steaUng after such tender, as it is there held, shall not discharge
him: so if A. delivers to B. a chest locked to keep, and he himself
carries away the key, in that ease if the goods are stolen, B. shall not
be charged, for A. did not trust B. with them, nor did B. undertake to
keep them, as it is adjudged in 8 E. 2. Detinue 59. So the doubt which
was conceived upon sundry differing opinions in our books, in 29 Ass.
28. 3 H. 7. 4. 6 H. 7. 12. 10 H. 7. 26. of Keble and Fineux, are well
reconciled, vide Bract, lib. 2. fol. 62 b. But in accompt it is a good plea,
before the auditors for the factor, that he was robbed, as appears by
the books in 12 (22) E. 3. Accompt 111. 41 E. 3. 3. and 9 E. 4. 40. For
if a factor (although he has wages and salary) does all that which he
by his industry can do, he shall be discharged, and he takes nothing^
upon him, but his duty is as a servant to merchandize the best that
he can, and a servant is bound to perform the command of his master :
but a ferryman, common inn-keeper, or carrier, who takes hire, ought
to keep the goods in their custody safely, and shall not be discharged
if they are stolen by thieves, vide 22 Ass. 41 Br. Action sur le Case 78.
And the Court held the replication idle and vain, for nmi refert by whom
the defendant was robbed, vide 33 H. 6. (1.) 31 a. b. If traitors break
a prison, it shall not discharge the gaoler; otherwise of the King's
enemies of another kingdom ; for in the one case he may have his
remedy and recompence, and in the other not. Nota reader, it is good
policy for him who takes any goods to keep, to take them in special
manner, soil, to keep them as he keeps his own goods, or to keep them
the best he can at the peril of the party ; or if they happen to be stolen
or purloined, that he shall not answer for them ; for he who accepteth
them, ought to take them in such or the like manner, or otherwise he
may be charged by his general acceptance. So if goods are delivered
to one to be delivered over, it is good policy to provide for himself in
such special manner, for doubt of being charged by his general accep-
tance, which implies that he takes upon him to do it.
COGGS V. BERNARD.
King's Bench. 2 Ld. Raym. 909.' 1703.
[The statement, and the opinions of Gould, Powys, and Powell, Jus-
tices, are omitted.]
Holt, C. J. The case is shortly this. This defendant undertakes
to remove goods from one cellar to another, and there lay them down
safely, and he managed them so negligently, that for want of care in
him some of the goods were spoiled. Upon not guilty pleaded, there
> Also reported, Comyns, 133 ; 1 Salk. 26 ; 3 Salk. 11 ; Holt, 13.
KELATIONS OF BAILOR AND BAILEE. O
has been a verdict for the plaintiff, and that upon full evidence, tht!
cause being tried before me at Guildhall. There has been a motion in
arrest of judgment, that the declaration is insufficient, because the
defendant is neither laid to be a common porter, nor that he is to have
any reward for his labour. So that the defendant is not chargeable
by his trade, and a private person cannot be charged in an action
without a reward.
I have had a great consideration of this case, and because some of
the books make the action lie upon the reward, and some upon the
promise, at first I made a great question, whether this declaration was
good. But upon consideration, as this declaration is, I think the actiort
will well lie. In order to shew the grounds, upon which a man shall
be charged with goods put into his custody, I must shew the several
sorts of bailments. And there are six sorts of bailments. The first
sort of bailment is, a bare naked bailment of goods, delivered by one
man to another to keep for the' use of the bailor; and this I call a
depositum, and it is that sort of bailment which is mentioned in South-
cote's case. The second sort is, when goods or chattels that are useful,
are lent to a friend gratis, to be used by him ; and this is called commo-
datum, because the thing is to be restored in specie. The third sort is,
when goods are left with the bailee to be used by him for hire ; this is
called locatio et conductio, and the lender is called locator, and the bor-
rower conductor. The fourth sort is, when goods or chattels are deliv-
ered to another as a pawn, to be a security to him for money borrowed
of him by the bailor ; and this is called in Latin vadium, and in English
a pawn or a pledge. The fifth sort is when goods or chattels are deliv-
ered to be carried, or something is to be done about them for a reward
to be paid by the person who delivers them to the bailee, who is to do
the thing about them. The sixth sort is when there is a delivery of
goods or chattels to somebody, who is to carry them, or do something
about them gratis, without any reward for such his work or carriage,
which is this present case. I mention these things, not so much that
they are all of them so necessary in order to maintain the proposition
which is to be proved, as to clear the reason of the obligation, which
is upon persons in cases of trust.
As to the first sort, where a man takes goods in his custody to keep
for the use of the bailor, I shall consider, for what things such a bailee
is answerable. He is not answerable, if they are stole without any fault
in him, neither will a common neglect make him chargeable, but he
must be guilty of some gross neglect. There is, I confess, a great author-
ity against me, where it is held, that a general delivery will charge the
bailee to answer for the goods if they are stolen, unless the goods are
specially accepted, to keep them only as you will keep your own. But
my lord Coke has improved the case in his report of it, for he will have
it, that there is no difference between a special acceptance to keep safely,
and an acceptance generally to keep. But there is no reason nor jus-
6 ORDINARY BAILMENTS.
tice in such a case of a general bailment, and where the bailee is not
to have any reward, but keeps the goods merely for the use of the bailor,
to charge him without some default in him. For if he keeps the goods
in such a case with an ordinary care, he has performed the trust reposed
in him. But according to this doctrine the bailee must answer for the
wrongs of other people, which he is not, nor cannot be, sufficiently armed
against. If the law be so, there must be some just and honest reason
for it, or else some universal settled rule of law, upon which it is
grounded; and therefore it is incumbent upon them, that advance
this doctrine, to shew an undisturbed rule and practice of the law accord-
ing to this position. But to shew that the tenor of the law was always
otherwise, I shall give a history of the authorities in the books in this
matter, and by them shew, that there never was any such resolution
given before Southcote's case. The 29 Ass. 28. is the first case in the
books upon that lea,rning, and there the opinion is,' that the bailee is
not chargeable, if the goods are stole. As for 8 Edw. 2. Fitz. Detinue,
59. where goods were locked in a chest, and left with the bailee, and the
owner took away the key, and the goods were stolen, and it was held
that the bailee should not answer for the goods. That case they say
differs, because the bailor did not trust the bailee with them. But I
cannot see the reason of that difference, nor why the bailee should
not be charged with goods in a chest, as well as with goods out of a
chest. For the bailee has as little power over them, when they are out
of a chest, as to any benefit he might have by them, as when they are
in a chest; and he has as great power to defend them in one case as
in the other. The case of 9 Edw. 4. 40. b. was but a debate at bar.
For Danby was but a counsel then, though he had been chief justice in
the beginning of Ed. 4. yet he was removed, and restored again upon
the restitution of Hen. 6. as appears by Dugdale's Chronica Series.
So that what he said cannot be taken to be any authority, for he spoke
only for his client ; and Genney for his client said the contrary. The
case in 3 Hen. 7. 4. is but a sudden opinion and that but by half the
court; and yet that is the only ground for this opinion of my lord
Coke, which besides he has improved. But the practice has been al-
ways at Guildhall, to disallow that to be a sufficient evidence, to charge
the bailee. And it was practised so before my time, all chief justice
Pemberton's time, and ever since, against the opinion of that case.
When I read Southcote's case heretofore, I was not so discerning as
my brother Powys tells us he was, to disallow that case at first, and came
not to be of this opinion, till I had well considered and digested that
matter. Though I must confess reason is strong against the case to
charge a man for doing such a friendly act for his friend, but so far is
the law from being so unreasonable, that such a bailee is the least
chargeable for neglect of any. For if he keeps the goods bailed to him,
but as he keeps his own, though he keeps his own but negligently,
yet he is not chargeable for them, for the keeping them as he keeps
KELATIONS OF BAILOR AND BAILEE. 7
his own, is an argument of his honesty. A fortiori he shall not be
charged, where they are stolen without any neglect in him. Agree-
able to this is Bracton, lib. 3. c. 2. 99. b. J. S. apud quern res deponitur,
re obligatur, et de ea re, quam accepit, restituenda tenatur, et etiam ad id,
si quid in re deposita dolo commiserit ; culpae autem nomine nan tenetur,
scilicet desidiae vel negligentiae, quia qui negligenti arnica rem custodien-
dam tradit, sibi ipsi et propriae fatuitati hoc debet imputare. As suppose
the bailee is an idle, careless, drunken fellow, and comes home drunk,
and leaves all his doors open, and by reason thereof the goods happen to
be stolen with his own ; yet he shall not be charged, because it is the
bailor's own folly to trust such an idle fellow. So that this sort of
bailee is the least responsible for neglects, and under the least obliga-
tion of any one, being bound to no other care of the bailed goods, than
he takes of his own. This Bracton I have cited is, I confess, an old
author, but in this his doctrine is agreeable to reason, and to what the
law is in other countries. The civil law is so, as you have it in Justin-
ian's Inst. lib. 3. tit. 15. There the law goes farther, for there it is
said, ex eo solo tenetur, si quid dolo commiserit: culpae autem nomine,
id est, desidiae ac negligentiae, non tenetur. Itaque seeurus est qui parum
deligenter ctistoditam rem furto amiserit, quia qui negligenti amico rem
custodiendam tradit non ei, sed suae facilitati id imputare debet. So
that a bailee is not chargeable without an apparent gross neglect.
And if there is such a gross neglect, it is looked upon as an evidence of
fraud. Nay, suppose the bailee undertakes safely and securely to keep
the goods, in express words, yet even that won't charge him with all
sorts of neglects. For if such a promise were put into writing, it would
not charge so far, even then. Hob. 34. a covenant, that the covenantee '
shall have, occupy and enjoy certain lands, does not bind a.gainst the
acts of wrong doers. 3 Cro. 214. ace. 2 Cro. 425. ace. upon a promise
for quiet enjoyment. And if a promise will not charge a man against
wrong doers, when put in writing, it is hard it should do it more so,
when spoken. Doct. & Stud. 130. is in point, that though a bailee do
promise to re-deliver goods safely, yet if he have nothing for the keeping
of them, he will not be answerable for the acts of a wrong doer. So
that there is neither sufficient reason nor authority to support the
opinion in Southcote's case ; if the bailee be guilty of gross negligence,
he will be chargeable, but not for any ordinary neglect. As to the
second sort of bailment, viz. commodatum or lending gratis, the bor-
rower is bound to the strictest care and diligence, to keep the goods,
so as to restore them back again to the lender, because the bailee has
a benefit by the use of them, so as if the bailee be guilty of the least
neglect, he will be answerable ; as if a man should lend another a horse,
to go Westward, or for a month ; if the bailee go Northward or keep
the horse above a month ;* if any accident happen to the horse in the
Northern journey, or after the expiration of the month, the bailee will
be chargeable ; because he has made use of the horse contrary to the
8 OBDINABY BAILMENTS.
trust he was lent to him under, and it may be if the horse had been used
no otherwise than he was lent, that accident would not have befallen
him. This is mentioned in Bracton uK supra : his words are, is autem
cui res aliqua utenda datur, re ohligatur, quae commodata est, sed magna
differentia est inter mutuum et commodatum ; quia is qui rem mutuam
accepit, ad ipsam restituendam tenetur, ml ejus pretium, si forte incendio,
ruina, naufragio, aut latronum vel hostium incursu, consumta fuerit, vel
deperdita, svhtracta vel ahlata. Et qui rem utendam accepit, non sufflcit
ad rei custodiam, quod talem diligentiam adhiheat, qualem suis rebus
propriis adhibere sold, si alius eam diligentius potuit cv^todire; ad mm
autem majorem, vel casus fortuitus non tenetur quis, nisi culpa sua inter-
venerit. Ui si rem sibi commodatum domi, secum detulerit cum per-egre
profectus fuerit, et illam incursu bostium vel praedonum, vel naufragio
amiserit non est dubium quin ad rei restitutionem teneatur. I cite this-
author, though I confess he is an old one, because his opinion is reason-
able, and very much to my present purpose, and there is no authority
in the law to the contrary. But if the bailee put this horse in his stable,
and he were stolen from thence, the bailee shall not be answerable for
him. But if he or his servant leave the house or stable doors open,
and the thieves take the opportunity of that, and steal the horse, he
will be chargeable ; because the neglect gave the thieves the occasion
to steal the horse. Bracton says, the bailee must use the utmost care,
but yet he shall not be chargeable, where there is such a force as he
cannot resist.
As to the third sort of bailment, scilicet locatio or lending for hire, in
this case the bailee is also bound to take the utmost care and to return
the goods, when the time of the hiring is expired. And here again I
must recur to my old author, fol. 62. b. Qui pro usu vestimentorum auri
vel argenti, vel alterivs ornamenti, vel juTnenti, mercedem dederit vel promi-
serit, talis ab eo desideratur custodia; qualem deligentissimus paterfami-
lias suis rebus adhibet, quam si praestiterit, et rem aliquo casu amiserit,
ad rem restituendam non tenebitur. Nee suijlcit aliquem talem diligentiam
adhibere, qualem suis rebus propriis adhiberet, nisi talem adhibuerit, de
qua superius dictum est. From whence it appears, that if goods are
let out for a reward, the hirer is bound to the utmost diligence, such as
the most diligent father of a family uses ; and if he uses that, he shall
be discharged. But every man, how dihgent soever he be, being liable
to the accident of robbers, though a diligent man is not so liable as a
careless man, the bailee shall not be answerable in this case, if the goods
are stolen.
As to the fourth sort of bailment, viz. vadium or a pawn, in this I
shall consider two things ; first, what property the pawnee has in the
pawn or pledge, and secondly for what neglects he shall make satisfac-
tion. As to the first, he has a special property, for the pawn is a secur-
ing to the pawnee, that he shall be repaid his debt, and to compel the
pawner to pay him. But if the pawn be such as it will be the worse
EELATIONS OF BAILOR AND BAILEE. 9
for using, the pawnee cannot use it, as cloaths," &c., but if it be such,
as will be never the worse, as if jewels for the purpose were pawned to
A lady, she might use them. But then she must do it at her peril, for
whereas, if she keeps them locked up in her cabinet, if her cabinet
should be broken open, and the jewels taken from thence, she would be
■excused; if she wears them abroad, and is there robbed of them, she
will be answerable. And the reason is, because the pawn is in the
nature of a deposit, and as such is not liable to be used. And to this
effect is Ow. 123. But if the pawn be of such a nature, as the pawnee is
at any charge about the thing pawned, to maintain it, as a horse, cow,
&c. then the pawnee may use the horse in a reasonable manner, or milk
the cow, &c. in recompense for the meat. As to the second point in
Bracton 99 b. gives you the answer. Creditur, qui -pignus accepit, re
ohligatur, et ad illam restituendam tenetur; et cum hujusmodi res in -pignus
•data sit utriv^que gratia, scilicet dehitoris, quo magis ei pecunia crederetur,
et creditoris quo magis ei in tito sit creditum, sufficit ad ejus rei custodiam
diligentiam exactam adhibere, quam si praestiterit, et rem casu amiserit,
^ecurus esse possit, nee impedietur creditum petere. In effect, if a creditor
takes a pawn, he is bound to restore it upon the payment of the debt ;
but yet it is sufficient, if the pawnee use true diligence, and he will be
indemnified in so doing, and notwithstanding the loss, yet he shall
resort to the pawnor for his debt. Agreeable to this is 29 Ass. 28. and
Southcote's case is. But indeed the reason given in Southcote's case
is, because the pawnee has a special property in the pawn. But
that is not the reason of the case ; and there is another reason given for
it in the book of Assize, which is indeed the true reason of all these
cases, that the law requires nothing extraordinary of the pawnee, but
only that he shall use an ordinary care for restoring the goods. But
indeed if the money for which the goods were pawned, be tendered to
the pawnee before they are lost, then the pawnee shall be answerable
for them ; because the pawnee, by detaining them after the tender of the
money, is a wrong doer, and it is a wrongful detainer of the goods, and
the special property of the pawnee is determined. And a man that
keeps goods by wrong, must be answerable for them at all events, for
the detaining of them by him, is the reason of the loss. Upon the same
difference as the law is in relation to pawns, it will be found to stand in
relation to goods found.
As to the fifth sort of bailment, viz. a delivery to carry or otherwise
manage, for a reward to be paid to the bailee, those cases are of two sorts ;
either a delivery to one that exercises a public employment, or a delivery
to a private person. First if it be to a person of the first sort; and he
is to have a reward, he is bound to answer for the goods at all events.
And this is the case of the common carrier, common hoyman, master
of a ship, &c. which case of a master of a ship was first adjudged 26 Car.
2. in the case of Mors v. Slew. Raym. 220. 1 Vent. 190. 238. The law
charges this person thus intrusted to carry goods, against all events
10 OEDINABT BAILMENTS.
but acts of God, and of the enemies of the king. For though the force
be never so great, as if an irresistible multitude of people should rob
him, nevertheless he is chargeable. And this is a politick establish-
ment, contrived by the policy of the law, for the safety of all persons,
the necessity of whose affairs oblige them to trust these sorts of persons,
that they may be safe in their ways of dealing ; for else these carriers
might have an opportunity of undoing all persons that had any deal-
ings with them, by combining with thieves, &c. and yet doing it in such
a clandestine manner, as would not be possible to be discovered. And
this is the reason the law is founded upon in that point. The second
sort are bailies, factors and such like. And though a bailie is to have a
reward for his management, yet he is only to do the best he can. And
if he be robbed, &c. it is a good account. And the reason of his being
a servant is not the thing ; for he is at a distance from his master, and
acts at discretion, receiving rents and selling com, &c. And yet if he
receives his master's money, and keeps it locked up with reasonable
care, he shall not be answerable for it, though it be stolen. But yet
this servant is not a domestic servant, nor under his master's immediate
care. But the true reason of the case is, it would be unreasonable to
charge him with a trust, farther than the nature of the thing puts it
in his power to perform it. But it is allowed in the other cases, by rea-
son of the necessity of the thing. The same law of a factor.
As to the sixth sort of bailment, it is to be taken, that the bailee is
to have no reward for his pains, but yet that by his ill management the
^oods are spoiled. Secondly, it is to be understood, that there was a
neglect in the management. But thirdly, if it had appeared that the
mischief happened by any person that met the cart in the way, the bailee
had not been chargeable. As if a drunken man had come by in the
streets, and had pierced the cask of brandy ; in this case the defendant
had not been answerable for it, because he was to have nothing for his
pains. Then the bailee having undertaken to manage the goods, and
having managed them ill, and so by his neglect a damage has happened
to the bailor, which is the case in question, what wUl you call this?
In Bracton, lib. 3. 100, it is called mandatum. It is an obligation, which
arises ex mandato. It is what we call in English an acting by commis-
sion. And if a man acts by commission for another gratis, and in the
executing his commission behaves himself negligently, he is answerable.
Vinnius in his commentaries upon Justinian, lib. 3. tit. 27. 684. defines
mandatum to be contractus quo aliquid gratuito gerendum committitur
et accipitur. This undertaking obliges the undertaker to a diligent
management. Bracton ubi supra says, contrabitur mam obligatio non
solum scripto et verbis, sed et consensu, simd in contractibtts bonae fidei;
id in emptionibus, venditionibus, locationibu^, conductionibus, societati-
bus, et mandatis. I don't find this word in any other author of our law,
besides in this place in Bracton, which is a full authority, if it be not
thought too old. But it is supported by good reason and authority.
RELATIONS OF BAILOR AND BAILEE. 11
. The reasons are, first, because in the case, a neglect is a deceit to the
bailor. For when he intrusts the bailee upon his undertaking to be
careful, he has put a fraud upon the plaintiff by being negligent, his
pretence of care being the persuasion that induced the plaintiff to trust
him. And a breach of a trust undertaken voluntarily will be a good
ground for an action, 1 Roll. Abr. 10. 2 Hen. 7. 11. a strong case to this
matter. There the case was an action against a man, who had under-
taken to keep an hundred sheep, for letting them be drowned by his
default. And there the reason of the judgment is given, because when
the party has taken upon him to keep the sheep, and after suffers them
to perish in his default ; in as much as he has taken and executed his
bargain, and has them in his custody, if after he does not look to them,
an action lies. For here is his own act, viz. his agreement and promise,
and that after broke of his side, that shall give a sufficient cause of
action.
But secondly it is objected, that there is no consideration to grpund
this promise upon, and therefore the undertaking is but nudum pactum.
But to this I answer, that the owner's trusting him with the goods is a
sufficient consideration to oblige him to a careful management. Indeed
if the agreement had been executory, to carry these brandies from the
one place to the other such a day, the defendant had not been bound
to carry them. But this is a different case, for assumpsit does not only
signify a future agreement, but in such a case, as this,. it signifies an
actual entry upon the thing, and taking the trust upon himself. And
if a man will do that, and miscarries in the performance of his trust,
an action will lie against him for that, though nobody could have
compelled him to do the thing. The 19 Hen. 6. 49. and the other cases
cited by my brothers, shew that this is the difference. But in the 11
Hen. 4. 33. this difference is clearly put, and that is the only case con-
_cerning this matter, which has not been cited by my brothers. There
the action was brought against a carpenter, for that he had undertaken
to build the plaintiff a house within such a time, and had not done it,
and it was adjudged the action would not lie. But there the question
was put to the court, what if he had built the house unskilfully, and it
is agreed in that case an action would have lain. There has been a
question made, if I deliver goods to A. and in consideration thereof he
promise to redeliver them, if an action will lie for not redelivering them ;
and in Yelv. 4. judgment was given that the action would lie. But
that judgment was afterwards reversed, and according to that reversal,
there was judgment afterwards entered for the defendant in the like
case. Yelv. 128. But those cases were grumbled at, and the reversal
of that judgment in Yelv. 4. was said by the'judges to be a bad resolu-
tion, and the contrary to that reversal was afterwards most solemnly
adjudged in 2 Cro. 667. Tr. 21 Jac. 1. in the king's bench, and that
judgment affirmed upon a writ of error. And yet there is 'no benefit
to the defendant, nor no consideration in that case, but the having the
12 ORDINARY BAILMENTS.
money in his possession, and being trusted with it, and yet that was held^
to be a good consideration. And so a bare being trusted with another
man's goods, must be taken to be a sufficient consideration, if the
bailee once enter upon the trust, and take the goods into his possession.
The declaration in the case of Moft v. Slew was drawn by the greatest
drawer in England in that time, and in that declaration, as it was
always in all such cases, it was thought most prudent to put in, that a
reward was to be paid for the carriage. And so it has been usual to
put it in the writ, where the suit is by original. I have said thus much
in this case, because it is of great consequence, that the law should be
settled in this point, but I don't know whether I may have settled it,
or may not rather have unsettled it. But however that happen, I have
stirred these points, which wiser heads in time may settle. And judg-
ment was given for the plaintiff.
BREWSTER v. WARNER.
136 Mass. 57 ; 49 Am. R. 5. 1883.
Tort. Trial in the Superior Court, without a jury, before Blodgett,
J., who allowed a bill of exceptions, in substance as follows : —
The plaintiff, on September 15, 1881, hired a horse and carriage from
the livery stable of one Foster in Boston to drive to Beacon Park and
return. Just before reaching the Park gate, a servant of the defendants,
who was driving a pair of horses hitched to a hack, carelessly, as it was
alleged, drove against the carriage in which the plaintiff was driving,
and injured it. This action was brought to recover the damages so
sustained.
Foster was the owner of the carriage injured. The plaintiff told
Foster to send the carriage to a repair shop and have it repaired, and he
would pay the bill. The carriage was repaired, and the bill for repairs
was made to the plaintiff, and presented to him for payment ; but he
had not paid it at the time of trial.
This was all the evidence as to the ownership, use, and repairs of the
carriage. The defendants requested the judge to rule that, upon this
evidence, the plaintiff could not recover, regardless of the question of
negligence. But the judge ruled otherwise, and found for the plaintiff ;
and the defendants alleged exceptions.
Holmes, J. The modern cases follow the ancient rule, that a bailee
can recover against a stranger for taking chattels from his possession.
Shaw V. Kaler, 106 Mass. 448 ; Swire v. Leach, 18 C. B. (N. S.) 479.
See Year Book, 48 Edw. Ill, 20, pi. 8 ; 20 H. VII, 5, pi. 15 ; 2 Roll.
Abr. 569, Trespass, P. pi. 5 ; Nicolls v. Bastard, 2 Cr., M. & R. 659, 660.
And as the bailee is no longer answerable to his bailor for the loss of
HEY/ATIONS OF BAILOR AND BAILEE. 13
goods without his fault, his right to recover must stand upon his pos-
session, in these days at least, if it has not always done so. But pos-
session is as much protected against one form of trespass as another,
and will support an action for damage to property, as well as one for
wrongfully taking or destroying it. No distinction has been recognised
by the decisions. Rooth v. Wilson, 1 B. & Aid. 59; Croft v. Alison,
4 B. & Aid. 590; Johnson v. Holyoke, 105 Mass. 80. The ruling
requested was obviously wrong, as it denied all right of action to the
plaintiff, and was not confined to the quanhim of damages.
Even if the question before us were whether the plaintiff could
recover full damages, his right to do so could not be denied as matter
of law. A distinction might have been attempted, to be sure, under
the early common law. For, although the bailee's right was undoubted
to recover full damages for goods wrongfully taken from him, this was
always accounted for by his equally undoubted responsibility for their
loss to his bailor, and there is no satisfactory evidence of any such strict
responsibility for damage to goods which the bailee was able to return
in specie.
But if this reasoning would ever have been correct, which is not
clear, it can no longer apply when the responsibility of bailees is the
same for damage to goods as for their loss, and when the ground of their
recovery for either is simply their possession. Any principle that per-
mits a bailee to recover full damages in the one case, must give him the
same right in the other. But full damages have been allowed for tak-
ing goods, in many modem cases, although the former responsibility
over for the goods has disappeared, and has been converted by misinter-
pretation into the now established responsibility for the proceeds of the
action beyond the amount of the bailee's interest. Lyle i). Barker,
5 Binn. 457 ; 7 Cowen, 681, n. (a) ; White v. Webb, 15 Conn. 302 ;
Ullman v. Barnard, 7 Gray, 554 ; Adams v. O'Connor, 100 Mass. 515,
518 ; Swire v. Leach, 18 C. B. (N. S.) 492. The latter doctrine has been
extended to insurance by bailees. De Forest v. Fulton Ins. Co., 1 Hall,
84, 91^ 110, 116, 132; Crompton, J., in Waters v. Monarch Ins. Co.,
25 L. J. (N. S.) Q. B. 102, 106.
If the bailee's responsibility over in this modern form is not sufficient
to make it safe in all cases to recognise his right to recover full damages,
even where it was formerly undoubted, at least it applies as well to re-
coveries for harm done to property as it does to those for taking.
Rindge v. Coleraine, 11 Gray, 157, 162. And if full damages are ever
to be allowed, as it is settled that they may be, they should be recovered
in the present case, where the plaintiff appears to have made himself
debtor for the necessary repairs with the bailor's assent. Johnson v.
Holyoke, ubi supra. It is not necessary to consider what steps might
be taken if the bailor should seek to intervene to protect his interest.
Exceptions overruled.
14 ORDINARY BAILMENTS.
THE WINKFIELD.
Court of Appeal. [1902] Prob. Div. 42 ; 85 L. T. R. 668. , 1901.
Collins, M. R. This is an appeal from the order of Sir Francis
Jeune dismissing a motion made on behalf of the Postmaster-General
in the case of The Winkfield.
The question arises out of collision which occurred on April 5, 1900,
between the steamship "Mexican" and the steamship "Winkfield,"
and which resulted in the loss of the former with a portion of the mails
which she was carrying at the time.
The owners of the "Winkfield" under a decree limiting liability to
32,514Z. 17s. lOd. paid that amount into court, and the claim in ques-
tion was one by the Postmaster-General on behalf of himself and the
Postmasters-General of Cape Colony and Natal to recover out of that
sum the value of letters, parcels, &c., in his custody as bailee and lost
on board the "Mexican."
The case was dealt with by all parties in the court below as a claim by
a bailee who was under no liability to his bailor for the loss in question,
as to which it was admitted that the authority of Claridge «. South
Staffordshire Tramway Co., [1892] 1 Q. B. 422, was conclusive, and
the President accordingly, without argument and in deference to that
authority, dismissed the claim. The Postmaster-General now appeals.
The question for decision, therefore, is whether Claridge's Case was
well decided. I emphasise this because it disposes of a point which
was faintly suggested by the respondents, and which, if good, would
distinguish Claridge's Case, namely, that the applicant was not himself
in actual occupation of the things bailed at the time of the loss. This
point was not taken below, and having regard to the course followed by
all parties on the hearing of the motion, I think it is not open to the
respondents to make it now, and I therefore deal with the case upon
the footing upon which it was dealt with on the motion, namely, that
it is covered by Claridge's Case. I assume, therefore, that the subject-
matter of the bailment was in the custody of the Postmaster-General
as bailee at the time of the accident. For the reasons which I am
about to state I am of opinion that Claridge's Case was wrongly decided
and that the law is that in an action against a stranger for loss of goods
caused by his negligence, the bailee in possession can recover the value
of the goods, although he would have had a good answer to an action
by the bailor for damages for the loss of the thing bailed.
It seems to me that the position, that possession is good against a
wrongdoer and that the latter cannot set up the jw* tertii unless he
claims under it, is well established in our law, and really concludes this
ease against the respondents. As I shall shew presently, a long aeries
of authorities establishes this in actions of trover and trespass at the
RELATIONS OF BAILOE AND BAILEE. 15
suit of a possessor. And the principle being the same, it follows that
he can equally recover the whole value of the goods in an action on the
case for their loss through the tortious conduct of the defendant. I
think it involves this also, that the wrongdoer who is not defending
under the title of the bailor is quite unconcerned with what the rights
are between the bailor and bailee, and must treat the possessor as the
owner of the goods for all purposes quite irrespective of the rights and
obligations as between him and the bailor.
I think this position is well established in our law, though it may be
that reasons for its existence have been given in some of the cases which
are not quite satisfactory. I think also that the obligation of the bailee
to the bailor to account for what he has received in respect of the de-
struction or conversion of the thing bailed has been admitted so often
in decided cases that it cannot now be questioned ; and, further, I
think it can be shewn that the right of the bailee to recover cannot be
rested on the ground suggested in some of the cases, namely, that he
was liable over to the bailor for the loss of the goods converted or
destroyed. It cannot be denied that since the case of Armory «. Dela-
mirie, 1 Stra. 504 [20], not to mention earlier cases from the Year
Books onward, a mere finder may recover against a wrongdoer the full
value of the thing converted. That decision involves the principle
that as between possessor and wrongdoer the presumption of law is,
in the words of Lord Campbell in Jeffries v. Great Western Ry. Co.,
5 E. & B., 802, at p. 806, " that the person who has possession has the
property." In the same case he says, 5 E. & B., 802, at p. 805 : " I am
of opinion that the law is that a person possessed of goods as his prop-
erty has a good title as against every stranger, and that one who takes
them from him, having no title in himself, is a wrongdoer, and cannot
defend himself by shewing that there was title in some third person, for
against a wrongdoer possession is title. The law is so stated by the very
learned annotator in his note to Wilbraham s." Snow." 2 Wms. Saund.
47 f . Therefore it is not open to the defendant, being a wrongdoer,
to inquire into the nature or limitation of the possessor's right, and
unless it is competent for him to do so the question of his relation to,
or liability towards, the true owner cannot come into the discussion at
all ; and, therefore, as between those two parties full damages have to
be paid without any further inquiry. The extent of the liability of the
finder to the true owner not being relevant to the discussion between
him and the wrongdoer, the facts which would ascertain it would not
have been admissible in evidence, and therefore the right of the finder
to recover full damages cannot be made to depend upon the extent of
his liability over to the true owner. To hold otherwise would, it seems
to me, be in effect to permit a wrongdoer to set up a jus tertii under
which he cannot claim. But, if this be the fact in the case of a finder,
why should it not be equally the fact in the case of a bailee ? Why, as
against a wrongdoer, should the nature of the plaintiff's interest in the
16 ORDINAKY BAILMENTS.
thing converted be any more relevant to the inquiry, and therefore
admissible in evidence, than in the case of a finder ? It seems to me
that neither in one case nor the other ought it to be competent for the
defendant to go into evidence on that matter.
I think this view is borne out by authority ; for instance, in Burton
V. Hughes, 2 Bing. 173 ; 27 R. R. 578, the plamtiff, who had borrowed
furniture, and was therefore bailee, was held to be entitled to sue in
trover wrongdoers who had seized it without giving in evidence the
written agreement under which he held it. The point made for the
defendant was that " the qualified interest having been obtained under
a written agreement could not be proved except by the production of
that agreement duly stamped." The argument on the other side was
"that the existence of some kind of interest having been established
the precise nature of it or the terms upon which it was acquired were
immaterial to the support of this action." Best, C. J., in delivering
judgment says : " If this had been a case between Kitchen and the plain-
tiff the agreement ought to have been produced, because that alone
could decide the respective rights of those two parties ; but it appears
that Kitchen was to supply the plaintiff with furniture, and the question
is whether, after he had obtained it, he had a sufficient interest to
maintain this action. The case which has been referred to — Sutton
V. Buck, 2 Taunt. 302 ; 1 1 R. R. 585 — confirms what I had esteemed to
be the law upon the subject, namely, that a simple bailee has a suffi-
cient interest to sue in trover." By holding, therefore, that the agree-
ment defining the conditions of the plaintiffs' interest was immaterial
the Court in effect decided that the right of the bailee, in possession,
to sue could not depend upon the fact or extent of his liability over to
the bailor, since the plaintiff was allowed to keep his verdict in trover,
the agreement defining his interest and liability being excluded from
the discussion. In Sutton v. Buck, on the authority of which this case
was decided, it was held that possession under a general bailment is
sufficient title for the plaintiff in trover. The plaintiff had taken pos-
session of a stranded ship under a transfer void for non-compliance
with the Register Acts, and he sued the defendant in trover for por-
tions of the timber, wood and materials of which the defendant had
wrongfully taken possession. Sir James Mansfield, C. J., had non-
suited the plaintiff, on the grourtd that the transfer was defective with-
out registration. On motion the non-suit was set aside. Sir James
Mansfield being a member of the Court, and a new trial ordered on the
ground that the plaintiff had sufficient possession to maintain the action
against the wrongdoer. It is true that Chambre, J., reserved his opinion
as to the measure of damages, but on the new trial the plaintiff recovered
a verdict apparently for the full value of the things converted, and on
further motion for a new trial the only point argued was that the defend-
ant was justified as lord of the manor in doing what he did — a con-
tention which was rejected by the Court.
EELATIONS OF BAILOR AND BAILEE. 17
In Swire v. Leach, 18 C. B. (N. S.) 479, a pawnbroker, whose landlord
had wrongfully taken in distress pledges in the custody of the pawn-
broker, was held entitled to recover in an action against the landlord
for conversion the full value of the pledges. This case was decided
by a strong Court, consisting of Erie, C. J., Williams and Keating, JJ.,
and has never, so far as I know, been questioned since. The duty of
the bailee to account to the bailor was recognised as well established.
See also Turner v. Hardcastle, 11 C. B. (N. S.) 683, a considered judg-
ment of the Court of Common Pleas, which included Willes, J., who
had not been a party to Swire v. Leach, and where the bailee's right to
recover full damages and his obligation to account to the bailor is again
affirmed.
The ground of the decision in Claridge's Case [1892] 1 Q. B. 422, was
that the plaintiff in that case, being under no liability to his bailor,
could recover no damages, and though for the reasons I have already
given I think this position is untenable, it is necessary to follow it out a
little further. There is no doubt that the reason given in Heydon and
Smith's Case, 13 Rep. 69 — and itself draws from the Year Books — has
been repeated in many subsequent cases. The words are these :
"Clearly, the bailee, or he who hath a special property, shall have a
general action of trespass against a stranger, and shall recover all in
damages because that he is chargeable over."
It is now well established that the bailee is accountable, as stated in
the passage cited and repeated in many subsequent cases. But whether
the obligation to account was a condition of his right to sue, or only
an incident arising upon his recovery of damages, is a very different
question, though it was easy to confound one view with the other.
Holmes, C. J., in his admirable lectures on the Common Law, in the
chapter devoted to bailments, traces the origin of the bailee's right to
sue and recover the whole value of chattels converted, and arrives at
the clear conclusion that the bailee's obligation to account arose from
the fact that he was originally the only person who could sue, though
afterwards by an extension, not perhaps quite logical, the right to sue
was conceded to the bailor also. He says at p. 167 : " At first the bailee
was answerable to the owner because he was the only person who could
sue ; now it was said he could sue because he was answerable to the
owner." And again at p. 170: "The inverted explanation of Beau-
manoir will be remembered, that the bailee could sue because he was
answerable over, in place of the original rule that he was answerable
over so strictly because only he could sue." This inversion, as he
points out, is traceable through the Year Books, and has survived into
modern times, though, as he shews, it has not been acted upon. Pol-
lock and Maitland's "History of English Law," vol. 2, p. 170, puts the
position thus : " Perhaps we come nearest to historical truth if we
say that between the two old rules there was no logical priority. The
bailee had the action because he was liable, and was liable because he
18 ORDINARY BAILMENTS.
had the action." It may be that in early times the obligation of the
bailee to the bailor was absolute, that is to say, he was an insurer. But
long after the decision of Coggs v. Bernard (1704), 2 Ld. Raym. 909 [4],
which classified the obligations of bailees, the bailee has, nevertheless,
been allowed to recover full damages against a wrongdoer, where the
facts would have afforded a complete answer for him against his bailor.
The cases above cited are instances of this. In each of them the bailee
would have had a good answer to an action by his bailor ; for in none of
them was it suggested that the act of the wrongdoer was traceable to
negligence on the part of the bailee. I think, therefore, that the state-
ment drawn, as"! have said, from the Year Books may be explained,
as Holmes, C. J., explains it, but whether that be the true view of it
or not, it is clear that it has not been treated as law in our Courts.
Upon this, before the decision in Claridge's Case, [1892] 1 Q. B. 422,
there was a strong body of opinion in text-books, English and American,
in favour of the bailee's unqualified right to sue the wrongdoer : see
Mayne on Damages, 4th ed., p. 381, and cases there cited ; Sedgwick
on Damages, 7th ed.. Vol. 1, p. .61, n. (a); Story on Bailments, 9th ed.,
s. 352 ; Kent's Commentaries, 12th ed., vol. 2, p. 568, n. (e) ; Pollock
on Torts, 6th ed., pp. 354, 355; Addison on Torts, 7th ed., p. 523;
and as I have already pointed out, Williams, J., the editor of Williams'
Saunders, was a party to the decision of Swire v. Leach, 18 C. B. (N. S.)
479. (See also Mr. Justice Wright in "Pollock and Wright on Pos-
session," p. 166.) The bailee's right to recover has been affirmed in
several American cases entirely without reference to the extent of the
bailee's liability to the bailor for the tort, though his obligation to account
is admitted — see them referred to in the passages cited, and in particu-
lar see UUman v. Barnard, (1856) 73 Mass. Rep. 554 ; Parish v. Wheeler,
(1860) 22 New York Rep. 494 ; White v. Webb, 15 Conn. Rep. 302.
The case of Rooth v. Wilson, 1 B. & A. 59, is a clear airthority that the
right of the bailee in possession to recover against a wrongdoer is the
same in an action on the case as in an action of trover, if indeed author-
ity were required for what seems obvious in point of principle. There
the gratuitous bailee of a horse was held entitled to recover the full
value of the horse in an action on the case against a defendant by whose
negligence the horse fell and was killed. The case was decided by Lord
EUenborough, C. J., Bayley, Abbott, and Holroyd, JJ. The three
latter seem to me to put it wholly on the ground that the plaintiff was
in possession and the defendant a wrongdoer. Abbott, J., says shortly :
"I think that the same possession which would enable the plaintiff
to maintain trespass would enable him to maintain this action"; and
Bayley, J., points out that case is a possessory action. But Lord
EUenborough undoubtedly rests his judgment on the view that the
plaintiff would himself have been responsible in damages to his bailor
to a commensurate amount. This, no doubt, was his personal view,
but it was not the decision of the Court, and, as I have pointed out, it
RELATIONS OP BAILOR AND BAILEE. 19
has certainly not been acted upon in subsequent cases. Therefore,
as I said at the outset, and as I think I have now shewn by authority,
the root principle of the whole discussion is that, as against a wrong-
doer, possession is title. The chattel that has been converted or dam-
aged is deemed to be the chattel of the possessor and of no other, and
therefore its loss or deterioration is his loss, and to him, if he demands
it, it must be recouped. His obligation to account to the bailor is really
not ad rem in the discussion. It only comes in after he has carried his
legal position to its logical consequence against a wrongdoer, and serves
to soothe a mind disconcerted by the notion that a person who is not
himself the complete owner should be entitled to receive back the full
value of the chattel converted or destroyed. There is no inconsistency
between the two positions ; the one is the complement of the other.
As between bailee and stranger possession gives title — that is, not a
limited interest, but absolute and complete ownership, and he is entitled
to receive back a complete equivalent for the whole loss or deteriora-
tion of the thing itself. As between bailor and bailee the real interests
of each must be inquired into, and, as the bailee has to account for the
thing bailed, so he must account for that which has become its equivalent
and now represents it. What he has received above his own interest
he has received to the use of his bailor. The wrongdoer, having once
paid full damages to the bailee, has an answer to any action by the bailor.
See Com. Dig. Trespass B. 4, citing Roll. 551, 1, 31, 569, 1, 22, Story on
Bailments, 9th ed., s. 352, and the numerous authorities there cited.
The liability by the bailee to account is also well established — see
the passage from Lord Coke, and the cases cited in the earlier part of
this judgment — and therefore it seems to me that there is no such pre-
ponderance of convenience in favour of limiting the right of the bailee
as to make it desirable, much less obligatory, upon us to modify the
law as it rested upon the authorities antecedent to Claridge's Case,
[1892] 1 Q. B. 422. I am aware that in two able text-books, Beven's
Negligence in Law and Clerk and Lindsell on Torts, the decision in
Claridge's Case is approved, though it is there pointed out that the
authorities bearing the other way were not fully considered. The rea-
sons, however, which they give for their opinions seem to be largely
based upon the supposed inconvenience of the opposite view ; nor are
the arguments by which they distinguish the position of bailees from
that of other possessors to my mind satisfactory. Claridge's Case was
treated as open to question by the late Master of the Rolls in Meux v.
Great Eastern Ry. Co., [1895] 2 Q. B. 387, and, with the greatest defer-
ence to the eminent judges who decided it, it seems to me that it cannot
be supported. It seems to have been argued before them upon very
scanty materials. Before us the whole subject has been elaborately dis-
cussed, and all, or nearly all, the authorities brought before us in his-
torical sequence.
Appeal allowed.
20 ORDINARY BAILMENTS.
b. Lost Chattels.
ARMORY v. DELAMIRIE.
King's Bench. Coram Pratt, C. J. 1 Strange, 505. 1722.
The plaintiff being a chimney sweeper's boy found a jewel and
carried it to the defendant's shop (who was a goldsmith) to know what
it was, and delivered it into the hands of the apprentice, who under
pretence of weighing it, took out the stones, and calling to the master
to let him know it came to three halfpence, the master offered the boy
the money, who refused to take it, and insisted to have the thing again ;
whereupon the apprentice delivered him back the socket without the
stones. And now in trover against the master these points were ruled : —
1. That the finder of a jewel, though he does not by such finding
acquire an absolute property or ownership, yet he has such a property
as will enable him to keep it against all but the rightful owner, and con-
sequently may maintain trover.
2. That the action will lay against the master, who gives a credit to
his apprentice, and is answerable for his neglect.
3. As to the value of the jewel several of the trade were examined
to prove what a jewel of the fuiest water that would fit the socket would
be worth; and the Chief Justice directed the jury, that unless the
defendant did produce the jewel, and shew it not to be of the finest
water, they should presume the strongest against him, and make the
value of the best jewel the measure of their damages : which they ac-
cordingly did.
McAVOY V. MEDINA.
11 AUen (Mass.), 548; 87 Am. Deo., 733. 1866.
At the trial ... it appeared that the defendant was a barber,
and the plaintiff, being a customer in the defendant's shop, saw and
took up a pocket-book which was lying upon a table there, and said :
"See what I have found." The defendant came to the table and
asked where he found it. The plaintiff laid it back in the same place
and said, "I found it right there." The defendant then took it and
counted the money, and the plaintiff told him to keep it, and if the
owner should come to give it to him ; and otherwise to advertise it ;
which the defendant promised to do. Subsequently the plaintiff made
three demands for the money and the defendant never claimed to hold
the same until the last demand. It was agreed that the pocket-book
was placed upon the table by a transient customer of the defendant, and
EELATIONS OF BAILOB AND BAILEE. 21
accidentally left there, and was first seen and taken up by the, plaintiff,
and that the owner had not been found.
[Judgment for defendant. Plaintiff alleged exceptions.]
Dewey, J. It seems to be the settled law that the finder of lost prop-
erty has a valid claim to the same against all the world except the true
owner, and generally that the place in which it is found creates no
exception to this rule. 2 Parsons on Contr., 97 ; Bridges v. Hawkes-
worth, 7 Eng. Law & Eq. R. 424.
But this property is not, under the circumstances, to be treated as
lost property in that sense in which a finder has a valid claim to hold
the same until called for by the true owner. This property was volun-
tarily placed upon a table in the defendant's shop by a customer of
.his, who accidentally left the same there and has never called for it.
The plaintiff also came there as a customer, and first saw the same and
took it up from the table. The plaintiff did not by this acquire the
right to take the property from the shop, but it was rather the duty of
the defendant, when the fact became thus known to him, to use reason-
able care for the safe-keeping of the same until the owner should call
for it. In the case of Bridges v. Hawkesworth, the property, although
found in a shop, was found on the floor of the same, and had not been
placed there voluntarily by the owner, and the court held that the
finder was entitled to the possession of the same, except as to the
owner. But the present case more resembles that of Lawrence v. State,
1 Humph (Tenn.) 228 [34 Am. Dec. 644], and is indeed very similar in
its facts. The court there take a distinction between the case of
property thus placed by the owner and neglected to be removed, and
property lost. It was there held that " to place a pocket-book upon a
table and to forget to take it away is not to lose it, in the sense in which
the authorities referred to speak of lost property."
We accept this as the better rule, and especially as one better adapted
to secure the rights of the true owner. In view of the facts of this case,
the plaintiff acquired no original right to the property, and the defend-
ant's subsequent acts in receiving and holding the property in the
manner he did does not create any.
Exceptions overruled.
DURFEE V. JONES.
11 R. I. 588; 23 Am. R. 528. 1877.
Assumpsit, heard by the court, jury trial being waived.
DuEFEE, C. J. The facts in this case are briefly these : In April,
1874, the plaintiff bought an old safe, and soon afterward instructed
his agent to sell it again. The agent offered to sell it to the defendant
22 ORDINARY BAILMENTS.
for ten dollars, but the defendant refused to buy it. The agent then
left it with the defendant, who was a blacksmith, at his shop for sale
for ten dollars, authorising him to keep his books in it until it was sold
or reclaimed. The safe was old-fashioned, of sheet iron, about three
feet square, having a few pigeon-holes and a place for books, and back
of the place for books a large crack in the lining. The defendant, shortly
after the safe was left, upon examining it, found secreted between the
sheet-iron exterior and the wooden lining a roll of bills amounting to
$165, of the denomination of the national bank bills which have been
current for the last ten or twelve years. Neither the plaintiff nor the
defendant knew the money was there before it was found. The owner
of the money is still unknown. The defendant informed the plaintiff's
agent that he had found it, and offered it to him for the plaintiff ; but
the agent declined it, stating that it did not belong to either himself or
the plaintiff, and advised the defendant to deposit it where it would
draw interest until the rightful owner appeared. The plaintiff was
then out of the city. Upon his return, being informed of the finding
he immedifrtely called on the defendant and asked for the money, but
the defendant refused to give it to him. He then, after taking advice,
demanded the return of the safe and its contents, precisely as they
existed when placed in the defendant's hands. The defendant promptly
gave up the safe, but retained the money. The plaintiff brings this
action to recover it or its equivalent.
The plaintiff does not claim that he acquired, by purchasing the
safe, any right to the money in the safe as against the owner ; for he
bought the safe alone, not the safe and its contents. See Merry v.
Green, 7 M. & W. 623. But he claims that as between himself and
the defendant his is the better right. The defendant, however, has the
possession, and therefore, it is for the plaintiff, in order to succeed in
his action, to prove his better right.
The plaintiff claims that he is entitled to have the money by the
right of prior possession. But the plaintiff never had any possession
of -the money, except unwittingly, by having possession of the safe
which contained it. Such possession, if possession it can be called,
does not of itself confer a right.- The case at bar is in this view like
Bridges v. Hawkesworth, 15 Jur. 1079 ; 21 L. J. Q. R. 75, A. D. 1851 ;
7 Eng. L. &. Eq. 424. In that case, the plaintiff, while in the defend-
ant's shop on business, picked up from the floor a parcel containing
bank notes. He gave them to the defendant for the owner if he could
be found. The owner could not be found, and it was held that the plain-
tiff as finder was entitled to them, as against the defendant as owner
of the shop in which they were found. "The notes," said the court,
" never were in the custody of the defendant nor within the protection
of his house before they were found, as they would have been if they
had been intentionally deposited there." The same in effect may be
said of the notes in the case at bar, for though they were originally
KELATIONS OF BAILOR AND BAILEE. 23
deposited in. the safe by design, they were not so deposited in the safe
after it became the plaintiff's safe, so as to be in the protection of the
safe as his safe, or so as to affect him with any responsibility for them.
The case at bar is also in this respect like Tatum v. Sharpless, 6 Phila.
18. There it was held, that a conductor who had found money which
had been lost in a railroad car was entitled to it as against the railroad
company. }
The plaintiff also claims that the money was not lost but designedly
left where it was found, and that, therefore, as owner of the safe, he is
entitled to its custody. He refers to cases in which it has been held
that money or other property voluntarily laid down and forgotten is
not in legal contemplation lost, and that of such money or property the
owner of the shop or place where it is left is the proper custodian rather
than the person who happens to discover it first. State •». McCann,
19 Mo. 249 ; Lawrence v. The State, 1 Humph. 228 ; McAvoyu.
Medina, 11 Allen, 549 [20]. It may be questioned whether this distinc-
tion has not been pushed to an extreme. See Kincaid v. Eaton, 98 Mass.
139. But, however that may be, we think the money here, though
designedly left in the safe, was probably not designedly put in the
crevice or interspace where it was found, but that, being left in the
safe, it probably slipped or was accidentally shoved into the place where
it was found without the knowledge of the owner, and so was lost, in
the stricter sense of the word. The money was not simply deposited
and forgotten, but deposited and lost by reason of a defect or insecurity
in the place of deposit.
The plaintiff claims that the finding was a wrongful act on the part
of the defendant, and that therefore he is entitled to recover the money
or to have it replaced. We do not so regard it. The safe was left with
the defendant for sale. As seller he would properly examine it under
an implied permission to do so, to qualify him the better to act as seller.
Also under the permission to use it for his books, he would have the
right to inspect it to see if it was a fit depository. And finally, as a
possible purchaser, he might examine it, for though he had once declined
to purchase, he might, on closer examination, change his mind. And
the defendant, having found in the safe something which did not be-
long there, might, we think, properly remove it. He certainly would
not be expected either to sell the safe to another, or to buy it himself
without first removing it. ' It is not pretended that he used any vio-
lence or did any harm to the safe. And it is evident that the idea that
any trespass or tort had been committed did not even occur to the plain-
tiff's agent when he was first informed of the finding.
The general rule undoubtedly is, that the finder of lost property is
entitled to it as against all the world except the real owner, and that
ordinarily the place where it is found does not make any difference.
We cannot find anything in the circumstances of the case at bar to take
it out of this rule. We give the defendant judgment for costs.
24 ORDINARY BAILMENTS.
DANIELSON v. ROBERTS.
44 Oreg. 108 ;- 74 Pae. R. 913 ; 102 Am. St. R. 627 ; 65 L. R. A. 526. 1904.
Bean, J. This is an action of trover to recover for the alleged
conversion of money. The plaintiffs aver, in substance, that in March,
1894, while engaged at the request of the defendants in cleaning out and
removing the loose dirt and debris from an old building situated on
premises occupied by the defendants, they discovered a tin vessel,
rusty and worn with age, which contained the sum of seven thousand
dollars in gold coin of the United States ; that the defendants wrong-
fully took and received the money from the plaintiffs, and have ever
since wrongfully and unlawfully detained the same, to their damage
in the sum of seven thousand dollars ; that the building in which the
money was found had stood on the premises for more than forty years,
and during that time had been in the possession and control of many
owners and tenants ; that the dirt and debris which the plaintiffs were
engaged in cleaning out and removing at the time the money was dis-
covered had been undisturbed for many years ; that the vessel which
contained the money was so worn and destroyed by time and the ele-
ments that it was diificult to ascertain from an inspection of it what
kind of a vessel it had been, and plaintiffs could hardly hold it together
until it and its contents were taken by the defendants ; that the owner
of the vessel and the money contained therein "has long since died,
and the said vessel and the said sum of seven thousand dollars contained
therein were prior to said time lost, and their whereabouts unknown to
any person or persons whatever"; that plaintiffs are the discoverers
of the money and are now, and ever since the — day of March, 1894,
have been, the owners thereof, and entitled to its immediate possession ;
that defendants wrongfully and unlawfully fail, neglect, and refuse to
repay the same to the plaintiffs, etc. The answer denies all the material
allegations of the complaint, except the discovery by the plaintiffs of
the treasure, and that they were working for the defendants at the
time, and alleges affirmatively that the money discovered did not
exceed the sum of one thousand dollars, and was the property of one
of the defendants, who had voluntarily deposited it in the place where
discovered for safekeeping ; and at no time had abandoned or lost it.
The reply denies the material allegations of the answer. Upon the
issues joined the cause came on for trial before a jury. After the plain-
tiffs' testimony was all in, the defendants moved for and were allowed
a nonsuit. [Recital of the evidence in detail omitted.]
The motion for nonsuit was sustained on the ground, as we under-
stand it, that the evidence for the plaintiffs shewed that the money
in question had been intentionally deposited by some one where found,
and therefore the plaintiffs could not invoke the rule that the finder of
lost property is entitled to its possession against all the world except
EELATIONS OF BAILOR AND BAILEE. 25
its true owner. Ever since the early case of Armory v. Delamirie, 1
Strange, 504 [20] where it was held that the finder of a jewel might
maintain trover for the conversion thereof by a wrongdoer, the right
of the finder of lost property to retain it against all persons except the
true owner has been recognised. In that case a chimney sweeper's
boy found a jewel, and carried it to a goldsmith to ascertain what it
was. The goldsmith refused to return it, and it was held that the boy
might maintain trover on the ground that by the finding he had acquired
such a property in the jewel as would entitle him to keep it against all
persons but the rightful owner. This case has been uniformly followed
in England and America, and the law upon this point is well settled :
Severn v. Yoran, 16 Or. 269 (8 Am. St. Rep. 293, 20 Pac. 100) ; 19 Am.
& Eng. Ency. of Law (2 ed.), 579. But it is argued that property
is lost in the legal sense of that word only when the possession has
been casually and involuntarily parted with, and not when the owner
purposely and voluntarily places or deposits it in a certain place for
safekeeping, although he may thereafter forget it, and leave it where
deposited, or may die without disclosing to any one the place of deposit.
This seems to have been the view taken by Mr. Justice Lord in Sovern
V. Yoran, where money was found hidden under the floor of a barn. It
had evidently, as in this case, been deposited there by some one, and
the question for decision was whether the defendant, who had treated
the money as lost property, and disposed of it as provided in the statute,
was guilty of a conversion, and liable to the true owner therefor. It is
said in the opinion that until the owner was discovered, the money
was in the nature of treasure trove, and could not be treated as lost
property, within the meaning of the statute. At common law a dis-
tinction was made between lost property and treasure trove. Lost
property was such as was found on the surface of the earth, and with
which the owner had involuntarily parted. The presumption arising
from the place of finding was that the owner had intended to abandon
his property, and that it had gone back to the original stock, and
therefore belonged to the finder or first taker until the owner appeared
and shewed that its losing was accidental, or without an intention
to abandon the property. Treasure trove, on the other hand, was
money or coin found hidden or secreted in the earth or other private
place, the owner being unknown. It originally belonged to the finder
if the owner was not discovered ; but Blackstone says it was afterward
judged expedient, for the purposes of State, and particularly for the
coinage, that it should go to the king ; and so the rule was promulgated
that property found on the surface of the earth belonged to the finder
until the owner appeared, but that found hidden in the earth belonged
to the king : 1 Bl. Com. 295.
In this country the law relating to treasure trove has generally been
merged into the law of the finder of lost property, and it is said that
the question as to whether the English law of treasure trove obtains
26 ORDINARY BAILMENTS.
in any State has never been decided in America : 2 Kent, 357 ; 26 Am.
Eng. Ency. of Law (1 ed.), 538. But at the present stage of the con-
troversy it is immaterial whether the money discovered by plaintiffs
was technically lost property or treasure trove, or if treasure trove,
whether it belongs to the State or to the finder, or should be disposed
of as lost property if no owner is discovered. In either event the plain-
tiffs are entitled to the possession of the money as against the defend-
ants, unless the latter can shew a better title. The reason of the rule
giving the finder of lost property the right to retain it against all persons
except the true owner applies with equal force and reason to money
found hidden or secreted in the earth as to property found on the sur-
face. It is thus stated in Armory v. Delamirie, 1 Smith's Lead. Cas.,
pt. 1, 475 [20] : " Everyone on whom the possession of chattels personal is
cast by the law, by the act of the parties, or through the force of cir-
cumstances is charged with the duty of taking reasonable care, and
answerable if he does not to the owner, and may consequentially recover
for any wrongful act by which the property is impaired, in the capacity
of trustee, if in no other character." The money for which this action
is brought came lawfully into the possession of the plaintiffs. The
circumstances under which it was discovered, the condition of the vessel
in which it was contained, and the place of deposit, as shown by the
plaintiffs' testimony, all tend with more or less force to indicate that
it had been buried for some considerable time, and that the owner was
probably dead or unknown. The plaintiffs, having thus come into
its possession, were charged with the duty of holding it for the true
owner, if he could be ascertained, and, if not, of making such disposition
thereof as the law required. The possession of the money was cast
upon them by the force of circumstances. They were consequently
under the obligation of taking reasonable care of it until it could be
returned to the true owner or otherwise disposed of, and they may
therefore maintain such actions or proceedings as may be necessary to
enable them to retain or recover its possession. The fact that the money
was found on the premises of the defendants, or that the plaintiffs were
in their service at the time, can in no way affect the plaintiffs' right to-
possession, or their duty in reference to the lost treasure. Hamaker
V. Blanchard, 90 Pa. 377 (35 Am. Rep. 664) ; Bowen v. Sullivan, 62
Ind. 281 (30 Am. Rep. 172) ; Tatum v. Sharpless, 6 Phila. 18; Durfee
V. Jones, 11 R. L 588 (23 Am. R. 528) [21]; Bridges v. Hawkesworth,
21 L. J. Q. B. 75. We are of the opinion, therefore, that the case should
have gone to the jury, and, unless it should appear that the defendants
are the owners of the money, they must return the possession thereof
to the plaintiffs, in order that they may make lawful disposition thereof.
Judgment reversed and new trial ordered.
Reversed^
RELATIONS OF BAILOR AND BAILEE. 27
SOUTH STAFFORDSHIRE WATER COMPANY «. SHARMAN.
[1896] 2 Q. B. 44. 1896.
Lord Russel of Killowen, C. J. In my opmion, the county court
judge was wrong, and his decision must be reversed and judgment
entered for the plaintiffs. The case raises an interesting question.
The action was brought in detinue to recover the possession of two
gold rings from the defendant. The defendant did not deny that he
had possession of the rings, but he denied the plaintiffs' title to recover
them from him. Under those circumstances the burden of proof is cast
upon the plaintiffs to make out that they have, as against the defendant,
the right to the possession of the rings.
Now, the plaintiffs, under a conveyance from the corporation of
Lichfield, are the owners in fee simple of some land on which is situated
a pool known as the Minster Pool. For purposes of their own the plain-
tiffs employed the defendant, among others, to clean out that pool.
In the course of that operation several articles of interest were found,
and amongst others the two gold rings in question were found by the
def«;ndant in the mud at the bottom of the pool.
The plaintiffs are the freeholders of the hens in quo, and as such they
have the right to forbid anybody coming on their land or in any way
interfaring with it. They had the right to say that their pool should
be cleaned out in any way that they thought fit, and to direct what
should be done with anything found in the pool in the course of such
cleaning out. It .is no doubt right, as the counsel for the defendant
contended, to say that the plaintiffs must shew that they had actual
control over the locus in quo and the things in it ; but under the circum-
stances, can it be said that the Minster Pool and whatever might be
in that pool were not under the control of the plaintiffs ? In my opin-
ion, they were. The case is like the case, of which several illustrations
were put in the course of the argument, where an article is found on
private property, although the owners of that property are ignorant
that it is there. The principle on which this case must be decided,
and the distinction which must be drawn between this case and that of
Bridges v. Hawkesworth, 21 L, J. (Q. B.) 75, is to be found in a passage
in Pollock and Wright's Essay on Possession in the Common Law,
p. 41 : " The possession of land carries with it in general, by our law,
possession of everything which is attached to or under that land, and,
in the absence of a better title elsewhere, the right to possess it also.
And it makes no difference that the possessor is not aware of the thing's
existence. ... It is free to any one who requires a specific intention
as part of a de facto possession to treat this as a positive rule of law. But
it seems preferable to say that the legal possession rests on a real
de facia possession constituted by the occupier's general power and
intent to exclude unauthorised interference."
28 ORDINARY BAILMENTS.
That is the ground on which I prefer to base my judgment. There
is a broad distinction between this case and those cited from Black-
stone. Those were cases in which a thing was cast into a public place
or into the sea — into a place, in fact, of which it could not be said that
any one had a real de facto possession, or a general power and intent to
exclude unauthorised interference.
The case of Bridges v. Hawkesworth, 21 L. J. (Q. B.) 75, stands by
itself, and on special grounds ; and on those grounds it seems to me that
the decision in that case was right. Some one had accidentally dropped
a bundle of banknotes in a public shop. The shopkeeper did not know
they had been dropped, and did not in any sense exercise control over
them. The shop was open to the public, and they were invited to come
there. A customer picked up the notes and gave them to the shop-
keeper in order that he might advertise them. The owner of the notes
was not found, and the finder then sought to recover them from the
shopkeeper. It was held that he was entitled to do so, the ground of
the decision being, as was pointed out by Patteson, J., that the notes,
being dropped in the public part of the shop, were never in the custody
of the shopkeeper, or "within the protection of his house."
It is somewhat strange that there is no more direct authority on the
question ; but the general principle seems to me to be that where a
person has possession of house or land, with a manifest intention to
exercise control over it and the things which may be upon or in it, then,
if something is found on that land, whether by an employee of the
owner or by a stranger, the presumption is that the possession of that
thing is in the owner of the locus in qw). .
Wills, J. I entirely agree; and I will only add that a contrary
decision would, as I think, be a great and most unwise encouragement
to dishonesty.
Appeal allowed; judgment for plaintiffs.
2. POSSESSION BY BAILEE.
BRETZ V. DIEHL.
117 Pa. 589 ; 11 Atl. R. 893 ; 2 Am. St. R. 706. 1888.
Clark, J. The defendants in this case are judgment creditors of
William D. Newman, a miller, operating a steam flouring mill in the
town of Bedford. Having issued executions, they levied on some eighty
or ninety barrels of flour, and some bran found on the floor of Newman's
mill. The plaintiffs claimed the property levied upon, alleging that it
was the product of grain by them delivered to and held by Newman as
POSSESSION BY BAILEE. 29
their bailee. This is a feigned issue, framed under the sheriff's inter-
pleader act to determine the dispute.
The plaintiffs, who are farmers residing in the vicinity of Bedford,
brought their grain to this mill; no special contract or arrangement
was made with the miller, by any of the plaintiffs when they delivered
their wheat, but, in accordance with the practice of the mill in all cases,
except when wheat was at once paid for, a receipt or memorandum was
given in the following form : —
Crystal Mills, Bedford, Pa.,
Sept. 12, 1884.
Amoukt
Received from D. W. Lee :
Four hundred and fifty-five ii b. wheat $455.14
" rye
" corn
Two hundred and fifty-five H b. oats 255.12
" buckwheat
For use of self. W. D. Newman.
The mill was not arranged to keep the several lots of grain in separate
parcels. It was so constructed that all the grain delivered into it was
hoisted to the second floor, emptied into a sink on the first floor, and
from thence carried by elevators into a bin on the third floor, where, at
times, there was a large accumulated mass of wheat. Newman also
purchased wheat in considerable quantities from time to time, which
was delivered into the mill, and disposed of as the other wheat. This
promiscuous commingling of the gram into a common mass was in accord-
ance with the known usage of the mill, which was supplied for grind-
ing from the mass of the wheat, without any discrimination as to the
several lots or parcels in which it was received. The miller was, of
course, under no obligation to restore to the plaintiffs the specific or
identical wheat which he received, nor the product of it in flour ; in-
deed, this, owing to the manner in which the business was conducted,
was practically impossible.
The fundamental distinction between a bailment and a sale is, that
in the former the subject of the contract, although in an altered form,
is to be restored to the owner, whilst in the latter there is no obligation
to return the specific article ; the party receiving it is at liberty to re-
turn some other thing of equal value in place of it. In the one case the
title is not changed, in the other it is, the parties standing in the relation
of debtor ^.nd creditor. Thus in Norton v. Woodruff, 2 N. Y. 153, a
miller agreed to take certain wheat, and to give one barrel of superfine
flour for every four f ^ths bushels thereof, the flour to be delivered at a
fixed time, or as much sooner as he could make it. As the miller's
30 ORDINAHT BAILMENTS.
contract was satisfied by a delivery of flour from any wheat, the trans-
action was held to be a sale. But in Malloy v. Willis, 4 N. Y. 76, wheat
was delivered under a contract " to be manufactured into flour," and
one barrel of the flour was to be delivered for every four Mths bushels
of wheat ; this transaction was by the same court held to be a bailment.
If a party, having charge of the property of others, so confounds it
with his own that the line of distinction cannot be traced, all the incon-
venience of the confusion is thrown upon the party who produces it ;
where, however, the owners consent to have their wheat mixed in a
common mass, each remains the owner of his share in the common stock.
If the wheat is delivered in pursuance of a contract for bailment, the
mere fact that it is mixed with a mass of like quality, with the knowl-
edge of the depositor or bailor, does not convert that into, a sale which
was originally a bailment, and the bailee of the whole can, of course,
have no greater control of the mass than if the share of each were kept
separate. If the commingled mass has been delivered on simple stor-
age, each is entitled on demand to receive his share ; if for conversion
into flour, to his proper proportion of the product : Chase v. Washburn,
1 Ohio N. S. 244 [59 Am. Dec. 623] ; Hutchison «. Commonwealth,
82 Pa. 472. It makes no difference that the bailee had, in like manner,
contributed to the mass of his own wheat ; for although the absolute
owner of his own share, he still stands as a bailee to the others, and he
cannot abstract more than that share from the common stock, without
a breach of the bailment, which will subject him not only to a civil
suit, but also to a criminal prosecution : Hutchison v. Commonwealth,
82 Pa. 472.
But where, as in Chase v. Washburn, supra, the understanding of
the parties was that the person receiving the grain might take from it
or from the flour at his pleasure, and appropriate the same to his own
use, on the condition of his procuring other wheat to supply its place,
the dominion over the property passes to the depositary, and the
transaction is a sale, and not a bailment. To the same effect are Schind-
ler V. Westover, 99 Ind. 395; Richardson v. Olmstead, 74 111. 213;
Bailey v. Bearly, 87 111. 556 ; and Johnston «. Browne, 37 la. 200. In
Lyon V. Lenon, 106 Ind. 567, the distinction is thus stated : " If the
dealer has the right, at his pleasure, either to ship and sell the same on
his own account, and pay the market price on demand, or retain and
redeliver the wheat, or other wheat in the place of it, the transaction is
a sale. It is only when the bailor retains the right from the beginning
to elect whether he will demand the redelivery of his property, or other
of like quality and grade, that the contract will be considered one of
bailment. If he surrender to the other the right of election, it will be
considered a sale, with an option on the part of the purchaser to pay
either in money or property, as stipulated. The distinction is : Can
the depositor, by his contract, compel a delivery of wheat, whether the
dealer is willing or not ? If he can, the transaction is a bailment. If
POSSESSION BY BAILEE. 31
the dealer has the option to pay for it in money or other wheat, it is a
sale." This distinction is drawn, of course, with reference to cases
where grain is deposited in a mass, as in grain elevators, etc.
There are cases in which the doctrine of bailment has been carried
much beyond the rule recognised in the cases we have cited : See
Sexton V. Graham, 53 la. 181, and Nelson v. Brown, 53 la. 155. We
think, however, the rule recognised in Chase v. Washburn, supra, and
Lyon V. Lenon, supra, is a safe one, and is more in accord with the well-
settled principles of the law relating to bailment.
But in the case at bar, we are not called upon to say what would be
the effect upon the transaction, if Newman had authority, in the regu-
lar course of dealing, to ship or sell the wheat of his customers on his
own account. Undoubtedly he had a right to sell of the grain or flour
to the extent of his own share ; that is to say, what he contributed to
the common stock and tolls to which he was entitled. But the jury has
found that he had no authority whatever to sell or to abstract from the
common stock beyond the amount to which he was himself entitled.
In the general charge, and also in the answers to the points submitted,
the learned court instructed the jurors in the clearest manner, that if
they should find from the evidence that Newman, by the nature of his
dealings with the several plaintiffs, had acquired such dominion over
their wheat, as authorised him, at his pleasure, not only to grind it
into flour, but also to sell the same for his own use, the transaction must
necessarily be treated as a sale, and that, in that event, the plaintiffs
could not recover. This instruction was repeated with marked empha-
sis several times during the progress of the charge, and it seems quite
impossible that the jury could have laboured under any misapprehension
as to the nature of the inquiry they were to make. The verdict of the
jury was for the plaintiffs, and we must assume the facts which it is
plain the jury, in arriving at such a verdict, must have found, viz., that
Newman had no authority to sell the grain delivered into his mill under
the arrangement with the plaintiffs, that is to say, their share of the
common stock, nor the flour which was the product thereof. It was the
plain duty of Newman, however, to see to it that at all times the
mill contained wheat or flour sufficient in amount to answer all demands
under the bailment ; failing in this, he was derelict in duty, and liable,
under the law, for the appropriation and conversion unto his own use
of property which did not belong to him.
Nor do we see that the court committed any error in the answers to
the plaintiffs' points. These points, according to the general practice,
were based upon an assumption of facts, the truth or falsity of which
was for the jury, and the law was stated as upon a finding of these facts
by the jury. They were relevant to the issue ; they disclosed clearly
the specific facts assumed, which were fairly and reasonably consistent
with the plaintiffs' theory of the case upon the evidence, and the
opinion of the court thereon could not have had any weight with the
32 ORDINABY BAILMENTS.
jurors in their deliberations, unless the facts assumed were, in their
judgment, established by the proofs. The points certainly were not
such as could be disregarded by the court, and we cannot see how the
answers thereto could be supposed to have misled the jury.
The learned court defined a bailment and a sale, marking the dis-
tinguishing features of each, and as the nature of the transaction
depended not wholly upon the written receipt, but in part on verbal
evidence as to the method of conducting the 'business, the question was
undoubtedly one proper to be submitted to the jury. The court
instructed the jury that if certain facts existed the transaction was a
sale, otherwise it was but a bailment, and the question was proper for
the jury whether or not, under the instruction of the court, according
to the facts as the jury might find them, the transaction was a bailment
or a sale.
On a careful review of the whole case, we find no error, and the jvdg-
ment is affirmed.
WOODWARD V. SEMANS.
125 Ind. 330 ; 25 N. E. 444 ; 21 Am. St. R. 225. 1890.
Elliott, J. The appellants [defendants] were dealers in grain, con-
ducting a warehouse and a flouring-mill at the town of Lapel. The
appellees agreed to furnish wheat to the appellants, for which the appel-
lants were to deliver to them, on request, a designated number of pounds
of flour and bran for each bushel of wheat delivered. The flour and
bran were to remain in the possession of the appellants, subject to de-
livery upon the demand of the appellees. Before the delivery of all of
the flour and bran to the appellees, the mill and warehouse of the appel-
lants were burned, and the flour and bran destroyed. The fire was
not caused by any negligence or wrong of the appellants.
it is the law of this jurisdiction, as well as of many others, that where
a warehouseman receives grain on deposit for the owner, to be mingled
with other grain in a common receptacle from which sales are made,
the warehouseman keeping constantly on hand grain of like kind and
quality for the depositor, and ready for delivery to him on call, the con-
tract is one of bailment, and not of sale. Rice «. Nixon, 97 Ind. 97 (49
Am. Rep. 430, and authorities cited) ; Bottenberg v. Nixon, 97 Ind. 106 ;
Schindler v. Westover, 99 Ind. 395 ; Lyon v. Lenon, 106 Ind. 567 (570) ;
Preston v. Witherspoon, 109 Ind. 457; Morningstar v. Cunningham,
110 Ind. 328 (336). But the case before us does not fall within the rule
which the cases cited assert ; on the contrary, it falls within an entirely
different rule. There is here no agreement to restore to the original
owner the identical property nor to restore to him property of like
POSSESSION BY BAILEE. 33
quality, nor is there any agreement to restore to him the product of the
property. The agreement is to yield property in exchange for property,
and this is essentially a contract of sale. The appellees were entitled
to a designated quantity of flour and bran for each bushel of wheat
delivered by them, but they were not entitled to the flour and bran pro-
duced from the particular wheat delivered by them to the appellants.
There was, therefore, no undertaking to restore the wheat either in its
original form or in an altered form. In Bretz v. Diehl, 117 Pa. St. 589
(2 Am. St. R. 706) [28], the court said : " The fundamental distinction be-
tween a bailment and a sale is, that in the former the subject of the
contract, although in an altered form, is to be restored to the owner ;
whilst in the latter there is no obligation to return the specific article ;
the party receiving it is at liberty to return some other thing of equal
value in place of it." Our own decisions assert a similar doctrine, and
by some of them it has been applied to cases very like the present:
Ewing V. French, 1 Blaekf. 353 ; Carlisle v. Wallace, 12 Ind. 252 (74
Am. Dec. 207) ; Lyon v. Lenon, supra. The decisions of other courts
are in full agreement with our own : Norton v. Woodruff, 2 N. Y. 153 ;
Austin V. Seligman, 21 Blatchf. 506 ; South Australian Ins. Co. v.
Elandell, L. R. 3 P. C. 100 (108) ; Jones v. Kemp, 49 Mich. 9.
Judgment affirmed.
NATIONAL SAFE DEPOSIT CO. v. STEAD.
250 lU. 584; 95 N. E. R. 973; Ann. Cas. 1912 B., 430. 1911.
This was a bill in chancery filed by the National Safe Deposit Com-
pany, the appellant, against William H. Stead, attorney-general, Andrew
Russell, state treasurer, and Walter K. Lincoln, inheritance tax attor-
ney, the appellees, in the Circuit Court of Cook county, to restrain said
officers from enforcing against the appellant, and all other corporations,
firms and individuals similarly situated and who are engaged in the
business of renting safety deposit boxes and safes for hire, the provisions
of section 9 of an act entitled " An act to tax gifts, legacies, inheritances,
transfers, appointments and interests in certain cases and to provide
for the collection of the same, and repealing certain acts therein named,"
approved June 14, 1909, in force July 1, 1909 (Kurd's Stat. 1909,
p. 1897) on the ground that said section of the act is unconstitutional
and void. A general demurrer was interposed to the bill and sus-
tained and the bill was dismissed for want of equity, and the record
has been brought to this court by the complainant by appeal, for further
review.
[Portion of statement omitted.]
Hand, J. [Portion of opinion on point of practice omitted.]
34 ORDINARY BAILMENTS.
The counsel for the appellant and the counsel for the State differ
widely and fundamentally upon the relation which the appellant sus-
tains towards its lessees, and the property'which its lessees place in the
safety deposit boxes and safes which they rent from the appellant, and
as to the interest of the State in the property situated in a safety deposit
box or safe, placed there by a lessee, upon the death of the lessee, when
the property is subject to the payment of an inheritance tax. We
think, for the proper decision of this case, the exact relation which the
appellant sustains to a person to whom it rents a safety deposit box or
safe, and the property placed in such box or safe by the lessee, and the
interest which the State has in the property of a lessee remaining in
such safety deposit box or safe upon his death, if such property is
subject to an inheritance tax, must necessarily be determined as a pre-
liminary question, as, according to our view, the correct determination
of those questions will simplify many of the questions discussed in the
briefs and eliminate others, and place the case in such a situation that
a rational solution of the question here involved, whose determination
is vital to a correct decision of this case, may readily be determined.
We think it clear that where a safety deposit company leases a safety
deposit box or safe, and the lessee takes possession of the box or saYe
and places therein his securities or other valuables, the relation of bailee
and bailor is created between the parties to the transaction as to such
securities or other valuables, and that the fact that the safety deposit
company does not know, and that it is not expected it shall know, the
character or description of the property which is deposited in such
safety deposit box or safe does not change that relation, any more than
the relation of' a bailee who should receive for safe keeping a trunk
from a bailor would be changed by reason of the fact that the trunk
was locked and the key retained by the bailor, although the obligation
resting upon the bailee with reference to the care he should bestow
upon the property in the trunk might depend upon his knowledge of
the contents of the trunk. Obviously, the bailee would be in possession
of the trunk and its contents, and no amount of argument would demon-
strate that while the trunk was in possession of the bailee its contents
were in the possession of the bailor, solely by reason of the fact that the
bailor of the trunk retained the key and the bailee did not have access
to the trunk. We are of the opinion that the relation of bailee and bailor
exists between the appellant and its lessees, and that the deposit of the
securities and valuables by its lessees in rented safety deposit boxes or
safes is a bailment, and that the law applicable to bailments, generally,
applies to such transaction and to such property.
In Mayer v. Brensinger,^180 111. 110 [54 N. E. 159, 72 Am. St. R. 196],
the appellee rented from the appellant a safety deposit box in his safety
deposit vault, in which he deposited cash. During the illness of the
appellee the cash was removed from the box, and suit was brought and
a recovery was had. In that case, as in this, the appellee retained the
POSSESSION BY BAILEE. 35
key to the box. The court, on page 113, said: "The relation which
the appellant bore to the appellee was that of a bailee or depositary
for hire. As such bailee or depositary for hire the appellant was bound
to exercise ordinary care and diligence in the preservation of the prop-
erty entrusted to him by the appellee. Ordinary care in such cases
is such care as every prudent man takes of his own goods, and ordinary
•diligence in the preservation of such goods is such diligence as men of
common prudence usually exercise about their own' affairs. (Chicago,
and Alton R. Co. v. Scott, 42 111. 132.) Although one who hires a box
in the vaults of a safety deposit company may keep the key himself,
yet the company, without any special contract to that effect, will be
held to at least ordinary care in keeping the deposit."
In the case of Lockwood v. Manhattan Storage and Warehouse Co.
128 App. Div. 68] 50 N. Y. Supp. 974, it appeared that the defendant,
amtJng other things, maintained at its warehouse safe deposit vaults,
containing separate safe deposit boxes or safes. Plaintiif had, for a
consideration paid, rented a safe deposit box of defendant. One key
to the box was held by the plaintiff and one by the defendant. Access
to the box could be gained only by the use of said two keys. The plain-
tiff deposited in her box certain sums of money, which, when she
returned some days later, she found had disappeared. Suit was brought
to recover the value of the property abstracted. That defendant was
not in the possession of plaintiff's property was urged upon the court.
In disposing of the case the court said : " It is urged upon the part of
the defendant that it was not the bailee because it was not in possession
of the plaintiff's property. If it was not, it is difficult to know who
was. Certainly the plaintiff was not, because she could not obtain
access to the property without the consent and active participation of
the defendant. She could not go into her safe unless the defendant
used its key first and then allowed her to open the box with her own
key, thus absolutely controlling the access of the plaintiff to that which
she had deposited within the safe. The vault was the defendant's and
was in its custody, and its contents were under the same conditions.
As well might it be said that a warehouseman was not in possession of
silks in boxes deposited with him as warehouseman because the boxes
were nailed up and he had .no access to them." See, also, Cussen v.
Southern California Sav. Bank, 133 Cal. 534 [65 Pac. 1099, 85 Am. St.
Rep. 221] ; Roberts v. Safe Deposit Co., 123 N. Y. 57 [25 N. E. 294,
9 L. R. A. 438, 20 Am. St. Rep. 718] ; Safe Deposit Co. v. Pollock, 85
Pa. St. 391 [27 Am. Rep. 660].
We think the above authorities clearly sustain the position that the
appellant, in law, is in possession of the property of its lessees deposited
in the safety deposit boxes or safes which it rents to them, and while
it may not have knowledge of the character, amount, or quantity of
the property which its lessees have deposited in the safety deposit boxes
or safes leased from it, nevertheless, it is in the legal custody and con-
36 ORDINARY BAILMENTS.
trol of such property. True, while a lessee is living, by the terms of
the lease with the appellant he has access to the box or safe, and upon
his death the. duty devolves upon the appellant to hold the contents of
his box or safe and to deliver them to those persons, only, to whom they
belong or to whom the law directs they shall be delivered, and such
delivery must be made at the appellant's peril. We conclude, there-
fore, upon the death of a lessee of a safety deposit box or safe the con-
tents of such box or safe are in the possession and control of the appel-
lant, and the same duty rests upon it as rests upon every other bailee
who finds himself in the possession of property that belongs to a bailor
who has died during the existence of the bailment, — that is, to dehver
the bailment to the party or parties upon whom the law casts the title,,
with the right of possession. [A portion of the opinion relating to the
constitutionality of the statute is omitted.]
Decree affirmed.
WAMSER V. BROWNING.
187 N. Y. 87 ; 79 N. E. R. 861 ; 10 L. R. A. N. S. 314. 1907.
Haight, J. This action was brought to recover the value of a watch,
chain, and cigar cutter, which were stolen from the plaintiff in defend-
ant's store. The defendant is a corporation engaged in conducting the-
business of a clothing store in the city of New York.
The plaintiff, in company with one Ernest Mayer, a friend, called
at the defendant's store for the purpose of purchasing a garment, and
went to Stumpf, a clerk with whom they were acquainted, and asked
for a vest. Stumpf was then engaged in waiting upon another customer,
but, according to the plaintiff's testimony, told him that the vests were
piled up on a table some distance away on the side of the store, pointing
to it ; that he could go over and help himself ; that he could select a
vest, lay his clothing on an adjoining table and try it on, and that he
would come over as soon as he could get through with the customer
that he was attending. The plaintiff thereupon went to the table,
selected a vest, took off his coat and vest, and tried the new one on in
the presence of his friend and companion. At the time there were quite
a number of persons in the store examining goods and the clerks were
busy. After ten or fifteen minutes Stumpf finished with the customer
upon whom he was attending and then came over to the plaintiff. The
plaintiff then handed to him the vest that he had tried on, and told him
to do it up, that he would take it, and turned to put on the clothing that
he had laid aside upon the adjoining table. In the meantime his
companion had departed. He found his coat, but his vest was missing,
in the pockets of which were the watch, chain, and cigar cutter. Search.
POSSESSION BY BAILEE. 37
.. 1
"was immediately made by the plaintiff, Stumpf the clerk, and others,
but it could not be found.
The Municipal Court rendered judgment for the plaintiff for the value
of the watch, chain, etc., and this judgment was affirmed by the Appel-
late Term and Appellate Division.
Upon the argument of this case in this court the question was dis-
cussed by counsel as to whether a recovery could be had for articles of
jewelry which were in the pockets of the stolen garment, the contents
of the pockets not having been disclosed to the defendant or any of the
clerks in its employ, but under the view taken by us of the case it becomes
unnecessary to determine that question. In the case of Bunnell v.
Stern (122 N. Y. 539) [10 L. R. A. 481, 19 Am. St. Rep. 519, 25 N. E,
910] the question of the liability of proprietors of retail stores was con-
sidered in this court. In that case the plaintiff went to a store for the
purpose of purchasing a wrap. She was attended by a saleswoman and
had selected a garment and then took off her cloak in the presence of
the saleswoman and tried on the wrap. She laid it upon a counter in
presence of the saleswoman who was attending upon her and in front of
another saleswoman who saw her lay it down. She then tried on the
wrap and in the course of four or five minutes turned to get her cloak
but found that it had been stolen in the meantime. In that case it was
held that the defendant was guilty of negligence and was liable for the
loss ; that it was the duty of those conducting a retail store to exercise
reasonable care with reference to the property of their customers which
is laid aside temporarily upon the invitation of the dealer and with his
knowledge in order to examine an article or determine whether it will
fit.
The question now arises as to whether the plaintiff's claim is brought
within the rule of that case. We think it is not. As we have seen, the
plaintiff went to the clerk Stumpf. Stumpf was engaged with another
customer and so told him. He, however, •pointed to a table upon
which the vests were piled, and told the plaintiff that he could- go over
there and wait upon himself. The plaintiff did go to the table desig-
nated, in company with his companion, and together they selected a
vest. The plaintiff then laid his coat and vest upon an adjoining table
and tried on the vest selected. At that time he knew that Stumpf was
occupied with another customer some distance away and was not
there to personally watch and care for the garments laid aside. No
other clerk was in the immediate vicinity to watch the clothing. The
plaintiff knew of the contents of the pockets of his vest that he laid
upon the table, and yet with nothing^to occupy his attention other than
the trying on of a vest, his vest and its contents were permitted to be
stolen almost in front of his own eyes and within six feet from the place
where he stood. Had Stumpf, the clerk, been present attending upon
him, and the clothing had been laid aside by his invitation before his
eyes so that he had an opportunity to watch and care for it, a different
38 ORDINARY BAILMENTS.
question would have been presented. We, therefore, are of the opinion
that the loss occurred through the negligence of the plaintiff and that
the judgments should be reversed and a new trial granted, with costs
to abide event.
Judgments reversed, etc.
3. CONVERSION.
FLETCHER v. FLETCHER.
7 N. H. 452; 28 Am. D. 359. 1835.
This is an action of trover for four promissory notes. . . .
Richardson, C. J. In trover, the conversion is the very gist of the
action, and the question in this case is, whether the facts stated show a
conversion.
Where there is a tortious taking of goods, this is in law a conversion.
But when the goods came lawfully into the hands of the defendant, as
by finding, or by delivery of the owner, then in order to maintain trover,
some tortious act subsequently done, and amounting to a conversion,
must be shown.
In general, a demand of the goods by the plaintiff, and a refusal by
the defendant to deliver them, is proof of a conversion.
But to this rule there are exceptions. Thus, where the refusal to
deliver the goods on the demand may under the circumstances be con-
sidered only as a result of a reasonable hesitation in a doubtful matter,
it is not evidence of a conversion. Robinson v. Burleigh, 5 N. H. 225.
We are of opinion that this case comes within the exception; and,
that the refusal of the defendant to deliver the notes was not, under
the circumstances, evidence of a conversion.'
It is true, that the notes in the hands of the defendant could not
be considered as money, goods, chattels, rights, or credits, within the
meaning of the act directing the proceedings against the trustees of
debtors. The N. H. I. F. Company v. Piatt, 5 N. H. 193. But whether
they could be so considered was a question which he was not bound
to decide at his peril. And we are of opinion that he had a right to
retain the notes until that question was settled by the proper tribunal,
or an indemnity tendered to him to save him harmless from the trusted
process. It was so held in the case just cited from 5 N. H. 193.
We are, therefore, of opinion that there must be
Jvdgment for the defendant.
' That a, conditional refusal is not evidence of conversion see Dent v. Chiles, 5
Stew. & For. (Ala.) 383, 26 Anj. D. 350 (1832), reviewing the English oases.
CONVERSION. 39
WAY V. DAVIDSON.
12 Gray (Mass.) 465 ; 74 Am. D. 604. 1859.
Action of tort for the conversion of a promissory note for $1000
dated June 28, 1856 made by W. B. Davenport to the defendant and
by him indorsed to the plaintiff [as collateral security].
Metcalf, J. A pawnee has a special property in the thing pawned,
and can maintain an action for the conversion or injury of it by a
third person : 2 Saund. 47 e, note. 3 Steph. N. P. 2668. 2 Kent's
Comm. (6th ed.), 585. He can also maintain replevin against the
pawnor himself for a wrongful taking by him of the thing pawned,
Gibson v. Boyd, 1 Kerr (N. B.), 150 ; or trover for a wrongful detention
thereof by him, though it may have come rightfully into his hands by
the pawnee's consent. Story on Bailm., § 299. Edwards on Bailm.,
227. In Hays ». Riddle, 1 Sandf. 248, the pawnee of a bond delivered
it to the pawnor for the purpose of his exchanging it for stock which
was to be returned on the next day to the pawnee, as a substituted
security. The pawnor converted the bond to his own use, and the pawnee
maintained trover against him for the conversion. That case is not
distinguishable from this.
The plaintiff, in this case, was pawnee of the note for the conversion
of which this action is brought. He delivered it to the defendant (the
pawnor) for a special purpose, on a promise by him to return it. The
defendant has broken that promise. And if the plaintiff has demanded
of him a return of the note, and he has refused to return it, such demand
and refusal are evidence of a conversion, prima fade sufficient to support
this action.
It i§ not to be inferred from this decision that the plaintiff could
maintain trover against a third person to whom the defendant might
have transferred the note after receiving it from the plaintiff. Boden-
hammer v. Newsom, 5 Jones L. (N. C.) 107 [69 Am. Dec. 775].
Exceptions sustained.
PULLIAM V. BURLINGAME.
81 Mo. Ill ; 51 Am. R. 229. 1883.
Martin, C. The plaintiff brought an action of replevin in the Cir-
cuit Court for the recovery of two mules, alleging that he was "the
owner of, and entitled to the immediate possession of" the same. The
defendant in answer made a general denial of the facts alleged in the
petition. The case was tried by the court, a jury being waived by
the parties.
40 " ORDINARY BAILMENTS.
Plaintiff offered testimony tending to prove that he was the owner
and in possession of the mules in controversy ; that about the month
of February, 1880, defendant borrowed said mules from plaintiff, but
said nothing then about his wife's interest in or claim to same. That
defendant held said mules, until they were taken out of his possession
under the writ in this cause.
The defendant then offered, and the court heard testimony tending
to show that Martha E. Burlingame was the sister of plaintiff, and wife
of defendant ; that she owned jointly with plaintiff an undivided half
interest in said mules at the time they were borrowed by her husband,
and also at the time they were taken from defendant under the writ
aforesaid. Defendant also introduced evidence showing that he was
in possession of said mules at the time they were replevied in this
cause, as the agent of his wife, that he was simply holding the same
with and for his wife, by reason of her half interest aforesaid. This
was all the testimony offered.
[There was a judgment for the plaintiff. What was said on a ques-
tion of pleading is omitted.]
The next inquiry is, whether the defendant could make this defence
of paramount title in his wife, in face of the contract of bailment by
which he acquired possession of the mules.
The admitted evidence in the case is, that he borrowed them from
the plaintiff, and that at the time he so borrowed and received them,
he made no mention of any claim in favour of himself or his wife. I have
examined this question with a scrutiny which has not been confined to
the briefs of counsel, and I am unable to reach any other conclusion,
than that the defendant is estopped from making the defence by reason
of the contract under which he acquired possession of the property in
dispute from the plaintiff. In borrowing the mules he became a bailee
of them like any other borrower. There being no time fixed for a ter-
mination of the bailment, that time could be indicated at any moment
by the bailor. It was determinable at his option, and when so termi-
nated, it was the duty of the bailee to return the property bailed to the
bailor. The contract of bailment necessarily admits the right of prop-
erty in the bailor, and the obligation to return it to him at the termina-
tion of the term of bailment. In other words, a bailee, when he receives
the property by virtue of the bailment, legally admits the right of the
bailor to make the contract of bailment. After this subservient rela-
tion of the defendant to the plaintiff in respect to the property was
established, the law forbids him to dispute the title of plaintiff. The
relation is analogous to that which exists between landlord and tenant,
a relation which prevents the tenant from setting up against his land-
lord, either an outstanding or self-acquired adverse title; and from
attorning to a stranger without the consent of his landlord, or in pur-
suance of a judgment or sale under execution or deed of trust, or forfeit-
ure under mortgage. Stagg v. Eureka Tanning, &c., Co., 56 Mo. 317 ;
CONVERSION. 41
R. S. 1879, § 3080 ; McCartney v. Auer, 50 Mo. 395. This rule does
not prevent the tenant from shewing that the landlord has parted with
his title, for such fact would not be inconsistent with the title admitted
by the demise. Higgins v. Turner, 61 Mo. 249.
In pursuing the analogy of these principles in the law of real estate,
Mr. Edwards, in his work on Bailment, says : "The law always aids the
true owner to recover his property ; and it is a general rule that the
bailee cannot dispute the title of his bailor. When therefore the bailee
is applied to for the property by a third party claiming title, his prudent
course is, to leave the claimant to his action, and at once notify his
bailor of the suit ; he is not obliged to bear the burden of a litigation ;
and it is not safe for him to surrender the property on demand. For
nothing will excuse a bailee from the duty to restore the property to
his bailor, except he show that it was taken from him by due process
of law, or by a person having the paramount title, or that the title of
his bailor has terminated." Edwards on Bailments (2d ed.), § 73 ;
Welles V. Thornton, 45 Barb. 390 ; Bates v. Stanton, 1 Duer, 79 ; Blivin
V. R. R. Co., 36 N. Y. 403 [736] ; Burton v. Wilkinson, 18 Vt. 186
[46 Am. Dec. 145] ; Aubery v. Fiske, 36 N. Y. 47 ; McKay v. Draper,
27 N. Y. 256 ; Sinclair v. Murphy, 14 Mich. 392 ; Osgood v. Nichols,
5 Gray, 420; The Idaho, 93 U. S. 575 [690].
Mr. Bigelow, in his work on Estoppel, says : "The relation between
bailor and bailee is analogous to that of landlord and tenant. Until
something equivalent to title paramount has been asserted against a
bailee, he will be estopped to deny the title of his bailor to the goods
entrusted to him." Bigelow on Estoppel (3d ed.), 430. The principle
upon which he can relieve himself from the obligation to return the
goods is ably discussed by Justice Strong in the "Idaho" case, 93 U. S.
575 [690], wherein he announces the doctrine, that an actual delivery of
the goods by the bailee to the true owner, upon his demand for them,
will constitute a valid defence against the claim of the bailor. The
same principle was applied by this court in the case of Matheny v.
Mason, 73 Mo. 677 [39 Am. Rep. 541], which was a suit between vendor
and vendee for the consideration money of the goods sold. The sub-
ject was ably and elaborately considered by Judge Ray, who rendered
the opinion of the court. The vendor was suing for the price of corn
sold, with implied warranty of title, and the vendee, in his answer, after
admitting the sale and consideration price, pleaded that at the time of
the sale, he supposed the vendor was the owner of the corn ; that after
the sale and delivery, he learned that it belonged to a third party,
named in the plea ; that said third party demanded of him payment
for the same, and threatened suit if he refused; that, thereupon, he
paid the full value thereof to said claimant, who was the true owner.
It was .also added, that the vendor was insolvent. This plea was held
suflScient to rebut and overthrow the estoppel imposed on a vendee from
denying the title of his vendor, when called upon for the purchase-
42 OBDINART BAILMENTS.
money. In the opinion significance was given to the facts, that the
paramount title came first to the knowledge of the vendee after the sale ;
that said title was asserted by threats of suit; and that the money
was actually paid over to the claimant before suit by the vendor. Now,
if it requires such a defence to relieve the estoppel imposed upon a
vendee, a fortiori the same, or an equivalent, will be necessary in the
case of a bailee. It has long been settled in this State that the relation
of a vendor and vendee, as to real estate, is antagonistic, and that the
vendee is not estopped from setting up an outstanding or after-acquired
title. Wilcoxon v. Osborn, 77 Mo. 621. The estoppel between them
is recognised only in respect to the purchase money. In a suit for it,
the vendee is estopped from pleading want of title in the vendor, as long
as he retains possession of the land. Mitchell v. McMuUen, 59 Mo.
252 ; Harvey «. Morris, 63 Mo. 475 ; Wheeler v. Standley, 50 Mo. 509.
The relation of bailor and bailee is not antagonistic in any respect,
or at any time. By accepting the property he not only admits the
bailor's title, but he assumes, with respect to the thing bailed, a posi-
tion of trust and confidence, which continues till it is retiuned or law-
fully accounted for. Measured by these principles, the defendant's
evidence must fail to excuse him from the obligation to return the bor-
rowed property found in his possession at the time of the replevin. It
does not appear that his wife, as paramount claimant, ever asserted
any title to this property. Consequently his plea that he holds it as
agent for his wife, implies that this is his voluntary act, and was not
forced upon him by the assertion in any form of her pretended title.
It will not do for a bailee to hunt up a paramount claimant, and then
when called upon by the bailor for the property, answer that he is now
the voluntary bailee of such claimant. It must be apparent that this
would enable him to enjoy the property by pretending to hold it for
another. Justice Strong in the " Idaho " case remarks, " a bailee cannot
avail himself of the title of a third person (though the person be the
true owner) for the purpose of keeping the property for himself, nor in
any case where he has not yielded to the paramount title." 93 U. S.
576 [690].
The evidence in this case shows that the defendant, at the time of
the replevin, was in actual possession of the mules which he borrowed,
and that his plea of being the agent or bailee of a paramount owner
rests upon his voluntary act alone, without suit, threat, or demand of
such owner or clainiant.
Although the cases in which the doctrine of jiis tertii is defined and
enforced are somewhat conflicting, I am not aware of any well-con-
sidered expression which goes to the length of justifying the defence,
as it appears in the evidence and instructions of this case.
Accordingly I am of the opinion that the court did not err in refus-
ing it, or in giving the one asked by plaintiff. The judgment should
be affirmed, and it is so ordered.
CONVERSION. 43
JENSEN v. EAGLE ORE CO.
47 Colo. 306 ; 107 Pac. R. 259 ; 33 L. R. A. N. S. 681. 1910.
Me. Justice White delivered the opinion of the court : —
Jense, the plaintiff in error, instituted this suit against the Eagle Ore
Company, to recover the value of certain ore, and the sacks in which
it was contained, alleged to have been delivered by the plaintiff to the
defendant, and by the latter wrongfully converted to its use.
The defendant is a corporation conducting and carrying on a general
ore sampling business, and buying and selling ore.
The pleadings admit, or the undisputed evidence shows,- that plain-
tiff delivered to the defendant certain sacks of the value of $40.75,
containing ore of the value of several hundred dollars, under an agree-
ment that defendant would crush and sample the ore and deliver said
property to plaintiff upon demand, unless a sale thereof to the defend-
ant should be agreed upon between said parties ; that no sale was con-
summated, and that plaintiff, prior to the bringing of the suit, made
demand on defendant for the possession of said property, with which
demand defendant refused to comply.
The defence interposed is, that plaintiff was never at any time the
owner of the ore, or any part thereof, and never was entitled to its
possession ; that his possession was at all times unlawful and fraudulent ;
that The Cripple Creek District Mine Owners' and Operators' Asso-
ciation was the agent of the owners of all the ore and entitled to the
possession thereof ; that said association asserted its right of ownership
in said ore, and that defendant afterwards purchased it from said asso-
ciation and thus acquired title thereto. The affirmative allegations
of the answer were denied by the replication. The lawful existence of
said mine owners' association, and its power to act in the premises,
was also put in issue. The answer in no wise disclosed the particular
owner or owners of the ore from whom the said association was the
alleged agent, nor did the evidence adduced give light thereon. The
Cripple Creek District Mine Owners' and Operators' Association was
brought into existence by a voluntary agreenient, said to have been
entered into among certain mine owners and operators of mines, for the
purpose, as stated in said agreement, of forming " a co-operative alliance
and association for the protection of the mining interests of the said
district, and the promotion of the welfare and prosperity of the mining
industry." The articles of agreement of the mine owners' association
were offered in evidence, and, over objections interposed, received.
No proof was adduced as to the authenticity of the signatures appear-
ing thereto, except solely as to that of this defendant.
By agreement the cause was tried to the court without the interven-
tion of a jury. The contract of bailment, and the possession of the
property thereunder, having been admitted, the plaintiff presented his
44 Oedinaey bailments.
evidence of value of the property in question, and rested the case.
Thereupon the defendant undertook to establish its affirmative defence,
that The Cripple Creek District Mine Owners'- and Operators' Asso-
ciation was the agent of the owner of said property, and entitled to its
possession, and had asserted its right of ownership thereto. The trial
court, however, over plaintiff's objections and exceptions, declared and
held, that it was only necessary for the defendant to establish that the
possession of the ore by plaintiff was wrongful and unlawful ; that it
was wholly immaterial to whom the ore belonged, or as to the agency of
said association ; that if the evidence convinced the court that the ore
was stolen, though it failed to disclose from whom, by whom, or when,
and that plaintiff by any reasonable inquiry could have ascertained be-
fore he purchased it, that it was stolen, the plaintiff could not recover.
Upon this theory the court proceeded, and so limited the inquiry
and at the close of the evidence dismissed the complaint. A motion
for a new trial was .filed, argued, and overruled, and judgment entered
in favour of defendant for costs, to review which, plaintiff appeals.
[A portion of the opinion relating to jurisdiction is omitted.]
We are clearly of the opinion that the trial court adopted an erro-
neous view of the law, and thereby committed reversible error. The
general rule is, that the bailee can discharge his liability to the bailor
only by returning the identical thing which he has received, or its pro-
ceeds, under the terms of the bailment ; but to this rule there are cer-
tain exceptions. The bailee may show that the property has been taken
from him by process of law, or by a person having a paramount title,
or perhaps excuse his default in some other way. But he cannot set
up jus tertii against his bailor, however tortuous the possession of the
latter, unless the true owner has claimed the property and the bailee
has yielded to the claim. Story on Bailm. §§ 450, 582 ; Schouler on
Bailm., § 494.
The correct rule, stated in Current Law, vol. 9, pp. 325, 326, is, that : —
" A bailee cannot set up title in himself, but may, if goods are claimed by
third person, refuse, at his peril, to deliver to bailor, and may protect
himself from liability by showing delivery on demand to true owner,
but cannot by mere assertion of right in another avoid liability for con-
version by himself." The following authorities are analogous in prin-
ciple and are cited in support of the rule : Atl. & B. Ry. Co. v. Spires
[1 Ga. App. 22] 57 S. E. 973 ; Barker v. Lewis S. & T. Co., 79 Conn. 342
[65 Atl. 143, 118 Am. St. R. 141] ; Klein v. Patterson, 30 Pa. Sup. Ct. 495,
500 ; Riddle v. Blair [148 Ala. 461], 42 So. 560.
In the "Idaho" case, 93 U. S. 575, 581 [690], the rule stated and ap-
proved is, "That a bailee cannot avail himself of the title of a third
person (though that person be the true owner) for the purpose of keep-
ing the property for himself, nor in any case where he has not yielded
to the paramount title. If he could, he might keep for himself goods
deposited with him without any pretense of ownership. But if he has
CONVERSION. 45
performed his legal duty by delivering the property to its true pro-
prietor, at his demand, he is not answerable to the bailor."
"The relation- between bailor and bailee, and that of depositor and
depositary of money, is analogous to that of landlord and tenant. Until
something equivalent to title paramount has been asserted against the
bailee or depositary, he will be estopped to deny the title of this bailor
to the goods intrusted to him." — Bigelow on Estoppel (4th ed.),
490.
Public policy and reason both combine to require that a bailee shall
never be permitted to controvert the bailor's title, or set up against him
a title acquired by himself during the bailment, which is hostile to, or
inconsistent in character with, that which he acknowledged in accepting
the bailment. This rule, however, does not preclude the bailee plead-
ing and showing that he has been dispossessed by superior right, or that
he hoWs the thing bailed, subject to such known right then asserted,
and not by him known prior to the bailment. — 2 Am. & Eng. Enc. of
Law, 62.
Between the plaintiff and the defendant, the property was the plain-
tiff's. By accepting it under the contract of bailment the defendant
not only admitted the plaintiff's title thereto, but also assumed with
respect to that property, a position of trust and confidence which con-
tinues until the property is returned or lawfully accounted for. It was
incumbent upon defendant, in order to relieve itself of the redelivery of
the property or its proceeds to the plaintiff, to establish by a preponder-
ance of the evidence that it actually delivered the property to the true
owner on his demand. The defendant covdd not lawfully account for
the property, and relieve itself of its contractual obligation to the
plaintiff, by showing that the property had been, before plaintiff secured
possession thereof, stolen at some unknown time, by an unknown thief,
from an unknown and unascertained owner, and that the bailee by rea-
sonable inquiry could have ascertained such facts. It would be a se-
rious reproach to the administration of justice if our courts should
adopt a rule that permitted one to acquire possession of property from
another under a specific contract to return it, and then subsequently
repudiate that contract, and retain possession of the property, under
a claim of ownership, acquired from one no;t specifically shown to have
had title thereto. Such a procedure would have close resemblance to
theft by sanction of law and cannot be approved. If the bailor has no
title, the bailee can have none ; for the bailor can give no better than
he has. Still without absolute title the bailor may have the right of
possession, and the bailee certainly cannot dispute that right, unless
by virtue of a specific title asserted, paramount to that of the bailor.
— Bartels v. Arms, 3 Colo. 72, 75; Barker v. Lewis S. & T. Co., supra.
In Armory v. Delamirie, 1 Strange 504 [20], it is held : That the
finder of a jewel, though he does not by such finding acquire an absolute
property or ownership, yet he has such a property as will enable him to
46 OEDINAKY BAILMENTS.
keep it against all but the rightful owner, and may recover damages
from a bailee for its conversion.
And in Anderson v. Gouldberg, [51 Minn. 294, 296] 53 N. W. 636, 637,
it is said : " One who has acquired the possession of property, whether
• by finding, bailment, or by mere tort, has a right to retain that posses-
sion as against a mere wrongdoer who is a stranger to the property.
Any other rule would lead to an endless series of unlawful seizures and
reprisals in every case where property had once passed out of the pos-
session of the rightful owner."
From what has been said, it necessarily follows, that the judgment
must be, and accordingly is, reversed, and the cause remanded.
Reversed and remanded.
JENKINS, V. BACON.
Ill Mass. 373 ; 15 Am. R. 33. 1893.
[Action on contract, with counts in tort, to recover the value of a
United States bond for $500, which plaintiff had left with defendant
for gratuitous safekeeping and which on demand defendant refused to
deliver over. From the evidence it appeared that defendant was
authorised to send the coupons as they matured to plaintiff's wife, but
that, after sending one coupon on its maturity, he directed his book-
keeper to send the bond itself to plaintiff's wife, and that the book-
keeper sent it by mail, and it was lost. There was trial to a jury and
verdict for plaintiff. Defendant alleged exceptions.]
Ames, J. In that class of bailments described in text-books under
the title of " deposits," the obligation of the bailee is that he will keep
the thing deposited with reasonable care, and that he will upon request
restore it to the depositor, or otherwise deliver it according to the original
trust. According to the well-settled rule, the bailee who acts without
compensation can only be held responsible for bad faith, or gross negli-
gence, if the deposit should be lost or injured while in his custody.
Whitney v. Lee, 8 Mete. 91 ; Foster v. Essex Bank, 17 Mass. 479. Ex-
cept as to the degree of diligence and care required of him, his general
obligation is the same as if he had assumed the trust upon the promise
or with the expectation of reward. If he should deliver the property
to a person not authorised to receive it, he would make himself respon-
sible for its value, without regard to the question of due care or the
degree of negligence. Hall v. Boston & Worcester Railroad Co., 14
Allen, 439 ; Lichtenhein v. Boston & Providence Railroad Co., 11 Cush.
70 ; Cass v. Boston & Lowell Railroad Co., 14 Allen, 448, 453 ; 2 Kent's
Com". (6th ed.), 568. If the case of Heugh v. London & North Western
CONVERSION. 47
Railway Co., L. R. 5 Ex. 51, can be said to present a case of delivery
to the wrong person (which is open to considerable doubt), the doctrine
there asserted is directly opposed to the above cited decisions of this
court. Good faith requires, even in the case of a gratuitous bailment,
that the bailee should take reasonable care of the deposit ; and what is
reasonable care must materially depend upon the nature, value, and
quality of the thing, the circumstances under which it is deposited,
and sometimes upon the character and confidence and particular deal-
ings of the parties. Story on Bailments, § 62.
In this instance, the transaction was more than a simple deposit for
safekeeping. The plaintiif claimed, and there was evidence, which
was not contradicted or rebutted, to the effect that the defendant was
to collect the coupons as they became due, for the benefit of the plain-
tiff's wife. The bond was delivered to the defendant in trust; he
accepted the trust and entered upon its performance. "The owner's
trusting him with the goods is a sufficient consideration to oblige him
to a careful management." Lord Holt, C. J., in Coggs v. Bernard, 2
Ld. Raym. 909 [4]. Notwithstanding the gratuitous character of
the bailment, " it is held that the bailor has a remedy, in an action ex
contractu, if the bailee do not perform his undertaking, and that there
is a sufficient consideration to support a contract." Mete. Con. 164,
and cases there cited. In Robinson v. Threadgill, 13 Ired. 39, it was
held that if one undertakes to collect notes for another, without mention-
ing any consideration and takes the notes for that purpose, there is a
sufficient legal consideration for the engagement. A mere agreement
to undertake a trust in futuro without compensation is not oblig-
atory ; but when once undertaken and the trust actually entered upon,
the bailee is bound to perform it according to the terms of his agree-
ment. Rutgers v. Lucet, 2 Johns. Cas. 92 ; Smedes v. Utica Bank, 20
Johns, 373, 379. Upon this point the authorities are numerous. They
are fully cited in 1 Parsons Cont. (5th ed.), 447 ; and 2 id. 99 ; and in
Chitty Cont. (10th Am. ed.), 38-40, notes n and u. And it is well
settled that the remedy is not confined to an action of tort, but that
contract will lie.
The substance of the defendant's contract and duty was to keep the
deposit with reasonable care, and to restore it when properly called
upon. We do not interpret this contract as restricting him to one place
or uniform mode of keeping. All that could reasonably be expected
of him was that he should keep it with his own papers, and in the same
manner and with the same degree of care, as a man of ordinary prudence
would exercise in the custody of papers of his own of like character.
Circumstances might occur which would render it reasonable and proper
that he should change the place of deposit. If his own place of business
should be destroyed by fire, or if, from change of residence or tempo-
rary absence from the country, or for other sufficient reason, it should
become inconvenient or unsafe that he should retain the manual posses-
48 ORDINARY BAILMENTS.
sion of the bond, he would undoubtedly be at liberty to deposit it in
any other place or mode, in which he, with reasonable prudence, might
deposit his own property of the like description. But, as between the
original depositor and himself, he would continue to be the lawful and
responsible custodian, and bound to practise that degree of care which
the law requires of gratuitous bailees. The complaint against him is,
not that he kept it negligently, or lost it by gross carelessness, but
that he intentionally disposed of it in a manner not authorised by the
terms of the trust. For the purposes of this case, it is wholly imma-
terial whether the post-office furnishes a reasonably safe mode of trans-
mission, in the case of valuable papers of such description, or not. The
question of due diligence or gross neglect, in our opinion, is not raised
by the bill of exceptions.
A case recently decided in New York (Kowing v. Manly, 49 N. Y.
192 [S. C, 10 Am. Rep. 346]) is in its leading features analogous to that
now before us. In that case certain bonds had been left with the
defendants with instructions in writing not to deliver them to any
person except upon the written order of the plaintiff, who was the deposi-
tor. The bonds were subsequently delivered by the defendants to the
plaintiff's wife upon her presentation of an order purporting to be signed
by him, which was in fact a forgery. The defendants were held ac-
countable for the value of the bonds, not on the ground of any want of
due and reasonable care, but because they had disposed of them in a
manner not authorised by the contract. The fact that their instruc-
tions were expressed in writing could add nothing to the duties required
of them by their contract. They were held liable for the reason that
they had no authority to do what the defendant in this case attempted
to do ; and because such a delivery to the wife was a violation of their
trust.
In Steward v. Frazier, 5 Ala. 114, the defendant had received money
to be kept for the plaintiff, without compensation. No instructions
had been given to the defendant to remit the money, but from kindness
and the best intentions he undertook to remit it by the hands of a per-
son "reputed to be an honest man." The money was lost, and the
defendant was held responsible, on the ground that it was a case in
which the plaintiff was exposed to a risk to which he had not consented.
The court says, " the law would be the same if the public mail had been
resorted to, instead of a private conveyance." They add that the ques-
tion of gross negligence in the transmission of the money does not arise,
as the defendant "had no authority to transmit, in any mode, either
express or implied."
As we have already remarked, if the defendant had delivered the
bond by mistake to a person not entitled to receive it, he would make
himself responsible, without regard to the question of due care, or degree
of negligence. His duty was to keep the deposit ; he could not dispose
of it without the express or implied authority of the depositor. It will
CONVERSION. 49
not be contended that the case shows any express authority for sending
it by mail to the plaintiff's wife, and certainly none can be implied
from the circumstances. In so doing, he subjected the plaintiff to a
risk which he had not contemplated, and did an act not authorised by
the terms of his trust. It was left to the jury to say whether, in the
words of the presiding judge, it was " a disposition of the bond contrary
to the original understanding," whereby the defendant lost it.
The result is that we find no error in the course of the trial in this
part of the case.
The majority of the court, therefore, concur in the order.
Exceptions overruled.
Morton, J., delivered a dissenting opinion.
DOOLITTLE v. SHAW.
92 Iowa, 348 ; 54 Am. St. R. 562. 1894.
KiNNE, J. Plaintiff's cause of action is stated in two counts. The
first charges that on September 1, 1892, defendant had and received
from the plaintiff a pair of horses and buggy, of the value of two hundred
and fifty dollars, to drive from Delhi, Iowa, to Manchester, Iowa;
that defendant drove said horses so immoderately, and so neglected
their care, that one of them became sick, and defendant, knowing said
fact, continued to drive and abuse said horse until his death ; that plain-
tiffs were damaged in the sum of one hundred dollars. In a second
count, plaintiffs aver that they paid two dollars, at defendant's instance,
to have the horse buried. In an amendment it is averred that the team
and buggy were loaned to defendant to go from Delhi to Manchester
and return, and that defendant, after driving to Manchester, converted
said team and buggy to his own use, and failed to return said team as
received, and still fails to return one of said horses, which horse was
worth one hundred dollars, from which they pray judgment. Defend-
ant denied all of the allegations of the original petition. Afterward,
in an amendment, he pleaded that the contract of letting and hiring
set out in the petition, and the damage growing out of the same, and all
matters set out in the amendment, occurred on Sunday and no right
of action can be maintained thereon. There was a trial to a jury, and
a verdict for plaintiffs.
II. On Sunday, September 4, 1892, defendant hired of plaintiffs a
team of horses and a buggy to drive from Delhi to Manchester and
return. After arriving at Manchester, he drove six or seven miles into
the country. He then returned to Manchester, where he let one Luke
Connelly drive the team to the fair ground and back, after which
50 OEDINAEY BAILMENTa.
defendant and Connelly started on the return trip to Delhi, and, when
about midway between the two places, one of the horses was taken sick
and died. At the close of plaintiff's testimony, defendant moved for a
verdict, which motion was overruled.
III. The Court gave the jury the following instruction : " 9. If you
find from the evidence that the team was hired or given to defendant
only for the purpose of driving from Delhi to Manchester, and that,
being so hired, defendant, without the consent of plaintiffs, drove some
miles away from the line of travel between said towns, to a place not
contemplated by the contract of hire, then such use of the team would
be a conversion of the same by the defendant, and the plaintiffs might
elect to recover the value of any part of such team and buggy as was not
returned to and accepted by them after knowledge of such conversion ;
and plaintiffs would have a right to recover, if you find such to be the
fact, even though the evidence disclosed that the contract of hire by
which defendant secured possession of the property was made on
Sunday." The instruction lays down the broad rule that a mere diver-
sion from the line of travel, or going beyond the point for which the
horse was hired, will, without more, amount to a conversion of the
animal, for which an action will lie. What will amount to a conversion
in such cases is the question we must determine.
In Spooner v. Manchester, 133 Mass. 270 [43 Am. Rep. 514] the court
defined a conversion as follows : " Conversion is based upon the idea
of an assumption by the defendant of the right of property, or a right
of dominion over the thing converted, which casts upon him all the
risks of an owner ; and it is, therefore, not every wrongful intermiddling
with, or wrongful asportation, or wrongful detention of, personal prop-
erty, that amounts to a conversion. Acts which themselves imply an
assertion of title or of a right of dominion over personal property, such
as a sale, letting, or destruction of it, amount to a conversion, even
though the defendant may have honestly mistaken his rights ; but acts
which do not themselves imply an assertion of title, or of a right of
dominion over such property, will not sustain an action of trover imless
done with the intention to deprive the owner of it permanently or tem-
porarily, or unless there has been a demand for the property, and a
neglect or refusal to deliver it, which are evidence of a conversion."
Evans v. Mason, 64 N. H. 98, 5 Atl. Rep. 766. In Story on Bailments
(§ 413a), after stating the rule as to what is a conversion in such cases,
it is said : " But, although this is the general rule, a question may arise
how far the misconduct or negligence or deviation from duty of the
hirer will affect him with responsibility for a loss which would and must
have occurred, even if he had not been guilty of any such misconduct,
negligence, or deviation from duty." He, also, in the same connection,
says : "The question, therefore, in the present state of the authorities,
must still be deemed open to controversy. Wherever it is discussed it
will deserve consideration, whether there is, or ought to be, any differ-
CONVEBSION. 51
ence between cases where the misconduct of the hirer amounts to a
technical or an actual conversion of the property to his own use, and
cases where there is merely some negligence or omission or violation
of duty in regard to it, not conducing to the loss." Schouler, Bailments,
page 137, referring to this same matter, says: "It is not difficult to
conceive that the technical misuse might occur without an actual
abuse of the terms of hire, and where it would be harsh to visit devia-
tion with such disastrous penalties."
We are not willing to give our sanction to the broad, and, when
applied to a case like that at bar, harsh rule of the instruction. It
must be borne in mind that, in almost every case where that strict rule
has been applied, the facts have shown that the hirer, in addition to
departing from the contract line of travel, was guilty of negligence or
of wilful misconduct, or that he injured or destroyed the property
while outside of the limits of the contract of hiring. Schouler, Bailm.,
p. 137 ; Farkas v. Powell, [86 Ga. 800] 13 S. E. Rep. 200. In the case
last cited the action was for the value of a horse which had died, and
which it was alleged defendant had ridden beyond the place he had hired
him to go, and that, by negligence or cruelty, the horse had been so
injured as to cause his death. The horse was hired to ride from Albany
to the Whitehead place, in the country, a distance of five miles and
was to be returned by 11 o'clock at night. When defendant arrived
at the Whitehead place, he learned that the person he wished to see was
at the Bryant place, three or four miles further on, and he rode on to
that place. He remained there two hours and a half, and left about
9.30 P.M. for Albany. On the return, and between the Whitehead
place and Albany, the horse fell in the road. He got the horse up
on his feet, and led him three miles, when he again fell. After getting
him on his feet again, he put him in a lot near by, and went into town,
and notified the plaintiff where the horse was, and of his condition.
The horse died. It appeared that, when defendant got the horse to go
upon his journey, he was sound and in good condition, and showed no
signs of disease. The defendant showed that he rode the animal
moderately. It was held that there was a technical conversion of the
horse, and, if the horse had been injured while beyond the point to
which he was hired to go, defendant would have been liable, whether
the injury was caused by his own negligence, or by the negligence of
others, or even by accident, unless he was forced to go beyond that
point by reason of circumstances he could not control.
The court said : " But the main question in this case is, would
Powell, after having been guilty of a technical conversion or violation
of his duty, and having returned within the limits of the original hiring,
and the horse then- sustained an injury without other fault on his part,
be liable ? That would depend, in oiu- opinion, upon whether the extra
ride of six or eight miles to the Bryant place and back caused or mate-
rially contributed to the accident. If it did, we think he would be
52 ORDINARY BAILMENTS.
liable to the owner. ... If, however, the extra ride did not cause or
materially contribute to the injury, we do not think Powell would be
liable, if guilty of no other fault." In Harvey v. Epes, 12 Gratt. (Va.)
153, the contract was one for the hire of slaves for a year, to work in
a certain county. They were taken by the hirer, without the owner's
consent, to another county, and employed in the same kind of work,
and, while there, died. The court, after elaborately discussing the
question and fully considering the authorities, held that the removal
of the slaves to a county other than that for which they were hired
to work in was not of itself a conversion, regardless of whether their
death was caused by such wrongful act or not. It said : " Upon the
whole, I am of opinion that, in the case of a bailment for hire for a cer-
tain term . . . the use of the property by the hirer, during the term, for
a different purpose, or in a different manner, from that which was
intended by the parties, will not amount to a conversion for which
trover will lie, unless the destruction of the property be thereby occa-
sioned, or at least unless the act be done with intent to convert the prop-
erty, and thus to destroy or defeat the interest of the bailor therein.
... A bailment upon hire is not conditional in its nature, any more
than any other contract ; and, in the absence of an express provision
to that effect, the bailee will not, in general, forfeit his estate by a vio-
lation of any of the terms of the bailment. ... If he merely uses
the property in a manner, or for a purpose, not authorised by the
contract, and without destroying it, or without intending to injure or
impair the reversionary interest of the bailor therein, such misuse does
not determine the bailment, and, therefore, is not a conversion for which
trover will lie." See, also, 2 Pars. Cont. 128. In Cullen v. Lord, 39
Iowa, 302, the action was for the recovery of the value of a horse loaned
to defendant, and which it was averred was killed by the defendant's
over-driving and ill-treatment. It was held that the jury should have
been instructed that, in the absence of a contract to the contrary, the
law implied an agreement to pay for the use of the horse. The evi-
dence tended to show that plaintiff gave defendant certain instruc-
tions and directions respecting the time of starting, and the manner of
caring for the horse. An instruction of the lower court to the effect
that, if plaintiff gave instructions and directions, and did not after-
ward waive them, and defendant did not follow them, he would be
liable, without inquiry as to whether the injury resulted from a failure
to obey the instructions or from some other cause, was held erroneous
as applied to a case of letting for a reward. While the facts in that
case, so far as they appear, are not like those in the case at bar, still we
think there is a clear recognition of the doctrine that, in cases of a letting
for reward, a mere violation of the contract, without more, will not
fix a liability as for a conversion. To constitute a conversion in a case
like that at bar, there must be some exercise of dominion over the thing
hired, in repudiation of, or inconsistent with, the owner's rights. We
NEGLIGENCE. 53
hold that the mere act of deviating from the hne of travel which the
hiring covered, or going beyond the point for which the horse was hired,
are acts which, in and of themselves, do not necessarily imply an asser-
tion of title or right of dominion over the property, inconsistent with,
or in defiance of, the bailor's interest therein.
As there was nothing to show that the defendant in violating the
terms of the contract, intended to appropriate the property temporarily,
or permanently to his own use, or that he did in fact so appropriate it
or exercise acts of dominion over it inconsistent with plaintiffs' rights,
he should not be held liable for its value from the mere fact that he drove
the horse beyond or outside of the journey for which he was hired. Nor
do we see that the rule we have stated is fraught with danger in its appli-
cation to other cases that may arise. ■ We are not called upon to deter-
mine as to whether or not the defendant would have been liable if,
under proper issues and evidence, it had been shown that the extra
driving caused or contributed to the death of the horse, as no such case
is presented. As to the fact that the contract was entered into on Sun-
day, we do not think it is at all controlling. The action is not based
upon the contract, but upon the theory that defendant converted the
property to his own use. If he did so, he was not acting under the
contract, but independent of it. We discover no error in the eleventh
instruction. For the reasons given, the case is reversed.
4. NEGLIGENCE.
a. What Constitutes.
DOORMAN D. JENKINS.
2 Ad. & El. 256. 1834.
Assumpsit. The first count of the declaration alleged that, in con-
sideration that. the plaintiff, at the request, &c., had delivered to the
defendant and placed in his charge and custody a sum of money, to wit
the sum of S2l. 10s., of the plaintiff, for the purpose and in order that
the defendant might therewith take up and pay for the plaintiff a cer-
tain bill of exchange made, &c., when the same should become due and
be presented, and in consideration that the defendant then and there
had the said monies in his hands upon the terms and for the purpose
aforesaid, the defendant undertook, &c., that he would with the said
money take up, &c. Breach, that the defendant did not take up, &c.,
when the bill was presented for payment. The second count alleged
that, in consideration that the plaintiff, at the request, &c., would deliver
54 OEDINAKY BAILMENTS.
to the defendant the sum of 321. 10s. of the plaintiff, provided by him
for the purpose of taking up and paying a certain bill of exchange
made, &c. (as before), the defendant undertook, &c. that he would take,
due and proper care of the said sum of money whilst in his hands in the
meantime and until the bill should become due, &c. Averment, that
the plaintiff delivered the sum to the defendant for the purpose afore-
said. Breach, that the defendant did not take due and proper care ;
but, on the contrary, took so little and such bad care, that afterwards
to wit, &c., the said sum became, and was and is wholly lost to the
plaintiff. The third count omitted all mention of the bill of exchange,
but stated that, in consideration that the plaintiff, at the request, &c.,
had delivered the sum, &c., to be kept and taken care of by the defend-
ant for the plaintiff, the defendant undertook, &c., to take due and
proper care of the sum, &c., whilst under his charge. Breach, that
the defendant did not nor would take proper care, &c. ; but on the con-
trary thereof whilst the same was in his charge, took so little and such
t)ad care thereof, and conducted himself so negligently and improperly
in the premises, that, &c. (loss as before). Counts for monies, &c., and
account stated. Plea, the general issue.
On the trial before Denman, C. J., at the London sittings in De-
cember, 1833, the plaintiff proved the delivery of the money to the
defendant for the purpose of the bill being taken up as alleged in the
declaration. The defendant was the proprietor of a coffee-house, and
the account which he was proved to have given of the loss was as
follows : That he unfortunately placed the money in his cash-box,
which was kept in the tap-room ; that the tap-room had a bar in it ;
that it was open on a Sunday, but that the other parts of the premises,
which were inhabited by the defendant and his family, were not open
on Sunday; and that the cash-box, with the plaintiff's money in it,
and also a much larger sum belonging to the defendant, was stolen
from the tap-room on a Sunday. The defendant did not pay the bUI
when presented. The defendant's counsel contended that there was
no case to go to the jury, inasmuch as the defendant, being a gratuitous
bailee, was liable only for gross negligence; and the loss of his own
money, at the same time as the plaintiff's, shewed that the loss had not
happened for want of such care as he would take of his own property.
The Lord Chief Justice refused to nonsuit the plaintiff, but took a
note of the objection. The defendant called no witnesses. His Lord-
ship told the jury that it did not follow from the defendant's having
lost his own money at the same time as the plaintiff's, that he had
taken such care of the plaintiff's money as a reasonable man would
ordinarily take of his own; and he added, that the fact relied upon
was no answer to the action, if they believed that the loss occurred
from gross negligence; but his Lordship then said that the evidence
of gross negligence was not, in his opinion, satisfactory. Verdict for
the plaintiff. In Hilary term last. Sir James Scarlett obtained a rule
NEGLIGENCE. 55
to shew cause why the verdict should not be set aside, and a nonsuit
be entered, or a new trial be had.
Patteson, J. It is agreed on all hands that the defendant is not
liable, unless he has been guilty of gross negligence. The difficulty lies
in determining what is gross negligence, and whether that is to be de-
cided by the jury or the Court. If the Court is to decide it, and no
evidence has been given that satisfies the Court, there ought to have
been a nonsuit. If the jury was to decide, I cannot feel a doubt that
there was some evidence for them. I agree that the onus probandi
was on the plaintiff. It appeared, by the evidence of what the defend-
ant had said, that the money committed to his charge was laid in a box
in the tap-room, which room was open on a Sunday, though the rest
of the premises were not. Under these circumstances, there can be
no nonsuit ; for there was a sufficient case to go to the jury. Whether,
in the abstract, the question of negligence be for the jury or the Court,
I think it unnecessary, as my brother Taunton says, to determine.
The present, at all events, was a question of fact, and therefore for the
jury. The general question I approach with much diffidence. I do
not know anything more difficult than to say, in mixed questions of
law and fact, what is for the Court, and what for- the jury. In the
present case, the principal doubt in my mind arose from the case of
Shiells V. Blackburne (1 H. Bl. 158). The facts in that case were not
disputed. It appeared that the defendant, being employed (without
reward) to send out some dressed leather, entered it at the Custom
House, together with some dressed leather of his own, as wrought leather,
^ in consequence of which the whole was seized. Whether that amounted
to gross negligence, must have been a question for the jury. The report
does not say how they were directed, nor whether the Judge told them
that, in his opinion, it was gross negligence. At first, I conceived that
nothing appeared from the report, except that the Court thought it
was not a case of gross negligence. But, on looking into the case, I find
the Court thought that the jury had found the fact erroneously, and sent
the issue to another jury. So that, in the present case, the only remain-
ing question is, whether the Judge left the question properly. At
first, I understood that the question left had been, whether the defend-
ant had used ordinary and reasonable care, which, although it may be
a useful criterion in determining the question whether there has been
gross negligence, is certainly not the same question. But it seems
that his lordship left it to them to say, whether there had been gross
negligence ; and that what he said respecting ordinary care, was merely
by way of illustration. We cannot, therefore, disturb the verdict.
Whether I should have found the same verdict, is quite immaterial.
[Other opinions are omitted.]
Rule discharged.
56 OHDINARY BAILMENTS.
WILSON V. BRETT.
Exchequer. 11 M. & W. 113. 1843.
Case. — The declaration stated, that the plaintiff, at the request
of the defendant, caused to be delivered to the defendant a certain horse
of the plaintiff of great value, to wit, &c., to be by the defendant shewn
to a certain person to the plaintiff unknown, and to be redelivered by
the defendant to the plaintiff on request, and that thereupon it then
became and was the duty of the defendant to take due and proper care
of the said horse, and to use and ride the same in a careful, moderate,
and reasonable manner and in places fit and proper for that purpose :
yet the defendant, not regarding his duty, &c., did not nor would take
due and proper care of the said horse, but on the contrary used and rode
the same in a careless, immoderate, and improper manner, and in unfit
and improper places, &c., whereby the said horse was injured, &c. —
Plea, not guilty.
At the trial before Rolfe, B., at the London Sittings in this term, it
appeared that the plaintiff had entrusted the horse in question to the
defendant, requesting him to ride it to Peckham, for the purpose of
shewing it for sale to a Mr. Margetson. The defendant accordingly
rode the horse to Peckham, and for the purpose of shewing it, took it
into the East Surrey Race Ground, where Mr. Margetson was engaged
with others playing the game of cricket : and there, in consequence of
the slippery nature of the ground, the horse slipped and fell several
times, and in falling broke one of his knees. It was proved that the
defendant was a person conversant with and skilled in horses. The
learned Judge, in summing up, left it to the jury to say whether the
nature of the ground was such as to render it a matter of culpable negli-
gence in the defendant to ride the horse there ; and told them, that
under the circumstances, the defendant, being shewn to be a person
skilled in the management of horses, was bound to take as much care
of the horse as if he had borrowed it ; and that, if they thought the de-
fendant had been negligent in going upon the ground where the injury
was done, or had ridden the horse carelessly there, they ought to find for
the plaintiff. The jury found for the plaintiff, damages 51. 10s.
Byles, Sergt., now moved for a new trial, on the ground of misdirec-
tion. — There was no evidence here that the horse was ridden in an
unreasonable or improper manner, except as to the place where he was
ridden. The defendant was admitted to be a mere gratuitous bailee ;
and there being no evidence of gross or culpable negligence, the learned
Judge misdirected the jury, in stating to them that there was no differ-
ence between his responsibility and that of a borrower. There are
three classes of bailments : the first, where the bailment is altogether
for the benefit of the bailor, as where goods are delivered for deposit or
carriage ; the second, where it is altogether for the benefit of the bailee.
NEGLIGENCE. 57
as in the case of a borrower ; and the third, where it is partly for the
benefit of each, as in the case of a hiring or pledging. This defendant
was not within the rule of law applicable to the second of these classes.
The law presumes that a person who hires or borrows a chattel is pos-
sessed of competent skill in the management of it, and holds him liable
accordingly. The learned Judge should therefore have explained to
the jury, that that which would amount to proof of negligence in a
borrower, would not be sufficient to charge the defendant, and that he
could be liable only for gross or culpable negligence.
LoED Abingee, C. B. — We must take the summing up altogether ;
and all that it amounts to is, that the defendant was bound to use such
skill in the management of the horse as he really possessed. Whether
he did so or not was, as it appears to me, the proper question of the
jury. I think, therefore, that the direction was perfectly right, and that
no rule ought to be granted.
Paeke, B. — I think the case was left quite correctly to the jury.
The defendant was shewn to be a person conversant with horses, and
was therefore bound to use such care and skill as a person conversant
with horses might reasonably be expected to use : if he did not, he was
guilty of negligence. The whole effect of what was said by the learned
Judge as to the distinction between this case and that of a borrower,
was this ; that this particular defendant, being in fact a person of com-
petent skill, was in effect in the same situation as that of a borrower,
who in point of law represents to the lender that he is a person of com-
petent skill. In the case of a gratuitous bailee, where his profession or
situation is such as to imply the possession of competent skill, he is
equally liable for the neglect to use it.
Aldeeson, B. — The learned Judge thought, and correctly, that,
this defendant being shewn to be a person of competent skill, there was
no difference between this case and that of a borrower; because the
only difference is, that there the party bargains for the use of competent
skill, which here becomes immaterial, since it appears that the defend-
ant has it.
RoLPE,-B. — The distinction I intended to make was, that a gratui-
tous bailee is only bound to exercise such skill as he possesses, whereas
a hirer or borrower may reasonably be taken to represent to the party
who lets, or from whom he borrows, that he is a person of competent
skill. If a person more skilled knows that to be dangerous which another
not so skilled as he does not, surely that makes a difference in the lia-
bility. I said I could see no difference between negligence and gross
negligence — that it was the same thing, with the addition of a vitu-
perative epithet ; and I intended to leave it to the jury to say whether
the defendant, being, as appeared by the evidence, a person accus-
tomed to the management of horses was guilty of culpable negligence.
Rule refused.
58 OBDINAEY BAILMENTS.
KNOWLES V. ATLANTIC & ST. LAW. R. R. CO.
38 Maine, 55 ; 61 Am. D. 234. 1854.
Rice, J. The evidence in the case shows that the original contract
of the defendants, as common carriers, was fully executed, to the satis-
faction of the plaintiff. Howe, the forwarding agent of the railroad
company, in his deposition, states, that " I told Mr. Knowles that the
hay was now delivered in good order; that that was an end of our
contract, and that it must now be at his risk against any damage.
He replied that he acknowledged he received it in good order." The
defendants therefore, clearly, are not liable as common carri,ers.
The case provides, that if in the opinion of the Court, the plaintiff
is entitled to recover in any form of declaring, the defendants are to
be defaulted.
It is contended that they are liable as bailees, or depositaries. The
hay was permitted to remain upon the defendants' cars, for the accom-
modation of the plaintiff, and at his special request. For this the de-
fendant received no additional compensation, nor consideration. At
most, therefore, they were naked bailees, or gratuitous depositaries.
The defendants contend that there was no responsibility upon them ;
that the whole risk of loss or damage to the hay was assumed by the
plaintiff. Mr. Hamlin, who acted as agent for the plaintiff, testified
that "Mr. Howe consented that the hay might remain on the cars
(until it could be shipped), with the understanding that the whole risk
should be on Mr. Knowles. Mr. Knowles asked at the time, ' is there
any risk ? ' or something like that. I told Mr. Knowles, Howe being
present at the time, that there was a risk ; that there was a risk in all
cases. He asked what risk ? I told him there was the risk of fire and
water, or rain ; and there were other risks which could not then be
thought of ; there were a thousand risks. After a little more conver-
sation it finally ended in Mr. Knowles assuming the whole risk ; . . .
that it should remain on the cars and at his risk until it was shipped."
This witness further testified that the cars on which, the hay then
was, were on the principal track, from which they must be removed
to make room for other trains. The track down on the wharf, and the
one where the cars then stood, were the only tracks from which freight
could be shipped.
This was on the 16th of July, 1851. On the 18th of the same July,
the cars on which the plaintiff's hay was transported, having been re-
moved, but under whose directions does not appear, to the defendants'
wharf, were precipitated into the dock, by the breaking down of the
wharf, in consequence of its being overloaded with railroad iron. This
risk, the plaintiff affirms, was not contemplated by the parties, nor
assumed by him, but was the consequence of the gross negligence of the
defendants, and therefore they should sustain the loss.
NEGLIGENCE. 59
Being a bailee without reward, the defendants are bound to slight
diligence only, and are therefore not answerable except for gross neglect.
Story on Bailments, § 62 ; Foster v. Essex Bank, 17 Mass. 500.
The authorities do not concur in a uniform standard by which to
determine what constitutes gross negligence in a gratuitous bailee, or
depositary. Such a bailee, who receives goods to keep gratis, is under
the least responsibility of any species of trustee. If he keeps the goods
as he keeps his own, though he keeps his own negligently, he is not
answerable for them. He is only answerable for fraud, or that gross
neglect which is evidence of fraud. Just. Inst. Lib. 3, tit. 15, § 3 ;
Coggs V. Barnard, 2 L'd Raymond, 909, 914 [4] ; Foster «. Essex Bank,
17 Mass. 500 ; 2 Kent's Com. 561, 562.
Judge Story, in his work on Bailments, § 64, says : " The depositary
is bound to slight diligence only ; and the measure of that diligence is
that degree of diligence, which persons of less than common prudence,
or indeed of any prudence at all, take of their own concerns. The
measure, abstractly considered, has no reference to the particular char-
acter of an individual ; but it looks to the general conduct and character
of a whole class of persons ; and so Sir William Jones has intimated on
some occasions." He cites Jones on Bailments, 82, 83 ; Tompkins v.
Saltmarsh, 14 Serg. & Rawle, 275; Doorman v. Jenkins, 2 Adol. &
Ellis, 256 [53].
Both of the above rules, which, on a strict analysis, will not be found
in any essential point dissimilar, are subject, under some circumstances,
to modification. Thus when the bailor or depositor not only knows the
general character and habits of the bailee or depositary, but the place
where and the manner in which the goods deposited are to be kept by
him, he must be presumed to assent, in advance, that his goods shall be
thus treated ; and if under such circumstances they are damaged or lost,
it is by reason of his own fault or folly. He should not have entrusted
them with such a depositary to be kept in such a manner and place.
Applying these principles to the case under consideration, and what-
ever view we may take of the extent of the plaintiff's liability by rea-
son of his special contract, the result cannot be doubtful. That it was
the expectation of both parties that the hay was to be shipped from the
defendants' wharf, is very apparent. That wharf was open to the
inspection of the world. The plaintiff had the same opportunities to
observe its condition as the defendants. The iron by which it was
ultimately carried down had been deposited upon it months before.
No additional incumbrance appears to have been placed upon the wharf
by the defendants after the arrival of the hay, before it finally broke
down.
In view of all the facts in the case, and independent of the special
contract testified to by Mr. Hamlin, we are of opinion that the defend-
ants are not liable. Therefore, according to agreement a nonsuit
must be entered.
60 OHDINARY BAILMENTS.
BENNETT v. O'BRIEN.
37 lU. 250. 1865.
Me. Justice Lawrence delivered the opinion of the court: —
O'Brien let Bennett, the appellant, have the use of his horse without
compensation. This gratuitous bailment imposed on the appellant
the duty of extraordinary care. After a drive in January, 1864, of
eighteen miles from his home, returning the next day, the mare sickened
and died. The evidence is conflicting as to the cause of her death.
Two witnesses swear that the defendant admitted she had been driven
into a snow bank. The jury found a verdict for O'Brien, the plaintiff
below, for the value of the mare.
The appellant insists that the court erred in refusing to give his
1st, 2d, 4th, and 7th instructions. The first was as follows : —
If the jury believe from the evidence that the mare in question died
from inevitable casualty or by causes or under circumstances over which
the defendant had no control, and could not prevent, then they will
find for the defendant, unless they further believe that the defendant
was guilty of gross negligence and carelessness.
This instruction would have misled the jury. Although the direct
cause of the mare's death may have been a disease over which the de-
fendant had no control, yet if that disease was traceable to the slightest
negligence on the part of the defendant, this would render him Uable.
The second instruction was as follows : —
If the jury believe from the evidence that the defendant used the
same care, diligence, and prudence in taking care of the mare in question
that a prudent, careful man would take care of his own property imder
similar circumstances, they will find for defendant.
This instruction is wrong in assuming that the bailment was a bail-
ment for hire.
When the loss of the mare is shown, the proof of negligence or want
of care is thrown upon the plaintiff ; it being a presumption of law that
proper care and diligence were exercised on the part of the defendant.
There is some conflict of authority on this subject, but we think this
instruction was properly refused in reference to a gratuitous bailee.
When the death of the mare, in the hands of the defendant, was proven,
together with the character of the bailment, it devolved upon him to
show that he had exercised the degree of care required by the nature
of the bailment. These were facts peculiarly within his knowledge and
power to prove, and any other rule would impose great difficulties upon
bailors.
The seventh instruction was as follows : —
If the jury believe from the evidence that the mare did not die from
the effects of over driving and misusage on the part of the defendant,
they will find for defendant.
NEGLIGENCE. 61
This instruction, like the second, is objectionable because it assumes
that the defendant was only bound to such care of the mare as would
be a bailee for hire. Even if the mare did not die from positive over-
driving and misusage, yet if her disease was traceable to the slightest
negligence on the part of the defendant, he would be liable. The coun-
sel for appellant regard the bailment as a bailment for hire. We do
not so consider it, but if it were doubtful upon the evidence, these in-
structions are wrong in assuming it to be a hiring, instead of putting
the case hypothetically.
In regard to the character of the bailment, it may be remarked that
the fact of the plaintiff being saved the keeping of his horse by loaning
him to the defendant, although to that extent the loan may be considered
an advantage to him, does not take from it the character of a gratui-
tous bailment. Such incidental advantage is not the compensation
necessary to make the bailment one of hire. The loan of the use of
domestic animals necessarily involves their keeping. He who borrows
the horse of another for a week's journey, must not only incur the ex-
pense of feeding him, but he must take the responsibilities of a gratui-
tous bailee. Howard v. Babcock, 21 111. 265. In the case before us,
no compensation was paid for the use of the horse. We think the verdict
sustained by the evidence.
Judgment affirmed.
WISER V. CHESLEY.
53 Mo. 547. 1873.
Shebwood, J. This was an action instituted before a justice of the
peace by Wiser against Chesley for money alleged to have been deposited
with the latter by the former. The cause was tried anew in the Circuit
Court.
The defendant at the time of the deposit was the proprietor of the
St. Clair Hotel and the plaintiff a boarder there, and the evidence tended
to show, that plaintiff had deposited with the clerk of the defendant
the amount of money for which suit was brought ; that the money had
been put in the safe of the hotel, and a check as evidence of such deposit
returned to plaintiff, who frequently came and obtained from one of the
clerks his package of money and sometimes added thereto, and at one
time took 110 therefrom, and that finally the package of money was
missing and could not be found, nor was it returned to plaintiff on his
demand. The evidence also tended to show, that the safe was secure,
kept locked, and in the office where one of the clerks or the proprietor
remained day and night ; that plaintiff often obtained the package of
money from one of the clerks without the presentation of his check,
62 ORDINARY BAILMENTS.
but that when receiving it from the other he always presented his check ;
that the package never could have "got^out of the safe" without thes
knowledge of the proprietor or clerks ; that in that safe were kept the
money and valuables of the guests and of the proprietor, who.Jhowever,
usually kept the most of his money in the bank ; that no charge was
made for keeping plaintiff's money; that plaintiff knew the way in
which the money packages, &c., deposited in the safe, were kept ; that
no money package had ever been lost from the safe, and, although there
was some conflict of testimony on the point, yet the evidence certainly
tended very strongly to show, that the check presented by plaintiff
as the token of his deposit had never been received by him from either
the proprietor or his clerks, and that no check of that description had
ever been kept in the house. But no objection was made, it seems, to
the check when the package was demanded.
The defendant asked the court to instruct the jury as follows : —
"The jury are instructed, that the mere fact that the money was
lost, if they so. find, in the absence of evidence of gross negligence or
fraud, does not make the defendant liable therefor."
"The jury are instructed, that the defendant was only bound to
exercise reasonable care in keeping the money of the plaintiff. That he
is responsible only for gross negligence .or for a violation of good faith."
These instructions the court refused to give; to which ruling the
defendant excepted, as well as to the action of the court in giving the
following instructions in behalf of the plaintiff : " If the jury believe
from the evidence, that the defendant took from the plaintiff for safe-
keeping the sum of $138, and did not return the same, and that the same
was lost or mislaid, and that defendant did not take such care of said
money as a prudent person would take of funds so entrusted to him,
then the jury will find for plaintiff for the amount they find Chesley
received, with interest from the commencement of this suit. What is
reasonable care is a question for the jury to determine, and the busden
of proof rests on defendant to show, that he did take reasonable care
of said money."
The jury found for the plaintiff, and the defendant brings this case
on appeal and assigns for error, the same grounds as taken in the above
exceptions.
The court, I think, properly refused to instruct the jury as asked by
defendant, for the reason that although the instructions may perhaps
have been abstractly and theoretically correct, yet they were well
calculated to mislead the jury, as they did not define what gross negli-
gence was. (See Mueller v. Putnam Fire Ins. Co., 45 Mo. 84.) But
the court manifestly erred in giving the instructions which it gave on
the part of plaintiff, as to the care which the defendant should have
exercised. Chesley was but a mere depositary — a bailee without
recompense or reward. The contract of bailment was entered into,
not for his benefit, but for the benefit of the bailor alone. The measure
NEGLIGENCE. 63
of the depositary's diligence therefore was the slightest known to the
law. (Sto. Bailm. §§ 23-64.) And he was responsible only for "that
omission of care which even the most inattentive and thoughtless never
fail to take of their own concerns," in other words for gross negli-
gence, (Tompkins v. Saltmarsh, 14 S. & R., 275.) And in all mere
gratuitous undertakings, whether deposits or mandates, the same
general rule as to the diligence to be exercised prevails.
In Stanton v. Bell, 2 Hawks, 145, the defendants were mandatories,
and the court then held, that the charge to the jury, " that the defend-
ants, were bound to use that care and diligence which a prudent and
discreet man would use relative to his affairs," was erroneous, and upon
that ground the judgment was reversed. The court holding, that such
a charge would only have been proper where the mandatory acted for
compensation. There was no error, however, in the latter portion of the
instruction referred to — that which related to the burden of the proof.
The depositor makes out a prima facie case, when he shews a deposit
made, and a demand and refusal of the thing deposited. The onus
is then upon the depositary to exonerate himself from the liability, which
attached when he assumed the custody of the article with which he
was entrusted. (See Edward's Bailm. 88; Beardslee v. Richardson,
11 Wend. 25; McNabb v. Lockhart, 18 Ga. 495.)
The judgment is reversed and the cause remanded.
FIRST NATIONAL BANK v. GRAHAM.
79 Pa. St. 106 ; 21 Am. R. 49. 1875.
, [Action of assumpsit by Fannie L. Graham against the First National
Bank of Carlisle, to recover the value of four United States 5-20 bonds
of flOOO each, which had been left by her with the bank for safekeep-
ing, and which on demand the bank failed to deliver. The plaintiff
alleged that the bonds had been lost through the negligence of the
defendant. For defendant evidence was introduced to shew that
the bonds, together with money and securities belonging to the bank,
had been stolen from its vault. There was judgment for plaintiff and
defendant appeals.]
Mr. Justice Woodward. [The discussion of a question of evidence
is omitted.]
The next question is presented by the series of assignments which
allege error in the instructions given to the jury as to the measure and
extent of the responsibility of the defendants. Assuming for present
purposes on the faith of the verdict, that the act of the cashier was so
far acquiesced in and ratified by the officers and directors, as to create
64 ORDINAEY BAILMENTS.
a contract between the plaintiff and the bank, it is manifest that the
contract amounted at the utmost to a naked bailment. It was a deposit
without compensation. No undertaking was expressed except that the
bonds were to be returned on the return of the cashier's receipt. The
law regulating such a contract has been settled since the decision of
Coggs V. Bernard, 2 Ld. Raym. 909 [4], in the year 1703. " Where a man
takes goods into his custody to keep for the use of the bailor," it was
said by Holt, C. J., in that case, "he is not answerable if they are stole
without any fault in him, neither will a common neglect make him
chargeable, but he must be guilty of some gross neglect." The princi-
ples which govern the relations between bailors and bailees are succinctly
stated in Story on Bailments, § 23. " When the bailment is for the
sole benefit of the bailor, the law requires only slight diligence on the
part of the bailee, and of course makes him answerable only for gross
neglect. When the bailment is for the sole benefit of the bailee, the
law requires great diligence on the part of the bailee, and makes him
responsible for slight neglect. When the bailment is reciprocally bene-
ficial to both parties, the law requires ordinary diligence on the part of
the bailee, and makes him responsible for ordinary neglect." In Tomp-
kins V. Saltmarsh, 14 S. & R. 275, Duncan, J., in delivering the opinion
of the court, said : " Where one undertakes to perform a gratuitous act,
from which he is to receive no benefit, and the benefit is to accrue solely
to the bailor, the bailee is liable only for gross negligence, dolo proximus,
a practice equal to a fraud. It is that omission of care which even the
most inattentive and thoughtless men take of their own concerns.
There is this marked difference in cases where ordinary diligence is
required, and where a party is accountable only for gross neglect. Ordi-
nary neglect is the want of that diligence which the generality of man-
kind use in their own concerns, and that diligence is necessarily required
where the contract is reciprocally beneficial. The bailee without
reward is not bound to ordinary diligence, is not responsible for that
care which every attentive and diligent person takes of his own goods,
but only for that care which the most inattentive take."
These principles were applied by Coulter, J., in Lloyd v. The West
Branch Bank, 3 Harris 176, and by the present chief justice in Scott v.
The National Bank of Chester Valley, 22 P. F. Smith, 471, and were
recognised by Thompson, C. J., in the Lancaster County Bank v. Smith,
12 P. F. Smith, 54. In view of these well-established rules, the presen-
tation to the jury of the legal aspects of this cause was inadequate and
imperfect. There was no dispute that this was a gratuitous bailment,
and in the general charge the court properly limited the responsibility
of the defendant to a case of gross neglect. But this gross neglect was
defined to be "the omission of those precautions which persons of
common care and common prudence would naturally adopt, though
they might, in reference to their own goods, omit them."
In the plaintiff's first point, the court were asked to charge that the
NEGLIGENCE. 65
defendants were "bound to exercise ordinary care, skill and diligence
to keep and return the bonds safely; such care as men of ordinary
prudence exercise in the care of their own property." The answer
was in these words : "First point affirmed, and for the meaning of gross
negligence the jury are referred to the general charge." In the plain-
tiff's third point, the court was asked to say, that "if the defendants
were negligent and did not exercise ordinary care, skill and caution, to
keep the plaintiff's bonds safely, then they are liable for their value,
no matter how negligent they may have been 'in taking care of their
own property." The answer was : " Affirmed — see general charge."
The defendants had the right to complain of the manner in which the
case was submitted to the jury. The standard of duty established for
them was one to which they could not, under the evidence, be justly
held. In the language of Judge Duncan, in Tompkins v. Saltmarsh,
" they were responsible for the omission of care which even the most in-
attentive and thoughtless men take of their own concerns."
Upon the trial the ground was assumed by the defendants that there
could be no recovery against them if the jury should find that they had
taken the same care of the plaintiff's bonds that they had taken of their
own securities, and complaint is now made of the failure of the court
to sustain their position. In a multitude of cases, language has been
used by judges which would seem to indicate the existence of the rule
for which the defendants contend. Such language was employed in
Foster v. The Essex Bank, 17 Mass. 479, and in the cases already
referred to, of Coggs v. Bernard, Lloyd v. The West Branch Bank, and
Scott V. National Bank of Chester Valley. In general, however, this
view of the law has been abstractly stated, and where it has been ap-
plied, as in Lloyd v. The West Branch Bank, the diligence used by the
bailee in the oversight equally of the deposit and his own property,
corresponded with that diligence to which, in the circumstances of the
particular bailment, the law held him bound. The authorities relied
on by the defendants " do not seem," Judge Story has said, " to express
the general rule in its true meaning. The depositary is bound to slight
diligence only; and the measure of that diligence is that degree of
diligence which persons of less than common prudence, or indeed of
any prudence at all, take of their own concerns. The measure, ab-
stractly considered, has no reference to the particular character of an
individual, but it looks to the conduct and character of a whole class
of persons." Story on Bailments, 564. The fact that the bailee keeps
the property of the bailor, with the ordinary care with which he keeps
his own, does not fulfil the measure of his legal duty where the contract
is one which requires strict diligence and extraordinary care. So, under
a contract of bailment, in which the benefits are reciprocal, the bailee
is not shielded from liability for neglect of ordinary care by proving
that he has been careless, inattentive, and reckless in the management
of his goods as well as those of the bailor. Cases for the application of
66 ORDINARY BAILMENTS.
the maxim of the Emperor Constantine, quoted in Jones on Bailments,
83, " Aliena negotia exacto officio gerunter," must constantly arise. The
terms used in the authorities referred to are employed more by way
of illustration than as a statement of the legal rule. That the bailee
has dealt with his property and the bailor's in the same way, is a fact
which may be always shown as an element in adjusting the standard of
duty, and deciding the question of its performance, as well as a test of
the bailee's good faith. On the proof of such a fact, a presumption of
adequate diligence would ordinarily arise. But the question of the
bailee's responsibility must be finally settled by a resort to the settled
principle which deduces the measure of his duty in each particular bail-
ment, from a comparison of his conduct with the conduct not of indi-
viduals but of classes of men. The instructions of the court on this
subject in the general charge were, that, if the bailee " takes the same
care of the goods bailed that he does of his own, that ordinarily repels
the presumption of gross negligence. The desire to preserve one's
own property from loss from any cause is, as a rule, so universal, that
the mind rests with satisfaction on the evidence which shows the same
care of the bailed property which the bailee took to save his own, unless
it was shown that he was grossly negligent of both, and when this is
done he is not excused, but held answerable." It is conceived that
these instructions were unobjectionable. Whether the defendants were
guilty of such gross negligence as to make them liable, was a question
which, like that which was raised as the fact of robbery, and like the
other issues involved, it was for the jury, under all the evidence, exclu-
sively to decide.
[Other portions of opinion are omitted.]
Judgment reversed.^
PRESTON V. PRATHER.
137 U. S. 604 ; 11 Sup. Ct. Rep. 162. 1890.
The plaintiffs below, the defendants in error here, were citizens of
Missouri, and for many years have been copartners, doing business at
Maryville, in that State, under the name of the Nodaway Valley Bank
of Maryville. The defendants below were citizens of different States,
one of them of Michigan and the others of Illinois, and for a similar
period have been engaged in business as bankers at Chicago, in the
latter. State. In 1873 the plaintiffs opened an account with the defend-
ants, which continued until the spring of 1883. The average amount
of deposits by them with the defendants each year during this period
1 This case was afterwards before the Supreme Court of the United States, on
appeal from a judgment for plaintiff, and such judgment was affirmed. National
Bank v. Graham, 100 U. S. 699 (1879).
NEGLIGENCE. 67
was between two and four hundred thousand dollars. Interest was
allowed at the rate of two and one-half per cent on the deposits above
three thousand dollars, but nothing on deposits under that sum..
On the 7th of July, 1880, the plaintiffs purchased of the defendants
four per cent bonds of the United States to the nominal amount of
twelve thousand dollars; but, the bonds being at a premium in the
market, the plaintiffs paid for them, including the accrued interest
thereon, thirteen thousand and five dollars. Th6 purchase was made
upon a request by letter from the plaintiffs ; and all subsequent com-
munications between the parties respecting the bonds', and the condi-
tions upon which they were to be held, are contained in their correspond-
ence. The letter directing the purchase concluded with a request
that the defendants send to the plaintiffs a description and the number
of the bonds, and hold the same as a special deposit. In the subsequent
account of the purchase rendered by the defendants the plaintiffs were
informed that the bonds were held on special deposit subject to their
order. The numbers of the bonds appear upon the bond register kept
by the defendants, and the bonds remained in their custody until some
time between November, 1881, and November, 1882, when they were
stolen and disposed of by their assistant cashier, one Ker, who absconded
from the State on the 16th of January, 1883. The present action was
brought to recover their value.
[It appeared that about a year before he absconded, information
was given to the bank that some one in its employ was speculating on
the Board of Trade in Chicago, and an inquiry revealed the fact that
Ker was the person. Although he was supposed to be dependent en-
tirely on his salary, and although he had free access to the vaults
where the securities of the bank, including these bonds, were deposited,
he was continued in the service of the bank until the theft took place.
At the trial a jury was waived by stipulation. The court found spe-
cial findings of fact, which were not excepted to, and gave judgment for
the plaintiffs. 29 Fed. Rep. 498. The defendants sued out this
writ of error.]
Mr. Justice Field. By the defendants itwas contended below in sub-
stance, and the contention is renewed here, that the bonds being placed
with them on special deposit for safe-keeping, without any reward, prom-
ised or implied, they were gratuitous bailees, and were not chargeable
for the loss of the bonds, unless the same resulted from their gross negli-
gence, and they deny that any such negligence is imputable to them.
On the other hand, the plaintiffs contended below, and repeat their
contention here, that, assuming that the defendants were in fact simply
gratuitous bailees when the bonds were deposited with them, they still
neglected to keep them with the care which such bailees are bound to
give for the protection of property placed in their custody ; and further,
that subsequently the character of the bailment was changed to one for
the mutual benefit of the parties.
68 OEDINARY BAILMENTS.
Much of the argument of the counsel before the court, and in the
briefs filed by them, was unnecessary — indeed, was not open to con-
sideration — from the fact that the case was heard, upon stipulation
of parties, by the court without the intervention of a jury, and its special
findings cover all the disputed questions of fact. There is in the record
no bill of exceptions taken to rulings in the progress of the trial, and the
correctness of the findings upon the evidence is not open to our con-
sideration. Rev. Stat. § 700. The question whether the facts found
are sufficient to support the judgment is the only one of inquiry here.
Undoubtedly, if the bonds were received by the defendants for safe-
keeping, without compensation to them in any form, but exclusively
for the benefit of the plaintiffs, the only obligation resting upon them
was to exercise over the bonds such reasonable care as men of common
prudence would usually bestow for the protection of their own property
of a similar character. No one taking upon himself a duty for another
without consideration is bound, either in law or morals, to do more
than a man of that character would do generally for himself under like
conditions. The exercise of reasonable care is in all such cases the dic-
tate of good faith. An utter disregard of the property of the bailor
would be an act of bad faith to him. But what will constitute such
reasonable care will vary with the nature, value, and situation of the
property, the general protection afforded by the police of the community
against violence and crime, and the bearing of surrounding circum-
stances upon its security. The care usually and generally deemed
necessary in the community for the security of similar property, under
like conditions, would be required of the bailee in such cases, but noth-
ing more. The general doctrine, as stated by text writers and in judi-
cial decisions, is that gratuitous bailees of another's property are not
responsible for its loss unless guilty of gross negligence in its keeping.
But gross negligence in such cases is nothing more than a failure to
bestow the care which the property in its situation demands ; the omis-
sion of the reasonable care required is the negligence which creates the
liability ; and whether this existed is a question of fact for the jury to
determine, or by the court where a jury is waived. See Steamboat
New World v. King, 16 How. 469, 474, 475 ; Railroad Co. v. Lockwood,
17 Wall, 357, 383 ; Milwaukee & St. Paul Railway v. Arms, 91 U. S.
489, 494. The doctrine of exemption from liability in such cases was
at one time carried so far as to shield the bailees from the fraudulent
acts of their own employees and oflBcers, though their employment
embraced a supervision of the property, such acts not being deemed
within the scope of their employment.
Thu^, in Foster v. Essex Bank, 17 Mass. 479, the bank was in such
a case exonerated from liability for the property entrusted to it, which
had been fraudulently appropriated by its cashier, the Supfreme Judicial
Court of Massachusetts holding that he had acted without the scope of
his authority, and, therefore, the bank was not liable for his acts any
NEGLIGENCE. 69
more than it would have been for the acts of a mere stranger. In that
case a chest containing a quantity of gold coin, which was specified in
an accompanying memorandum, was deposited in the bank for safe-
keeping, and the gold was fraudulently taken out by the cashier of the
bank and used. It was held, upon the doctrine stated, that the bank
was not liable to the depositor for the value of the gold taken.
In the subsequent case of Smith v. First National Bank in Westfield,
99 Mass. 605, 611, the same court held that the gross carelessness which
would charge a gratuitous bailee for the loss of property must be such
as would affect its safe-keeping, or tend to its loss, implying that liability
would attach to the bailee in such cases, and to that extent qualifying
the previous decision.
In Scott V. National Bank of Chester Valley, 72 Penn. St. 471, 480,
the Supreme Court of Pennsylvania asserted the same doctrine as that
in the Massachusetts case, holding that a bank, as a mere depositary,
without special contract or reward, was not liable for the loss of a govern-
ment bond deposited with it for safe-keeping, and afterwards stolen by
one of its clerks or tellers. In that case it was stated that the teller
was suffered to remain in the employment of the bank after it was
known that he had dealt once or twice in stocks, but this fact was not
allowed to control the decision, on the ground that it was unknown to
the officers of the bank that the teller gambled in stocks until after he
had absconded, but at the same time observing that : —
" No officer in a bank, engaged in stock gambling, can be safely trusted,
and the evidence of this is found in the numerous defaulters, whose
speculations have been discovered to be directly traceable to this species
of gambling. A cashier, treasurer, or other officer having the custody
of funds, thinks he sees a desirable speculation, and takes the funds
of his institution, hoping to return them instantly, but he fails in his
venture, or success tempts him on ; and he ventures again to retrieve
his loss, or increase his gain, and again and again he ventures. Thus
the first step, often taken without a criminal intent, is the fatal step,
which ends in ruin to himself and to those whose confidence he has
betrayed."
As stated above, the. reasonable care which persons should take of
property entrusted to them for safe-keeping without reward will neces-
sarily vary with its nature, value, and situation, and the bearing of
surrounding circumstances upon its security. The business of the bailee
will necessarily have some effect upon the nature of the care required
of him, as, for example, in the case of bankers and banking institutions,
having special arrangements, by vaults and other guards, to protect
property in their custody. Persons therefore depositing valuable arti-
cles with them, expect that such measures will be taken as will ordinarily
secure the property from burglars outside and from thieves within,
and that whenever ground for suspicion arises an examination will
be made by them to see that it has not been abstracted or tampered
70 ORDINARY BAILMENTS.
with ; and also that they will employ fit men, both in ability and integ-
rity, for the discharge of their duties, and remove those employed when-
ever found wanting in either of these particulars. An omission of such
measures would in most cases be deemed culpable negligence, so gross as
to amount to a breach of good faith, and constitute a fraud upon the
depositor.
It was this view of the duty of the defendants in this case, who were
engaged in business as bankers, and the evidence of their neglect, upon
being notified of the speculations in stocks of their assistant cashier
who stole the bonds, to make the necessary examination respecting the
securities deposited with them, or to remove the speculating cashier,
which led the court to its conclusion that they were guilty of gross
negligence. It was shown that about a year before the assistant cashier
absconded, the defendant Kean,who was the chief officer of the banking
institution, was informed that there was some one in the bank specu-
lating on the Board of Trade at Chicago. Thereupon Kean made a
quiet investigation, and the facts discovered by him pointed to Ker,
whom he accused of speculating. Ker replied that he had made a few
transactions, but was doing nothing then and did not propose to do any-
thing more, and that he was then about a thousand dollars ahead, all
told. It was not known that Ker had any other property besides his
salary. His position as assistant cashier gave him access to the funds
as well as the securities of the bank, and he was afterwards kept in his
position without any eilort being made on the part of the defendants
to verify the truth of his statement, or whether he had attempted to
appropriate to his own use the property of others.
Again, about two months before Ker absconded, one of the defend-
ants, residing at Detroit, received an anonymous communication,
stating that some one connected with the bank in Chicago was specu-
lating on the Bo^rd of Trade. He thereupon wrote to the bank, call-
ing attention to the reported speculation of some of its employees, and
suggesting inquiry and a careful examination of its securities of all
kinds. On receipt of this communication Kean told Ker what he had
heard, and asked if he had again been speculating on the Board of
Trade. Ker replied that he had made some deals for friends in Canada,
but the transactions were ended. The defendants then entered
upon an examination of their books and securities, but made no effort
to ascertain whether the special deposits had been disturbed. Upon
this subject the court below, in giving its decision, Prather v. Kean, 29
Fed. Rep. 498, after observing that the defendants knew that Ker had
been engaged in business which was hazardous and that his means were
scant, and after commenting upon the demoralising effect of speculating
in stocks and grain, as seen in the numerous peculations, embezzlements,
forgeries, and thefts plainly traceable to that cause, and the free access
by Ker to valuable securities, which were transferable by delivery,
easily abstracted and converted, and yet his being allowed to retain his
NEGLIGENCE. 71
position without any effort to see that he had not converted to his own
use the property of others, or that his statements were correct, held that
it was gross negligence in the defendants not to discharge him or place
him in some position of less responsibility. In this conclusion we fully
concur.
The second position of the plaintiffs is also well taken, that, assuming
the defendants were gratuitous bailees at the time the bonds were placed
with them, the character of the bailment was subsequently changed to
one for the mutual benefit of the parties. It appears from the findings
that the plaintiffs, subsequently to their deposit, had repeatedly asked
for a discount of their notes by the defendants, offering the latter the
bonds deposited with them as collateral, and that such discounts were
made. When the notes thus secured were paid, and the defendants
called upon the plaintiffs to know what they should do with the bonds,
they were informed that they were to hold them for the plaintiffs' use
as previously. The plaintiffs had already written to the defendants
that they desired to keep the bonds for an emergency, and also that
they wished at times to overdraw their account, and that they would
consider the bonds as security for such overdrafts. From these facts
the court was of opinion that the bonds were held by the defendants
as collateral to meet any sums which the plaintiffs might overdraw;
and the accounts show that they did subsequently overdraw in numer-
ous instances.
The deposit, by its change from a gratuitous bailment to a security
for loans, became a bailment for the mutual benefit of both parties ;
that is to say, both were interested in the transactions. For the bailor
it obtained the loans, and to that extent was to his advantage ; and to
the bailee it secured the payment of the loans, and that was to his ad-
vantage also. The bailee was therefore required, for the protection
of the bonds, to give such care as a prudent owner would extend to his
own property of a similar kind, being in that respect under an obligation
of a more stringent character than that of a gratuitous bailee, but dif-
fering from him in that he thereby became liable for the loss of the
property if caused by his neglect, though not amounting to gross
negligence.
Two cases cited by counsel, one from the Court of Appeals of Mary-
land and the other from the Court of Appeals of New York, declare and
illustrate the relation of parties under conditions similar to those of
the parties before us.
In the case from Maryland, Third National Bank v. Boyd, 44 Mary-
land, 47, it appeared that a firm by the name of William A. Boyd & Co.
was a large customer of the Third National Bank of Baltimore, and on
the 5th day of February, 1866, was indebted to it in about $5000. Sub-
sequently, the senior member of the firm, pursuant to an agreement
between him and the president of the bank, deposited with the bank
certain bonds and stocks as collateral security for the payment of all
72 OKDINABY BAILMENTS.
obligations of himself and of the firm then existing or that might be
incurred thereafter, with the understanding that the right to sell the
collaterals in satisfaction of such obligations was vested in the officers
of the bank. Some of the bonds were subsequently withdrawn and
others deposited in their place. While these collaterals were with the
bank, the firm kept a deposit account, having an average of about $4000,
and from time to time, as it needed, obtained on the security of the col-
laterals discounts ranging from three to fifteen thousand dollars. The
firm was not indebted to the bank subsequently to July, 1872, when it
paid its last indebtedness ; the bonds, however, were not then with-
drawn, but left in the bank under the original agreement. In August,
1872, the bank was entered by burglars and certain of the bonds were
stolen. In an action by the senior partner against the bank to recover
the value of the bonds stolen, it was held : " First. That the contract
entered into by the bank was not a mere gratuitous bailment. . . .
Third. That the original contract of bailment being valid and binding,
the obligation of the bank for the safe custody of the deposit did not
cease when the plaintiff's debt had been paid. Fourth. That the
defendant was responsible if the bonds were stolen in consequence of
its failure to exercise such care and diligence in their custody and keep-
ing as, at the time, banks of common prudence in like situation and
business usually bestowed in the custody and keeping of similar prop-
erty belonging to themselves ; that the care and diligence ought to have
been such as was properly adapted to the preservation and protection
of the property, and should have been proportioned to the consequence
likely to arise from any improvidence on the part of the defendant.
Fifth. That the proper measure of damages was the market value of
the bonds at the time they were stolen. Whether due care and dili-
gence have been exercised by a bank in the custody of bonds deposited
with it as collateral security, is a question of fact exclusively within
the province of the jury to decide."
In the case from New York, Cutting ». Marlor, 78 N. Y. 454, it ap-
peared that the defendant, as collateral security for a loan made to him
by a bank, delivered to it certain securities, which were taken and con-
verted by the president to his own use. In an action by the receiver of
the bank to recover the amount loaned, it was found that the trustees
of the bank left the entire management of its business with the presi-
dent and an assistant, styled manager; that they received the state-
ments of the president without question or examination ; that they had
no meetings pursuant to the by-laws, and made no examination of the
securities, and exercised no care or diligence in regard to them ; also,
that the president had been in the habit of abstracting securities and
using them in his private business, most of them being returned when
called for; and that the manager, who had knowledge of this habit,
did not take any means to prevent it, nor did he notify the trustees. It
was held that the bank was chargeable with negligence, and that the
NEGLIGENCE. 73
•defendant was entitled to counter-claim the value of the securities;
that the bailment was for the mutual benefit of the parties ; that the
bailee was bound, for the protection of the property, to exercise ordinary
care, and was liable for negligence affecting the safety of the collaterals,
distinguishing the case from the liability of a gratuitous bailee, which
arises only where there has been gross negligence on his part.
It follows, therefore, that whether we regard the defendants as gra-
tuitous bailees in the first instance, or as afterwards becoming bailees
for the mutual benefit of both parties, they were liable for the loss of
the bonds deposited with them. And the measure of the recovery was
the value of the bonds at the time they were stolen.
Judgment affirmed.^
h. Burden of Proof.
SANBORN V. KIMBALL.
106 Me. 355 ; 76 Atl. R. 890 ; 138 Am. St. R. 345. 1910.
Cornish, J. Action on the case for negligence in the use and care
of the plaintiff's horse by the defendant. The jury returned a verdict
for the defendant, and the case is before this court on the plaintiff's
motion to set aside the verdict as against the law and the evidence.
■In Railroad Company ». Lockwood, 17 Wall. (U. S.) 357 (1873), cited in this
■case, Mb. Justice Bbadley, announcing the opinion of the Court, uses this language
(at p. 382) : —
"We have already adverted to the tendency of judicial opinion adverse to the
distinction between gross and ordinary negUgenoe. Strictly speaking, these expres-
sions are indicative rather of the degree of care and diligence which M due from a
party and which he fails to perform, than of the amount of inattention, carelessness,
or stupidity which he exhibits. If very little care is due from him, and he fails to
ibestow that little, it is called gross negligence. If very great care is due, and he fails
to come up to the mark required, it is called slight negligence. And if ordinary care
is due, such as a prudent man would exercise in his own affairs, failure to bestow that
■amount of care is called ordinary negligence. In each case, the negligence, whatever
epithet we give it, is failure to bestow the care and skill which the situation de-
mands ; and hence it is more strictly accurate perhaps to call it simply 'negligence.'
And this seems to be the tendency of modern authorities. (1 Smith's Leading Cases,
453, 7th American edition ; Story on Bailments, § 571 ; Wyld ». Piekford, 8 Meeson
& Welsby 460 ; Hinton v. Dibbin, 2 Queen's Bench, 661 ; WUson v. Brett, 11 Meeson
& Welsby, 115; Beal v. South Devon Railway Co., 3 Hurlstone & Coltman, 337;
Grill V. Iron Screw Collier Co., Law Reports, 1 Common Pleas, 600 ; Philadelphia &
Reading Railroad Co. v. Derby, 14 Howard, 486 ; Steamboat New World et al. v.
King, 16 Id. 474.) If they mean more than this, and seek to abolish the distinction
of degrees of care, skill, and diligence required in the performance of various duties
and the fulfilment of various contracts, we think they go too far ; since the require-
ment of different degrees of care in different situations is too firmly settled and fixed
in the law to be ignored or changed. The compilers of the French Civil Code under-
took to abolish these distinctions by enacting that ' every act whatever of man that
•causes damage to another, obliges him by whose fault it happened to repair it.'
(Art. 1382.) TouUier, in his commentary on the code, regards this as a happy
thought, and a return to the law of nature. (Vol. 6, p. 243.) But such an iron rule
is too regardless of the foundation principles of human duty, and must often operate
■with great severity and injustice."
74 OEDINAKY BAILMENTS.
The material facts are not in dispute. In the summer of 1908, the
parties agreed to exchange work in haying, with teams and men. Under
that agreement the plaintiff let the defendant have the horse in question
on August 13th. On August 25th the plaintiff went after the horse ;
but, as the defendant had not finished haying, it was agreed that the
defendant should keep him another day and return him on the after-
noon of the 26th. The defendant used the horse in haying on the after-
noon of the 25th, put him in the barn, fed him about 6.30 p.m. and left
him for the night unhitched in his sixteen-feet square pen or box-stall.
The next morning the defendant found the horse in the same place where
he had left him the night before with a clean cut three or three and one-
half inches long and from one to one and one half inches deep across
the upper part of the off forward leg. The wound was not bleeding and
there were no traces of blood on the floor of the barn or in the stall,
although there were marks of blood on a pail, as if the wound had been
washed by some one. The defendant testified that he carefully ex-
amined the barn to ascertain, if possible, the cause of the injury, but
found nothing, and he was entirely ignorant as to how the injury was
inflicted, whether by accident or design. The wound was treated once-
by the plaintiff and subsequently by the defendant and his hired man,
but after about ten days death ensued.
It is settled in this state, whatever the doctrine may be elsewhere,,
that in an action of negligence against a bailee, not a common carrier,
the general burden of proving negligence rests upon the plaintiff. If he-
proves the bailment and a failure to return on demand, he has ordinarily
made a prima facie case, and it is then incumbent on the bailee to ex-
plain the cause of the refusal, as by showing the loss of the property by
fire or theft or its injury by accident or otherwise. It then devolves
upon the plaintiff to show that such fire or theft or accident was due to
the failure of the bailee to use such a degree of care of the property as
under the circumstances the law requires. The final burden is on the
bailor to prove negligence, not on the bailee to prove due care : Mills
V. Gilbreth, 47 Me. 320, 74 Am. Dec. 487 ; Dinsmore v. Abbott, 89 Me.
373, 36 Atl. 621 ; Buswell v. Fuller, 89 Me. 600, 36 Atl. 1059 ; Brad-
bury V. Lawrence, 91 Me. 457, 40 Atl. 332. The plaintiff, however,
contends that it devolved upon the defendant to satisfactorily explain
how the injury was received, and in absence of such satisfactory expla-
nation his liability follows. The law does not require so much, amount-
ing in this case to an impossibility, because the cause or source of this
injury is admitted to be a mystery. If the plaintiff's contention were
true, the liability of the bailee in cases where the causes of the injury
are unknown would rise to that of an insurer. It was only incumbent
upon the defendant to explain the circumstances and to give the reason
why the horse was not returned to the plaintiff. He need go no further.
This was done, and it then became the province of the jury, under
proper instructions, to determine whether or not the defendant was.
LIEN. 75
negligent, either in connection with the injury or in its subsequent treat-
ment. No exceptions were taken to the charge of the presiding justice,
so that it may be assumed tiat proper instructions were given. On
the facts, the jury have found in favour of the defendant, and we see no
reason to disturb their verdict. The matter was one peculiarly within
their experience, and their judgment upon such a question should not
be lightly set aside. A careful reading of the testimony in this case,
however, approves rather than disapproves their conclusion.
Motion overruled.
5. LIEN.
BURDicT V. Murray:
3 Vt. 320 ; 21 Am. D. 588. 1830.
This was an action of trespass for taking and carrying away a quan-
tity of sheepskins and goatskins. Plea, not guilty. At the trial in
the county court. Turner, J., presiding, it appeared in evidence, that a
contract had been made between Allen Murray and Warren Murray and
the plaintiffs, by which the Murrays were to furnish four thousand
skins annually for three years, to be tanned and dressed into morocco
by the plaintiffs, and were to pay the plaintiffs therefor twenty-seven
and a half cents for each skin. The Murrays were to furnish the skins
from time to time as the plaintiffs might want them, and the plaintiffs
were to dress and deliver them at their shop to the Murrays, finished
in a merchantable condition, for the price above mentioned. Under
this contract the skins in question had been delivered to the plaintiffs ;
and after they had been partly dressed, and were in an unfinished state,
the said Allen and Warren Murray turned them out to the defendant,
Harvey Murray, a creditor, who caused them to be attached and taken
aWay, on a writ of attachment against said Allen and Warren. The
plaintiffs contended they had a lien on said skins for the labour already
bestowed in dressing them, and other skins delivered on said contract,
and also for the labour they were thereafter to bestow in completing
them.
Prentiss, Ch. J., delivered the opinion of the Court. — It is the better
opinion, that he who has a special property in goods, may have an
action of trespass against him who has the general property, and upon
the evidence the damage shall be mitigated. Thus, a bailee of a chattel
for a certain time, coupled with an interest, may support the action
against the bailor for taking it away before the time. — (1 Chit. PI. 170.)
There is no doubt, therefore, but that the plaintiffs in the case before
us, if they had a special property in the skins, were entitled to maintain
76 ■ OEDINARY BAILMENTS.
this action, and recover according to their interest, although the skins
were turned out to the defendants, on the writ of attachment, by Allen
and Warren Murray, the owners.
The plaintiffs, under the contract with the Murrays, were bailees
having an interest, and had a right to retain the skins for the purpose
for which they were bailed to them. Until the skins were dressed and
made into morocco, the plaintiffs were entitled to the possession of
them ; and even then they would have a lien upon the skins for the
price agreed to be paid for their labour upon them. A workman who has
bestowed his labour upon a chattel, has a lien for the remuneration due
to him, whether the amount was fixed by the express agreement of the
parties or not ; though it is otherwise, if, by the bargain, a future day
of payment was agreed upon, for then the detention of the chattel would
be inconsistent with the terms of the contract. — (Chase v. Westmore,
5 Maule and Selw. 180.) Here there was no particular time or mode of
payment agreed upon, and if the plaintiffs had completed the manufac-
ture of the skins according to the agreement, they would have had an
unquestionable right to detain them until the price was paid, unless
they had already in their hands a balance sufficient to pay the price.
But the skins were in an unfinished state, and the plaintiffs had a right,
under the contract, to retain them to earn the price. If at the time of
taking the skins, the Murrays had offered and agreed to allow the plain-
tiffs the full price stipulated to be paid for finishing them, out of monies
actually in the plaintiffs' hands sufficient to pay the price, it might have
been a good defence. But as no such offer appears to have been made,
the evidence proposed by the defendants could not avail them.
Judgment affirmed.
ARIANS V. BRICKLEY.
65 Wis. 26 ; 56 Am. R. 611. 1885.
Oeton, J. The respondent, as plaintiff in the case, alleged in his
complaint, substantially, that he was the owner of mills for sawing lumber
and shingles out of logs, and engaged in using said mills for such pur-
pose ; that he was employed by the defendants to saw lumber and
shingles out of their logs, delivered to him for that purpose, for what it
was reasonably worth ; that he sawed for the defendants many thou-
sand feet of lumber and many thousand shingles out of such logs, and
demanded of them what it was reasonably worth, which they refused
to pay, and that he therefore retained the possession of the same until
he should be paid, and the defendants sought to take the same away
by force, and that they are personally irresponsible and insolvent.
The prayer is for an injunction against such removal, and for the enforce-
LIEN. 77
ment of a common-law lien on the same for the amount to which the
plaintiff is entitled.
The defendants substantially admitted in their answer such employ-
ment as stated in the complaint, but alleged that it was for an agreed
compensation, and set up a failure to perform, and damages for bad
piling and manufacture, etc., and denied the common-law lien. On the
trial the defendants objected to any evidence under the complaint on
the ground that it stated no cause of action, which objection was over-
ruled. The plaintiff then proved the sawing in said mills of lumber out
of the defendants' logs so furnished by them, which sawing or manufac-
ture was worth $1191.21, without interest since that time, but with
interest, $1285.36. The defendants offered no evidence, but moved to
dismiss the action on the ground that the plaintiff had no right to resort
to a court of equity to foreclose a lien for labour on logs and lumber, and
that he has an adequate remedy at law, which motion was overruled,
and the circuit court rendered judgment against the defendants for the
amount last stated, and for a lien on said lumbfer remaining in the
possession of the said plaintiff. This appeal is from said judgment.
The only material question presented and argued in the brief of the
learned counsel of the appellants is whether the plaintiff was entitled
to such common-law lien on the lumber so manufactured by him out
of the logs of and furnished by the defendants. The question is divided
in the argument : (1) Whether the plaintiff had a common-law lien,
or whether a common-law lien could be made to embrace such manufac-
ture ; and (2) whether, if such a lien could ever have been enforced in
this state, the statute has not abrogated it.
1. The principle upon which a common-law lien was anciently al-
lowed, and its allowance extended by modern decisions, would seem
to embrace such a case. That principle is that persons who have
bestowed labour upon an article, or done some other >ct in reference to
it by which its value has been enhanced, have the right to detain the
same until they are reimbursed for their expenditure and labor (Oakes
!). Moore, 24 Me. 214) ; or that every bailee for hire who, by his labor
and skill, has imparted an additional value to the goods, has a Hen upon
the property for his reasonable charges (Grinnell v. Cook, 3 Hill, 491)
[79]. "This right rests on principles of natural equity and commercial
necessity, and it prevents circuity of action, and gives security and con-
fidence to agents." 2 Kent's Comm. 634. The extension of the prin-
ciple to a tailor who makes clothing out of cloth furnished (Cowper v.
Andrews, Hob. 42), and to a dyer who imparts colors to plain fabrics
(Green v. Farmer, 4 Burr. 2221), has led to its recognition in all cases
of a bailee for hire who takes property in the way of his trade and occu-
pation and by his labour and skill imparts additional value to it. Bevan
V. Waters, Moody & M. 235 ; Scarfe v. Morgan, 4 Mees. & W. 283 ;
Trust V. Pirsson, 1 Hilt. 292. A lien was allowed to a wagon-maker
who made a wagon out of materials furnished by another (Gregory v.
78 ORDINARY BAILMENTS.
Stryker, 2 Denio, 631) ; and to a carpenter, upon doors made out of
lumber furnished by another (Curtis v. Jones, 1 How. App. Cas. 145,
and Mclntyre v. Carver, 2 Watts & S. 392) ; and to a thresher, on grain
he threshes for another (Nevan v. Roup, 8 Iowa, 207) ; to a raftsman, on
the lumber he rafts for another (Farrington v. Meek, 30 Mo. 585) ;
and to a harness maker, who oils the harness of another (Wilson v.
Martin, 40 N. H. 88). Morgan v. Congdon, 4 N. Y. 552, is a case in
point of a common-law lien on the lumber sawed, for the sawing. It is
claimed by the learned counsel of the appellants that Oakes v. Moore,
supra,- is in point against such a lien ; but, in that case, the retention of
possession necessary to a common-law lien was not shown, but, on the
other hand, the possession had been voluntarily surrendered; and
besides, in that case the lien claimed was upon logs for cutting them
from the land of another and booming them, and not for converting the
same into lumber. We think it is clear, both from principle and from
authority, that the plaintiff had a common-law lien on the lumber, so
long as it remained in his possession, for what it was reasonably worth
to convert the logs of the defendant into it by his labour.
2. Has our statute provided an exclusive remedy in such a case, or
abrogated the common-law lien and its enforcement in equity ? Section
3341, R. S., provides for a lien to " any person performing manuallabom*
upon any lumber." But this does not mean making lumber out of
logs by sawing. If it does apply, then it extends the common-law
remedy to a person who has voluntarily parted with the possession of
the property. It is clear, however, that the subsequent section (3347)
in the same chapter does apply to all cases of common-law lien of this
kind. That section provides that every person having a lien given by
either of the four last sections, " or existing in favour of any bailee for
hire . . . by the common law," may, if the debt remain unpaid for
three months, and the value of the property affected thereby does not
exceed one hundred dollars, sell the property at public auction, etc.,
and notice of such sale shall be given. Then it provides that " if such
property exceed the value of one hundred dollars, then such lien may be
enforced against the same by action in any court having jurisdiction."
This last clause applies to this case, as the value of the property exceeds
$100, and affords an express warrant for the common-law remedy.
The first section of Ch. 319, Laws of 1882, extends the lien of § 3329,
R. S., to " labour and service in sawing or manufacturing into, lumber
any logs." But the above section (3347, R. S.) is not expressly repealed
by said chapter, while other sections are expressly repealed. But,
besides this, the provisions of this chapter clearly contemplate cases
in which the possession has not been retained. It provides for filing
a claim for a lien within thirty days from the last day of labour, and for
an attachment of the property, as in personal actions, which clearly
implies that the possession has been surrendered, and that subsequent
purchasers should have at least constructive notice of such lien. Such
LIEN. 79
proceedings would be unnecessary if the lumber manufactured remained
in the possession of the lienholder all the time. But if such a lien as is
sought to be enforced in this case might have been enforced under that
chapter, it could not be the exclusive remedy by mere construction or
implication, unless such remedy is made to apply strictly to a lien at
common law, where the possession of the lienholder is an essential
prerequisite. This chapter, in order to repeal the common-law remedy
by implication, must provide specifically for a new remedy in such a
case. But, again, this chapter provides for a lien in many cases un-
known to the common law ; so there can be no inference that it was
intended to repeal the common-law remedy. There was no common-
law lien on logs for the labour of cutting them. Oakes «. Moore, 24 Me.
214. The rules of the common law are not to be changed by doubtful
implication. Meek «. Pierce, 19 Wis. 300. We are satisfied that the
common-law lien and remedy, in such a case, are not abrogated by the
statute. The court having jurisdiction, as provided in the last clause
of § 3347, may well be the court of chancery, for the remedy in such
cases was always in that court. 4 Kent's Comm. 643 ; Black v. Bren-
nan, 5 Dana, 311 ; and other cases cited in the brief of the learned
counsel for the respondent.
The other exceptions appearing on the record were clearly not well
taken.
By the Court. — The judgment of the circuit court is affirmed.
GRINNELL v. COOK.
3 HiU (N. Y. S. C.) 485; 38 Am. Dee. 663. 1842.
Erhoe to the Onondaga C. P. On appeal from the judgment of a
justice of the peace to the C. P. the case was this : Grinnell brought an
action. on the case against Cook, who was a deputy sheriff, for taking
and selling five horses on an execution against William Tyler, with-
out paying the plaintiff's bill for keeping the horses. The plaintiff was
an iimkeeper in the village of Orville. Tyler lived in the same village,
about forty rods from the plaintiff. Tyler put three of the horses in
the plaintiff's stable, where they remained most of the time, and were
taken care of by the plaintiff from the 20th of November to the 27th of
December; and two other horses were put in the plaintiff's stables
on the 9th, and remained there until the 27th of December, when the
defendant took and sold all the horses on an execution against Tyler,
without paying the plaintiff's bill for the keeping, which amounted to
about $40. The defendant had notice that the plaintiff claimed pay
for the keeping, and disregarded the claim. The witness who proved
80 ORDINARY BAILMENTS.
the plaintiff's case said that Tyler had a barn on his place, and kept
his horses there frequently. ... On this case the plaintiff was non-
suited by the court of common pleas ; and, after judgment, sued out
a writ of error.
Beonson, J. [A portion of the opinion in which it is held that the
plaintiff has no lien as innkeeper, Tyler not being a guest, is omitted.]
The right of lien has always been admitted where the party was
bound by law to receive the goods ; and in modern times the right has
been extended so far that it may now be laid down as a general rule,
that every bailee for hire who by his labour and skill has imparted an
additional value to the goods, has a lien upon the property for his rea-
sonable charges. This includes all such mechanics, tradesmen, and-
laborers as receive property for the purpose of repairing, or otherwise
improving its condition.' But the rule does not extend to a livery stable
keeper, for the reason that he only keeps the horse, without imparting
any new value to the animal. And besides, he does not come within
the policy of the law, which gives the lien for the beAefit of trade. Upon
the same reasons the agister or farmer who pastures the horses or cattle
of another has no lien for their keeping, unless there be a special agree-
ment to that effect. This doctrine was laid down in Chapman v. Allen,
(Cro. Car. 271). And in York v. Grenaugh (2 Ld. Raym. 868), Lord
Holt said, a livery stable keeper had no lien. (See the remarks of Lord
Lyndhurst, C. B., upon this case in Judson v. Etheridge, Cromp. &
Mees. 743.) I am not aware that this rule has ever been departed
from, though it has been suggested that it would be well enough to place
the livery man on the same footing with other persons who bestow their
labour and care upon the property entrusted to their keeping. (Cowen's
Tr. 299, 2d ed.) But the question has recently undergone a good deal
of discussion in England, and the result is that the old cases remain
unshaken, and it must now be regarded as the settled doctrine that
agisters and livery stable keepers have no lien, unless there be a special
contract to that effect. (Wallace v. Woodgate, 1 Car. & Payne, 575 ;
Ry. & Moody, 193, S. C. ; Bevan v. Waters, 3 Car. & Payne, 520 ;
Judson V. Etheridge, 1 Cromp. & Mees. 743 ; Jackson v. Cummins, 5
Mees. & Wels. 342. And see Jacobs v. Latour, 5 Bing. 130 ; 2 Moore
& Payne, 201, S. C. ; Saunderson v. Bell, 2 Mees. & Wels. 304 ; Scarfe
V. Morgan, 4 id. 270.) It will be seen from the cases which have been
mentioned, that a distinction, in relation to the question of lien, has been
taken between the mere keeper and the trainer of a horse ; and it is
said that the latter has a lien, because he has done something for the
improvement of the animal.^ And in Judson v. Etheridge, it was sug-
gested by BoUand, B. that the doctrine might, perhaps, be extended tc^
the case of a breaker who takes a young horse to be broken, on the ground
that he makes it a different animal from what it was before, and im-
proves the animal by the application of labour and skill. On the same
' Accord, Forth v. Simpson, 13 Q. B. 680 (1849).
LIEN. 81
principle it has been held, that if a farmer or stable keeper receive a mare
for the purpose of being covered by his stallion, he has a specific lien
for the charge of covering. Whether these distinctions were well
taken or not, they shew that the courts have steadily adhered to the
rule that one who merely provides food and takes the care of an animal,
as an agister or livery stable keeper, has no hen except by contract.
There is a further reason why there can be no lien in these cases.
When horses are kept at livery, the owner takes and uses them at pleas-
ure, and the bailee only has a lien so long as he retains the uninterrupted
possession. If the owner gets the property into his hands without
fraud, the lien is at an end, and it will not be revived by the return of
the goods. (Bevan v. Waters, 3 Car. & Payne, 520 ; Jones v. Thurloe,
8 Mod. 172 ; Jones v. Pearle, 1 Str. 556 ; Sweet v. Pym, 1 East, 4.)
So in the case of milch cows, the agister has no lien, for the reason that
the owner has occasional possession for the purpose of milking them.
(Jackson v. Cummins, 5 Mees. & Wels. 342 ; Cross on Lien, 25, 36, 332.)
Now here, from the nature of the case, the plaintiff was not to have
the continued and exclusive possession of the horses, but Tyler was at
liberty to take and use them when he pleased, and he did in fact take
them at pleasure. The witness says he does not know that the plaintiff
was at home when Tyler took the horses, but there was no pretence that
they were taken by fraud, or against the will of the plaintiff.
The plaintiff cannot stand upon any better footing than a livery
stable keeper, and as such he has no lien.
Judgment affirmed.
WILLIAMS V. ALLSUP.
Common Pleas. 10 C. B. N. S. 417 ; 100 Eng. C. L. 417. 1861.
Erle, C. J. This is an action by the mortgagee of a steam-vessel
against a shipwright who had done certain repairs on the vessel at the
request of the mortgagor, who had been allowed to be in the posses-
sion and apparent ownership. The defendant claims a lien upon the
ship for the price of these repairs : and I am of opinion that that claim
is well founded. There is, it seems, no authority to be found bearing
on the question, though I presume it must have arisen many times.
I should rather expect that it had never been made the subject of liti-
gation because the right of lien has always been admitted to attach.
I put my decision on the ground suggested by Mr. Mellish, viz. that the
mortgagee having allowed the mortgagor to continue in the apparent
ownership of the vessel, making it a source of profit and a means of
earning wherewithal to payoff the mortgage-debt, the relation so created
82 ORDINARY BAILMENTS.
by implication entitles the mortgagor to do all that may be necessary
to keep her in an efficient state for that purpose. The case states that
the vessel had been condemned as unseaworthy by the government
surveyor, and so was in a condition to be utterly unable to earn freight or
to be an available security or any source of profit at all. Under these
circumstances, the mortgagor did that which was obviously for the
advantage of all parties interested : he puts her into the hands of the
defendant to be repaired; and, according to all ordinary usage, the
defendant ought to have a right of lien on the ship, so that those who
are interested in the ship, and who will be benefited by the repairs,
should not be allowed to take her out of his hands without paying for
them. The 70th section of the Merchant Shipping Act, 17 & 18 Vict,
c. 104, does not appear to me at all to interfere with this view. It does
not to my mind establish the right of the mortgagee to the possession
of the ship, or negative the lien of the person doing the repairs. That
section enacts that " a mortgagee shall not by reason of his mortgage
be deemed to be the owner of a ship or any share therein, nor shall
the mortgagor be deemed to have ceased to be the owner of such
mortgaged ship or share, except in so far as may be necessary for making
such ship or share available' as a security for the mortgage-debt." The
implication upon which I found my judgment is quite consistent with
that provision. The vessel has been kept in a state to be available as
a security to the mortgagee, by her destruction being prevented by the
repairs which the defendant has done to her. I think there is nothing
in the 92d section to affect this question. There is, no doubt, some diffi-
culty in the case. But it is to be observed that the money expended in
repairs adds to the value of the ship ; and, looking to the rights and
interests of the parties generally, it cannot be doubted that it is much
to the advantage of the mortgagee that the mortgagor shall be held to
have power to confer a right of lien on the ship for repairs necessary to
keep her seaworthy. For these reasons, I am of opinion that the defend-
ant is entitled to judgment.
[Other opinions omitted.] Judgment for the defendant.
SARGENT V. USHER.
55 N. H. 287; 20 Am. R. 208. 1875.
[Action of trover for two horses, brought to the plaintiff's barn in
Nashua, N. H., by one Robinson, and there kept and cared for by
plaintiff under a contract with said Robinson, until they were seized
and taken from plaintiff's possession by defendant claiming right of
possession as mortgagee under a chattel mortgage previously given on
LIEN. 83
the same horses by Robinson while he had them in his possession at
Maiden, Mass., the mortgage being there duly recorded. Plaintiff
claimed that he was entitled to a lien on the horses for their keep, by a
statute referred to in the court's opinion. There was a verdict for
plaintiff. Case reserved for opinion of the court on exceptions.]
Ladd, J. The general property in the horses, carrying with it the
Tight of possession, was in the defendant by virtue of the mortgages,
subject of course to the right of redemption in Robinson — Leach v.
Kimball, 34 N. H. 568, Brackett v. BuUard, 12 Met. 308, 4 Kent's Com.
138, and Bank v. Jones, 4 N. Y. 497 ; and it is clear that, so far as
regards any supposed power of the mortgagor to defeat this right of
possession, and, in effect, abrogate this right of property by subjecting
it to a lien, he stands in no different position from that of a bailee. The
only question in the case, then, appears to be, whether the statute
giving them a lien for the agisting of cattle, &c., is capable of such a
construction as will permit any one having in his possession the animals
of another to subject them to a lien for their keeping as against the
owner, without his knowledge, acquiescence, or consent, express or
implied. And I am of the opinion that it is not.
The act provides that ''any person, to whom any horses, cattle,
sheep, or other domestic animals shall be entrusted to be pastured or
boarded, shall have a lien thereon for all proper charges due for such
pasturing or board, until the same shall be paid or tendered." Gen.
Stats., ch. 125, § 2.
Now, if the whole construction of this act be made to turn on the
word "entrusted," it undeniably follows that it makes no difference
how the person entrusting animals to be boarded or pastured came
by them, nor what his right to them is. A thief, a bailee, and an abso-
lute owner are in this respect all put on the same footing. A sale of
stolen goods by the thief passes no title against the owner, and the same
is in general true with respect to a sale by a bailee, unless he has been
so clothed with the indicia of title by the owner, or held out as author-
ised to sell in such way that the loss ought by reason of his own acts
to fall upon the owner rather than on an innocent purchaser. The
maxim. Nemo plus juris in alium transferre potest quam ipse habet, is
one of very general application, and the rule in this country, to which
of course there are exceptions, is, that the title of the true owner can-
not be lost without his own free act and consent. 2 Kent's Com. 324 ;
Kingsbury v. Smith, 13 N. H. 109 ; Hyde v. Noble, 13 N. H. 494 ; Far-
lay V. Lincoln, 51 N. H. 580 ; — and see quite a forcible discussion of
the whole subject by Senator Verplanck, in Saltus v. Everett, 20 Wend.
267.
The idea that a lien may be created by a contract of the possessor
of animals for their keeping, the owner being in no way privy to such
contract, when no rights whatever, as against the owner, could be
conferred or created by a contract of sale, seems anomalous, to say the
84 ORDINARY BAILMENTS.
least. Such a thing would, as it seems to me, be a violation of the fun-
damental rights of property guaranteed by the constitution ; and if the
legislature had undertaken by this act to create a lien, to arise on such
a state of facts, I think it would be the duty of the court, as more than
intimated by Foster, J., in Jacobs v. Knapp, 50 N. H. 82, to hold the-
act, so far, unconstitutional and void.
But I do not think any such intention is to be found in the statute.
In giving this specific lien I think the legislature used the word in its.
legal and generally accepted sense, and that implies some privity be-
tween the owner, or person having the right of disposing of the goods,
and him in whose favour the lien is claimed ; and that by "entrusted"
is meant entrusted by the owner or other person having authority to
pledge the animals for such a purpose, — that is, to suspend the owner's
right of possession until the charges are paid.
Cases where it has been held that a common carrier, who innocently
receives goods from a wrongdoer, without the consent of the owner,
express or implied, has no lien upon them for their carriage as against
such owner, seem to cover the whole ground and more. 2 Redf . Railw.
171 ; Robinson v. Baker, 5 Cush. 137 [852] ; Stevens ». B. & W. Rail-
road, 8 Gray 262. The recent English case of Threfall v. Boswick, Law
Rep., 7 Q. B. 711 [subsequently affirmed in Exchequer Chamber, L. R.
10 Q. B. 210], has reference to an innkeeper's lien, and, in my judg-
ment, is not applicable to the case before us here.
The whole reasoning of Foster, J., in the carefully considered opinion
of the court delivered by him in Jacobs v. Knapp, is against the position
of this plaintiff ; and that case must, as it seems to me, be regarded as
quite a direct authority upon the question raised in the present.
Upon these views it is obvious that the plaintiff is not entitled to
recover, upon the facts stated in the case ; and the ruling and charge
of the court, under which his right to recover was made to depend
upon whether or not the horses were entrusted to him to be boarded,
without reference either to the defendant's right and interest in them
as mortgagee, or the nature and extent of Robinson's right and title,
cannot be sustained.
[Other opinions omitted.] Judgment for the defendant.
CASE V. ALLEN.
21 Kan. 217 ; 30 Am. R. 425. 1878.
Replevin, brought by Allen, against R. Case, to recover possession
of certain cattle. R. Case died before a trial was had, and F. S. Case,
his administrator, was substituted in said cause. The district court,
at April Term, 1877, gave judgment in favour of plaintiff, and Case,
LIEN. 85
defendant, brings the ease here on error. The facts are fully stated
in the opinion, infra.
Brewee, J. October 25, 1875, one Forseman sold certain cattle
to P. S. Roberts, and, to secure the payment, took a chattel mortgage
on the cattle. This mortgage was filed for record in the office of the
register of deeds of Morris county, November 2, 1875. The stipula-
tion in the mortgage was: —
" That if default shall be made in the payment of said sum of money,
or any part thereof, or of the interest due thereon at the time or times
when by the condition of said obligation the same shall become payable,
or if the said party of the second part shall at any time deem himself
insecure, then and thenceforth it shall be lawful for the said party of the
second part, his executors, administrators or assigns, or any authorised
agent, to enter upon "the premises of the said party of the first part, or
any other place or places where said goods and chattels aforesaid may
be, to remove and dispose of the same, and all the equity of redemp-
tion of the said party of the first part, at public auction or at pri-
vate sale, to the person or persons who shall offer the highest price for
the same. After satisfying the aforesaid debt and interest thereon,
and all the necessary and reasonable costs, charges, and expenses in-
curred, including reasonable attorneys' fees, out of the proceeds of said
sale, he shall return the surplus to the said party of the first part, or his
legal representatives ; and if from any cause said property shall fail to
satisfy said debt and interest aforesaid, said party of the first part
hereby agrees to pay the deficiency ; and until default be made, as afore-
said, or until such time as the said party of the second part shall deem
himself insecure, as aforesaid, the said party of the first part shall con-
tinue in the peaceable possession of all the said goods and chattels, all
of which, in consideration thereof, he engages shall be kept in as good
condition as the same now are, and taken care of at his proper cost and
expense."
Roberts, during November (the exact time in the month not appear-
ing), turned the cattle over to defendant in error to winter, at an agreed
price of five dollars per head. Defendant in error was a farmer, and
engaged in the business of pasturing and feeding cattle. He kept the
cattle until spring, under such contract. In the spring, Forseman, the
mortgagee, indorsed the notes and assigned the mortgage securing them,
to the intestate of plaintiff in error, who immediately took possession
of the cattle without paying for their wintering. Defendant in error
thereupon commenced this action. Upon the trial the district court
instructed the jury that —
" If they found from all the evidence that said Roberts, after making
said chattel mortgage, turned over said Allen said cattle to winter, and
agreed to pay him for such wintering the sum of five dollars per head,
and that said Allen did take possession of said cattle and winter the
same in accordance with his contract, then he would be entitled to a
86 ORDINARY BAILMENTS.
lien upon said cattle for the amount due him for the wintering and
keeping the same, and would be entitled .to the possession of the same
until such lien was satisfied ; and if they so found, and further found,
that Allen has never been paid the amount due for such wintering
and keeping, and that he did not willingly give up the possess^ion of the
same, but that the same were forcibly taken from his possession without
his consent by the said R. Case, he would be entitled to recover in this
action — unless, however, they found that Allen looked to Roberts
alone for his pay, and not to the cattle. But any agreement between
Roberts and Forseman, that Roberts should keep said cattle without
expense to him (Forseman), would not be binding upon Allen unless
he knew of such agreement, and assented thereto."
This instruction presents the substantial question in the case. By
it the lien -of the mortgage was subordinated to the lien of the agister.
Was this error ?
-All parties were residents of Morris county, and chargeable with notice
of the chattel mortga,ge from the time of filing ; to wit, November 2,
1875. The lien of the mortgagee was prior in time, was created by
contract, while that of the agister, later in time, arises out of the statute.
Though the amount in controversy is small, yet the. question is of some
importance. It affects a great many of the smaller transactions of busi-
ness. A buggy is taken to a shop for repairs ; a horse is driven to a
livery stable and left over night ; a traveller brings his trunk and stops
at a hotel : in all these cases a lien is given by statute. Suppose a prior
chattel mortgage exists : must the statutory lien give way to the prior
contract lien ? Must a mechanic, a livery stable or hotel keeper, al-
ways examine the register's office to see whether there be a chattel mort-
gage upon the property before receiving it for repairs or keeping ? But
the question is not free from difficulty ; for can the value of a contract
lien be diminished by any act of the promisor ? Can he who has prom-
ised that the property shall to the extent of its value be security to the
mortgagee for a certain debt, subsequently cast upon it a lien which shall
take precedence of his prior contract, and to that extent diminish the
value of the mortgagee's security ? It will be conceded that no subse-
quent contract lien can be placed upon the property to take precedence
of the prior chattel mortgage, and to that effect is the case of Bissell v.
Pearce, 28 N. Y. 252. But we think that the district court rightly held
that the agister's lien was paramount to the mortgage. The express
stipulation in the mortgage, that the keeping of the mortgaged property
should be at the expense of the mortgagor, is no more than the law
would imply in the absence of any express agreement. The mortgagor
retaining possession must of course pay the expenses of the keeping.
He is not simply an agent of the mortgagee. He can make no contract
on behalf of, or which will create any liability against, the mortgagee :
he acts on his own behalf. He is the owner, with the duties of owner
and the powers of owner, except as limited by the restrictions of the
LIEN. 87
mortgage. Unless the mortgagee, by express contract, assumes the
expense of the keeping of the property, it rests upon him.
Now the Hen of the agister is not the mere creature of contract :
it is created by statute from the fact of the keeping of the cattle. The
• possession of the agister was rightful, and the possession being rightful,
the keeping gave rise to the lien ; and such keeping was as much for the
interest of the mortgagee as the mortgagor. The cattle were kept
alive thereby; and the principle seems to be, that where the mort-
gagee does not take the possession, but leaves it with the mortgagor, he
thereby assents to the creation of a statutory lien for any expenditure
reasonably necessary for the preservation or ordinary repair of the
thing mortgaged. Such indebtedness really inures to his benefit.
The entire value of his mortgage may rest upon the creation of such in-
debtedness and lien, as in the case at bar, where the thing mortgaged
is live stock, and the lien for food.
And while it seems essential that this should be the rule, to protect
the mechanic or other person given by statute a lien upon chattels for
labour or material, the rule, on the other hand, will seldom work any
substantial wrong to the mortgagee. The amount due under such
liens is generally small — a mere trifle compared with the value of the
thing upon which the lien is claimed. The work or material enhances
or continues the value of that upon which the work is done or to which
the material is furnished ; and the mortgagee can always protect him-
self against such liens, or, at least, an accumulation of debt thereon,
by taking possession of the chattel mortgaged.
Authorities directly in point are perhaps few, yet the following seem
to bear more or less directly on the question : in Johnson v. Hill, 3
Starkie, 172, it appeared that one who had obtained wrongful posses-
sion of a horse took it to a livery stable keeper, and left it, and it was
held that a lien existed in favour of the latter against the owner. In
Williams v. Allsup, 100 Eng. C. L., p. 416 [81], a shipwright who, had
done repairs on a vessel at the instance of the mortgagor, was given a
lien paramount to that of the prior mortgage ; and the same conclusion
was reached in the case of Scott, et al., v. Delahunt, 5 Lansing, 372,
in which the court, referring to and distinguishing the case of Bissell v.
Pearce, supra, uses this language: —
"The decision in that case is no authority against the rights of the
plaintiffs to enforce their lien which the law gives, and which does not
rest in contract with the mortgagor. I am clearly of the opinion, in a
case like this, where the repairs are necessary for the preservation of the
property, and the law gives the lien, the mechanic may lawfully retain
possession and enforce his lien by action if the charges for repairs are
not paid, even against a mortgagee claiming under a prior mortgage."
In the late work of Herman on Chattel Mortgages, p. 308, the author
says : —
" Where the owner of a mortgaged chattel places it in the hands of
88 ORDINARY BAILMENTS.
a mechanic for repairs which are necessary to put it in condition for use,
and the mechanic retains possession until his charges are paid, his Hen
is prior to and can be enforced against the mortgage, if the mortgage
becomes due before the repairs are made and possession retained by the
mechanic, where the mortgagee has never taken possession under his
mortgage."
And in Brown's Admiralty, p. 204, in the case of "The St. Joseph,"
Mr. Justice Withey thus states the law in reference to maritime liens : —
"Strictly maritime liens have always held priority over mortgages,
without reference to the period of time when they accrued, on the ground
that it is as much for the interest of the mortgagee as for the owner
that the ship should be kept in repair and supplied, to enable her to
keep afloat and be in receipt of earnings ; thus adding to the value of
the mortgage security, as well as to the ability of the mortgagor or owner
to pay the mortgage."
See also Brown v. Holmes, 13 Kas. 492 ; Colquitt, et al., v. Kirkman,
47 Ga. 555.
It is probable that the amount of the agister's lien, as against the
mortgagee, would be fixed, not by the contract with the mortgagor,
but by the reasonable value of the services. Still, we think this presents
no ground for disturbing the judgment, for the plaintiff testified that
he considered the services worth the contract price, and there was no
testimony to the contrary, and the attention of the court was not called
to the matter, and the exception is to the charge of the court as a whole,
and not to any specific portion of it. A similar answer is good to the
objection that plaintiff was not engaged in the business of feeding and
taking care of cattle, within the scope of the statute giving to such
parties a lien.
The testimony does not leave it clear in our minds how many cattle
were in fact wintered; but still there was testimony from which the
jury might find the amount they did in fact find, and we cannot say
that they erred. Upon the whole record, we see no error.
The judgment will be affirmed.
SMALL V. ROBINSON.
69 Maine, 425 ; 31 Am. R. 299. 1879.
Appleton, C. J. This is an action of replevin for a pair of wheels
and other parts of a hack, upon which the defendant claims a lien, by
reason of work done by him upon them.
The plaintiff is the owner of the hack. It was left for repairs by one
Staples, who was in possession under a contract of purchase, the terms
LIEN. 89
of which were unperformed. The defendant was aware of the plain-
tiff's title. The presiding justice found that the plaintiff had never
given Staples any authority to subject the hack to a lien for repairs,
and ruled that no such authority was to be implied, as a matter of law,
from the relation of the parties.
"A lien," observes Shaw, C. J., in HoUingsworth v. Dow, 19 Pick.
228, "is a proprietary interest, a qualified ownership, and, in general,
can only be created by the owner, or by some person by him author-
ised." Here the fact of authority is negatived. The plaintiff never
became the debtor of the defendant, and never authorised the imposition
of any lien on his property. Globe Works «. Wright, 106 Mass. 207.
A mortgagor of horses cannot, without the knowledge, acquiescence, and
consent of the mortgagee, entrust the horses to be boarded so as to sub-
ject them to a lien for keeping, as against the mortgagee. Sargent v.
Usher, 55 N. H. 287 [82]. Gushing, G. J., in the case last cited, says,
" I have seen no case in which it has been held that a party who permits
another to have possession of his personal property, by so doing, in law
constitutes that other his agent to sell or pledge the property." So a
bailee can give no lien upon property bailed, as against the owner. Gib-
son V. Gwinn, 107 Mass. 126.
The defendant could acquire no title from Staples, when he had none.
The exceptional case of the innkeeper rests upon the principle that
as he is by law bound to receive a guest and his goods, and might be
liable to indictment for not so receiving them, he shall have a lien on
such goods as he is bound to receive, whether owned by his guest or not.
Exceptions overruled.
SENSENBRENNER v. MATHEWS.
48 Wis. 250 ; 3 N. W. R. 599 ; 33 Am. R. 809. 1879.
[Action of replevin for a buggy on which plaintiff, a blacksmith,
claimed a lien for work done upon it, against defendant, who, as officer,
was alleged to have wrongfully taken the buggy out of the possession
of plaintiff under a writ of replevin issued at the suit of one Henry,
who claimed to be the real owner by purchase from one Maxwell. Judg-
ment was for the defendant, and the plaintiff appeals.]
Ryan, G. J. The shops of the appellant, Schweitzer and Maxwell,
although in the same building, were held by them respectively in
severalty ; and the right of way of Maxwell, although passing through
the shops of the appellant or Schweitzer, was part of his holding and used
by him of his own right.
The buggy belonging to Maxwell was delivered to him through the
right of way by the appellant, after it had been ironed by the latter.
90 OKDINAKY BAILMENTS.
It was delivered with the expectation that it should be painted by Max-
well ; but Maxwell owed no duty, either to Schweitzer or the appellant,
to paint it. The delivery was unconditional, and the buggy must be
taken to have been delivered to Maxwell in his right as owner of it.
This delivery operated as an absolute waiver of all lien of the appel-
lant for ironing the buggy. The essence of lien, in such cases, is posses-
sion. Lien cannot survive possession ; and except in case of fraud, and
perhaps mistake, such a lien cannot be restored by resumption of pos-
session. "Lien is a right to hold possession of another's property for
the satisfaction of some charge attached to it. The essence of the
right is possession ; and whether that possession be of officers of the law
or of the person who claims the right of lien, the chattel on which the
lien attaches is equally regarded as in the custody of the law. Lien is
neither a jiis ad rem nor a jus in re, but a simple right of retainer."
3 Parsons' Cont. 234.
" The voluntary parting with the possession of the goods will amount
to a waiver or surrender of a lien ; for, as it is a right founded upon
possession, it must ordinarily cease when the possession ceases."
Story's Ag., § 367.
As this disposes of the lien set up by the appellant to support thi»
action, it is immaterial how the respondents came into possession. In
replevin, a plaintiif recovers on his own right of possession, not on the
weakness of the defendant's right.
By the Court. — The judgment of the court below is affirmed.
DOANE V. RUSSELL.
5 Gray (Mass.) 382. 1855.
Action of tort for the conversion of a wagon. Trial in the court of
common pleas, before Hoar, J.
The plaintiff claimed title as assignee in insolvency of Lemuel T.
Starkey, and offered in evidence an assignment to him of all Starkey's
property, purporting to be executed by "Joshua C. Stone, commissioner
in insolvency" for the county of Bristol. The defendant objected to
its admission, without proof that proceedings in insolvency had been
commenced, and that Stone had been legally appointed commissioner.
But the objection was overruled, and the paper admitted.
The evidence tended to show that Starkey left the wheels and shafts
of a wagon with the defendant, to be repaired, and a body made and
put upon them ; that the defendant did the work, as directed, and gave
Starkey notice in writing of the amount of his bill, and that he should
sell the wagon by public auction at a place and hour named, a week
LIEN. 91
after the notice, for the purpose of defraying said bill, and of perfecting
his lien, unless the bill should be previously paid ; and that he sold the
wagon pursuant to this notice.
The defendant requested the judge to instruct the jury " that a me-
chanic, for additions to or services upon personal property, has a right,
on giving due and reasonable notice to the owner, to sell the same, to
perfect his lien." But the judge refused so to instruct the jury ; and
instructed them "that the defendant would have no right to sell said
property, unless upon a contract, express or implied ; and that the sale
was a conversion."
The jury returned a verdict for the plaintiff, and the defendant
alleged exceptions.
Shaw, C. J. The assignment to the plaintiff was properly admitted.
No evidence of the commencement of proceedings in insolvency was
necessary, for the assignment is made, by St. 1838, c. 163, § 5, conclu-
sive evidence of the authority of the assignee to sue. And the signa-
ture, purporting to be the ofScial signature of a commissioner of insol-
vency to an instrument which he was empowered by law to execute,
proves itself, in the absence of opposing evidence.
The more interesting question is, whether the defendant, holding a
mechanic's lien on the wagon, for the payment of his work and mate-
rials, had a right, upon notice, and in case the bill was not paid in a
reasonable time, to sell the wagon, and deduct his pay from the pro-
ceeds. If he had not, then the act of sale, being an abuse of his right
of possession, and an unwarrantable exercise of dominion over the
property, especially of such a character as to put it out of his power to
surrender the chattel, on demand, accompanied with payment or tender
of his bill, would in law amount to a conversion. If he has such right,
trover would not lie, and he would be responsible in assumpsit only for
the balance of the proceeds of the sale, if any.
We have no case in Massachusetts in which this point has been
directly decided. The general impression, we think, has been that the
party having such lien for his work and materials has no legal right
to sell the chattel for his reimbursement. The general language of
the books, in describing such lien, favours this impression. It is a right
" to retain," " to keep possession of," " to detain," &c., until he is paid.
Such a right is said to be a personal right to detain, in contra-distinc-
tion to an interest in the property ; and if the party parts with the
article, by a pledge, sale, or otherwise, he loses his lien. Hence the
distinction between such a lien for work and materials, as given by
what was anciently called the custom of the realm, or now the
general law, and an express pawn or pledge of goods by the owner,
as collateral security for a loan of money. In the latter case, it is
now held that when the debt has become due, and remains unpaid,
the creditor, after a reasonable time, may sell the pledge ; but other-
wise when there is a mere lien, as in the case of mechanics, innholders
92 OHDINAEY BAILMENTS.
and others, by custom. And we think this distinction and these rules
are well established by authorities.
In the case of Pothonier v. Dawson, Holt N. P. 383, before Chief
Justice Gibbs, he says : " Undoubtedly, as a general proposition, a right
of lien gives no right to sell the goods. But when goods are deposited,
by way of security, to indemnify a party against a loan of money, it is
more than a pledge." He places it on the ground of an implied author-
ity, arising from the nature of the transaction, that the pledgee, after
due notice, shall have a power to sell the goods and reimburse himself.
The latter point has been held in this and other American states.
Parker v. Brancker, 22 Pick. 40 ; Hart «: Ten Eyck, 2 Johns. Ch. 100.
The case in Holt, in which it was laid down as the general rule that
a lien gives no right of sale, was a nisi prius case ; but it was stated,
by a very eminent judge, as a rule well established, and has been cited
with approbation since.
In Jones v. Pearle, 1 Stra. 557, it was held that, except by the custom
of London, an innkeeper had no right to sell horses on which he had a
lien for their keeping.
So it is stated by Mr. Justice BuUer, in his celebrated judgment in
Lickbarrow v. Mason, reported in a note to 6 East, 21. Having de-
scribed a lien to be a qualified right which, in given cases, may be
exercised over the property of another, and illustrating the distinc-
tion between the owner of property and one having a lien on it, he says,
that the former may sell or dispose of the goods as he pleases ; " but he
who has a lien only on goods has no right so to do ; he can only retain
them till the original price be paid." This is no judicial decision;
but it is a statement of what the law was understood to be by a judge
of great authority, and stated as a point so clearly settled and under-
stood that it was used by way of illustration of a principle less clear.
But even in case of a pledge, as security for a debt, the property is not
divested ; the general property remains in the pledgor ; it is a lien with
a power of sale superadded ; but, till the rightful execution of the power,
the general property is not divested. Walter v. Smith, 5 B. & Aid. 439.
These general doctrines are well stated, and the authorities reviewed,
in Cortelyou v. Lansing, 2 Caines Cas. 200.
We think the rule is generally stated by the text writers, that a party
having a lien only, without a power of sale superadded by agreement,
cannot lawfully sell the chattel for his reimbursement. It is so stated
in 1 Chit. Gen. Pract. 492 ; and he advises carriers and others, entitled
to a lien, to obtain an express stipulation for a power of sale in case the
lien is not satisfied. 2 Kent Com. (6th ed.) 642. Cross on Lien, 47.
Woolrych on Com. & Merc. Law, 237. The language of the learned
American commentator, in summing up his article on lien, is this :
"I will conclude with observing that a lien is, in many cases, like a
distress at common law, and gives the party detaining the chattel the
right to hold it as a pledge or security for the debt, but not to sell it."
LIEN. 93
If it be said that a right to retain the goods, without the right to sell,
is of little or no value, it may be answered that it is certainly not so
adequate a security as a pledge with a power of sale ; still, it is to be
considered that both parties have rights which are to be regarded by
the law; 'and the rule must be adapted to general convenience. In
the greater number of cases, the lien for work is small in comparison
with the value, to the owner, of the article subject to lien ; and in most
cases it would be for the interest of the owner to satisfy the lien and
redeem the goods ; as in the case of the tailor, the coachmaker, the inn-
keeper, the carrier, and others. Whereas, many times, it would cause
great loss to the general owner to sell the suit of clothes or other articles
•of personal property. But further, it is to be considered that the secur-
ity of this lien, such as it is, is superadded to the holder's right to re-
cover for his services by action. And if the transaction be a large one,
and of such a character as to require further security, it may be pro-
vided for by an express stipulation for a power of sale, under such
limitations as the particular circumstances of the case may indicate
as suitable to secure the rights of all parties concerned.
Under the circumstances of the present case, the court, without stop-
ping to consider whether the notice to the general owner was reason-
able and sufficient or not, are of opinion that the defendant had no
legal right to sell the wagon; that by the wrongful sale and parting
with the possession, he lost his lien ; that the owner's general property
in the wagon remained unchanged ; that this property, upon proceed-
ings being taken against the owner as an insolvent debtor, and a regu-
lar assignment of the property, passed to the plaintiff as assignee;
that this action can be maintained, and that the directions of the judge
at the trial were right.
Exceptions overruled.
LAMBERT v. NICKLASS.
45 W. Va. 527 ; 72 Am. St. R. 828. 1898.
Brannon, p. Lambert kept a horse and buggy for Brown, claiming
a lien for the keeping, refusing to let Brown take them without pay-
ment. Brown agreed that they should stand good for their keeping.
Brown became insolvent and assigned for the benefit of creditors, but
did not include this property in his assignment. Lambert sued for
keeping the property, levied an attachment on it, the officer leaving it
in his possession. The attachment was quashed, but personal judgment
■was rendered for the debt. Afterward, Nicklass Brothers & Co. levied
an execution against Brown on the property, and Lambert procured an
94 ORDINARY BAILMENTS.
injunction against selling, and the court held that Lambert had no lien,
dissolved the injunction, and gave the execution preference over Lam-
bert's lien, and Lambert appealed.
Lambert claims a lien for keeping a horse and buggy at his stable
belonging to Brown, under section 15, chapter 100, of the code, that
"persons keeping live stock for hire shall have the same rights and
remedies for the recovery of their charges therefor as innkeepers have."
It is questioned by counsel whether Lambert ever had any lien. Coun-
sel say that agisters and liverymen have no lien at common law, as is
true : 13 Am. & Eng. Ency. of Law, 1st ed., 943. They say that an
innkeeper has a lien on the goods of his guest, as he has sole and exclu-
sive possession, not concurrently with the owner ; but that one who
merely feeds and takes care of a horse has not sole possession, but one
concurrent with the possession of the owner; that only exclusive
possession gives a lien. Now, I see little difference as to possession.
The transient guest sometimes takes his horse and uses him during his
stay at the inn, as dbes one who merely keeps his horse at the stable.
It is the keeping the guest and the keeping the horse that gives rise to
the lien, not alone possession, that being only the means of enforcing
pay. It is very plain to me that the statute intended to remedy the
defect of the common law, and give any one keeping live stock for
compensation a lien for such compensation — a lien like that of the
innkeeper. Of course, it does not mean one who keeps stock to be
hired, as there the compensation goes to the other party for use of the
stock ; but it means to give a lien to any one who, for hire or compen-
sation, keeps stock. Lambert clearly had a lien.
But it is said Lambert waived or forfeited his lien by bringing action
for the same demand before a justice, and levying an attachment upon
the property. First, it is argued that judgment in this action merged
and destroyed the lien. Judgment does merge the cause of action, so
that it cannot be sued on again ; but I understand that in law the debt
is one thing and its lien on given property another thing, and that judg-
ment does not destroy the lien. The creditor may enforce both, and
his election of one does not exclude the other as a remedy. "Though
the debt is merged in the judgment, its nature is not destroyed or
affected ; and if the debt was one for which a lien was given at common
law or by statute, the lien continues after judgment " : 1 Jones on Liens,
§ 1032a.
But it is claimed with more confidence by counsel for appellees that
the lien given by this statute is like that given an innkeeper by common
law, and that, as loss of possession destroys the innkeeper's lien, so the
levy of the attachment took away from Lambert the possession, and gave
the officer possession, and thus lost Lambert's lien. There is quoted to
us the passage from Jones on Liens, § 1014, saying: "An attach-
ment of goods by one who claims a lien on them, to secure the same debt
for which the lien is claimed, is a waiver of the lien. The attachment
LIEN. 95
is, in effect, an assertion that the property belongs to the defendant.
Having made the attachment, he is estopped from afterwards assert-
ing the contrary." Also Herman's Law of executions, § 172,
saying : " Taking property in execution at the suit of a party having a
lien thereon destroys the lien by changing the possession from the
bailee to the officer, though the property is left with the party. The
possession must of necessity vest in the officer in order to enable him to
sell the property." And citations from 13 American and English Ency-
clopedia of Law, 586, and Jones of Liens, § 328, to the effect that
a carrier's lien is lost by his attaching property. As to the clause from
Jones, that "the attachment is an assertion that the property belongs
to the defendant," I will say that there is no force in it, because by claim-
ing a lien the plaintiff asserts that it belongs to the defendant as much
as by attaching it. He asserts the same thing by both lien and attach-
ment, and no estoppel can, therefore, be based upon any contradiction
between the two. Very little authority is cited for the above-cited doc-
trine ; the same is cited for all the propositions above given. Regard-
ing it unreasonable, I have sought to trace its origin, and find it in an
English decision in 1828 (Jacobs ■». La tour, 5 Bing. 130), holding that
where one entitled to a lien as stable keeper and trainer sued and sold
and bought the horses under execution, he could claim, in trover against
him by an assignee in bankruptcy, only under the execution, not under
his lien, his lien being waived by the execution. Legg v. Willard, 17
Pick. 140, 28 Am. Dec. 282, seems to hold that when one has a lien,
and attaches for the same debt, his lien is gone ; but it is a mere asser-
tion, and no discussion of any authority. Wingard v. Banning, 39 Cal.
543, is cited for the proposition ; but there the affidavit declared the
creditor had no lien, which was an express renunciation of it. It seems
only three out of five judges concurred in the opinion. In Arendale v.
Morgan, 5 Sneed, 703, the question is considered, and the court refused
to follow that doctrine, and held that where one has property in pledge
for debt, and parts with possession with intent to abandon the lien,
as if he agrees that it be attached at the suit of a third person, it is gone ;
but not so where he attaches for his own debt. This is the true posi-
tion.
To sustain this loss of lien we must place it on one or the other of
two ideas — intentional waiver, or from loss of possession. As to the
first, authority is abundant to show that one will not be held to waive
a lien unless the intent be express or very plain and clear. The presump-
tion is always against it. Merely taking a new security does not:
Bansimer v. Fell, 39 W. Va. 448; Hopkins v. Detwiler, 25 W. Va. 734,
748; Hess v. Dille, 23 W. Va. 97. So with the innkeeper's lien: 11
Am. & Eng. Ency. of Law, 49.
And as to the loss of lien by loss of possession : An innkeeper having
a lien hsts no right to sell the property without a judicial proceeding.
If he does, he is liable to an action of trover for its unlawful conversion,
yb ORDINARY BAILMENTS.
besides losing his lien. His only remedy is to hold it till payment. Un-
reasonable this is ; but, where no statute can be found providing for
a sale, it is so, by much authority : 11 Am. & Eng. Eiicy. of Law, 1st
ed., 46; Jones on Liens, § 523. In fact, on the mere strength of
lien, he can sue neither at law nor inequity, if there is no statute to allow
it. It is different from a pledge or pawn : 13 Ency. of PI. & Pr. 127 ;
1 Jones on Liens, §§ 1033, 1038. The horse is in the innkeeper's
stable, eating its head off, and he has no remedy. Suppose, however,
by reason of non-residence or other cause, the innkeeper can sue out
an attachment, why shall he not do so ? He is not thus waiving, but
enforcing, his lien. Why it should be said that, when the officer levies
on the property to enforce this lien, the innkeeper loses his lien because
he gives up possession, I cannot see. The officer is his agent for this
purpose. To say so is technical in the highest degree, and defeats jus-
tice. The innkeeper is not surrendering possession to the owner, nor
to an officer acting in furtherance of his demand. He could bring a
suit, as shewn above, without forfeiting his lien ; and by resorting to
an attachment he simply availed himself of a fact giving him the right
to attachment to enforce a debt for which there was a lien, using a cumu-
lative remedy. Houck on Liens, § 6, says, "If possession is re-
linquished after the lien attaches, the lien is gone ; for, by parting with
possession, the creditor shows that he trusts to the personal credit of
the debtor"; and cites numerous authorities. This is so where he lets
the owner or an officer under process for debts of others have posses-
sion. Then you can fairly say that he looks to the debtor only ; and
that, as Houck says, is the reason why surrender of possession destroys
the lien. But how can we say that Lambert intended to look to the
personal credit of Brown by an act which told the very reverse, and told
that he looked to the property for pay, not to Brown ? Furthermore,
Brown expressly pledged the horse to Lambert for his keep. Lambert
could sell it as a pawn. This he could do by agent, and the agent's
possession would be his. Is the officer anything but his agent? He
is responsible for the officer's trespass, because he acts for him. Judge
Story condemns this doctrine as not well established, and says the
Massachusetts ruling was local to that state : Story on Bailments,
§ 366. In Townsend v. Newell, 14 Pick. 332, one had goods, with
right to lien, and an attachment was levied in favour of a creditor, and
he refused to give them up, but kept possession, and gave a receipt to
the officer for them. Later he levied an attachment for his own lien
debt, still retaining possession, but receipting to the officer for the goods.
It was held that the lien was not lost. There, as in this case, the officer
let the lien owner keep the goods in his custody. In that case, it is
true, he expressly claimed his lien; but who imagines that Lambert
intended to give up his lien ? His attachment itself speaks the negative.
In that case, after levy, it was as much the officer's possession as in
this, and the court did not give it the force of forfeiture of lien, but
LIEN. 97
said, as the party did not intend to surrender it, it still held good. There
is no evidence that Lambert intended to give up his lien, and if it stands
on intention, and not on loss of possession, he who asserts such inten-
tion must make it clear. In Whitaker v. Sumner, 20 Pick. 399, where
one having a pledge allowed a levy for a debt once owned by him and
debts of strangers, he was held to have lost the lien ; but Chief Justice
Shaw was careful to say, " We would not be understood hereby to hold
that an attachment under all circumstances, though made by the party
holding the pledge, or by his consent, would be a waiver of the lien."
I have not said anything about jurisdiction in equity, as the question
was not raised or discussed.
Decree reversed, and the case is remanded, with direction to the cir-
cuit court to enter a decree allowing Lambert's debt as a lien, to be
paid out of the proceeds of the property, in preference to the execution
of Nicklass Brothers & Co.
98 PLEDGES.
II. PLEDGES.
1. POSSESSION ESSENTIAL.
WILSON V. LITTLE.
2 N. Y. (Comst.) 443 ; 51 Am. D. 307. 1849.
Appeal from the superior court of the city of New York where
James Wilson brought an action on the case against Jacob Little and
others for wrongfully selling fifty shares of stock in the New York and
Erie Rail-Road Company. The cause was tried before Sandford, J.,
in December, 1847, and the plaintiff had a verdict for $4000 damages,
subject to the opinion of the court on a case to be made, with liberty
to either party to turn the case into a bill of exceptions. The amount
of the verdict, if the plaintiff was entitled to recover, was also subject
to adjustment by the court. On a case being made, the superior court
deducted from the verdict the amount of the debt to secure which the
stock in question had been pledged to the defendants, and gave judg-
ment in the plaintiff's favour for $2609.05, damages and costs of suit.
The case having been turned into a bill of exceptions, the defendants
appealed to this court. The facts are sufficiently stated in the opinion
of the court.
RuGGLES, J., delivered the opinion of the court. This was an action
for wrongfully selling fifty shares of Erie railroad stock, which the
defendants Little & Co. had received in security for a loan of $2000
made by them to Wilson, through the agency of R. L. Cutting, a broker.
The contract in writing was in these words : —
" New York, Dec. 20, 1845.
"S2000. I promise to pay Jacob Little or order two thousand dollars,
for value received, with interest at the rate of seven per cent per annum,
hewing deposited with them as collateral security, with authority to sell the
same at the broker's board, or at public auction, or at private sale, at
option, on the non-performance of this promise, without notice on
fifty Erie.
"R. L. Cutting."
The stock in fact belonged to the plaintiff Wilson, but stood in
Cutting's name on the books of the New York and Erie Rail-Road
Company. It was of that kind known as consolidated capital stock.
Cutting negotiated the loan as the plaintiff's broker. On the same
POSSESSION ESSENTIAL. 99
day Cutting made a transfer of the stock on the books of the company
in the words following : —
"N. Y. & Erie Co.
"For value received, I hereby transfer unto Jacob Little & Co., all my
right, title and interest in fifty shares of the consolidated capital stock of
the New York & Erie Rail-Road Company. New York, Deo. 20th, 1845.
"R. L. Cutting."
It is contended, on the part of the defendants,' that the transaction
■was a mortgage and not a pledge ; that the money was payable imme-
diately, and the stock became absolutely the property of the appel-
lants, and was only redeemable in equity. If this be true, the supreme
court and the court for the correction of errors must have rendered
their judgments in the case of Allen v. Dykers (3 Hill, 593, and 7 id.
498), upon a mistaken view of the law. In that case, as in the present,
there was a loan of money, a promissory note for the payment of the
amount, in which it was stated that the borrower had deposited with
the lenders, as collateral security, with authority to sell the same on the
non-performance of the promise, 250 shares of a stock therein mentioned.
The money in that case was payable in sixty days — the sale was to be
made at the board of brokers, and notice waived if not paid at maturity.
The stock was assigned to the lenders of the money, and the transfer
entered on the books of the company, on the day the note was given.
With respect to the question whether the stock was mortgaged or
pledged, I can perceive no difference between that case and the present. ,
The question does not appear, by the report of that case, to have been
raised. It would have been a decisive point, for if it had been a mort-
gage and not a pledge, the plaintiff must have failed. The sale of the
stock in that case, by the lender, before the maturity of the note, did
not make it the less decisive. (See Brown v. Bement, 8 John. 98.)
If there had been good ground for saying, in Allen v. Dykers, that the
stock was mortgaged and not pledged, it is not to be believed that it would
have escaped the attention of the eminent counsel who argued the
cause, and of both the courts; and on examining the question, I am
satisfied that if the point had been taken it would have been overruled.
The argument of the defendant in this case is founded on the assump-
tion that when personal things are pledged for the payment of a debt,
the general property and the legal title always remains in the pledger ;
and that in all cases where the legal title is transferred to the creditor,
the transaction is a mortgage and not a pledge. This, however, is not
invariably true. But it is true that possession must uniformly accom-
pany a pledge. The right of the pledgee cannot otherwise be consum-
mated. And on this ground it has been doubted whether incorporeal
things like debts, money in stocks, &c., which cannot be manually
delivered, were the proper subjects of a pledge. It is now held that they
100 PLEDGES.
are so; and there seems to be no reason why any legal or equitable
interest whatever in personal property may not be pledged ; provided
the interest can be put, by actual delivery or by written transfer, into
the hands or within the power of the pledgee, so as to be made available
to him for the satisfaction of the debt. Goods at sea may be passed
in pledge by a transfer of the muniments of title, as by a written assign-
ment of the bill of lading. This is equivalent to actual possession,
because it is a delivery of the means of obtaining possession. And
debts and choses in action are capable, by means of a written assign-
ment, of being conveyed in pledge. (Story on Bail., §§ 290, 297.)
The capital stock of a corporate company is not capable of manual
delivery. The scrip or certificate may be delivered, but that of itself
does not carry with it the stockholder's interest in the corporate funds.
Nor does it necessarily put that interest under the control of the pledgee.
The mode in which the capital stock of a corporation is transferred
usually depends on its by-laws. (1 R. S. 600, § 1.) It is so in the case
of the New York and Erie Rail-Road Company. (Laws of 1832,
ch. 224, § 18.) The case does not show what the by-laws of that cor-
poration were. It may be that nothing short of the transfer of the title
on the books of the company would have been sufficient to give the
defendants the absolute possession of the stock, and to secure them
against a transfer to some other person. In such case the transfer of
the legal title being necessary to the change of possession, is entirely
consistent with the pledge of the goods. Indeed, it is in no case incon-
sistent with it, if it appears by the terms of the contract that the debtor
has a legal right to the restoration of the pledge on payment of the debt
at any time, although after it falls due, and before the creditor has exer-
cised the power of sale. Reeves v. Cappen (5 Bing. N. C. 142) was a
case in which the debtor " made over " to the creditor " as his property "
a chronometer, until a debt of £50 should be repaid. It was held to
be a valid pledge.
In the present case the note for the repayment of the loan and the
transfer of the stock were parts of the same transaction, and are to be
construed together. The transfer, if regarded by itself, is absolute,
but its object and character is qualified and explained by the contem-
poraneous paper which declares it to be a deposit of the stock as col-
lateral security for the payment of $2000, and there is nothing in the
instrument to work a forfeiture of the right to redeem or otherwise to
defeat it, except by a lawful sale under the power expressed in the
paper.
The general property which the pledger is said usually to retain, is
nothing more than a legal right to the restoration of the thing pledged
on payment of the debt. Upon a fair construction of the note and the
transfer taken together, this right was in the plaintiff, unless it was
defeated by the sale which the defendant made of the stock.
In every contract of pledge there is a right of redemption on the part
POSSESSION ESSENTIAL. 101
of the debtor. But in this case that right was illusory and of no value,
if the creditor could instantly, without demand of payment and without
notice, sell the thing pledged. We are not required to give the trans-
action so unreasonable a construction. The borrower agreed that the
lender might sell without notice, but not that he might sell without
demand of payment, which is a different thing. The lender might
have brought his action immediately, for the bringing an action is one
way of demanding payment ; but seUing without notice is not a demand
of payment, and it is well settled that where no time is expressly fixed
by contract between the parties for the payment of a debt secured by
a pledge, the pawnee cannot sell the pledge without a previous demand
of payment, although the debt is technically due, immediately. (Story
on Bail., § 308; Stearns v. Marsh, 4 Denio, 227.)
Payment of the note in this case was not demanded until the 3d of
January, 1846. Previous to that time, and about the 24th of December,
1845, the defendants had sold the whole or the greater part of the fifty
shares of consolidated stock pledged to them by the plaintiff, and were
therefore not in condition to fulfil the contract on their part by restor-
ing the pledge. Nor were they able nor did they offer to restore the
same kind of stock, or stock of the same value as that which had been
pledged in behalf of the plaintiff. On the 3d of January, when the
defendants offered to deliver the converted stock, which was of a different
kind and value, the plaintiff's broker was willing to receive any stock
of the same description as that which had been pledged ; but no stock
of that kind was offered by the defendants. There was at that time
a material difference in the market price between the consolidated and
the converted stock of the company, the former selling at $85 and the
latter at $55 per share. The pledge of the 50 shares of consolidated
stock, therefore, could not be restored or made good to the plaintiff,
by assigning to him the same nuriiber of shares of converted stock.
The defendants were bound to restore the identical stock pledged. The
sale of it by the defendants before payment demanded was therefore
wrongful, and the evidence sustains the third count in the plaintiff's
declaration. The defendants having voluntarily put it out of their
power to restore the pledge, a tender of the money borrowed would
have been fruitless, and was therefore unnecessary. (3 Hill, 596; 7
id. 498.)
The remaining question is as to the rule of damages. The stock was
disposed of by the defendants as early as the 24th of December, when
its market price was about $68 the share. The defendant did not,
however, distinctly inform the plaintiff then or afterwards that he had
sold it, although he said he "had not got it," and gave that as a rea-
son why he did not then transfer it, promising at the same time that
he would make the transfer as soon as the stock came in. The plain-
tiff, to accommodate the defendant, agreed to wait until the following
day, when the transfer was not made, the defendant again promising
102 PLEDGES.
to make it shortly. The plaintiff's broker reminded the defendant of
the stock frequently, and on the 30th of December formally notified
him that he wanted to pay the loan and get back the stock, insisting that
there should be no more delay, and that if it was not returned, he was
directed by the party for whom he was acting to buy fifty shares at the
board and charge it to the defendants. The defendant then said the
stock should be returned the next day, but failed to return it; and it
was not until the 2d of January, that the defendant ceased to hold out
the expectation of restoring the stock, or stock of the same kind, and
of equivalent value. On that day and on the 3d of January, the con-
solidated stock sold at $85 a share.
The defendants insist that they are chargeable only with the value
of the pledge at the time it was wrongfully converted by them to their
own use on or before the 24th of December, and not with its increased
value at any subsequent period. The court below in making up the
verdict estimated the stock at $84 the share. In actions for the wrong-
ful conversion of personal property, it has in some cases been held that
the value of the property is to be estimated according to its price at
the time of the conversion, and in others that the plaintiff is entitled
to damages according to its value at any time between the time of the
conversion and the day of the trial. (Bank of Buffalo v. Kortright, 22
Wend. 348, 366.) It is unnecessary in this case to settle the general
rule. The ground on which the defendants insist that the damages
must be estimated according to the price of the stock on the 24th of
December, is that the plaintiff, on learning that the defendants had
sold it, might then have gone into the market and purchased it at the
current price on that day. But it is evident that he was prevented
from doing so by the repeated promises of the defendants to restore the
stock. Although the plaintiff was strictly entitled to a retransfer of
the same shg.res that were pledged, it appears that his broker was will-
ing to receive other stock of the same description and value, which the
defendant promised from day to day to give, the plaintiff being all the
time ready to pay the money borrowed. Time having thus been given
to the defendants at their request for the fulfilment of their obligation,
and the plaintiff having waited for the delivery of the stock for the ac-
commodation of the defendants, and having relied on the expectation,
thus held out, and lost the opportunity of purchasing at a reduced price,
it is manifestly just that the plaintiff should recover according to the
value of the thing pledged when the defendant finally failed in his
promises to restore it.
Judgment affirmed.
POSSESSION ESSENTIAL. 103
WALKER V. STAPLES.
5 Allen (Mass.) 34. 1862.
Replevin of a carryall and chaise. The following facts were agreed
in the superior court : —
In May, 1860, S. W. Howe executed a bill of sale of the articles to
the plaintiff, absolute in terms, and delivered them to him. It was
agreed that the plaintiff should hold them as security for indorsing a
note for the accommodation of Howe, which the plaintiff has since
been compelled to pay. The plaintiff then left the carriages in Howe's
custody, telling him that he might let them to his most careful drivers ;
and Howe accordingly kept them and let them to his customers. The
plaintiff frequently visited Howe's barn and saw them. In December,
1860, while the carriages were in Howe's custody, he sold them for
a valuable consideration to the defendant, who had no notice of the
transaction between him and the plaintiff. It was not contended by
the defendant that there was any fraud in the transaction between Howe
and the plaintiff.
Upon the foregoing facts, judgment was rendered in the superior
court for the defendant, and the plaintiff appealed to this court.
Chapman, J. According to the cases of Whitaker v. Sumner, 20 Pick.
399, and Hazard v. Loring, 10 Cush. 267, the sale of the property by
Howe to the plaintiff, though absolute in form., is to be regarded as a
pledge, because it was made merely as security to the plaintiff for indors-
ing Howe's note. And the bill of sale, being a mere bill of parcels, is
subject to explanation by parol evidence, even as between the parties
to it.
A radical distinction between a pledge and a mortgage is, that by
a mortgage the general title is transferred to the mortgagee, subject to
be revested by performance of the condition ; but in case of a pledge,
the pledger retains the general title in himself, and parts with the pos-
session for a special purpose. To constitute a pledge, the pledgee must
take possession ; and to preserve it, he must retain possession. Homes
V. Crane, 2 Pick. 607 ; Bonsey v. Amee, 8 Pick. 236. A pledgee has
merely a lien. Cross on Lien, 63. Continuance of possession is indis-
pensable to the right of lien ; an abandonment of the custody of articles
over which the right extends necessarily frustrates any power to retain
them, and operates as an absolute waiver of the lien. The holder is,
in such cases, deemed to yield up the security he has upon the goods,
and trust to the responsibility of the owner. lb. 38.
But the doctrine that possession must be retained is held with rea-
sonable qualifications. Thus where the master of a ship pledged his
chronometer to the owners, and they permitted him to keep it on board
their ship, and use it for the purpose of navigating the ship for a limited
period, it was held that they had not thereby lost their lien. Reeves
104 PLEDGES.
V. Capper, 5 Bing. N. C. 136. So where a person had contracted with
the lessees of a brickyard to take clay and pay them for it, furnish
wood, &c., and manufacture bricks, and that they should have a lien
on the bricks as security for the advances they should make to him, it
was held that he had not such possession as to destroy their lien, because
he had no possession, charge, or authority in his character of pledger of
the bricks. Macomber v. Parker, 14 Pic. 497.
But in the present case, the plaintiff, after taking formal possession
of the carriages, left them in the custody of Howe, and told him he might
let them to his most careful drivers. Howe kept them in his barn and
let them to his customers. He thus retained the possession for his own
use. Such possession was unlike that of the chronometer, in the
pledgee's own ship, or the bricks in the pledgee's own yard; for the
plaintiff in this case had no title to the bam. The possession of Howe
must be regarded as absolute and unqualified, and not special or sub-
ordinate, notwithstanding the limitation of the authority to let the
carriages to his most careful drivers.
It is stated further, that the plaintiff frequently visited the barn, and
saw the property ; but this fact is immaterial, inasmuch as he did not,
on any of these occasions, exercise or assert any control over the prop-
erty. To hold that such a disposition of pledge property is sufficient
to maintain the lien, would be going far beyond any of the cases cited,
and would substantially destroy the whole doctrine of pledges, as rest-
ing on possession. The cases cited, of Spaulding v. Adams, 32 Maine,
211, and Beeman v. Lawton, 37 Maine, 543, sustain this view. In
the latter case the court say, " The element of possession failing, there
can be no pawn nor pledge."
Judgment for the defendant.
CASEY V. CAVAROC.
96 U. S. 467. 1877.
Appeal from the Circuit Court of the United States for the District
of Louisiana.
The National New Orleans Banking Association, an organisation
formed under the National Banking Act of 1864, failed and suspended
payment on the 4th of October, 1873, and on the 27th of that month
was placed in the hands of a receiver, under the fiftieth section of the
act. At or about the time of the failure, Charles Cavaroc, the presi-
dent of the bank, took therefrom certain bills and notes to the amount
of 1325,011.26, and delivered the same to his firm of C. Cavaroc & Son,
who claimed to hold them as agents for the Societe de Credit Mobilier
of Paris, by way of pledge to secure said society for certain acceptances
POSSESSION ESSENTIAL. 105
of bills drawn by the bank in July previous. The bill in this case was
filed by the receiver to recover possession of said securities, alleging
that they were delivered by the bank to Cavaroc & Son, in contempla-
tion of the insolvency of the bank, not by way of pledge, but with a
view to give a preference to Cavaroc & Son and the Credit Mobilier
over other creditors of the bank, contrary to the provisions of the fifty-
second section of the banking act. The defendants, Cavaroc & Son
and the Credit Mobilier, by their several answers, deny that the secur-
ities were delivered by way of preference in contemplation of the insol-
vency of the bank, and insist that they were actually pledged to the
society by virtue of a distinct agreement, as a consideration and security
for the acceptance by it of bills drawn by the bank to the amount of
one million francs ; which bills were drawn in pursuance of said agree-
ment, and were negotiated by the bank for over 1218,000, and were
duly accepted by the society upon the faith of the pledged securities.
The answers aver that at the time of this transaction the bank was in
good credit and standing.
[The evidence is sufficiently summarised in the opinion.]
The Circuit Court rendered a decree dismissing the bill of complaint,
and from that decree the receiver appealed.
Me. Justice Bradley, after stating the case, delivered the opinion
of the court.
The substance of the agreement in this case, so far as necessary to
be considered, was, that the Credit Mobilier should accept the drafts
of the banking association to the amount of a million of francs at ninety
days, the bank agreeing to furnish funds to pay the drafts at maturity,
with the privilege of a renewal ; and it was stipulated that this obliga-
tion of the bank should be guaranteed by Cavaroc & Co., and by a
deposit with them, for the use of the Credit Mobilier, of first-class
securities, of which deposit the latter was to be advised.
This arrangement was immediately telegraphed to New Orleans, and
the drafts were drawn on the 12th of July ; but the weight of the evi-
dence is, that none of the collateral securities were delivered until the
19th of August, — which might raise a question whether the accommo-
dation acceptances of the Credit Mobilier could be considered as a con-
temporary consideration therefor ; or, if not, whether the bank was at
that time, in the apprehension of Cavaroc (the common agent), in a
condition of solvency and good credit, — as to which an affirmative
answer could not well be given, since the proof is quite clear that the
bank was then struggling with serious financial difficulties, from which
it never recovered.
Waiving this question, however, for the present, we will proceed to
examine whether, supposing that no objection arises from the time when
this transaction took place, it amounted to such a transfer or pledge of
the securities in question as to entitle the Credit Mobilier to a prefer-
ence upon them over the other creditors of the bank at the time of its
106 PLEDGES.
failure. Was there such a delivery and retention of possession of the
collateral securities as to constitute a valid pledge by the law of Louisi-
ana ? Clearly they were never out of the possession of the officers of
the bank, and were never out of the bank for a single moment, but were
always subject to its disposal in any manner whatever, whether by
collection, renewal, substitution, or exchange; and collections, when
made, were made for the benefit of the bank, and not that of the Credit
Mobilier.
The case has some features in common with, though differing in others
from, that of Clarke v. Iselin (21 Wall. 360), in which this court held
that collateral securities transferred by the borrower to the lender at
the time of the loan were not divested out of the latter by the mere
fa,ct of his depositing them with the borrower for collection. The court
say : " Obviously this deposit in no degree affected the title of the
defendants to the notes. It merely facilitated collections." The court
then cited White v. Piatt, a New York case in 5 Denio, 269, in which it
was said : " Where promissory notes are pledged by a debtor to secure
a debt, the pledgee acquires a special property in them. That prop-
erty is not lost by their being redelivered to the pledgor to enable him
to collect them, the principal debt being still unpaid. Money which
he may collect upon them is the specific property of the creditor. It is
deemed collected by the debtor in a fiduciary capacity."
The case of Clarke v. Iselin, being a New York case, and governed by
New York law, or the common law as understood in New York, the
authority cited was necessarily of great weight, if not controllings
When, as in that case, the title has been transferred to the creditor, and
the collections are made for his benefit, the pledgor merely acting as
his servant or agent in making them, the character of the security is
not affected at the common law by the debtor having actual possession
of the collaterals, there being no fraud in the transaction. In such a
case, they are held by the creditor by way of mortgage as well as pledge ;
and a mortgage is valid, notwithstanding the mortgagor has the posses-
sion. The difference ordinarily recognised between a mortgage and a
pledge is, that title is transferred by the former, and possession by the
latter. Indeed, possession may be considered as of the very essence
of a pledge (Pothier, Nantissement, 8) ; and if possession be once
given up, the pledge, as such, is extinguished. The possession need not
be actual ; it may be constructive ; as where the key of a warehouse
containing the goods pledged is delivered, or a bill of lading is assigned.
In such case, the act done will be considered as a token, standing for
actual delivery of the goods. It puts the property under the power and
control of the creditor. In some cases, such constructive delivery
cannot be effected without doing what amounts to a transfer of the
property also. The assignment of a bill of lading is of that kind. Such
an assignment is necessary, where a pledge is proposed, in order to give
the constructive possession required to constitute a pledge ; and yet
POSSESSION ESSENTIAL. 107
it formally transfers the title also. In such a case, there is a union of
two distinct forms of security, — that of mortgage and that of pledge ;
mortgage by virtue of the title, and pledge by virtue of the possession.
This advantage exists when notes and bills are transferred to a
creditor by way of collateral security. His possession of them gives
them the character of a pledge. Their indorsement if payable to order,
or their delivery if payable to bearer, gives him the title also, which is
something more than a pledge. This double title existed in White v.
Piatt, and in Clarke v. Iselin. Hence the actual possession of the
securities by the creditor was a matter of less importance in those cases.
Whether constructive possession in the creditor can be affirmed,
where an article to which his only title is that of pledge is actually re-
delivered to the debtor, with general authority to dispose of it and sub-
stitute another article of equal value in its place, is the question which
we have to meet in this case. Such a redelivery for a mere temporary
purpose, as for shoeing a horse which has been pledged and is owned by
the farrier, or for repairing a carriage which has been pledged and is
owned by the carriage-maker, does not amount to an interruption of
the pledgee's possession. The owner is but a mere special bailee for
the creditor. So, when the debtor is employed in the creditor's service,
his temporary use of the pledged article in the creditor's business does
not effect a restoration of the possession to the debtor. This is in
accordance both with the common and the civil law. Reeves v. Capper
(5 Bing. N. C. 136) was a case of this kind. A sea-captain pledged his
chronometer for a debt. He was afterwards employed by the pledgee
as master of one of his ships, and the chronometer was placed in his
charge, to be used on the voyage. It was held that the possession of
the pledgee was not lost. He recovered the chronometer against a
person to whom the master pledged it a second time.
In Hays v. Riddle (1 Sandf. (N. Y.) 248), the plaintiff delivered to
the defendant, at his request, a convertible bond of the New York and
Erie Rail-Road Company (which had been pledged by the latter to the
former), in order to get it exchanged for stock of the same company,
which stock was to be returned and substituted for the bond in pledge.
The defendant never returned either the bond or the stock. The plain-
tiff brought an action of trover against him for the bond, and recovered
its value, being less than the debt for which it was pledged. It being
objected that by delivering back the bond to the pledgor the plaintiff
had lost his special property in it as pledgee, the court said : " At com-
mon law, as a general rule, the positive delivery back of possession of the
thing, with the consent of the pledgee, terminates his title. 2 Pick.
607; 15 Mass. 389. If the thing, however, is delivered back to the
owner for a temporary purpose only, and it is agreed to be redelivered
by him, the pledgee may recover it against the owner, if he refuse to
restore it to the pledgee, after the purpose is fulfilled. 2 Taunt. 266 ;
Story on Bailm., § 299. So, if it be delivered back to the owner in
108 PLEDGES.
a new character ; as, for example, as a special bailee or agent. In such
case, the pledgee will still be entitled to the pledge, not only as against
the owner, but also as against third persons. 14 Pick. 497."
In Macomber v. Parker (14 Pick. (Mass.) 497), referred to in the last
case, the proprietors of a brickyard contracted it out on shares to a
brickmaker, agreeing to advance the money requisite to carry on the
manufacture of bricks, and, after being repaid their advances, to divide
the profits with the latter. It was agreed that the bricks, as fast as
made, should be pledged to the owners of the yard as security of their
advances ; but the brickmaker was to keep them in his charge, and sell
them at retail, and as often as he got the amount of a hundred dollars
from the sales he was to deposit it in bank to the credit of the owners.
The bricks were afterwards attached as to the share of the maker for
his debts. But the court held that the owners of the yard had not,
by leaving the bricks in the hands of the maker, lost their lien as pledgees
of the entire property. They remark: "To say that this limited
authority to sell the bricks by retail, in small sums, on account of the
plaintiffs, was a waiver of their possession of the residue that remained
in the kilns in their yard, would be clearly against the intent and
meaning of the parties, unreasonable, and unwarranted by the evi-
dence." Again: "The special authority given by the plaintiffs to
Evans [the brickmaker] was to clothe him with the character of agent
to a limited extent only, and no remission to him, in his character of
pledgor, of the plaintiffs' right to retain the bricks according to the
agreement." To the objection that retention of possession by the
pledgor would have the effect to deceive those dealing with him, the
court said : " If the vendor or the pledgor should have the actual posses-
sion of the property after it were pledged or sold, it would only be
prima facie, but not conclusive, evidence of fraud. The matter might
be explained and proved to be for the vendee or pledgee. It is a most
familiar principle, that one man may have the actual possession or
custody, while another has the legal title and the constructive posses-
sion."
In this case, it will be observed, the pledgees were joint owners
of the brick, and were owners of the premises on which the bricks were
kept ; and the decision was undoubtedly correct. But, in the general
remarks made by the court, there is manifest, as in many other cases,
a tendency to confound the distinction between cases in which the
title is in the creditor, and those in which his whole interest depends on
possession. All the cases cited, however, show that a bailment to the
pledgor for a mere temporary purpose for the use of the pledgee, or for
the repair and conservation of the pledge, will not destroy the latter's
possession ; at the same time, they imply that a redelivery to the
pledgor, except for the special and temporary purposes indicated, divests
the possession of the pledgee, and destroys the pledge.
The civil law, which is more particularly our guide in the present
POSSESSION ESSENTIAL. 109
case, is to the same general effect ; though it is more careful in denounc-
ing the danger of losing the right of pledge by parting with anything
like permanent or continued possession to the pledgor ; and it preserves
very clearly the distinction between pledge and hypothecation, or
mortgage. The old civil law of the Digest, it is true, was more indul-
gent, and permitted the pledge to be delivered to the pledgor without
prejudice to the security, in a manner that would not be allowed at the
present day. Thus, in book xiii. of the Digest, title vii., law 35, Modes-
tinus says : " a pledge transfers only the possession to the creditor,
the property remaining in the debtor; yet the debtor may have the
use of it, either as a gratuity, or for hire." And Paulus, in the same
title, law 37, says : " If I lend a pledge to the owner thereof, I retain
possession by means of the loan; for before the debtor borrowed it,
the possession was not in him ; and when he borrowed it, it was my
intention still to retain the possession, and it was not his to acquire it."
Pothier's Pandects, vol. vii., p. 360.
As to this law of the Digest, Mr. Bell, in his Commentaries on
the Scotch LaW, remarks as follows : " Voet very justly observes,
in criticising this law, that to permit such practices were to en-
danger the safety of other creditors, and to sanction a fraud upon
the rule which requires possession to complete a real right to mov-
ables ; and that no true analogy can hold between the law of
Rome, where hypothecs without possession were admitted, and the
laws of modern commercial nations, in which the rule is established
that possession preserves property. It is true," Bell continues,
"that, in the course of many contracts, there is a necessity for
separating property and possession ; and that the mere circumstance
of goods being in the hands of another on a temporary contract will
not deprive the real proprietor of his right, in favour of the credi-
tors of the temporary possessor. And there seems to be no doubt
that the right of a pledgee will also be sufficiently strong to support
this temporary dereliction of possession, in the course of necessary oper-
ations on it ; the manufacturer, or other holder, being custodier for the
pledgee, without injury to the real security. But the doctrine delivered
by Voet is sound, where the possession is given up without necessity
to the owner of the goods." 2 Bell. Com. (7th ed.), p. 22.
[The discussion of the modern French law, requiring possession to
be in pledgee, as embodied in the Civil Code of Louisiana, and of the
rights of the receiver of the bank to insist that the transaction was
invalid as to the bank's creditors, is omitted.]
On this ground, therefore, of want of possession in the pledgee, or of
a third person agreed upon by the parties, and of actual possession
and control in the pledgor, we feel compelled to hold that the Credit
Mobilier had no privilege as to third persons, and that the receiver was
entitled to the securities in question.
The decree will, accordingly, be reversed, and the cause remanded to
110 PLEDGES.
the Circuit Court with directions to enter a decree in favour of the
complainant below in conformity to this opinion ; and it is
So ordered.
Mr. Justice Swayne, Mr. Justice Field, and Mr. Justice Haelan
dissented.
GEILFUSS V. CORRIGAN.
95 Wis. 651 ; 70 N. W. R. 306 ; 60 Am. St. R. 143. 1897.
This is an action to recover the value of 10,800 tons of pig iron levied
on by the sheriff of Mercer county, Pennsylvania, on the 19th day of
July, 1893, upon an execution issued out of the court of common pleas
of Mercer county, Pennsylvania, upon a judgment in favour of Price
McKinney, receiver of Corrigan, Ives &c Co., for .$178,908, against the
Douglas Furnace Company, a corporation under the laws of the state
of Illinois. The title of the iron is the question in controversy in this
case". The plaintiff, as assignee of the bank, claims a right in this iron,
as pledgee of the Buffalo Mining Company, a Wisconsin corporation,
and of Ferdinand Schlesinger, to secure certain loans made by the bank
to the Buffalo Mining Company, and to Schlesinger. The defendants,
who are members of the firm of Corrigan, Ives & Co., justified the seiz-
ure and subsequent sale of the iron under the said execution against the
Douglas Furnace Company, on the ground that the attempted transfer
or pledge of the same was fraudulent and void as against creditors of
the Douglas Furnace Company.
[The evidence is sufficiently summarised in the opinion. There was
judgment against the defendants, and they appeal.]
WiNSLOW, J. [Certain "storage warrants" issued by the Douglas
Furnace Co. under which plaintiff, as assignee, claimed title to the iron
in question, are held not to be warehouse receipts and therefore in-
effectual.]
Thus, at the outset of the case, it appears that the plaintiff had no
interest in or lien upon the iron in question, as indorsee of a warehouse
receipt nor as a chattel mortgagee. Nor can it be claimed that the
plaintiff actually bought or obtained legal title to the iron. These pos-
sible claims being thus eliminated, we know of no other claim which the
plaintiff can make, unless it be a claim as pledgee of the iron as collat-
eral to the debts of the Buffalo Mining Company, and of Schlesinger ;
and this, in fact, is the claim made in the complaint, and the only
claim which the evidence tends to justify. It becomes necessary, then,
to consider the question whether the evidence shows a valid pledge.
The principles of law governing a pledge of personal property are
simple and familiar. To constitute a valid pledge, there must be trans-
fer of possession to the pledgee, actual or constructive. Seymour v.
POSSESSION ESSENTIAL. Ill
Colburn, 43 Wis. 71. A pledge differs from a mortgage in this impor-
tant respect ; namely, that the legal title to the property pledged remains
in the pledgor, subject to the pledgee's lien for his debt, while a mort-
gage passes the legal title to the mortgagee. In the case of a pledge, a
lien is created, to the existence of which possession is absolutely neces-
sary ; in the case of a mortgage, title passes, subject to be revested by
performance of a condition subsequent. Jones, Pledges, §§4, 7 ;
Thompson v. DoUiver, 132 Mass. 103. Therefore, if the bank had any
interest in the iron at the time of its seizure, it was that of a lien thereon,
by way of a pledge.
In considering the question of whether it had such a lien which was
valid as against the creditors of the furnace company, a brief recapitu-
lation of the essential facts will be useful. Ferdinand Schlesinger
owned two corporations — one, a mining corporation, engaged in mining
ore in Michigan; the other, a furnace company, engaged in smelting
ore in Pennsylvania. These corporations were nominally furnished
with full complements of officers, but in fact the business of each was
directed and controlled by Schlesinger as though it were his own. The
furnace company had a large stock of pig iron constantly on hand in its
yards in Pennsylvania, and was largely indebted to Corrigan, Ives & Co.,
of whom it purchased its iron. It refused to give Corrigan, Ives & Co.
security on the iron, on the ground that such a course would injure its
credit. In order to raise money for the furnace company, Schlesinger
caused the furnace company to issue apparent storage receipts to the
mining company, without consideration, and without agreement to
purchase, and without selection or delivery of the property, either actual
or constructive, unless the handing over of the receipts be delivery,
and with the agreement that the receipts should be returned whenever
the furnace company needed them on account of sale of the iron. On
receiving the receipts, he borrowed money of the plaintiff bank upon
the notes of the mining company, secured by assignment of the receipts
as collateral. What was done with all the money so borrowed does
not appear. The original purpose seems to have been, as said in respon-
dent's brief, to raise money for the furnace company, and the evidence
shows the fact that the mining company was almost daily remitting
money in large amounts to the furnace company, as well as the fact
that the furnace company was frequently remitting to the mining
company. None of the remittances were made in payment of the iron
certificates, nor were they ever intended to be applied thereon. The
fact seems to be that each enterprise was bolstering up the other as
occasion required, or, rather, that Mr. Schlesinger was using the
property and credit of his apparently separate concerns indiscriminately,
to obtain money as it was needed. It seems probable that much of the '
money borrowed on the notes of the mining company secured by the
receipts in question was forwarded to the furnace company.
The court found that the bank took the certificates innocently,
112 PLEDGES.
without knowledge of any defect. We cannot probably disturb this
finding, because it is based on the affirmative evidence of the cashier
who made the loans ; but, in view of the facts proven on cross-examina-
tion of the cashier himself, this finding seems to be a considerable tax
on the credulity. ■ The facts are, in brief, that the cashier was well
acquainted with Mr. Schlesinger, so much so that in 1892 Mr. Schles-
inger put in his hands one share of stock in the Buffalo Mining Company,
in order that he might become a director of the company, and he was
thereupon made a director and secretary of the company, and re-
mained such until April, 1893, when he resigned, and returned his share
of stock. This was after the loans on the credit of the receipts had be-
gun to be made. Notwithstanding his high official position in the
mining company, he testifies that he "knew nothing of its business,"
except that it was engaged in mining. We think he could hardly have
failed to discover the manner in which Mr. Schlesinger conducted the
business of his nominal corporations. However this may be, he knew,
as he testifies, that the mining company was engaged in mining ore,
and not in buying or selling pig iron. He knew "something" about
the furnace company ; knew where it was doing business ; knew Mr.
Hirshfeld, the nominal president; discounted some of the furnace
company's paper, obtained general information about it by inquiries
through commercial agencies at the time of the pledging of the receipts.
In view of all these facts which were within his knowledge, and the facts
which he might have ascertained without difficulty by very little inquiry,
it seems almost an impeachment of his intelligence to say that he received
the receipts in ignorance of any defect or infirmity in them; but we sup-
pose we are bound by the finding, and we shall proceed on that basis.
It is very apparent that, had the certificates remained in the hands
of the mining company, they would have constituted no obstacle to cred-
itors of the furnace company in the collection of their debts. They
were subject to nearly, if not quite, all the objections which render trans-
fers void as to creditors. They were absolutely false in fact. There
was no change of possession of the iron ; no payment nor agreement to
pay for it ; no intention to pass title. They were the merest shams.
There was in effect an agreement that the furnace company should
remain the apparent owner, with the right to sell and receive and dis-
pose of the proceeds of sales, and that it should have the right to call
back certificates whenever it needed them for this purpose; and it
was further expected that, when the need for borrowing money was
over, the certificates should all be returned. The scheme was cer-
tainly a brilliant one. If successful, it created a shifting title or inter-
est, which readjusted itself from day to day as the stock changed,
automatically attaching to each new pig of iron as it emerged glowing
from the furnace, and with equal facility detaching itself from each pig
that was sold as it was loaded on the car for transportation to the
vendee. Certainly, if such a scheme could be successful, the inventor
POSSESSION ESSENTIAL. 113
should take high rank among a certain class of financiers ; and the laws
which have been supposed to prevent secret transfers and conveyances
in fraud of creditors must be at once revised, or they will pass into the
dim limbo of unexecuted and worn-out legislation.
It is seriously and ably argued that the scheme has been successful ;
that the original transaction has been purged of all objections by the
intervention of the innocent third person, in the shape of the plaintiff
bank ; and thus that the shifting and self-adjusting, but void, title of
the mining company has been turned into an equally shifting and delu-
sive, but good, lienfor the benefit of the bank, — a lien which is secret and
invisible to creditors, but entirely visible and very real to the plaintiff.
As before said in this opinion, the only interest which the plaintiff claims
or can claim in the iron in question is that of a lien thereon as pledgee ;
and, in order to make a valid pledge, there must have been either actual
or constructive delivery of the property pledged. Bo7ia fides does not
avail the pledgee in the absence of delivery and possession, either actual
or constructive. There was confessedly no actual delivery here, and
the only thing that can be claimed to be a symbolical or constructive
delivery is the indorsement and delivery of the false receipts. Hence
the question becomes whether the delivery of the receipts under the
circumstances is a constructive delivery of so much iron. Had they been
in fact warehouse receipts, the transfer and indorsement thereof by way
of pledge would have operated as a sufficient constructive delivery of
the property, both by the common law and by the statute? R. S. §
4194; Shepardson v. Gary, supra; Price v. Wis. M. & F. Ins. Co.,
supra. Bills of lading and railroad receipts are placed by the statutes
of both states on the same footing. See statutes of Pennsylvania be-
fore cited in this opinion. The reasons for this rule are very apparent.
In such cases the property itself is in the hands of a third person or
corporation, instead of in the possession of the vendor or pledgor. Con-
sequently it does not furnish any false basis of credit, nor is any creditor
deceived, because it is well understood that goods in the hands of ware-
housemen or carriers are or may be the property of others, and, by the
long usage of trade, subject to just this mode of transfer. No such
considerations, however, apply in the case of goods in the possession
of the vendor or pledgor, or of some third person who is not a warehouse-
man or wharfinger, and we know of no rule which makes the mere de-
livery of a receipt a constructive delivery of the property in pledge in
such a case. In Shepardson v. Cary, supra (which was an action in
equity to enforce a pledge of personal property as collateral, alleged to
have been made by means of transfer of a warehouse receipt), Dixon,
C. J., says : "To uphold the receipt as a proper warehouse document
transferring the title to the property, and operating as a good construc-
tive delivery of it to the vendee, it must in all cases distinctly appear
that it was executed by a warehouseman, one openly engaged in that
business, and in the usual course of trade." There are numerous
114 PLEDGES.
examples of constructive delivery in the books, but none, we think,
which holds that the facts here constitute such delivery. Constructive
or symbolical delivery is permitted because of the difficulty or impossi-
bility in some cases, of actual delivery. Thus, where the goods are
very bulky, as logs in a boom, delivery may be made by pointing them
out to the pledgee; or, where they are goods in a warehouse, by a
delivery of the keys ; or, where a savings bank deposit is to be pledged,
it may be done by delivery of the pass book. Jewett v. Warren, 12
Mass. 300; Jones, Pledges, §§ 36, 37; Boynton v. Payrow, 67 Me. 587
[127]. So, also, where goods are in possession of a third person, and the
pledgor gives an order on the custodian to hold the goods for the pledgee,
which is brought to the knowledge of the custodian, it seems that this
would be a sufficient delivery and change of possession. Whitaker v.
Sumner, 20 Pick. 399 ; Tuxworth v. Moore, 9 Pick. 347. In all these
cases it will be readily seen that the property is placed beyond the con-
trol of the pledgor, and is not being used to maintain an appearance of
wealth by either the pledgor or others with the consent of the pledgee.
In the present case there is no such element. The pledgee never saw
or attempted to see the iron described in the certificates, and made no
inquiries concerning it. It never notified the furnace company that
it held any certificates in pledge, or claimed any interest in any iron in
its possession. It tacitly allowed the furnace company to go on in its
business for months, selling out the very iron nominally covered by the
certificates, and replacing it with other iron, and collecting and using the
proceeds of its sales. There can be no constructive or symbolical
delivery and continuance of possession logically claimed where such a
state of facts appears. Conceding that the title to the iron was in the
mining company, the furnace company was the custodian, and the cus-
todian received no notice of pledge, made no agreement to hold for the
benefit of the pledgee, but went on in business, selling the property,
and substituting other property in its place, with no one to hinder or
make it afraid. Apparently the owner of more than 20,000 tons of
iron, it was (if plaintiff's theory is correct) really not the owner of it in
case a creditor appeared with an execution. It was held in Casey v.
Cavaroc, 96 U. S. 467, that where property alleged to have been pledged
has at all times been in the actual possession of the pledgor, with author-
ity to dispose of it and substitute another article of equal value in its
place, there exists no pledge as against third persons. No reason is
perceived why this is not wholesome doctrine, nor why it does not apply
with equal force to possession by a third person, with power of sale and
substitution, as in the present case. Our conclusion is that, as against
third persons, the bank never perfected its pledge by obtaining posses-
sion, either actual or constructive, of the iron named in the certificates,
and hence that it cannot maintain this action. '
[Discussion of other points is omitted.]
These views necessitate reversal of the judgment.
DUTIES OF PLEDGEE. 115
2. DUTIES OF PLEDGEE.
ST. LOSKY v. DAVIDSON.
6 Cal. 643. 1856.
The plaintiffs brought their action for damages for injuries occurring
to certain cases of cigars, pledged to defendants as security for a loan,
by the negligence of defendants in storing the same. The facts of the
case are as follows : —
The plaintiff pledged to defendants a lot of cigars to secure certain
notes. The written memorandum, signed by the plaintiff, contained
the following words : "We have this day deUvered, as collateral security
for the above note, to the said Emanuel Berri, eighty-two cases of
cigars, who has stored the same in the Bay Warehouse at our risk and
expense."
The cigars were deposited in the Bay Warehouse as the property,
and subject to the order of Berri, one of the defendants. Afterwards,
on account of some injury to the warehouse, the keeper, without the
order or knowledge of the defendants, removed them to another place
which was damp and unfit for the storage of such goods, and in conse-
quence of the removal, the cigars were damaged, and their value greatly
impaired. The Court below nonsuited the plaintiffs.
Plaintiffs appealed.
Mr. Justice Terey. A pledge is a bailment which is reciprocally
beneficial to both parties. The law therefore requires of the pledgee
the exercise of ordinary diligence in the care and custody of the goods
pledged, and he is responsible for ordinary negligence. Story on Bail-
ments, §§ 323, 332 ; Smith's Lead. Ca. 251, 258. What will amount
to ordinary negligence must depend on the circumstances of the trans-
action, and the character of the pledge. In general, it may be defined
to be the neglect to exercise that degree of care which an ordinarily
prudent man usually bestows upon his own property of like description.
Was the liability of defendants changed by the stipulation, and if so,
to what extent ?
It is contended that it was competent for the parties, to stipulate
for a different degree of liability to that which would attach in the
absence of an express contract, and that the words, "stored in the
Bay Warehouse at our risk and expense," operated to discharge the
defendants from all responsibility on account of damages from any
other cause than intentional fraud of defendants.
We do not give the words cited a construction so comprehensive. In
our opinion they could operate to release the defendants from respon-
sibility only while the goods remained in the place designated. Upon
their removal it was avoided, and the defendant's liability was such as
by law attaches under like contracts.
116 PLEDGES.
The fact that the goods were removed by the keeper of the warehouse
without the direction or knowledge of defendants, is not material ;.it
was their duty to see that goods were kept in the place agreed on, or,
if a removal was necessary, to have them stored in a secure and proper
place. The keeper of the warehouse, as the agent or bailee of defend-
ants, is responsible to them for any damage resulting from his un-
authorised acts.
Judgment reversed and cause remanded.
DRAKE V. WHITE.
117 Mass. 10. 1875.
CoNTEACT upon the following agreement, signed by the defendants :
" Boston, October 22, 1872. Received of John E. Drake, one Morris &
Ireland fire proof safe, which we promise to deliver the same to said
Drake, or its equivalent in money, on payment of a certain note signed
by said Drake, dated October 22, 1872, payable in four months from
date, for the sum of $276.68." Trial in the Superior Court, before
Putnam, J., who allowed a bill of exceptions in substance as follows : —
The plaintiff purchased leather of the defendants, giving them his
note for the price thereof, and, to secure the payment of the note, de-
posited with them the safe in question, giving them a bill of sale of the
safe, upon the back of which was written the agreement upon which
this action is brought.
The plaintiff testified that he authorised the defendants to find a
customer for the safe, which he desired to sell, and authorised the de-
fendants to sell it for $400, but that any customer for a less price was
to be referred to him. The defendants testified that they were author-
ised to sell it for $300, but that, if any less sum was offered for the
safe, they were to inform the plaintiff, who was to decide about accept-
ing the offer. No customer was found for the safe.
The plaintiff paid his note at maturity, and made a demand for the
safe, before bringing this action. The safe was destroyed by the fire
of November 9, 1872, and there was no evidence of negligence or want
of due care upon the part of the defendants.
The judge instructed the jury, that by the terms of the agreement
the defendants were bound to account to the plaintiff for the value of
the safe as it was when deposited with them. The jury returned a ver-
dict for the plaintiff ; and the defendants alleged exceptions.
Ames, J. This is a case of a deposit of personal property by a debtor
in the hands of a creditor as collateral security for the debt. If it
presented merely the ordinary incidents of a pledge, it would be manifest
DUTIES OF PLEDGEE. 117
that the action could not be maintained. The destruction of the prop-
erty is conceded to have been accidental, without fault or neglect of
duty on the part of the defendants.
But the claim of the plaintiff is, that the transaction differs widely
from an ordinary pledge, and he contends that, by the terms of a written
contract, the defendants have taken upon themselves a special liability
of a much more extensive character. If, in the common case of a
pledge, the common law contract were reduced to writing, it would
contain among other things a stipulation that the pledgee should not
be responsible for the loss of the property, unless some want of reason-
able and ordinary care on his part were the cause of such loss. In the
present case the parties have reduced their contract to writing, and have
omitted to attach to the defendants' liability for the property any limi-
tation whatever. On the contrary, their express promise is to do one
or the other of two things : either to return the property specifically,
or to pay for it in money. There can be no doubt that if a creditor
sees fit to accept a deposit of security upon such terms, and to place him-
self in the position of an insurer of its safety, he can legally do so. It is
not difficult to suppose a case in which the parties might find it convenient
that the business of guarding against the risk of 6ie or other accident
should be attended to by the depositary. But however that may be,
the proper interpretation of the contract is to be determined by the
general rules of construction recognised by the law ; and if the parties
have improvidently made their contract more onerous than they
expected, the difficulty cannot be removed by a violation of those
rules.
It is said that the written instrument declared upon is a receipt, and
as such is open to explanation. It is true that it is a receipt, but it is
also a promise clearly expressed. Brown v. Cambridge, 3 Allen, 474.
We see no way to avoid the conclusion that the plaintiff's construction
of that promise is correct. The difficulty with the defendants' case
is, that, although their purpose was to take collateral security for a
debt, the terms in which they have expressed themselves as to what
they are to do with the pledge on the payment of the debt contain a
positive and unequivocal promise either to return it, or to pay an equiv-
alent. The fact that one part of this alternative promise has become
impossible of fulfilment does not relieve them from the other. Chit,
on Con. (11th Am. ed.), 1061 ; Stevens v. Webb, 7 C. & P. 60; State
!). Worthington, 7 Ohio, 171.
Exceptions overruled.
118 PLEDGES.
3. LIEN.
STEARNS V. MARSH.
4 Denio (N. Y. S. C), 227 ; 47 Am. D. 248. 1847.
Assumpsit by the payees against the makers of a promissory note.
Plea, non-assumpsit. The cause was tried at the Niagara circuit, in
October, 1845, before Dayton, C. Judge. The note was dated July 5,
1837, and was for the sum of $436.54, payable in four months from
date. The defendants resided at Haverhill, Mass. ; and the plaintiffs
at Boston. It appeared that the note, at its date, was sent to the
plaintiffs in a letter, from the defendants, in which they stated that
they had on that day forwarded to the plaintiffs, by team, ten cases,
numbered 1 to 10, of boots and shoes, of the value, according to an
invoice contained in the letter, of $520.32, "as collateral security" for
the note. They added, "We hope that now everything will be satis-
factory ; and should you find a purchaser for the shoes in season to meet
your demand, we should be glad to have them sold." On the 17th of
the same month, the defendants wrote to the plaintiffs, that they had
learned that there was to be a public sale of boots and shoes at O.
Rich's Broad-street, on the 19th instant, and added : " If you please,
you may put in three of the cases of the boots we sent you (Nos. 5, 6,
and 7), and take the proceeds. Please send us the account of sales,
and indorse the proceeds on your note." On the 2d day of November
following, the plaintiffs caused a notice of a sale of " a large and generals
assortment of boots and shoes" to be inserted in an advertisement of
O. Rich, the auctioneer ; the sale to be on the 15th day of that month,
at the auctioneer's office. Other articles were included in the adver-
tisement, and the boots and shoes were not otherwise described or
referred to than as above stated. The advertisement was published
in a daily paper, printed in Boston, from the day last mentioned until
the day of sale. The plaintiffs sent the cases to the auctioneer, and
they were sold, pursuant to the notice, and produced 1166.97, besides
charges, which amount was indorsed on the note. It was shewn that
the note was given, and the boots and shoes sent to the plaintiffs, in
consequence of their demanding security for a debt against the defend-
ants, of the amount mentioned in the note. It was proved that the
boots and shoes were worth the amount mentioned in the invoice —
1520.32.
The defendants' counsel requested the judge to charge that the
plaintiffs had no right to dispose of the property without first giving
the defendants notice to redeem it ; and that having done so, they were
accountable for its value; and that if such value was equal to the
money due on the note, that it was extinguished; and if more, that
they were entitled to have the balance certified in their favour. They
LIEN. 119
also insisted that the notice of sale was insufficient ; that it was pre-
maturely given — the note not having fallen due when it was first
published — and that it did not sufficiently describe the property or
state the occasion of the sale. The judge declined to charge as requested,
but instructed the jury that the plaintiffs were entitled to a verdict for
the balance of principal and interest due on the note, crediting the
indorsement. The defendants' counsel excepted, and the jury found
a verdict according to the instruction. The defendsHits move for a
new trial on a bill of exceptions.
Jewett, J. The contract between these parties was strictly a pledge
of the boots and shoes. At common law, a pledge is defined to be a
bailment of personal property, as a security for some debt or engage-
ment. (2 Kent's Com. 577, 5th ed. ; Story on Bailment, § 286.) The
plaintiffs' debt, thus secured, became payable on the 8th day of Novem-
ber, 1837. On the 15th of that month, the plaintiffs caused the pledge
to be sold at a public sale by an auctioneer in Boston, pursuant to a
public notice published in certain newspapers in that city from the 2d
to the 15th of November inclusive ; but no notice of sale, or to redeem,
was at any time given to the defendants. The net proceeds of the sale
was $166.97, which the plaintiffs applied on their debt without the
assent of the defendants.
The first question made on the argument is, whether the sale thus
made was authorised and bound the defendants. On the part of the
plaintiffs it was insisted, that the pledge having been made as a security
for their debt, which was payable at a future day, the plaintiffs had a
right, after a default in payment, to sell the pledge, fairly in the usual
course of business ; without calling on the defendants to redeem, or
giving them notice of the intended sale ; and that such sale concluded
the defendants. It is said that the law makes a distinction between
the case of a pledge for a debt payable immediately and one where the
debt does not become payable until a future day ; and that in the latter
case the creditor is not bound to call for a redemption or to give notice
of sale, though in the former it is conceded that there must be such
demand and that notice must be given. Non-payment of the debt
at the stipulated time did not work a forfeiture of the pledge, either by
the civil or at the common law. It simply clothed the pledgee with
authority to sell the pledge and reimburse himself for his debt, interest
and expenses; and the residue of the proceeds of the sale then be-
longed to the pledgor. The old rule, existing in the time of Glanville,
required a judicial sentence to warrant a sale, unless there was a special
agreement to the contrary. But as the law now is, the pledgee may
file a bill in chancery for a foreclosure and proceed to a judicial sale ;
or he may sell without judicial process, upon giving reasonable notice
to the pledgor to redeem, and of the intended sale. I find no authority
countenancing the distinction contended for, but on the contrary, I
understand the doctrine to be well settled, that whether the debt be
120 PLEDGES.
due presently or upon time, the rights of the parties to the pledge are
such as have been stated. (Cortelyou v. Lansing, 2 Caines' Cas. in
Err. 204 ; 2 Kent's Com. 5th ed., 581, 582 ; 4 id. 138, 139 ; Tucker v.
Wilson, 1 P. Wms. 261 ; Lockwood v. Ewer, 2 Atk. 303 ; Johnson v.
Varnon, 1 Bailey's S. C. Rep. 527; Perry «. Craig, 3 Missouri Rep.
516 ; Parker v. Brancker, 22 Pick. 40 ; De Lisle v. Priestman, 1 Browne's
Penn. R. 176; Story's Com. on Eq. § 1008; Story on Bailm., §§ 309,
310, 346 ; Hart v. Ten Eyck, 2 John. Ch. 100 ; Patchin ». Pierce, 12
Wend. 61 ; Garlick v. James, 12 John. 146.) Nor do I see any reason
for such a distinction. In either case the right to redeem equally exists
until a sale ; the pledgor is equally interested, to see to it that the pledge
is sold for a fair price. The time when the sale may take place is as
uncertain in the one case as in the other ; both depend upon the will of
the pledgee, ■ after the lapse of the term of credit in the one case, and
after a reasonable time in the other ; unless indeed the pledgor resorts
to a court of equity to quicken a sale. Personal notice to the pledgor
to redeem, and of the intended sale, must be given as well in the one
case as in the other, in order to authorise a sale by the act of the party.
And if the pledgor cannot be found and notice cannot be given to him,
judicial proceedings to authorise a sale must be resorted to. (2 Stor.
Com. on Eq., § 1008.) Before giving such notice, the pledgee has no
right to sell the pledge ; and if he do, the pledgor may recover the value
of it from him, without tendering the debt ; because by the wrongful
sale the pledgee has incapacitated himself to perform his part of the
contract ; that is, to return the pledge, and it would therefore be nuga-
tory to make the tender. (Cortelyou v. Lansing, supra; Story on
Bailm., 2d ed., 349 ; McLean v. Walker, 10 John. 472.)
The evidence in this case shows that the plaintiffs, in November, 1837,
long prior to the commencement of this suit, tortiously sold the pledge,
and thereby put it entirely beyond their power to return it, upon pay-
ment of the debt. Where a pledge is made by a debtor to his creditor
to secure his debt, for a certain term, the law requires that the latter shall
safely keep it without using it, so as to cause any detriment thereto;
and if any detriment happens to it within the term appointed, it may be
set off against the debt, atjcording to the damage sustained. And if
the pledge is made without mention of any particular term, the credi-
tor may demand his debt at any time. When the debt is paid, the
creditor is bound to restore the pledge in the condition he received it,
or make satisfaction for any injury that it has received ; for it is a rule
that a creditor is to restore the pledge or make satisfaction for it ; if
not, he is to lose his debt. (1 Reeve's Hist. Eng. Law, 161, 162.) If the
pledgor, in consequence of any default of the pledgee, or of his conver-
sion of the pledge, has by any action recovered the value of the pledge,
the debt in that case remains, and is recoverable, unless in such prior
action it has been deducted. By the common law the pledgee, in such
an action brought for the tort, has a right to have the amount of his
LIEN. 121
debt recouped in the damages. (Bac. Abr. Bailment, B. ; Jarvis v.
Rogers, 15 Mass. R. 389 ; Story on Bailm., 2d ed., §§ 315, 349.)
The plaintiffs were wrongdoers in selling the pledge at the time they
did, without notice to redeem or of the sale being given to the defend-
ants ; and it is shown that the value of the pledge at the time equalled,
if it did not exceed, the debt which it was made to secure.
The counsel for the defendants, in effect, offered to recoup their dam-
ages arising from the plaintiffs' breach, of the contract of pledge, but was
not permitted to do so. It is urged by the plaintiffs' counsel, that the
defence was not admissible under the pleadings ; but I am satisfied
that it was unnecessary to plead specially, or to give notice of the mat-,
ters relied on. The evidence establishes that the plaintiffs had no cause
of action, and the defence is fairly covered by the plea of non-assumpsit.
(Batterman v. Pierce, 3 Hill, 171 ; Barber v. Rose, 5 id. 76 ; Ives v.
Van Epps, 22 Wend. 155.)
The defendants clearly had an election of remedies against the plain-
tiffs for the conversion of the pledge. They could maintain trover or
assumpsit, and in the latter action could recover the value under the
common counts. (Hill v. Perrott, 3 Taunt. 274 ; Butts «. Collins, 13
Wend. 139 to 154.) If assumpsit was maintainable by them, they
may, in an action by the plaintiffs, set off the value of the boots and
shoes as for such property sold. There is no valid objection on the
ground that the damages are unliquidated or uncertain. The. case of
Butts V. Collins is decisive on that point. There must be a new trial.
New trial granted.
ROBINSON «. HURLEY.
11 Iowa, 410 ; 79 Am. D. 497. 1861.
Thk plaintiff brought his suit to recover $554.69 as the amount due
on a promissory note. Defendant pleaded payment and set-off founded
upon the following receipt ; to wit : —
"Received, Dubuque, August 6th, 1857, of John Hurley, two orders on
the treasurer of Dubuque City, both orders dated August 4th, 1857. One
is numbered 4146, calling for five hundred dollars ; the other is No. 4148,
calling for two hundred and fifty dollars. The above orders are placed in
my possession as security for a certain note, dated as above, calling for.
five hundred and forty-six dollars and fifty cents, ninety days after date.
Should the said note not be promptly met at maturity, then I reserve the
right and privilege of disposing of said city orders at private sale, and to
appropriate so much of the sale of said bonds as shall fully satisfy said
note, interest and costs, and pay the balance, if any, to said John Hurley.
(Signed) "J. M. Robinson."
122 PLEDGES.
At the maturity of the note, defendant made default in payment.
The plaintiff did not at that time, to wit, on the 9th of November,
1857, when the note matured, sell the city scrip described in the above
receipt, but deferred the same tUl the 10th of May following, when he
sold the same for forty-five cents on the dollar.
On the trial, the defendant proved, against the objection of the
plaintiff, that at or about the time that the note matured, the city scrip
in question was worth in the market from seventy-five to eighty cents
on the dollar. The plaintiff then offered to prove by two witnesses
that in May, 1858, about the time he sold said scrip, it was worth only
about forty cents on the dollar. This evidence was declared inadmis-
sible by the court, and exceptions taken to both rulings. The jury
found a verdict of seventy-seven dollars and fifty cents for the defend-
ant. A motion for a new trial, based upon the alleged errors of the
coiu-t in admitting and rejecting certain testimony, and in its charge
of the law of the case to the jury, was overruled ; and the cause is ap-
pealed to this court by the plaintiff.
Lowe, C. J. Upon the foregoing facts the court, at the request of
the defendant, gave the following instructions as the law of this case ;
to wit : That under the receipt offered in evidence by defendant, if the
plaintiff sold the scrip at all, he was required by the terms of the receipt
to sell the same at or about the time of the maturity of the note ; and
that if they (the jury) find from the evidence that said plaintiff had not
sold the scrip, he was liable for the value of said scrip at or about the
time of the maturity of the note. The court also refused to charge the
jury that the value of the scrip at the time it was sold by the plaintiff was
the measure of his liability to the defendant for the same.
If the plaintiff acted tortiously or misappropriated the scrip in dis-
posing of it at the time he did, the above rule of damages would seem
to be proper and just. But if it was his right under the law which
governs pledges, even as modified by the contract of the parties in this
case, to sell these collateral securities at the time and under the circum-
stances which he did, then there was no misappropriation, and a differ-
ent criterion of damages obtains ; to wit, the value of the scrip at the
time of its conversion.
That we may arrive at a better understanding of the rights, duties,
and obligations of the parties under the receipt in question, let us inquire
what they would be under the law in the absence of such a contract.
After the debt falls due, the pledgee, under the law, has his election
to pursue one of three courses : First, to proceed personally against the
pledgor for his debt without selling the collateral security ; or, second,
to file a bill in chancery and have a judicial sale under a regular decree
of foreclosure; or third, to sell without judicial process, upon giving
reasonable notice to the debtor to redeem. . 2 Kent (9 ed.), 785 ; 1
P. Wms. 261 ; 2 Atk. 303. The plaintiff in executing said receipt did
not waive his right of adopting either of the above methods to satisfy
UEN. 123
his claim. The only change made in the rights and obligations of the
parties by this instrument was simply to dispense with notice to the
debtor to redeem before the creditor could sell. There is nothing in the
language or terms of this receipt which obliged the plaintiff to sell these
collaterals at the maturity of the note. He simply reserved the right
to do so, a right which the law gave him, without such reservation,
upon giving notice to redeem. A postponement of the exercise of this
right is a thing of which the debtor cannot very well complain; it
only enlarges his opportunity to redeem and thereby prevent any sac-
rifice that might result from a forced sale of the pledge. The deprecia-
tion in this case which the scrip in question suffered between the
maturity of the note and the sale of the same, was without the fault or
power of prevention on the part of the plaintiff. He was only bound
to that attention and diligence in the preservation of the thing pledged
which a careful man bestows upon his own property, for the reason that
the arrangement or contract was reciprocally beneficial to both parties.
We conclude therefore that the plaintiff in selling the collateral securi-
ties at the time and under the circimistances which he did, violated no
obligation or duty growing out of the understanding of the parties, or
expressed by the receipt, or law itself. And if we are right in this con-
clusion, it follows that the measure of his liability for said scrip is the
value thereof at the time of the conversion. This rule of damages, in
cases of this kind, is well established. See Sedgw. on Dam., 365-366
and 480-481, and authorities there cited.
Judgment reversed and new trial granted.
WHITE V. PHELPS.
14 Minn. 27 ; 100 Am. D. 190. 1869.
Appeal by plaintiff from an order of the court of common pleas,
Ramsey county, sustaining a demurrer to the complaint.
The complaint set forth a note made by defendant, payable to the
order of one Benjamin Phelps, and alleged that the payee transferred
and delivered it to plaintiff as security for a debt due from him to the
plaintiff.
McMillan, J. The principal question presented by the demurrer
to the complaint in this action is whether the transfer and delivery of
a promissory note, after maturity, and without indorsement, as collat-
eral security for the payment of a debt, enables the pledgee, upon
default of the pledgor, to maintain an action on the note in his own name
against the maker. The transaction is in the nature of a pledge, and
the rights and liabilities of the parties must be determined by the law
applicable to pledges of personal property of this character. It is a
124 PLEDGES.
well-settled rule of law relating to this class of bailments that the gen-
eral property in the pawn remains in the pledgor, and a special prop-
erty therein passes to the pledgee.
There is no rule of law which limits or defines absolutely the special
property of a pledgee, but the rights and liabilities of the latter are to
be determined from the terms, express or implied, of the contract be-
tween the parties, and we apprehend that whatever special interest or
estate in the pawn is necessary to enable the pledgee to exercise the
rights guaranteed to him, or discharge the obligations imposed on him
by the contract, will vest in him.
Let us consider, then, so far as it is necessary, what are the rights and
liabilities of the parties in this case.
Where goods are deposited to secure a loan, "it may be inferred,"
says Gibbs, C. J., " that the contract was this : if I (the borrower) repay
the money, you must redeliver the goods ; but if I fail to repay it, you
may use the security to repay yourself." Pothonier v. Dawson, 1
Holt, Nisi Prius, 383 ; 3 E. C. L. 154.
The primary and indeed the only purpose of the pledge is to put it
into the power of the pledgee to reimburse himself for the money
advanced when it becomes due and remains unpaid.
The contract carries with it an application that the security shall
be made effectual to discharge the obligation. Wheeler v. Newbould,
16 N. Y. 396. When the pledge is given as collateral security for the
payment of a debt, it can be made effectual to pay the debt only by
being converted into money ; and in the absence of any special agree-
ment to the contrary, and where there is nothing in the natiu^e of the
pawn inconsistent with such intention in the parties, the pawnee may
proceed to sell the property without judicial process upon giving rea-
sonable notice to the debtor to redeem.
The means generally resorted to for the accomplishment of the pur-
pose of the pledge is a sale of the property pledged, and writers upon the
subject generally state this as the power conferred upon the creditor to
satisfy his debt. Story, Eq. Jur., § 1008; 2 Kent, Comm., 582.
But there is nothing in the nature of this bailment which absolutely
requires a sale in all cases ; and if the subject of the pledge is such
that from its nature it is to be inferred with reasonable certainty that
the parties intended to restrict the pawnee in the exercise of his powers
to a proceeding in chancery, he will not be permitted to sell without a
decree. Clark v. Gilbert, 2 Bing. N. C. 356, explained ; Smith, Lead.
Cas. 298, 299. Or if, from its nature, the pawn cannot be converted into
cash without injury to both or one of the parties, and may be converted
into money by some other method more beneficial to the parties, we
think the pledgee is permitted, and in equity, if not at law, required,
to pursue the latter course, for the bailment is for the mutual benefit of
both parties, and is in the nature of a trust. " The creditor," says Kent,
is required "at his peril to deal fairly and justly with the pledge."
LIEN. 125
"The law, especially in the equity courts, is vigilant and jealous in
its circumspection of the conduct of trustees." 2 Kent, Comm. 583.
In the case under consideration there is nothing in the contract ex-
pressly restricting the power of the pledgee in the disposition of the
pledge. Is there anything in the nature of the pledge from which it is
reasonably to be inferred that the parties intend to prohibit a sale of
the pledge, either with or without judicial process ; or to afford any
remedy concurrently with a sale ; or to restrict the pledgee in any event
in pursuing his remedy to a proceeding in chancery ?
The pawn in this case is an unindorsed negotiable note. There are
no facts or circumstances going to shew that the amount of the note,
so far as the maker is concerned, cannot be fully realised in a suit
at law. Under these circumstances, we think, the pawnee is not per-
mitted to dispose of the note by sale.
The reasoning of Brown, J., on the same question, in Wheeler v.
Newbould, fully sustains this conclusion. Is there anything in the
nature of the pawn in this case which would reasonably indicate afl
intention to restrict the pledgee to a proceeding in chancery, in realis-
ing his debt from the property pledged ? If there is not, the party has
an election to pursue his remedy either at law or in equity. The rights
and remedies of parties to promissory notes are generally within the
exclusive jurisdiction of the courts of law. If in this case the pledgee
has not a remedy by action at law, and we are right in the view we
have taken of the power of sale, it is only because the note is not indorsed
by the payee. Does this deprive him of his right of action at law ? It
is doubtless true, that by the law merchant, if a promissory note is
originally payable to a person, or his order, it is properly transferable
by indorsement, and that the indorsement of the payee is necessary to
pass the legal title to a third person, so that at law, in the absence of
statutory provision to the contrary, he can maintain an action on the
note in his own name. But by a transfer without an indorsement the
holder will acquire the same rights that he would acquire upon a trans-
fer of a note not negotiable ; that is, he may at law sue the other
parties thereto in the name of the payee or assignor. Story, Prom.
Notes, § 120, note 3 ; Story, Bills, § 201, note 3 ; Jones v. Witter, 13
Mass. 304-306. Does the pledge of a note unindorsed operate as an
assigmnent of it? It is to be observed that the contract of pledge
exists in law as well as equity, and that by operation of law the pledgee
takes not a lien only, which is merely a right to retain until the debt
in respect of which the lien was created, has been satisfied, but a prop-
erty — an ownership in the property pledged. Story, Bailm., § 93,
g, h, c. It is a special ownership — that is, it is special from the fact
that it is limited in its character; it is an ownership limited to the
purposes of the pledge, but as to these purposes the property in the
pawn is vested in the pledgee, and the rights of the pledgee to the same
extent are paramount to those of the pledgor.
126 PLEDGES.
The purpose of the pledge is, as we have seen, that the pledgee may
reimburse himself for his debt when it becomes due and remains un-
paid. This can only be done by converting the pledge into money.
This, then, he has a right to do in a bona fide manner, and the contract
assigns him such a property in the pledge as will enable him to do it.
Whether it is a note or goods and chattels makes no difference — the
property passes ; but in the case of a negotiable note, the pledgee, in
any action in a court of law which requires a legal title to the property
in the plaintiff, must proceed in the name of the payee of the note, un-
less there is statutory provision to the contrary.
Assuming that we are right thus far, we think our statute has so
changed the law as to permit the pledgee, after default of the pledgor,
to maintain an action in his own name. The statute reads as follows :
" Every action shall be prosecuted in the name of the real party in in-
terest, except as hereinafter provided ; but this section does not author-
ise the assignment of a thing in action not arising out of a contract."
Gen. St. c. 66, tit. 3, § 26, p. 453. In considering this section with
reference to the right of action upon a note unindorsed, Flandrau, J.,
says : " The only question under our practice is, in whom is the real,
substantial ownership and property of the note ? In whomsoever that
is found, there the cause of action is also." Pease v. Rush, 2 Minn.
Ill (Gil. 89).
As the plaintiff by the pledge acquired a substantial ownership and
property in the note, an action brought for the purpose of enforcing a
right incident to that property or ownership must, under our statute,
be brought in his own name. It is true, the pledgor also retains a prop-
erty in the pledge, but it is entirely distinct and separate from that of
the pledgee, and their interests are, perhaps, adverse. It is neither
necessary nor proper, therefore, that they be joined as plaintiffs in this
action.
The debt, to secure which the pledge was given, was payable at a
specific time. When the debt, to secure which the pledge was given,
is payable at a time certain, and the pawn is a promissory note, no
demand by the pledgee is necessary before bringing a suit upon the
note pledged. Story, Bailm., § 308; 2 Parsons, Cont. 120.
Whether the pledgor should not be made a party defendant in this
action is a question not presented by the demurrer, and one upon
which we express no opinion.
Order sustaining demurrer overruled.
LIEN. 127
BOYNTON V. PAYROW.
67 Maine, 587. 1877.
Bill in equity, to procure the direction of the court in the disposition
of a pledge of a savings bank book, praying that the savings institu-
tion be directed to pay to the petitioner or his order all the moneys so
deposited, and for further relief and costs.
Barhows, J. Where there is a general pledge of personal property,
neither the time of redemption nor the manner and time of sale being
specified in the contract, it has long been held that the appropriate
remedy of the pledgee, when his rights or powers are in any manner
questioned or denied, is by process in equity, in which the court can
make the trust available with due regard for the rights of all concerned.
2 Kent's Com., 4th ed., 581, 582, 583 ; 4 id. 138, 140 ; 2 Story's Eq.
Jur., 9th ed., §§ 1030, 1033.
Chancellor Kent says that " where no time was limited for the redemp-
tion, the pawner had his own lifetime to redeem, unless the creditor in
the meantime called upon him to redeem, and if he died without such
call the right to redeem descended to his personal representatives";
that the pledgee has the election of two remedies upon the pledge itself,
one of which is to file a bill in chancery and have a judicial sale ; and
that " the law especially in the equity courts is vigilant and jealous in
its circumspection of the conduct of trustees."
The pledgee, holding the property in trust for the benefit of himself
and whomever else it may concern, may rightfully resort to the court
sitting in equity to make the proper orders respecting its disposition
and thereby relieve himself from ulterior questions as to the propriety of
his course, to which he might subject himself if he proceeded to sell
without judicial process, upon reasonable notice to the debtor to redeem.
In the present case the plaintiff claims that the savings bank book
which is the subject of controversy was pledged to him by his sister,
Clara Boynton, to secure certain promissory notes which she gave him
for money lent and which he still holds ; that a few months before her
death, upon her return from Massachusetts to her old home in Lincoln
county, in ill health, he redelivered it to her to enable her to draw such
sums from the deposit as she might need ; that during her last sickness
she recognised his claim upon it to secure the payment of her notes,
and gave it to her mother to be delivered to him with directions to take
what was due him, and use some of the money in fitting up a family
burial lot with suitable monuments, and distribute the remainder to
her heirs. The case shows that it was accordingly delivered to him by
their mother shortly after Clara's decease, and is now in the custody of
his counsel in Lincoln county. All the heirs of Clara subsequently
united in a request to the savings institution to pay the money to the
plaintiff in trust for them, but he did not draw it, and it still remains
128 PLEDGES.
in the savings institution. And the plaintiff claims a further lien to
secure certain advances of money which he made to several of the
heirs (notably to the respondent Payrow) on the strength of his posses-
sion of their order on the savings bank for the money.
The respondent, Payrow, a niece of Clara, in January, 1875, took
out administration upon Clara's estate, in Lincoln county. This
process was commenced returnable at the next term of this court in
that county against her as administratrix, and the savings institution
is made a party defendant.
[Discussion of a question of jurisdiction is omitted.]
It is clear, however, that the plaintiff can sustain no claim upon the
funds deposited in the savings bank by Clara Boynton, as against her
administratrix, to secure his advances made to her heirs on the strength
of their order in his favour upon the savings bank. If he would have
made that order available for such a purpose, he should have acted -
promptly under the order, and settled his transactions with the heirs with-
out compelling them by his delay to resort to an administration. As
against an administratrix duly appointed, he cannot sustain any claim
to the bank book, or the money it represents by virtue of any order or
assignment from the heirs.
Nor is the testimony sufficient to establish the creation of any trust
for the purpose of fitting up a family burial place and distribution of
residue among the heirs by the plaintiff, without the intervention of
probate proceedings. As construed by the plaintiff himself, the
amount to be expended for the family cemetery and the manner of its
expenditure were left to depend upon the concurrence of the heirs,
and there is absolutely nothing to show a legal appropriation of the
money to this object by Clara Boynton.
But we think there is a preponderance of evidence to show a renewal
of the pledge of the bank book to the complainant to secure the amount
due to him from his sister for money lent. We must set aside the testi-
mony of the complainant so far as it relates to matters occurring prior
to the decease of his sister as incompetent in this suit against her ad-
ministratrix. Trowbridge v. Holden, 58 Maine, 117; Burleigh v.
White, 64 Maine, 23. But in the testimony of his mother and his sister,
Harriet Boynton, we find enough to satisfy us that, during Clara's last
illness, she gave the bank book to her mother to be delivered to the
complainant for his security. While there are some inconsistencies
in the statements of the mother in her second deposition taken at the
instance of the defendant, they are nothing more than might be ex-
pected from a person of her great age when plied with leading questions
after a considerable lapse of time since the transactions to which her
testimony relates. We think the account first given by the mother,
and confirmed by Harriet, and by existing documents and the acts
of the parties concerned, is the more reliable. The delivery of the bank
book by Clara to her mother for the purpose avowed by her, makes it
LIEN. 129
a good pledge to the plaintiff ; and as pledgee he has the right to get
the direction of the court in regard to its disposition, so as to protect
the interests of all who have an interest therein. The bill is sustained
with costs for the complainant.
Unless the parties agree as to the amount due from Clara's estate to
the plaintiff, a master will be appointed to ascertain and report to the
court.
The peculiar nature of the pledge makes a sale unnecessary. If,
within three months after the amount due, the complainant is ascer-
tained, either by agreement of parties or the acceptance of a master's
report, the respondent shall tender the sum fixed with interest (if any
accrues) and costs of this process, the complainant shall thereupon sur-
render the bank book to the administratrix of Clara thenceforth dis-
charged of the pledge and all claim on the part of the plaintiff thereon,
except as heir of Clara. If not so tendered, an officer of the court
will be appointed to receive the money from the savings bank and dis-
pose of it as above.
Costs of the savings institution, if any, in this process, to be paid
out of the estate.
Bill sustained. Case remanded for further proceedings in conformity
herewith.
MASONIC SAVINGS BANK v. BANGS' ADMINISTRATOR.
84 Ky. 135 ; 4 Am. St. R. 197. 1886.
Judge Pryor delivered the opinion of the court.
John B. Bangs, in the month of June, 1884, borrowed of the Masonic
Savings Bank the sum of ten thousand dollars, for which he executed
his note, payable in six months with interest from date, and to secure
its payment he pledged as collateral security three hundred shares of
the stock of the New Gait House Company. The nature of the pledge
was indorsed on the back of the note, and is as follows : " As security
for the payment of the within note, I have deposited with the Masonic
Savings Bank three hundred shares of the capital stock of the New Gait
House Company, and authorise the said bank to sell the above de-
scribed collaterals, and pass a good title thereto to the purchaser, if the
within note is not paid at maturity, reserving the right to be notified
in writing twenty days previous to the date and place of the contem-
plated sale."
Bangs, the obligor in the note, died intestate in August, 1884, and the
appellee, W. C. Kendrick, administered on his estate, and in order to
a settlement with creditors filed a petition in the Louisville Chancery
Court, to which the appellant (Masonic Savings Bank) was made a
130 • PLEDGES.
defendant. The estate of Bangs was not only involved, but utterly
insolvent.
The Masonic Savings Bank, being a large creditor of the estate, filed
an answer and counter-claim, setting forth its various demands, and
among them the note for ten thousand dollars. A judgment was asked
by the bank for the sale of the stock pledged to secure the payment of
that note. The administrator and the bank consented by an agreed
order that the bank should sell the stock, subject to the rights of the
parties in interest.
The stock was sold by the bank and realised, after the payment of
all costs, the sum of thirteen thousand four hundred and ninety-five
dollars and ten cents. This sum satisfied the note, and left a surplus
of three thousand five hundred and thirty-six dollars and forty-five
cents, and the manner in which this sui^lus is to be distributed is the
question presented on the appeal.
The bank, holding many other large claims against the estate, asserts
its right to apply this surplus to their payment, insisting that by the
law merchant it has a lien over other creditors, and if not, having pos-
session of the fund, its right to a set-off against the claim of the adminis-
trator cannot be denied.
We find no decision by this court determining the question involved ;
but the right of a bank to a general lien on the money and funds of the
depositor in its vaults for the payment of the balance of the general
account of the despositor, is recognised by all the elementary books on
the subject of banks and banking, and sustained by an unbroken line
of American decisions. So when the depositor is indebted to the bank,
his funds in the bank may be applied to the payment of the debt at its
maturity, and a failure of the bank to make such an application has
been held to discharge the indorser or sureties.
The right to a set-off would also exist against the administrator or
representative of the depositor attempting to recover the deposit after
his death. (Morse on Banking, pp. 34, 35, 36.)
This doctrine as to the general lien of a bank, or its right to a set-
off, does not control the question involved in this case.
It is equally as well settled that when the deposit is made for a spa
cial purpose, with the knowledge and undertaking of the bank, that
purpose must be carried out ; or when the pledge is specific to secure a
particular debt, the lien only applies to the debt intended to be secured
by it. " A security given for a contemporaneous advance of one thou-
sand pounds by the banker, was held not to be applicable against an
indebtedness of five hundred pounds, afterwards arising on the ordi-
nary running account." (Morse on Banking, p. 36.)
In this case the intestate deposited with the bank three hundred
shares of the New Gait House stock, to secure the payment of the note
for ten thousand dollars. The title to the stock was in the intestate,
subject to this pledge, and the bank had no right to sell more of the
LIEN. 131
stock than would satisfy the debt it was given to secure. If two hun-
6red shares had satisfied the debt, the intestate, if Hving, could have
maintained an action against the bank for the remaining one hundred
shares. The debt having been paid, the pledgor or owner would have
been entitled to the immediate possession of the stock remaining unsold.
The administrator of Bangs consented that the whole of this stock
might be sold by the bank, and when sold, the special pledge having
been satisfied, the surplus fund arising from the sale passed to the ad-
ministrator. It was the property of the estate, and its conversion into
money did not alter the rights of the parties. If the appellee, as the
administrator, had paid off the ten thousand dollar note, the whole
of the stock would have belonged to the estate, and no lien could have
been asserted against the administrator so as to have prevented a dis-
tribution among the general creditors.
The special agreement with reference to the particular debt repels the
inference that it was pledged for any and all debts that might thereafter
be owing the bank by the intestate. In Parsons on Contracts, vol. 3,
pp. 264, 265, the lien of the banker is thus stated: "When a nego-
tiable note is indorsed to a banker by the payee as collateral security
for one only of several demands, for which he is liable, the banker has
no lien on such note as security on any other demand against the
indorser."
Kent in his Commentaries, vol. 2, p. 775, states the rule : " The
pawnee will not be allowed to retain the pledge for any other
debt than that for which it was made, even though the holder be a
banker."
In Duncan v. Brennan, 83 New York, 487, it was held that personal
property pledged for a particular loan cannot, in the absence of a special
agreement, be held by the pledgee for any other advance ; and in that
■case it was also said that "the general lien which bankers have upon
bills, notes, and other securities deposited with them for a balance due
on general account, cannot exist where the pledge of property is for a
specific sum and not a general pledge."
In the case of the Neponset Bank v. Leland, 5 Met. Mass. 259, it
was adjudged, that " where a negotiable note is indorsed to a bank by
the payee as collateral security for only one of several demands on which
he is liable, the bank has no lien on such note as security for any other
demand against the indorser."
In the case of Wyckoff v. Anthony and others, reported in 90 New
York, 442, the bonds in controversy were pledged by the plaintiff as
collateral security for a note of eight thousand dollars. The plaintiff
tendered the firm the amount of the debt and interest, and demanded
the securities. The defendants refused to deliver them unless the
plaintiff would pay another claim of the defendants against the plain-
tiff, for which the bonds had not been specifically pledged.
The plaintiff then brought his action for the value of the bonds, alleg'
132 PLEDGES.
ing their conversion by the defendants. It was held, that "where se-
curities are pledged to a banker or broker for the payment of a partic-^
ular loan or debt, he has no lien on the securities for a general balance,,
or for the payment of other claims," and a recovery was permitted.
We have found no case decided by the courts of this country sustain-
ing the position assumed by counsel for the appellant, and the English
cases relied on, particularly the case of Davis v. Bowsher, 5 Term
Rep. 481, decided by Lord Kenyon, states the rule to be, that by the
general law of the land a banker has a general lien upon all the securities
in his hands belonging to any particular person for his general balance,,
unless there be evidence to show that he received any particular security
under special circumstances, which would take it out of the common
rule.
This general lien arises from the usage of trade; and the fact that
the parties have made the pledge for the particular debt must be held
to exclude the intention of creating or relying on a lien that would
otherwise exist upon the general deposit account. It is a special
deposit or pledge for a' special purpose, and when that purpose is accom-
plished the lien ceases to exist. A general lien in such a case would be
inconsistent with the special undertaking. (Grant on Banking, p. 168.)
Counsel on each side in this case have bestowed much labour in pre-
senting and reviewing the authorities on this question, and while some
of the English cases would tend to sustain the claim of lien, the whole
current of American authority is against such a doctrine.
Nor is the appellant entitled to a set-off, either at law or equity,
against this claim of the administrator. Mutual debts existing between
the intestate and the bank might be set off by the bank either at law
or equity, but in this case there was no debt due the intestate. The
latter was liable to the bank for a large sum of money, and had pledged
his stock in a corporation to pay a part of the debt only. The stock
was not converted by the bank into money during the life of the intes-
tate, and no lien, legal or equitable, existed on the part of the bank out-
side of the pledge. The stock was the property of the intestate in the
possession of the bank, and at his death the title vested in his personal
representative. If Bangs had mortgaged his personal property to
secure this debt, a satisfaction of the mortgage debt by a sale of a part
of the personalty would have left the intestate entitled to the remainder
free of any incumbrance by reason of the mortgage, and the pledge
by a delivery of the possession of the stock to the bank only invested it
with an equity to the extent of the pledge made. Equitable rights
might have arisen as between the intestate, if living, and the bank,
entitling the latter to some of the provisional remedies authorised by
the Code ; but here the personal assets, after satisfying the lien, vested
in the administrator, and the specific lien having been removed, the
surplus is for distribution between creditors as provided in sections 33.
and 34 of art. 2, chapter 39, General Statutes.
LIEN. 133
When the personal estate is covered by liens, giving a creditor priority,
the residue, after satisfying the lien, must be paid to other creditors
until they have received a sum equal, -pro rata, with the lien creditor.
This statutory provision applies to all liens created on the personal
estate, whether by operation of law or by express contract between
the parties. (Spratt v. First National Bank of Richmond, 84 Ky. 85.)
This estate, being insolvent in any event, the bank must stand
back until the other creditors are made equal to the lien asserted and
allowed it by reason of the pledge.
The judgment below conforming to these views must be aflSrmed.
MOSES V. GRAINGER.
106 Tenn. 7 ; 58 S. W. R. 1067 ; 63 L. R. A. 857. 1900.
Action by Charles H. Moses, as executor of the estate of Mary P.
Moses, deceased, against Fannie M. Grainger and others, in which S. C.
Jarnigan asked a decree for the amount of a certain note ; and from
a decree of the court of chancery appeals reversing a decree of the chan-
cellor, he appeals.
Beaed, J. On the 11th day of May, 1898, Frank A. Moses executed
to the Central Savings Bank of Knoxville his promissory note for
$301.10, payable 90 days after date "to the order of the payee," and
pledged as collateral to secure it the note which is the subject of con-
troversy in this case. The pledge of the collateral, as stipulated in the
original paper, is in these words : " Having deposited with said bank
as collateral security for the payment of this note, with authority , to
sell the same at public or private sale on the non-performance of this
promise, and without notice, one note for $500, signed by F. A. Moses,
and indorsed by Chas. H. Moses, Henry L. Moses, andMaryP. Moses."
The $500 note thus pledged was dated 10th December, 1892, and
matured six months after date. Long after maturity of the original
note, to wit, in February, 1899, and after, by various payments made
upon it by its maker, there was left due on it, in principal and interest,
only $86.50, the Central Savings Bank passed into the hands of a re-
ceiver, who sold a considerable part of its assets, including this note, to
Galbraith & Maloney, of Knoxville. With this note was also delivered
to them the collateral in question. Having received these assets, on
the 7th of March, 1899, these transferees posted the following Notice :
"On Thursday, March 9, 1899, at 11 o'clock a.m. we will sell to the
highest bidder, for cash, in front of the court-house door in Knoxville,
certain collaterals attached to various notes assigned to us by the Cen-
tral Savings Bank, which collaterals will be produced at the sale. This
March 7, 1899. [Signed] Galbraith & Maloney." Pursuant to this
134 PLEDGES.
notice, and without any demand upon the maker of the original note,
these parties undertook to sell the collateral in question, when, S. C.
Jarnigan having bid for it the sum of $87.50, it was delivered to him as
the purchaser. Thereupon, claiming to be its owner under this purchase,
he filed his petition in this cause, instituted to wind up the estate of
Mary P. Moses, now deceased, one of the indorsers of this collateral,
asking that he be given a decree for the face value of the note and inter-
est upon it. The chancellor allowed a decree for the sum of $87.50,
the amount paid by him. From this decree he prayed an appeal, and
the court of chancery appeals reversed the chancellor and dismissed his
petition. From the finding of this latter court, he has appealed.
For the purpose of this case, it may be conceded that the power of
sale given in this contract of pledge was not a personal trust to be
exercised by the payee alone, but under the terms, "to the order of,"
would pass to an assignee, as in a mortgage, where the authority is
given to the mortgagee or "assigns." 2 Ping. Chat. Mortg. § 1320.
But this concession will not avail the petitioner, Jarnigan ; for there is
an objection we think fatal to this claim. As has been seen, the origi-
nal note was nearly four years past maturity at the time of this at-
tempted sale. The first holder had from time to time accepted pay-
ments upon it, until there was only $50 of the principal due upon it.
No demand was made upon its maker by Galbraith & Maloney to pay
it and redeem the collateral, nor was any notice of the purpose to sell
given him ; the only notice being the one hereinbefore set out. By the
terms of the pledge the bank was vested "with authority to sell the
same [the collateral] at public or private sale on the non-performance
of this promise [that is, the promise to pay 90 days after date] without
notice." But is there any law which would regard a sale made by the
bank under the conditions mentioned as a proper exercise of this aiithor-
ity ? The acceptance of payments from the maker of the original note
at different times after maturity, and the indulgence given to him for
near four years, necessarily lulled him into a sense of security. He had
a right to suppose, under these circumstances, and after his note had
been reduced to a trifling balance, that before exercising the right to
sell, a demand would be made upon him to redeem his collateral. The
general rule is, in the absence of express authority, that the pledgee has
no right to dispose of collateral securities, such as bills and notes, upon
default in the payment of the original debt. Joliet Iron & Steel Co.
V. Scioto Fire-Brick Co., 82 111. 548, 25 Am. Rep. 341 ; Canal Co. v.
Lewis, 12 N. J. Eq. 323 ; Stevens v. Wiley, 165 Mass. 402, 43 N. E. 177.
It is otherwise, however, when the authority to sell is given by the con-
tract of pledge. But "such a power, so far as it enables the pledgee
to extinguish the right of the pledgor to redeem, will, as other contracts
affecting equities of redemption, be construed f avoiu-ably for the interests
of the pledgor, so far as is consistent with the rights of the pledgee. The
power of sale must be exercised with a view to the interest of the pledgor.
LIEN. 135
as well as of the pledgee, and the sale must not be forced for barely
enough money to secure the payment of the debt." Cole. Coll. Sec,
§118.
We think the sale complained of was in disregard of these equitable
principles, and that, if it had been made at the instance of the original
holder, it would not have been tolerated by a court of conscience. No
more favour will be shewn to it when made by Galbraith & Maloney
under a notice which gave no information to the pledgor.
[Portion of opinion on a question of practice is omitted. The decree
of the lower court was affirmed.]
136 WAREHOUSEMEN.
III. WAREHOUSEMEN.
1. DUTIES.
SCHMIDT V. BLOOD.
9 Wend. (N. Y. S. C.) 267 ; 24 Am. Dec. 143. 1832.
This was an action of replevin, tried at the New York circuit in April,
1831, before the Hon. Ogden Edwards, one of the circuit judges.
In November, 1828, the plaintiffs stored with the defendants, who
were warehousemen at Brooklyn, 99 tons of hemp, parcels of which were
from time to time delivered upon the order of the plaintiffs. In Jan-
uary, 1830, the defendants informed the plaintiffs that about 10 tons
of hemp had been purloined from their stores by their storekeeper,
and requested their assistance in recovering the property. In February,
1830, the plaintiffs demanded of the defendants the hemp then remain-
ing in the store, being six and a half tons, and tendered to them as the
storage of the same, $150, which sum exceeded the amount to which
the defendants were entitled as storage for the quantity then on hand.
The defendants refused to receive the money tendered, saying they had
the key of the store and meant to keep it ; that the hemp had been in
store a good while and no storage had been paid upon it. The plaintiffs
sued out a writ of replevin, and the six and a half tons of hemp were
delivered to them by the sheriff. On these facts the plaintiffs rested.
The defendants then offered to prove the purloining of the 10 tons by
their storekeeper, and that they forthwith gave notice thereof to the
plaintiffs; that the hemp purloined had been sold to a mercantile
firm of the name of Forbush and Albert, who were abundantly solvent ;
that they urged the plaintiffs to replevy the hemp out of the hands of
Forbush and Albert, but that having brought an action of trover, the
plaintiffs declined to do so. They further offered to prove, that with
the exception of the 10 tons purloined and the six and a half tons taken
under the replevin in this cause, they had accounted for the whole
quantity of the hemp stored with them ; that their storage bills for the
whole quantity, amounting to $360.79, remained unpaid; and that by
the custom and usage of merchants in New York and Brooklyn, they
had a lien upon the six and a half tons remaining on hand at the time
of the tender, for the general balance due to them. The judge refused
to receive the evidence of usage, as being contrary to the law of the land,
and ruled that he would not hear the other evidence offered unless the
defendants would prove that the hemp alleged to have been purloined
had been taken with the knowledge or assent of the plaintiffs, or that
DUTIES. 137
the person who took it was not the partner or storekeeper of the defend-
ants. The defendants not being able to furnish such proof, the judge
directed a verdict for the plaintiffs, which was accordingly rendered.
The defendants ask for a new trial.
By the Court, Sutherland, J. It appears to be well settled, that
a warehouseman, or depositary of goods for hire, is responsible only for
ordinary care, and is not liable for loss arising from accident when he is
not in default ; 2 Kent's Comm. 441 ; 4 T. R. 481 ; Peake's N. P. 114 ;
4 Esp. N. P. R. 262 ; and in Finucane v. Small, 1 Esp. N. P. R. 315,
it was held that if goods be bailed to be kept for hire, if the compensa-
tion be for houseroom, and not a reward for care and diligence, the bailee
is only bound to take the same care of the goods as of his own, and if
they be stolen or embezzled by his servant, without gross negligence on
his part, he is not liable ; and the onv^ of shewing negligence seems to
be upon the plaintiff, unless there is a total fault in delivering or account-
ing for the goods. 7 Cowen, 500, note a, and cases there cited ; 3 Taunt.
264 ; 5 Barn. & Cres. 322 ; 1 H. Black, 298 ; Jones on Bailment, 106,
w. 40 ; 2 Salk. 655 ; 1 T. R. 33. The defendant's claim for storage,
therefore, is not prejudiced by the fact that a portion of the goods had
been purloined or embezzled by the storekeeper or servant.
The defendants had a lien on the whole and every part of the hemp
for their storage of the whole ; it was but one parcel ; the whole was
deposited with them at the same time ; it was but one transaction. It
is admitted that the defendants might have refused to deliver any por-
tion of the hemp until their storage for that particular portion was paid ;
but having parted with all but six and a half tons, it is contended that
they have no right to retain that for their charges in relation to the
other portions. This cannot be ; it would be found most inconvenient
in practice. Restricting the lien to services rendered in relation to the
whole quantity deposited at the same time, it becomes a just and rea-
sonable rule, giving effect undoubtedly to the actual intentions and
understanding of the parties, and promoting the convenience of trade
and business. 2 Kent's Comm. 495, 6.
New trial granted.
GULF COMPRESS CO. v. HARRINGTON.
90 Ark. 266 ; 119 S. W. R. 249 ; 33 L. R. A. N. S. 1205. 1909.
McCuLLOCH, C. J. The plaintiff, W. E. Harrington, was the owner
of 34 bales of cotton, which were destroyed by fire while held for stor-
age by the defendant. Gulf Compress Company, in its warehouse at
Little Rock, Ark. He sued the defendant for the value of the cotton,
and seeks to establish liability on the alleged ground that the latter
was guilty of negligence in permitting destruction of the cotton by fire.
138 WAREHOUSEMEN.
and he recovered a judgment for damages, from whicli the defendant
prosecutes this appeal.
Learned counsel raise only two questions in the argument here, viz. :
(1) That defendant is not liable because it contracted against liability
for loss by fire caused even by its own negligence ; and (2) that there
is not sufEcient evidence to warrant a finding that its servants were
guilty of any negligence which caused the fire. The briefs on each side
contain interesting and very instructive discussions of the question
whether or not it is contrary to public policy to permit a concern operat-
ing a compress and receiving cotton for storage and compression, which
is said to be a business of a public or quasi-public nature, or a business
"affected with a public interest," to contract against liability to patrons
for damages caused by its own negligence.
But the first question to be decided is whether or not the defendant
in this case did in fact contract against such liability ; for, until we settle
that question in the aflBrmative, it is unnecessary to go further. The
written receipts executed by defendant to plaintiff for the cotton when
delivered to it, and which constituted the contract between the parties,
are in the following form : "Received on account of W. E. Harrington
one bale of cotton, marked as stated herein, on storage, to be delivered
to bearer only upon the return of this receipt and the payment of all
advances and such charges as may have accrued under the current tariff
of this company. Not responsible for loss by fire, acts of Providence,
natural shrinkage, old damage, or for failure to note concealed damage."
It will be observed that nothing is expressly said in the receipt about
exemption from liability for negligence. It provides in general terms
that there shall be no responsibility "for loss by fire, acts of Providence,
natural shrinkage, old damage, or for failure to note concealed damage."
Does this exemption include negligence of the obligor ?
The receipt issued is in the form prepared by the defendant itself.
The exemption set forth therein is couched in language of its own
selection, and, according to well-settled rules of interpretation, should
be construed in the strongest light against it. Judge Thompson, in
his work on Negligence (vol. 1, § 1143), says that, "there is a tend-
ency of the law to discountenance stipulations in contracts between
parties whereby one of the parties undertakes to exempt himself from
liability for his own negligence," and that this tendency is discovered
in decisions of the courts declining to construe provisions in contracts
so as to bring them within such exemption, even in cases where public
policy would not forbid it if clearly expressed. In Railton v. Taylor,
20 R. I. 279, 38 Atl. 980, 39 L. R. A. 246, it was held (quoting from the
syllabus) that " the lessor's own negligence in the management and use
of that part of the premises remaining in his control, including the heat-
ing apparatus, is not within a stipulation that he shall not be liable
for any loss to property on the premises, if ' destroyed or damaged by
fire, water, or otherwise, or by the use or abuse of the Cochituate water.
DUTIES. 139
or by the leakage or breakage of water pipes, or in any other way or
manner.'"
It has been held in many cases that a receipt given by a warehouse-
man, stipulating that goods are received at "owner's risk," does not
exempt from damage caused by negligence. Denver Public Warehouse
Co. V. Hunger, 20 Colo. App. 56, 77 Pac. 5 ; Hunter «. Baltimore P.
& C. Co., 75 Minn. 408, 78 N. W. 11 ; Collins v. Barnes, 63 N. Y. 1 ;
Herzig V. N. Y. Cold Storage Co., 115 App. Div. 40, 100 N. Y. Supp.
603. In the Colorado case above cited the court said : " Contracts
against liability for negligence are not favoured by the law. In some
instances, such as common carriers, they are prohibited as against public
policy. In all such cases such contracts should be construed strictly,
with every intendment against the party seeking their protection."
The case of Dieterle v. Bekin, 143 Cal. 683, 77 Pac. 664, is precisely in
point. There the warehouseman's receipt stipulated that there should
be "no liability for fire," etc. ; but it was held that this did not exempt
him from liability for fire caused by negligence, the court saying:
" Such a contract should not be construed so as to excuse a bailee from
the exercise of ordinary care to protect the property from fire."
It may be argued that this construction entirely emasculates the
stipulation and renders it meaningless, for the reason that even without
it there is no liability on the part of the warehouseman for loss by fire
unless the same be caused by negligence. That may be true ; but even
without a stipulation of exemption there is no responsibility on the part
of the warehouseman for loss on account of " acts of Providence, natural
shrinkage, old damage, or for failure to note concealed damage," and
yet the receipts contain a stipulation exempting from liability for those
causes. A warehouseman is no insurer against damage to property
held for storage, and is liable only for damage caused by negligence.
But this argument affords no reason for importing into the contract a
stipulation for exemption from liability for negligence which the parties
themselves have not seen fit to express in apt words — a stipulation,
too, which the law at least discourages when it does not positively for-
bid. If a stipulation against liability for negligence had been intended,
we must assume that it would have been more aptly expressed in the
contract. We hold that the contracts in question do not contain
such exemption.
Does the evidence sustain a finding of negligence on the part of the
defendant which caused the destruction of the cotton ? The warehouse
was located contiguous to railroad tracks along which engines were
frequently passing. A large lot of loose, unbaled cotton was kept
there, through which fire, if once communicated, would spread rapidly
and invade the whole premises. There were holes and cracks in the
corrugated iron wall of the shed on the side next to the railroad tracks.
A door was permitted to get out of repair, and remain so for a consid-
erable time, so that it could not be closed. It is claimed that in this
140 WAREHOUSEMEN.
way the property in store was kept in close proximity to the more highly
inflammable loose cotton, and that the whole was exposed, on account
of the open door and holes in the wall, to danger from sparks escaping
from passing locomotives. There was evidence to the effect that about
twenty minutes before the fire was discovered an engine passed along
by the warehouse puffing very hard. The fire is not otherwise accounted
for, and, considering all the circumstances, we are of the opinion that
the jury had the right to infer that the fire was communicated from
the passing engine, and to find that the defendant was negligent in ex-
posing the stored cotton, without proper protection, to this danger.
St. L., I. M. & S. Ry. Co. v. Coombs, 76 Ark. 132, 88 S. W. 595.
Affirmed.
2. RECEIPTS.
SINSHEIMER v. WHITELY.
Ill Cal. 378; 43 Pac. R. 1109; 52 Am. St. R. 192. 1896.
Britt, C. Replevin for two hundred and seventeen sacks of beans.
Defendant Whitely is constable of a certain township in San Luis Obispo
county, and as such levied on the beans as the property of one Costa
in virtue of a writ of attachment to him issued out of the justice's court
of said township at the suit of one Lial against said Costa. At the
time of the levy the beans were stored in a warehouse at Pismo, in said
county, owned by the Jordan Bituminous Rock and Paving Company,
a corporation, which is joined with the constable as a defendant in this
action. In November, 1893, said Costa, who was then the owner of
the beans, caused them to be weighed at said warehouse and deposited
therein, receiving from said paving company at that time five certain
instruments, which plaintiffs style "warehouse receipts," and which
defendants call "weighing tags"; these were in the following form,
varying as to the number of sacks specified: "Jordan Bit. Rock and
Pav. Co.'s scales, Pismo, Cal., 11-2, 1893. Weighed for F. J. Silva.
Gross, 5080. Tare, 1570. 40 sks. beans. Net wt. 3510. Marked
F. J. S. A. Klatt, weigher." They were issued at Costa's request in
the name of one F. J. Silva, with consent of the latter, but were delivered
to Costa ; Silva never had possession of them and had no interest in
the beans. A Mr. Stevens, agent of said company, and who had charge
of the warehouse, testified at the trial : " The tags in evidence were
issued by our company at Pismo, and are the only kind issued by our
company, the only receipts given. They are given by the weigher;
thfe tags, or whatever you call them, were given by the weigher at the
scales when the beans were weighed and were placed in the ware-
RECEIPTS. 141
house"; also, that the company took the beans as a warehouseman,
but had no charge against them ; that it does not charge storage.
On December 6, 1893, Costa deHvered said instruments, though with-
out indorsement, to plaintiffs as security for a debt then owed by him
to them. He also gave them a written order for the beans addressed
to "Agent Pismo Wharf and Warehouse." December 11th, following,
the constable seized the beans pursuant to said writ in Lial's suit against
Costa ; Lial obtained judgment in that action and an execution issued
thereon, under which the constable was about to sell the beans when
plaintiffs for the first time notified him and also the paving company
of their claim to the property in virtue of the transfer to them of said
alleged warehouse receipts ; their demand for release of the property
being refused, they brought this action.
A warehouse receipt has been defined to be a written contract between
the owner of the goods and the warehouseman, the latter to store the
goods and the former to pay for that service. (Hale s. Milwaukee Dock
Co., 29 Wis. 488 ; 9 Am. Rep. 603.) Perhaps some of the terms of this
contract may be implied (see forms of such receipts construed in Lowrie
V. Salz, 75 Cal. 349, and Bishop v. Pulkerth, 68 Cal. 607) ; but surely
there ought to be something on the face of the instrument to indicate
that a contract of storage has been entered into ; our statute on the
subject requires that much (Stats. 1877-1878, p. 949, § 5) ; the lan-
■ guage in the papers here, "Weighed for P. J. Silva forty sacks beans,"
no more signifies that the paving company received or held the beans
as a warehouseman than it bought or sold the same, or shipped them to
a distant port ; on their face they plainly are not warehouse receipts.
(Cathcart v. Snow, 64 Iowa, 584 ; Robson v. Swart, 14 Minn. 371 ;
100 Am. Dec. 238.) But it is said that the tickets were the only
vouchers issued by the defendant company, and hence must be treated
as warehouse receipts. Rather, it seems to us, that circumstance tends
to show that said company was not a warehouseman at all in the sense
which the law attributes to that term — an inference corroborated by
the fact that it makes no charge for storage. It is only persons who
pursue the calling of warehousemen — that is, receive and store goods
in a warehouse as a business for profit — that have power to issue a
technical warehouse receipt, the transfer of which is a good delivery of
the goods represented by it. (Shepardson v. Cary, 29 Wis. 42 ; Bucher
V. Commonwealth, 103 Pa. St. 534; Edwards on Bailments, § 332.)
Since there was nothing equivalent to delivery of the beans in the
transaction between Costa and plaintiffs, the rights of the attaching
officer are not affected by the attempted transfer.
The court found that the constable made no valid levy of the writ ;
and some effort is made here to justify the finding. It seems to us a mere
conclusion of law; but, admitting it to be a finding of ultimate fact,
it is not sustained by the evidence. It appears from the constable's
return and certain parol evidence (which was admissible in aid of the
142 ■WAEEHOUSEMEN.
return, Brusie v. Gates, 80 Cal. 462), that he took actual possession of
the beans in the warehouse and placed said Stevens in charge thereof
as keeper ; there were some further proceedings by him to charge both
Silva and the paving company as garnishees, but the sufficiency of these
need not be looked to ; his possession by his keeper was a compliance
with the statute. (Code Civ. Proc, § 542, subd. 3.)
The judgment and order denying defendants' motion for new trial
should be reversed.
ANDERSON v. PORTLAND FLOURING MILLS CO.
37 Oreg. 483 ; 60 Pac. R. 839 ; 50 L. R. A. 235 ; 82 Am. St. R. 771. 1900.
[Action for conversion of wheat alleged to have been delivered to
defendant as warehouseman by plaintiff and others severally, through
W. E. Loughmiller & Co., its agent, the warehouse receipt being issued
in each case in the name of said Loughmiller & Co. Plaintiff is named
as storer in some of the receipts and holds other of the receipts as trans-
feree of the persons named therejp as storers. There was judgment for
plaintiff and defendant appeals.]
Mr. Justice Bean. To support the first, third, and sixth causes of
action, the plaintiff introduced in evidence five warehouse receipts,
dated at Silverton, Oreg., and signed by W. E. Loughmiller & Co.,
and was permitted, over defendant's objection and exception, to give
evidence aliunde the receipts, tending to prove that Loughmiller & Co.,
in signing and issuing them, were acting as the agents of the defendant,
and that such receipts were in fact the contracts of the defendant. The
admission of this evidence constitutes the first assignment of error upon
which the defendant relies for a reversal of the judgment. The wheat
receipts referred to are identical, except as to dates, names, and amounts,
and it will be sufficient for the purposes of this appeal to set forth one
of them. It is as follows : —
" No. 1. Silverton, Ok., Sept. 7, 1891
"Received from John Gash one thousand two hundred and ninety-four
40-60 bushels of good, merchantable wheat, to be forwarded to Oregon
City, Oregon, and stored with the Portland Flouring Mills Co., subject to
the following conditions : W. E. Loughmiller & Co. are to have the first
privilege of purchasing this wheat for cash at any time the storer concludes
to sell, and said wheat is subject to storage charges of two and one-half
cents per bushel, and freight charges from shipping [point] to Oregon City.
Upon demand, this quantity of good, merchantable wheat will be ddiv-
ered to the storer, sacked, upon the pajonent of the above-mentioned stor-
age and freight charges, and four cents per bushel for sacks ; but no order of
storer will be accepted by the Portland Flouring Mills Co. unless counter-
RECEIPTS. 143
signed by W. E. Loughmiller & Co. But in no case shall W. E. Lough-
miller & Co., or the Portland Flouring Mills Co., be held liable for acciden-
tal loss or damage to said wheat by the action of the elements.
"W. E. Loughmiller & Co.
"Per J. A. L."
"1294 40-60 bushels.
1. The defendant's contention is that, since warehouse receipts in
this state are by statute made negotiable, the rule of law that the lia-
bility of a party upon a negotiable instrument must be established by
the terms of the writing itself, and cannot be shown by evidence aliunde,
is applicable to such receipts. It may be regarded as a settled rule of
the common law that, if the person sought to be charged upon a nego-
tiable instrument is not bound upon the face of the writing, he is not
bound at all, and it cannot be shown that the maker was in fact the
agent of another, and that such other is bound by the instrument.
The observation of Andrews, J., in Briggs v. Partridge, 64 N. Y. 357
(21 Am. Rep. 617), that "persons dealing with negotiable instruments
are presumed to take them on the credit of the parties whose names
appear upon them, and a person not a party cannot be charged upon
proof that the ostensible party signed or indorsed as his agent," is a
clear statement of the law, and supported by the authorities : Chitty,
Bills & N. 33 ; Heaton v. Myers, 4 Colo. 59 ; Arnold v. Sprague, 34 Vt.
402; Stackpole v. Arnold, 11 Mass. 27 (22 Am. Dec. 150); Bedford
Ins. Co. V. Covell, 8 Mete. (Mass.) 442 ; Tucker Mfg. Co. v. Fairbanks,
98 Mass. 101 ; Rendell v. Harriman, 75 Me. 497 (46 Am. Rep. 421) ;
De Witt V. Walton, 9 N. Y. 571 ; Robinson v. Kanawha Valley Bank,
44 Ohio St. 441 (58 Am. Rep. 829, 8 N. E. 583). But this rule is, in
our opinion, confined to commercial contracts, which represent, and, in
a measure, pass as money, — such as bills of exchange and promissory
notes. Parol evidence is not admissible to charge an unnamed prin-
cipal on such an instrument ; for, in the language of the authorities,
a note or bill of exchange " ' is a courier without luggage,' whose coun-
tenance is its passport"; 1 Daniel, Neg. Inst. (4 ed.) § 303. And as
said in an early case on the question : " It would be of dangerous conse-
quence to trade to admit of evidence arising from extrinsic circumstances.
... A bill of exchange is a contract, by the custom of merchants,
and the whole of that contract must be in writing" : Thomas v. Bishop,
2 Strange, 955. Mr. Daniel, in the section already cited, says : " The
rule excluding parol evidence to charge an unnamed principal as a party
to negotiable paper is derived from the nature of such paper, which,
beiilg made for the purpose of being transferred from hand to hand, and
of giving to every successive holder as strong a claim upon the original
party as the payee himself has, must indicate on its face who is bound
for its payment ; for any additional liability not expressed in the paper
would not be negotiable." Section 4205 of Hill's Ann. Laws provides
144 WAREHOUSEMEN.
that "all checks or receipts given by any person operating any ware-
house, commission house," etc., "are hereby declared negotiable, and
may be transferred by indorsement of the party to whose order such
check or receipt was given or issued, and such indorsement shall be
deemed a valid transfer of the commodity represented by such receipt,
and may be made either in blank or to the order of another.", By this
statute, a warehouse, receipt, regardless of its form, is made negotiable,
in the sense that a transfer thereof by indorsement carries the absolute
title to the commodity represented by the receipt, and a bona fide pur-
chaser for value is not chargeable with knowledge or notice of any
equities between the original parties, as in case of the assignment of an
ordinary chose in action : State v. Koshland, 25 Or. 178 (35 Pac. 32) ;
Bishop V. FuUkerth, 68 Cal. 607 (10 Pac. 122) ; Price v. Wisconsin Fire
Ins. Co., 43 Wis. 267 ; First Nat. Bank v. Dean, 137 N. Y. 110 (32 N. E.
1108) ; First Nat. Bank v. Boyce, 78 Ky. 42 (39 Am. Rep. 208) ; Collins
V. Rosenham (Ky.), 43 S. W. 726.
2. But the statute does not give to such receipts all the attributes
of negotiable paper. A transfer of the receipt by indorsement may
operate, under the statute, to transfer and vest the title of the goods in
the purchaser, where before it would not, but the nature of the contract
itself is unchanged. It is in no sense a negotiable instrument under
the law merchant. It is simply a written acknowledgment by the
warehouseman that he has received, and holds in store for the deposi-
tor, the amount and description of property named in the receipt, upon
the terms and conditions therein stated, and it is nothing more than a
written contract between the parties, which by the statute is made
negotiable for certain purposes. The word "negotiable" is evidently
not used in the statute in the sense in which it is ordinarily applied to
bills of exchange and promissory notes.
A very satisfactory case upon this subject is Shaw v. Railroad Co.,
101 U. S. 557 [685]. In that case the question was as to the right of a
purchaser from a thief, for value, and without notice, of a bill of lading
issued in Missouri for goods to be carried to Pennsylvania, and which
by the statutes of both states was made negotiable. In considering
the question, it did not appear necessary to inquire whether the statute
of Missouri or of Pennsylvania should be regarded as affecting the con-
tract, since, in the opinion of the court, there was no substantial differ-
ence between the statutes of the two states in that regard. The lan-
guage of the Pennsylvania statute was, they (bills of lading) " shall be
negotiable and may be transferred by indorsement and delivery,"
while that of Missouri was, " they shall be negotiable by written indorse*
ment thereon and delivery in the same manner as bills of exchange and
promissory notes." But neither statute undertook to define the effect
of such transfer, and it therefore became necessary for the court to look
outside of them to learn what the legislature meant by declaring such
instruments "negotiable." After defining that term, as applied to
EECEIPTS. 145
contracts, to mean primarily the capability of being transferred by
indorsement and delivery, so as to give to the indorsee a right to sue
thereon in his own name, and pointing out that certain consequences
generally, though not always, follow the indorsement or transfer of bills
and notes, — such as the liability of an indorser and the rights of a
bmia fide purchaser before maturity and from a finder or thief, — it
says : " But none of these consequences are necessary attendants or
constituents of negotiability. That may exist without them. A bill
»r note past due is negotiable, if it be payable to order or bearer, but
its indorsement or delivery does not cut off the defenses of the maker
or acceptor against it, nor create such a contract as results from an
indorsement before maturity, and it does not give to the purchaser of
a lost or stolen bill the rights of the real owner. It does not necessarily
follow, therefore, that, because a statute has made bills of lading nego-
tiable by indorsement and delivery, all these consequences of an indorse-
ment and delivery of bills and notes before maturity ensue or are in-
tended to result from such negotiation."
Again, after observing that bills of exchange and promissory notes
are exceptional in their character, pass from hand to hand as coin, and
the interests of trade require that a bona fide purchaser for value should
not be bound to look beyond the instrument, the court proceeds : " The
reason can have no application to the case of a lost or stolen bill of lad-
ing. The function of that instrument is entirely different from that of
a bill or note. It is not a representative of money, used for the trans-
mission of money, or for the payment of debts or for purchases. It
does not pass from hand to hand as bank notes or coin. It is a contract
for the performance of a certain duty. True, it is a symbol of owner-
ship of the goods covered by it — a representative of those goods. But,
if the goods themselves be lost or stolen, no sale of them by the finder
or thief, though to a bona fide purchaser for value, will divest the owner-
ship of the person who lost them, or from whom they were stolen. . . .
Bills of lading are regarded as so much cotton, grain, iron, or other
articles of merchandise. The merchandise is very often sold or pledged
by the transfer of the bills which cover it. They are, in commerce, a
very different thing from bills of exchange and promissory notes, an-
swering a different purpose and performing different functions. It
cannot be, therefore, that the statute which made them negotiable by
indorsement and delivery, or negotiable in the same manner as bills of
exchange and promissory notes are negotiable, intended to change totally
their character, put them in all respects on the footing of instruments
which are the representatives of money, and charge the negotiation of
them with all the consequences which usually attend or follow the
negotiation of bills and notes. Some of these consequences would be
very strange, if not impossible ; such as the liability of indorsers, the
duty of demand ad diem, notice of non-delivery by the carrier, etc., or
loss of the owner's property by the fraudulent assignment of a thief.
146 WAREHOUSEMEN.
If these were intended, surely the statute would have said something
more than merely make them negotiable by indorsement."
We are of the opinion, therefore, that a warehouse receipt is not nego-
tiable, within the meaning of the rule prohibiting the admission of parol
testimony to charge one not bound upon the face of the instrument, but
in that respect it is a simple contract, and such evidence is admissible
to show that, although executed by and in the name of an agent, it is
in fact the contract of the principal, and he is boimd thereby : Barbre
V. Goodale, 28 Or. 465 (38 Pac. 67, 43 Pac. 378).
It is contended, however, that, even if the receipts are not negotiable,
they are nevertheless presumptively the contract of Loughmiller &
Co. alone, and plaintiff cannot recover upon either the first, third, or
sixth cause of action, for the reason that there was no evidence to rebut
such presumption, or to show that Loughmiller & Co. were in fact de-
fendant's agents. A considerable portion of defendant's brief is devoted
to the discussion of this question, which we regard, however, as one of
fact for the jury, and not for the court. There was evidence given at
the trial on behalf of plaintiff, tending to show, and from which the
jury were justified in finding that Loughmiller & Co. were in fact the
agents of defendant, and received the wheat and executed the receipts
as such. It is unnecessary for us to incumb^ this opinion by a refer-
ence to the testimony in detail. It is sufficient to say that we have
examined it with much care, and are satisfied that the court committed
no error in overruling the motion for nonsuit on this ground.
[Portions of the opinion relating to the form of action and the suffi-
ciency of the evidence are omitted.]
3. It is next contended that the payment or tender of storage, freight,
and sack charges was a condition precedent to the right to maintain
this action, and the written tender was not sufficient, but the money
should have been paid into court. The defendant, by its answer, denies
the contract alleged in the complaint, and the plaintiff's title and right
to the possession of the wheat in controversy, and expressly puts its
refusal to deliver upon the ground that neither plaintiff nor his assignors
ever shipped or delivered to it any wheat whatever ; and therefore it
cannot now be permitted to say that its refusal to deliver the grain was
on account of the failure of plaintiff to pay the charges referred to :
Wyatt «. Henderson, 31 Or. 48 (48 Pac. 790). This disposes of all the
questions raised on the appeal, and, finding no error in the record, the
judgment is affirmed.
Affirmed.
RECEIPTS. 147
DOLLIFF V. ROBBINS.
83 Minn. 498 ; 86 N. W. R. 772 ; 85 Am. St. R. 466. 1901.
Brown, J. Action for damages for the conversion of a quantity of
wheat. The cause was tried in the court below without a jury, plain-
tiff recovered, and defendants appeal from an order denying a new
trial.
The facts in the case are as follows : Between September 19, 1899,
and May 15, 1900, and perhaps for some time prior to the first-named
date, one Walbridge was in the possession of and operating two public
warehouses for the handling and storing of grain for others, and was
engaged in buying wheat and other grain on his own account, and stor-
ing the same in said warehouses. Between the dates stated he received
for storage at his said elevators a large quantity of wheat from the
farmers in the vicinity of the towns in which the elevators were located,
for which he issued to them numerous storage tickets, evidencing the
receipt of the wheat, and the kind and grade thereof. Two of the
elevators so operated by Walbridge were located, one at BeUeview,
in Redwood county, and one at Echo, in Yellow Medicine county.
The tickets issued for the wheat so received by him were in the usual
form, and in compliance with the statutes on the subject. On August
30, 1899, defendants loaned to. said Walbridge the sum of 125,000, and
later on, and at different times, additional sums, aggregating in the
neighbourhood of $35,000. To secure the payment of this indebtedness,
Walbridge issued and delivered to defendants four certain storage re-
ceipts, purporting to be for wheat deposited by them in said elevators,
though none was ever in fact so deposited by them. From time to
time, between the dates aforesaid, Walbridge shipped out of his said
elevators to defendants, who are commission merchants doing business
at Minneapolis, Minnesota, all the wheat he had received in store
therein, to be sold by them, and the proceeds applied to the payment
of the indebtedness due them. Defendants received said wheat, sold
it, and credited the proceeds to the account of Walbridge. The wheat
so shipped to them included the wheat represented by the tickets issued
and delivered to the farmers aforesaid, which are now owned by the
plaintiff. Long prior to the commencement of this action, but subse-
quent to the shipment and delivery of the wheat to defendants, the
person to whom the storage tickets therefor were so issued by Wal-
bridge sold, indorsed, and delivered the same to plaintiff in this action,
who has since remained, and is now, the owner thereof. On July 6,
1900, plaintiff produced and tendered to defendants the storage receipts,
and demanded of them the delivery of the wheat represented thereby,
which demand was refused, and this action followed. Three questions
are presented in this court : (1) Whether the indorsement and delivery
of the storage tickets to plaintiff operated as an assignment of the cause
148 WAEEHOUSEMEN.
of action for the conversion of the wheat, and, in this immediate con-
nection, whether plaintiff in fact owned the tickets ; (2) whether de-
fendants are liable in this action as for a conversion of the wheat ; and
(3) if they are, the measure of plaintiff's damages.
1. Appellants contend that because of the fact that the wheat repre-
sented by the storage tickets held by plaintiff had been shipped out of
the Walbridge warehouses, and sold and converted by defendants,
prior to the transfer of the tickets to him, the mere indorsement and
delivery of the tickets did not operate as an assignment of the cause
of action for the conversion. We are unable to concur in this conten-
tion. The tickets here in question were issued by Walbridge as a public
warehouseman, and their validity, force, and effect are controlled by the
general statutes of the state on the subject. By statute, such tickets
are made transferable and negotiable by indorsement and delivery.
They are negotiable, — not, perhaps, to the full extent of bills of ex-
change and promissory notes, but to the extent of transferring the title
to the property to an indorsee or purchaser, together with all rights
and remedies of the holder. They are contracts, in every sense of the
term, and the assignment thereof must, in the nature of things, carry
with it all rights incident thereto. The general rule of law with refer-
ence to storage tickets of this character, whether issued pursuant to
some statutory requirement or otherwise, is that the sale of the tickets
by indorsement and delivery operates as a transfer to the indorsee or
purchaser of the legal title to the commodity represented thereby, and
the warehouseman becomes liable to the indorsee to the same extent
as to the original holder. And in case of such indorsement and trans-
fer the indorsee may maintain as action against the warehouseman for
injury to the property, whether the injury occurred before or after
the transfer of the ticket. Sargent v. Central, 15 111. App. 553.
This court has on several occasions given utterance, in explicit lan-
guage, to its opinion as to the character of storage tickets issued by
public warehousemen. It was said in Thompson v. Thompson, 78 Minn.
379, 385, 81 N. W. 204, 543 (the court speaking through Justice Lovely),
that —
"The tickets designating the amount of grain, charge for storage, and the
ownership of the property pass from hand to hand among our citizens, in
ordinary commercial transactions, in lieu of the grain itseff, and are sym-
bolic both of the title which actually passes by such transfers, and of
the money value which the property is worth at any given time."
See, also. State v. Cowdery, 79 Minn. 94, 97, 81 N. W. 750 ; State
V. Loomis, 27 Minn. 521, 8 N. W. 758. So there can be no doubt that
a transfer by indorsement and delivery of storage tickets of this kind
passes to the indorsee or purchaser not only the title to the wheat evi-
denced thereby, but all rights and remedies possessed by the holder
at the time of such transfer, as well. And we hold, without further
RECEIPTS. 149
remark, that the transfer of the storage tickets in question to plaintiff
conferred upon him title to the wheat, and every right and remedy
which the holders thereof possessed at the time of the transfer. The
mere fact that there may have been some secret agreement or under-
standing between the ticket holders and plaintiff to the eifect that the
transfer was to be considered as conditional is immaterial, and there
was no error in the ruling of the court below on this subject. The
tickets were in fact transferred by indorsement and delivery, thus con-
veying to plaintiff the legal title and all rights incident thereto ; and the
original holders could not thereafter, as to these defendants, or others
who might deal with plaintiff as the owner of the tickets, be heard to
assert or claim any right reserved in them of which no notice was given.
2. It is claimed by defendants that they were, in the matter of the
sale of the wheat in question, the agents of Walbridge, the warehouse-
man, were innocent of any wrongdoing, had no notice, actual or con-
structive, of the rights of the ticket holders or plaintiff, and are not
liable for the conversion of the wheat. The case of Leuthold 11. Fair-
child, 35 Minn. 99, 27 N. W. 503, 28 N. W. 218, is cited in support of
this contention. The question as to the extent of the liability of a
commission merchant who acts as an agent for a warehouseman at a
distant point in the matter of receiving and disposing of grain shipped
to him by such warehouseman, and who has no interest in the sale of
the grain or its proceeds, and acts purely and solely as an agent, is not
before the court in this case. The Leuthold case is not in point. In
that case the defendant in fact acted in the capacity of agent, and there
was no intentional or other wrongful act on his part ; nor was he in
any way, so far as the record of the case disclosed, interested in the prop-
erty or its proceeds. In the case at bar, however, defendants were
more than the mere agents of Walbridge. They held an indebtedness
against him ; had taken storage tickets from him pm-porting to be for
wheat deposited by them in his elevators, though no wheat was by them
ever so deposited, as security for the payment of that indebtedness.
They had in fact no claim to the wheat in question, but it was shipped
to them by Walbridge, to be by them sold and applied upon his account
and indebtedness. They were interested parties, not mere agents.
They acted in their own interests, and the principle of the Leuthold
case has no application.
[The portion of the opinion relating to measure and amount of damages
is omitted. The judgment is affirmed with a modification.]
150 WAREHOUSEMEN.
3. LIEN.
STEINMAN V. WILKINS.
7 W. & S. (Pa.) 466 ; 42 Am. D. 254. 1844.
The plaintiff brought this action of trover against the defendant,
who is a warehouseman in Clarion county, on the Allegheny river, for
the supposed conversion of certain goods retained for the price of ware-
house room, being part of a larger lot which was stored in his warehouse
by Hamilton & Humes, of whom the plaintiff is the general assignee.
The greater part had been delivered to Hamilton & Humes, and the
residue having been demanded without tender of any charges, M'Cal-
mont (President of the Common Pleas of Clarion county) directed the
jury that though the defendant could not retain for the general balance
of his account, he might retain for all the charges on all the goods for-
warded to him at the same time. A bill of exceptions was sealed, and
the point was argued on a writ of error to this court.
Gibson, C. J. Though a plurality of the barons in Rex v. Humphrey
(1 M'Clell. & Y. 194-195) dissented from the dictum of Baron Graham
that a warehouseman has a lien for a general balance, like a wharfinger,
I do not understand them to have intimated that he has no lien at all.
They spoke of it as an entity, and seem to have admitted that he has
a specific lien, though not a general one. There is a well-known distinc-
tion between a commercial lien, which is the creature of usage, and a
common-law lien, which is the creature of policy. The first gives a
right to retain for a balance of accounts ; the second, for services per-
formed in relation to the particular property. Commercial or general
liens, which have not been fastened on the law merchant by inveterate
usage, are discountenanced by the courts as encroachments on the com-
mon law ; and for that reason it would be impossible to maintain the
position of Baron Graham, for there is no evidence of usage as a founda-
tion for it, and no text-writer has treated of warehouse room as a sub-
ject of lien in any shape. In Rex v. Humphrey, it was involved in the
discussion only incidentally ; and I have met with it in no other case.
But there is doubtless a specific lien provided for it by the justice of the
common law. From the case of a chattel bailed to acquire additional
value by the labour or skill of an artisan, the doctrine of specific lien has
been extended to almost every case in which the thing has been im-
proved by the agency of the bailee. Yet, in the recent case of Jackson
V. Cummings (5 Mees. & Welsh. 342), it was held to extend no further
than to cases in which the bailee has directly conferred additional
value by labour or skill, or indirectly by the instrumentality of an agent
under his control ; in supposed accordance with which it was ruled
that the agistment of cattle gives no lien. But it is difficult to find an
argument'for the position that a man who fits an ox for the shambles,
LIEN. 151
by fatting it with his provender, does not increase its intrinsic value
by means exclusively within his control. There are certainly cases of
a different stamp, particularly Bevan v. Waters (Mood. & Malk. 235),
in which a trainer was allowed to retain for fitting a race-horse for the
turf. In Jackson v. Cummings we see the expiring embers of the primi-
tive notion that the basis of the lien is intrinsic improvement of the
thing by mechanical means ; but if we get away from it at all, what
matters it how the additional value has been imparted, or whether it
has been attended with an alteration in the condition of the thing ?
It may be said that the condition of a fat ox is not a permanent one ;
but neither is the increased value of a mare in foal permanent ; yet in
Searfe v. Morgan (4 Mees. & Welsh. 270), the owner of a stallion was
allowed to have a lien for the price of the leap. The truth is, the modern
decisions evince a struggle of the judicial mind to escape from the
narrow confines of the earlier precedents, but without having as yet
established principles adapted to the .current transactions and conven-
ience of the world. Before Chase v. Westmore (5 Maule & Selw. 180),
there was no lien even for work done under a special agreement ; now,
it is indifferent whether the price has been fixed or not. In that case,
Lord Ellenborough, alluding to the old decisions, said that if they " are
not supported by law and reason, the convenience of mankind certainly
requires that our decisions should not be governed by them" ; and Chief
Justice Best declared in Jacobs v. Latour (5 Bingh. 132), that the doc-
trine of lien is so just between debtor and creditor, that it cannot be
too much favoured. In Kirkham v. Shawcross (6 T. R. 17), Lord Ken-
yon said it had been the wish of the courts, in all cases and at all times,
to carry the lien of the common law as far as possible ; and that Lord
Mansfield also thought that justice required it, though he submitted
when rigid rules of law were against it. What rule forbids the lien
of a warehouseman ? Lord Ellenborough thought in Chase v. West-
more, that every case of the sort was that of a sale of services performed
in relation to a chattel, and to be paid for, as in the case of any other
sale, when the article should be delivered. Now, a sale of warehouse
room presents a case which is bound by no preestablished rule or an-
alogy ; and, on the ground of principle, it is not easy to discover why the
warehouseman should not have the same lien for the price of future
delivery and intermediate care that a carrier has. The one delivers
at a different time, the other at a different place ; the one after custody
in a warehouse, the other in a vehicle ; and that is all the difference.
True, the measure of the carrier's responsibility is greater; but that,
though a consideration to influence the quantum of his compensation,
is not a consideration to increase the number of his securities for it.
His lien does not stand on that. He is bound in England by the cus-
tom of the realm to carry for all employers at established prices ; but
it is by no means certain that our ancestors brought the principle with
them from the parent country as one suited to their condition in a wil-
152
WAEEHOUSEMEN.
derness. We have no trace of an action for refusing to carry ; and it is
notorious that the wagoners, who were formerly the carriers between
Philadelphia and Pittsburgh, frequently refused to load at the current
price. Now, neither the carrier nor the warehouseman adds a particle
to the intrinsic value of the thing. The one delivers at the place, and
the other at the time, that suits the interest or convenience of the owner
of it, in whose estimation it receives an increase of its relative value
from the services rendered in respect of it, else he would not have
undertaken to pay for them. I take it, then, that, in regard to lien, a
warehouseman stands on a footing with a carrier, whom in this country
he closely resembles.
, Now, it is clear from Sodergren v. Flight & Jennings, cited 6 East,
662, that where the ownership is entire in the consignee, or a purchaser
from him, each parcel of the goods is bound, not only for its particular
proportion, but for the whole, provided the whole has been carried under
one contract ; it is otherwise where to chargea part for the whole would
subject a purchaser to answer for the goods of another, delivered by
the bailee with knowledge of the circumstances. In this instance, the
entire interest was in Hamilton & Humes, in whose right the plaintiff
sues ; and the principle laid down by the presiding judge was substan-
tially right. On the other hand, the full benefit of it was not given to
the defendant in charging that the demand and refusal was evidence of
conversion. There was no evidence of tender to make the detention
wrongful ; and the defendant would have had cause to complain, had
the verdict been against him, of the direction to deduct the entire price
of the storage from the value of the articles returned, and to find for the
plaintiff a sum equal to the difference. But there has been no error
which the plaintiff can assign.
Judgment affirmed.
AS BAILEES. 153
IV. WHARFINGERS.
1. AS BAILEES.
RODGERS % STOPHEL.
32 Pa. St. m ; 72 Am. D. 775. 1858.
This was an action on the case by Thomas Stophel against Henry
Rodgers, for negUgence in taking care of a quantity of lumber intrusted
to him, as a wharfinger, whereby it was lost to the plaintiff.
Henry Rodgers, the defendant, was the owner of a piece of ground
adjoining the Pennsylvania Canal, in the village of Nineveh, Indiana
county. Persons in the neighbourhood had been in the habit of using
it as a place of deposit for lumber, intended to be shipped by the canal.
The defendant, desiring to be remunerated for the use of his ground,
gave notice that he would charge at the rate of 10 cents for every 1000
feet of lumber deposited there, for the use of the wharf.
In the summer of 1854, the plaintiff sent to the defendant's wharf,
about 1200 feet of lumber, for which he agreed to pay the defendant at
the rate of 10 cents per 1000 feet. This lumber was subsequently taken
away by one Ashbaugh, without the plaintiff's authority, and was lost
to him.
On the trial, the plaintiff offered to prove, by George Dill, that in
1853 the defendant took lumber from him, as a wharfinger, on the same
wharf, and received compensation for it ; he also offered to prove, by
John W. Duncan, that in 1851, as an inducement to place his lumber
■on the defendant's wharf, the defendant said to him, that if he delivered
it upon another wharf where there was no charge for wharfage, he
would have it stolen; but, if he put it upon the defendant's wharf, it
would he safe.
The defendant objected to the admission of this evidence ; but the
<;ourt admitted it, and sealed a bill of exceptions.
[The instructions are omitted. There was judgment for plaintiff.]
Church, J. The plaintiff below sought to charge the defendant
there as bailee. The character of the bailment, if any, was a question
in issue before the court on the trial.
[A portion of the opinion relating to sufficiency of objections to evi-
dence is omitted.]
A wharfinger, then, is one who keeps a wharf for receiving goods for
hire. And his responsibility begins when the goods are delivered at,
or rather on, the wharf, and he has either expressly, or by implication,
so received them. In Fuller v. Bradley, 1 Casey, 120, it is said, that
154 WHARFINGERS.
one who holds himself forth to the public to carry for hire, is a common
carrier, as much the first as any subsequent trip, and that it is for the
jury to say from the whole evidence in the case, whether he is a common
carrier, or a carrier by the job, hiring for the trip only. So, it has been
held, that any man undertaking to carry the goods of all persons indif-
ferently and generally, is a common carrier : Gordon v. Hutchison,.
1 W. & S. 285 [301]. The Chief Justice, in the case just cited, uses this
language : " A wagoner, who carries goods for hire, is a common car-
rier, whether this be his principal or only occasional business." Keep-
ing these general principles in view, and not forgetting they are held
applicable to common carriers, whose responsibility is greater than
wharfingers ; and it will be readily perceived that the exception taken
below, to the competency or admissibility of evidence, cannot be sus-
tained. The mere contract of Rodgers with the witness would alone,
perhaps, be irrelevant and inadmissible; but the testimony taken to-
gether goes much farther. And, having but one bill of exceptions,
the testimony of both witnesses must be treated as one offer, and the
objection a general one; hence, if any portion of their testimony be
competent for any purpose, a special objection cannot avail the party
now: Harmet v. Dundass, 4 Barr, 178, 181 ; Fitler v. Eyre, 2 Harris, 392.
The witness. Dill, proves that the wharf had been previously used
by the public, as we would understand, without objection or charge by
the owner ; but, previous to the occurrence in question, the latter in-
formed him he would not suffer it so any longer, but should charge a
specified sum per thousand feet. In legal parlance, this compensation
is called wharfage. But Duncan -testifies more. He says that Rodgers.
invited him to use his wharf, and informed him of the rate of compen-
sation he charged. The witness demurred to this, and told Rodgers
he could do better, by delivering his lumber at Barber's, a short distance
above, where it was free ground, as it is said. Rodgers replied, if he
did so, it would likely be stolen ; but, if put upon my wharf, it will be-
safe. This, certainly, afforded some evidence of the relation he stood
in to those using his wharf. It was not the offer of any special engage-
ment or undertaking with the witness particularly, but rather, in thfr
language of the authorities cited, the holding himself forth as a wharf-
inger receiving lumber on his wharf, for hire, at a given rate, from all
persons, indifferently ahd generally. The value or strength of the testi-
mony is not the question ; but, could it afford any rational inference in
connection with the other evidence in the cause, that defendant kept
a public wharf, and offered himself to the public as a wharfinger, pre-
vious to the time of receiving there the plaintiff's lumber ? We think
it could, and therefore the court below were right in overruling the
objection to it.
The two remaining errors assigned, embrace but one and the same
principle. And the discussion of the first, and the answer already given,
is a substantial overruling of these. Whether there be any evidence,.
DUTIES. 155
is for the court ; but whether enough, was here properly submitted to
the jury. If there be any evidence upon the issue, however slight, it
will, in general, not be deemed error to leave it with the jury, Inman
V. Kutz, 10 Watts, 101, and many other cases. No speeiiic instruction
being demanded of the court, nor special exception taken at the time,
the whole charge should be taken together. The jury were distinctly
instructed, in immediate connection with that part assigned for error,
that if they found the contract or relation of the parties only extended
to the right to occupy the ground, then defendant was not liable. What
follows of the charge that embraced in the specification here, is but
little, if anything, more than a legal definition of the term wharfinger.
If they found him such, then the law implied the rest, unless his lia-
bility was limited by the evidence. We perceive no material error in
this. There was evidence (the sufficiency of it we have seen is imma-
terial now here), from which it might be inferred, that defendant was
a bailee for hire, and by general engagement liable to extend over plain-
tiff's lumber, like that of others, ordinary care and protection. What
is meant by ordinary care, was properly explained and defined. It is
such as the generality of mankind use in their own affairs. This is
required when the contract of bailment, express or implied, is recipro-
cally beneficial. This kind of care and skill is by law required of all
persons employed in any business : 1 W. & S. 60. We see no error in
the part of the charge brought to our notice, nor in the exception to
the evidence.
Judgment affirmed.
2. DUTIES.
CHAPMAN V. STATE.
104 Cal. 690 ; 38 Pac. R. 457 ; 43 Am. St. R. 158. 1894.
De Haven, J. Action for damages brought by the plaintiff as
assignee of the firm of " John Rosenfeld's Sons." In the superior court
a demurrer to the complaint was sustained, and judgment thereupon
rendered in favour of the defendant. The complaint, omitting merely
formal and immaterial averments, may as against a general demurrer
be construed as alleging, in substance, that on August 10, 1891, the
defendant, in consideration of wharfage and dockage charges, paid to
its officers, the state board of harbom- commissioners, received upon one
of its public wharves, situate in the city of San Francisco, and under
the jurisdiction and control of the state board of harbour commissioners,
about one hundred and thirty tons of coal belonging to the assignors of
plaintiff, and to be removed by them from such wharf ; and that on
said day a large portion of the wharf on which this coal was placed broke
156 WHARFINGEKS.
and gave way " by reason of the negligence, omission, and carelessness
of defendant, its officers, and agents ... in failing and neglecting to
keep said wharf in good and sound condition and repair " ; and all the
coal of plaintiff's assignors then on the wharf was sunk in the bay of
San Francisco, and became a total loss, to their damage in the sum of
twelve hundred and sixty-six dollars and forty-seven cents, the alleged
value of said coal.
The complaint further alleges that a claim for the damages so sus-
tained was duly presented to the state board of examiners for allow-
ance, and the same was by said board rejected on September 13, 1893.
The prayer of the complaint is for a judgment against defendant for
the sum of twelve hundred and sixty-six dollars and forty-seven cents,
and interest thereon from August 10, 1891. The demurrer was upon
the general ground that the complaint does not state facts sufficient to
constitute a cause of action. And also set forth, as a special ground,
that " the said complaint shows upon its face that the claim against the
state, which is the subject-matter of the action of plaintiff, was duly and
legally presented to the state board of examiners of this state prior to
the commencement of this action for allowance, and was by said board
rejected and disallowed, and the said action of said board in the prem-
ises has never been reversed, but remains in full force and effect."
1. It is claimed by the plaintiff that he is entitled to maintain this
action under the permission and authority given by the act authoris-
ing suits against the state, approved February 28, 1893 (Stats. 1893,
p. 57). The first section of this act provides as follows : "All persons
who have, or shall hereafter have, claims on contract or for negligence
against the state, not allowed by the state board of examiners, are
hereby authorised, on the terms and conditions herein contained, to
bring suit thereon against the state in any of the courts of this state of
competent jurisdiction, and prosecute the same to final judgment."
The cause of action set forth in the complaint arose prior to the pas-
sage of the act just referred to, and it is argued by the attorney-general
that at the time when the coal belonging to the assignors of the plain-
tiff was lost, the state was not liable for the damage occasioned by said
loss, and growing out of the alleged negligence of its officers in charge
of the wharf mentioned in the complaint ; and that the act should not be
construed as intended to create any liability against the state for such
past negligence. It is well settled that, in the absence of a statute vol-
untarily assuming such liability, the state is not liable in damages
for the negligent acts of its officers while engaged in discharging ordi-
nary official duties pertaining to the administration of the government
of the state. (Bourn «: Hart, 93 Cal. 321, 27 Am. St. Rep. 203 ;
Story on Agency, § 319.)
It is also true that under section 31 of article IV of the constitution
of this state, which forbids the legislature from making any gift of
public money or other thing of value to any person, the legislature has
DUTIES. 157
no power to create a liability against the state for any such past act of
negligence upon the part of its officers.
If, therefore, the present action, based as it is upon a loss accruing
before the enactment of the statute of February 28, 1893, authorising
suits against the state, is to be regarded as one for the recovery of
damages arising out of the negligence of the officers of the state in the
discharge of a strictly governmental duty, it cannot be sustained;
but we are clearly of the opinion that the cause of action alleged in the
complaint is not of this character. It is not founded upon negligence
constituting a tort, pure and simple and unrelated to any contract, but
is substantially an action for damages on account of the alleged breach
of a contract.
The facts stated in the complaint show that the defendant, in consid-
eration of wharfage paid to it, received upon one of its public wharves
the coal belonging to plaintiff's assignors, and to be delivered to them
on such wharf for removal therefrom. A wharfinger is one who for
hire receives merchandise on his wharf, either for the purpose of for-
warding or for delivery to the consignee on such wharf, and the matters
alleged in the complaint show a contract of the latter character, and the
state is bound thereby to the same extent as a private person engaged
in conducting the business of a wharfinger would be under a similar
contract. The principle that a state is bound by the same rules as an
individual in measuring its liability on a contract is well expressed by
Allen, J., in his concurring opinion in the case of People «. Stephens,
71 N. Y. 549, in which he said : " The state in all its contracts and
dealings with individuals must be adjudged and abide by the rules which
govern in determining the rights of private citizens contracting and deal-
ing with each other. There is not one law for the sovereign, and an-
other for the subject. But when the sovereign engages in business and
the conduct of business enterprises and contracts with individuals^*
whenever the contract in any form comes before the courts, the rights
and obligations of the contracting parties must be adjusted upon the
same principle as if both contracting parties were private persons. Both
stand upon equality before the law, and the sovereign is merged in the
dealer, contractor, and suitor." (See, also, Carr v. State, 127 Ind. 204,
22 Am. St. Rep. 624.)
What, then, was the nature and extent of the obligation assumed by
the state when, in consideration of the wharfage paid by them, it re-
ceived the coal of plaintiff's assignors upon its wharf ?
" The wharfinger is bound to return or deliver the goods according
to his contract." (Edwards on Bailments, 3d ed., § 362.) A wharf-
inger is impliedly bound by his contract as such to exercise ordinary
care for the preservation and safety of property entrusted to him
(Edwards on Bailments, 3d ed., § 359), and this imposes upon him
the duty to exercise ordinary care to ascertain the condition of his
wharf, that he may know whether it is reasonably safe for the purposes
158 WHARFINGERS.
for which he hires it; and, if merchandise is received by him upon a
wharf which is unsafe, and is thereby lost, so that he cannot deliver it
according to his contract, the wharfinger is liable therefor if ordinary
care would have enabled him to know the condition of his wharf ; and
such negligence on his part will be treated as a failure to exercise ordi-
nary care for the safety of the property entrusted to him. This negli-
gence, however, and the consequent loss of the goods entrusted to him,
would be a breach of the terms of his contract, and his liability therefor
could have been enforced at common law by an action of assumpsit
(1 Chitty on Pleading, 114; Baker v. Liscoe, 7 Term. Rep. 171);
and under our practice the owner or consignee may sue upon the con-
tract for the damages sustained by reason of such negligence. "The
wharfinger's responsibility begins as soon as he acquires the custody of
the goods, and ends when he has fulfilled his express or implied contract
with respect to both." (Edwards on Bailments, § 357.)
And the supreme court of Washington in the case of Oregon Improve-
ment Co. V. Seattle Gaslight Co., 4 Wash. 634, in passing upon the
question of the liability of a wharfinger upon his contract as such, by
reason of his wharf giving way and precipitating into the waters beneath,
a quantity of shale which had been received thereon, said : " This was
a contract of bailment. The contract was proven, the loss was proven,
and the negligence of respondent was proven, and the measiu-e of the
damages is the value of the shale."
We are entirely satisfied that plaintiff's cause of action, as alleged in
the complaint, arises upon contract, and that the liability of the state
accrued at the time of its breach ; that is, when the coal was lost through
the negligence of the officers in charge of the state's wharf, although
there was then no law giving to the plaintiff's assignors the right to sue
the state therefor. At that time the only remedy given the citizen to
"raiforce the contract liabilities of the state, was to present the claim aris-
ing thereon to the state board of examiners for allowance, or to appeal
to the legislature for an appropriation to pay the same ; but the right to
sue the state has since been given by the act of February 28, 1893, and
in so far as that act gives the right to sue the state upon its contracts,
the legislature did not create any liability or cause of action against the
state, where none existed before. The state was always liable upon its
contracts, and the act just referred to merely gave an additional remedy
for the enforcement of such liability, and it is not, even as applied to
prior contracts, in conflict with any provision of the constitution.
"The fact that the state is not subject to an action in behalf of a
citizen does not establish that he has no claim against the state, or that
no liability exists from the state to him. It only shows that he cannot
enforce against the state his claim, and make it answer in a court of
law for its liability. What is made out by this objection is not that
there is no liability and no claim, but that there is no remedy." (Cos-
ter V. Mayor of Albany, 43 N. Y. 407.)
DUTIES. 159
2. It is further argued in behalf of the state that the rejection of
plaintiff's claim by the state board of examiners has the effect of a judg-
ment, and constitutes a bar to this action; and in support of this
contention the case of Cahill v. Colgan (Cal., Nov. 22, 1892), 31 Pac.
Rep. 614, is cited. That case is not authority for such a proposition.
The court there decided that when a claim had been presented to the
state board of examiners and approved, and an appropriation made
by the legislature to pay it, the approval by the board of examiners was
conclusive upon the controller as to the value of the services rendered
by the claimant-, and the amount to which he was entitled ; and the
general language found in the opinion in that case, as to the conclusive
effect of the approval or rejection of a claim by the state board of exam-
iners, must be construed with reference to the particular facts then be-
fore the court. But a sufficient answer to the contention of the defend-
ant on this point is that the act, under the authority of which this
suit is brought, contemplates that claims against the state shall first
be presented to the state board of examiners for allowance, and, as we
construe its language, it is only on claims so presented, and " not allowed
by the state board of examiners," that the state gives its consent to be
sued; and certainly as to claims which have been approved by that
board there could be no necessity for such a remedy.
Judgment reversed, with directions to overrule the demurrer to the
complaint.
WILLEY V. ALLEGHENY CITY.
118 Pa. St. 490 ; 12 Atl. R. 453 ; 4 Am. St. R. 608. 1888.
[Action to recover damages for loss of two rafts of lumber which, in
time of flood in the river, had been moored to a public wharf, maintained
by the defendant city, and for the use of which tolls were charged by it.
The plaintiff appeals from a judgment on a verdict for defendant.]
Me. Justice Williams. The important question in this case is
that raised by the third, fourth, fifth, and sixth assignments of error.
The action was based upon the allegation that the city had failed to pro-
vide its wharf with fastenings sufficient in number and strength to secure
boats and rafts from being swept away by floods.
The second point submitted by the plaintiff to the court below asked
an instruction to the jury that inasmuch as the city of Allgeheny was
in "possession of the wharf at which plaintiff's rafts were lost, and
receiving tolls or wharfage for its use, it was held to the utmost care of
said wharf, and it was a violation of defendant's duty to permit said
wharf to get out of repair, or neglect to provide means of fastening for
the moorings of rafts and other craft at said wharf ; and if the jury be-
160 WHAEFINGERS.
lieve from the evidence that plaintiff's loss on or about June 9, 1881,
was occasioned in consequence of said neglect of duty on part of the
defendant city, then their verdict should be for the plaintiff." The
court affirmed this point, adding this important qualification : " That
' utmost care ' must be understood to mean only reasonable and proper
care in view of the safe mooring of floats and rafts under ordinary cir-
cumstances and floods which could and should have been anticipated
^3y the exercise of reasonable care and foresight." This answer
taken as a whole affirms the proposition that the city was bound to the
exercise of the utmost care, and then defines the word "utmost" as
meaning reasonable, and the measure of care required as "only reason-
able and proper care . . . under ordinary circumstances." It left
the jury without any clear and adequate declaration of the rule they
were expected to apply. It becomes necessary, therefore, to examine
briefly into the relation of the parties to each other and the duty rest-
ing on the city as the owner of the wharf.
Whoever may be the owner of a public wharf, whether a private
person, a corporation, or a municipality, the duties of the owner and the
rights of the public are the same. The owner has the exclusive control
over the property and its management. The public are invited to use
it upon the payment of the established rates of toll or wharfage, and
must trust to the security and sufficiency of the appliances afforded
them. The wharf of the defendant is upon the bank of the Allegheny
River, which is subject to great changes in the volume of its waters
and the force of the current, by reason of floods. The navigation is
almost entirely descending and is by rafts and heavily loaded boats
that come down the river upon the high water. The advantages
and the perils of floods enter into the calculations of both the
navigator of the stream and the owner of the wharf upon its
banks. The craft comes to the market which the city of Allegheny
affords, upon the floods, and must depend upon the wharf for security
against the swollen current while seeking a purchaser. It is the duty
of the owner of the wharf to make suitable preparations for the safety
of those who moor their rafts and boats along its side. To undertake
a duty for which one is incompetent or is not adequately provided is
in itself negligence.
When the public are invited to the wharf of the defendant and charged
for the security offered them, they have a right to expect and to depend
upon the provision by the city of such appliances for securing and hold-
ing their boats and rafts against the current as are siofficient for that
purpose. The wharfinger who receives and stores the goods of his cus-
tomers in his warehouse is liable only for ordinary care, for the goods
in store are exposed only to the ordinary perils of storage on the land ;
but rafts and boats moored at the defendant's wharf are exposed to
the dangers of the stream. The violence of the winds and the floods are
among these dangers. The raftsman and the boatman seek security
DUTIES. 161
against these at the wharf. The perils are not ordinary, but they are
great ; and ordinary care, or " reasonable care under ordinary circum-
stances, " is not enough. It is not proportioned to the dangers of the
navigation or to the extent of the calamity in case of failure in the
undertaking to hold securely. In the case of the City of Pittsburgh v.
Grier, 22 Pa. 54, a similar question was raised, and this court said :
" The interests of commerce imperatively require that the place to which
vessels are invited to come should be in a safe condition" ; but no more
exact definition of the measure of care required was attempted. In
the recent case of the City of Allegheny v. Campbell, 107 Pa. 530, the
court below affirmed a point asking an instruction to the jury that " the
city was bound to the utmost care" in maintaining its wharf in a safe
condition for public use. This instruction was assigned for error as a
too rigorous statement of the rule, but it was affirmed by this court.
Justice Paxson said, in delivering the opinion of the court : " The plain-
tiffs certainly have a right to look to the city for redress ; for it was
upon the city the duty was devolved of keeping the wharf in a safe
condition'' ; but the expression "utmost care" was not commented on.
In the case of the Mersey Docks & Harbour Trustees v. Gibbs, decided
in the House of Lords, in 1865, the plaintiff's ship was injured on a
bank of mud at the mouth of the docks. The trustees denied their
liability, as the obstruction was not known to them, and asserted that
they were liable only for the failure to exercise ordinary care. But it
was held the company was liable for the injury caused by the accumula-
tion of mud at the docks, whether they knew of the accumulation or
not, if, by their servants, they had the means of knowing, and were
negligently ignorant of it. An analogous principle is asserted in the cases
in which the duty of a ship or dock company, to provide safe access to
their ships for passengers, has come under examination ; and such com-
panies have been held to very strict liability for any defect or insuffi-
ciency in the appliances used for this purpose : Wh. Neg., par. 823 ;
John V. Bacon, L. R. 5 C. P. 437 ; Wendell v. Baxter, 12 Gray, 494.
The docks and gangways are held to be highways so far as to give to
the public an unobstructed use of them as a means of access to the ship ;
but as the danger attending their use is much greater than that attend-
ing the use of the public highways, so the measure of care required is
correspondingly greater. In the case of railroad companies the rule
has been held with great steadiness that the duty of the company is
to exercise the utmost degree of care consistent with the continuance
of the business. Inourownleadingcaseuponthesubject, Laings. Colder,
8 Pa. 479, Justice Bell, who delivered the opinion of the court, uses
this language : " But, though, in legal contemplation, they (the railroad
companies) do not warrant the absolute safety of passengers, they are
yet bound to the utmost care. The slightest neglect against which
human prudence and foresight may guard, and by which hurt or loss
is occasioned, will render them liable to answer in damages."
162 WHAEPINGERS.
The foundation on which the rule in all these cases rests, is the char-
acter of the danger to which the property or person is exposed, and the
absolute dependence of the public upon the care and fidelity of those
who serve it.
The same words "utmost care" have been used to define the degree
of care due from the owner of a public wharf to the navigator of boats
and rafts ; from a ship company to the public passing over its gang-
ways ; from a railroad company to passengers being transported in its
cars. In each case, however, they are to be understood in connection
with the subject to which they are applied. In the case of the Penn.
R. Co. V. Fries, 87 Pa. 234, negligence is defined as the absence of care
according to the circumstances. Drawn out at length, this is a state-
ment that the nature and extent of the peril to be guarded against and
the extent of the calamity to be suffered in case of failure, are always
to be considered in determining the degree of care to be exercised in
any given case. Whatever a diligent man would deem necessary
under any given circumstances for the preservation of his own prop-
erty, must be done by the individual, or corporation, or city, that under-
takes, for hire, the preservation of property for the public. The
"utmost care" therefore, which was due from the city of Allegheny, re-
quired the use of all the appliances and precautions -that a diligent man
owning the rafts and owning the wharf would deem it proper to employ
in the preservation of his own property from the perils of the river.
This definition or statement of the care due from the defendant city is
in harmony with the cases cited above, and is that by which the ques-
tion of its negligence in the management of its wharf is to be determined.
Judgment reversed, and venire facias de novo awarded.
PUBLIC CALLING. 163
V. INNKEEPERS.
1. PUBLIC CALLING.
CALYE'S CASE.
King's Bench. 8 Coke 32a. 1584.
It was resolved, per totam curiam this term, that if a man comes to
a common inn, and delivers his horse to the hostler, and requires him to
put him to pasture, which is done accordingly, and the horse is stolen,
the innholder shall not answer for it ; for the words of the writ which
lieth against the hostler are. Cum secundum legem et consuetud' regni
nostri Angliae hospitatores qui hospitia cum' tenent ad hospitandos ho-
mines, per partes ubi hujusmodi hospitia existunt transeuntes, et in eisdem
hospitantes, eorum bona et catalla infra hospitia ilia ezistentia absque
subtractione seu amissione custodire die et node tenentur, ita quod pro
defectu hujusmodi hospitatorum seu servientium stiorum hospitibus hujus-
modi damnum non eveniat uilo modo quidam malefactores quendam equum
ipsius A. predi Ifls. infra hospitium ejusdem B. &c. inventum, pro de-
fectu ipsius B. ceperunt, &c. Vide Registr' fol. 105. inter brevia de
Transgr. and F.'N. B. 94 a. b., by which original writ (which is in such
case the ground of the common law) all the cases concerning hostlers
may be decided. For, 1. It ought to be a common inn ; for if a man
be lodged with another (who is not an innholder) upon request, if he be
robbed in his house by the servants of him who lodged him, or any
other, he shall not answer for it ; for the words are hospitares qui cum.'
hospitia tenent, dec. And so are the books in -22 H. 6. 21 b. 38; 2 H.
4. 7 b. ; 11 H. 4. 45 a. b. ; 42 Ass. pi. 17 ; 42 E. .3. 11 a. ; 10 El. Dyer
266 ; 5 Mar. Dyer 158. And the writ need not mention that the de-
fendant keeps commune hospitium, for the words of the writ in the
Register are infra hospitium ejusdem B. But it is to be so intended
in the writ; for the recital of the writ is, hospitatores qui communia
hospitia tenent, &c. and the one part ought to agree with the other, and
the latter words depend on the other, and the plaintiff ought to declare
that he keeps commune hospitium; and so the said books in 22 H. 6. 21 ;
11 H. 4. 45 a. b. ; 10 Eliz. Dyer 266, &c., are well reconciled.
2. The words are, ad hospitandos homines per partes ubi hujusmodi ^
hospitia existunt transeuntes, et in eisdem hospitantes; by which it ap-
pears that common inns are instituted for passengers and wayfaring
men ; for the Latin word for an inn is, diversorium, because he who
lodges there is, quasi divertens se a via; and so diversoriolum. And
therefore if a neighbour who is no traveller, as a friend, at the request
164 INNKEEPEKS.
of the innholder lodges there and his goods be stolen, &c., he shall
not have an action ; for the writ is, ad hospitandos homines, dec, trans-
euntes in eisdem hospitantes, &c.
3. The words are eorum bona et catalla infra hospitia ilia existentia,.
dec. So that the innholder, by law, shall answer for nothing that is-
out of his inn, but only for those things which are infra hospitium. And
because the horse, which at the request of the owner is put to pasture,
is not infra hospitium, for this reason the innholder is not bound by law
to answer for him, if he be stolen out of the pasture ; for the thing with,
which the hostler shall be charged ought to be infra hospitium; and
therewith agrees the books in 11 Hen. 4. 45 a. b. ; 22 Hen. 6. 21 b. ;.
42 E. 3. 11 a. b. ; 42 Ass. pi. 17, where Knivet, C. J., saith that the
innholder is bound to answer for himself and for his family, of the
chambers and stables, for they are infra hospitium; and with this
resolution in this point agreed the opinion of the Justices of Assize,
(viz. the two Chief Justices, Wray and Anderson) in the county of
Suffolk in Lent vacation, 26 Eliz., that if an innholder lodges a man and
his horse, and the owner requires the horse to be put to pasture, and
there he is stolen, the innholder shall not answer for him. But it wa»
held by them, that if the owner doth not require it, but the innholder
of his own head puts his guest's horse to grass, he shall answer for him
if he be stolen, &c. And it is to be observed that this word hostler is
derived ah hostle; and hospitator, which is used in writs for an innholder,
is derived ab hospitio, and hospes est quasi hospitium petens.
4. The words are, ita quod pro defectu hospitator', seu servientium
suorum, dec, hospitihu^ hujusm/tdi damn' nan eveniat, dsc, by which it
appears that the innholder shall not be charged, unless there be a default
in him or his servants, in the well and safe keeping and custody of their
guest's goods and chattels within his common inn ; for the innkeeper
is bound in law to keep them safe without any stealing or purloining ;.
and it is no excuse for the innkeeper to say, that he delivered the guest,
the key of the chamber in which he is lodged, and that he left the cham-
ber door open : but he ought to keep the goods and chattels of his guest
there in safety ; and therewith agrees 22 H. 6. 21 b. ; 11 H. 4. 45 a. b. ;
42 Edw. 3. 11 a. And although the guest doth not deliver his goods
to the innholder to keep, nor acquaints him with them, yet if they be
carried away, or stolen, the innkeeper shall be charged, and therewith
agrees 42 Edw. 3. 11a. And although they who stole or carried away
the goods be unknown, yet the innkeeper shall be charged, 22 H. 6. 38 ;
8 R. 2; Hosteler 7. Vide 22 H. 6. 21. But if the guest's servant, or
he who comes with him, or he whom he desires to be lodged with him,
steals or carries away his goods, the innkeeper shall not be charged ;
for there the fault is in the guest to have such companion or servant ;
and the words of the writ are, pro defectu hospitator' seu servientium
suorum. Vide 22 H. 6. 21 b. But if the innkeeper appoints one to-
lodge with him, he shall answer for him, as it there appears. The
PUBLIC CALLING. 165
innkeeper requires his guest that he will put his goods in such a chamber
under lock and key, and then he will warrant them, otherwise not, the
guest lets them lie in an outer court, where they are taken away, the
innkeeper shall not be charged, for the fault is in the guest, as it is held
10 Eliz. Dyer 266.
5. The words are, hospitibus damnum non eveniat: these words are
general, and yet forasmuch as they depend on the precedent word*, they
will produce two effects, viz. 1. They illustrate the first words. 2. They
are restrained by them : for the first words are, eorum bona et cataV
infra hospitia ilia existentia absque svhtractione custodire, &c., which words
(6ona et catalla) by the said words, ita quod, &c. hospitibus damnum non
eveniat, although they do not of their proper nature extend to charters
and evidences concerning freehold or inheritance, or obligations, or
other deeds or specialties, being things in action, yet in this case it is
expounded by the latter words to extend to them ; for by them great
damages happen to the guest: and therefore, if one brings a bag or
chest, &c., of evidences into the inn, or obligations, deeds, or other spe-
cialties, and by default of the innkeeper they are taken away, the inn-
keeper shall answer for them, and the writ shall be bona et catalla gen-
erally ; and the declaration shall be special. — 2. These words, bona et
catalla, restrain the latter words to extend only to moveables; and,
therefore, by the latter words, if the guest be beaten in the inn, the
innkeeper shall not answer for it ; for the injury ought to be done to
his moveables which he brings with him ; and by the words of the
writ, the innholder ought to keep the goods and chattels of his guest,
and not his person ; and yet in such case of battery, hospiti damnum
evenit, but that is restrained by the former words, as hath been said.
And these words aforesaid, absque suhtradione seu amissione, extend to
all moveable goods, although of them felony cannot be committed;
for the words are not absque felonica captione, &c., but absque suhtrac-
tione, which may extend to any moveables, although of them felony
cannot be committed, as of charters, evidences, obligations, deeds,
specialties, &c.
REX V. IVENS.
Monmoutli Assizes, 7 Car. & P. 213. 1835.
Indictment against the defendant, as an innkeeper, for not receiving
Mr. Samuel Probyn Williams as a guest at his inn, and also for refusing
to take his horse. The first count of the indictment averred that the
prosecutor had offered to pay a reasonable sum for his lodgings ; and
the first and second counts both stated that there was room in the inn.
The third count omitted these allegations, and also omitted all mention
166 INNKEEPEES.
of the horse. The fourth count was similar to the third, but in a more
general form. Plea — Not guilty.
Coleridge, J. (in summing up). The facts in this case do not
appear to be much in dispute ; and though I do not recollect to have
ever heard of such an indictment having been tried before, the law
applicable to this case is this : that an indictment lies against an inn-
keeper, who refuses to receive a guest, he having at the time room in
his house ; and either the price of the guest's entertainment being ten-
dered to him, or such circumstances occurring as will dispense with
that tender. This law is founded in good sense. The innkeeper is
not to select his guests. He has no right to say to one, you shall come
into my inn, and to another you shall not, as every one coming and
conducting. himself in a proper manner has a right to be received; and
for this purpose innkeepers are a sort of public servants, they having
in return a kind of privilege of entertaining travellers, and supplying
them with what they want. It is said in the present case, that Mr.
Williams, the prosecutor, conducted hiinself improperly, and therefore
ought not to have been admitted into the house of the defendant. If
a person came to an inn drunk, or behaved in an indecent or improper
manner, I am of opinion that the innkeeper is not bound to receive
him. You will consider whether Mr. Williams did so behave here.
It is next said that he came to the inn at a late hour of the night, when
probably the family were gone to bed. Have we not all knocked at
inn doors at late hours of the night, and after the family have retired
to rest, not for the purpose of annoyance, but to get the people up ?
In this case it further appears, that the wife of the defendant has a
conversation with the prosecutor, in which she insists on knowing his
name and abode. I think that an innkeeper has no right to insist on
knowing those particulars; and certainly you and I would think an
innkeeper very impertinent, who asked either the one or the other of
any of us. However, the prosecutor gives his name and residence;
and supposing that he did add the words "and be damned to you,"
is that a suflScient reason for keeping a man out of an inn who has
travelled till midnight? I think that the prosecutor was not guilty
of such misconduct as would entitle the defendant to shut him out of
his house. It has been strongly objected against the prosecutor by Mr.
Dodson, that he had been travelling on a Sunday. To make that
argument of any avail, it must be contended that travelling on a Sun-
day is illegal. It is not so, although it is what ought to be avoided
whenever it can be. Indeed, there is one thing which shows that travel-
ling on a Sunday is not illegal, which is, that in many places you pay
additional toll at the turnpikes if you pass through them on a Sunday,
by which the legislature plainly contemplates travelling on a Sunday as
a thing not illegal. I do not encourage travelling on Sundays, but still
it is not illegal. With respect to the non-tender of money by the
prosecutor, it is now a custom so universal with innkeepers to trust
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 167
that a person will pay before he leaves an inn, that it cannot be neces-
sary for a guest to tender money before he goes into an inn ; indeed,
in the present case, no objection was made that Mr. Williams did not
make a tender ; and they did not even insinuate that they had any sus-
picion that he could not pay for whatever entertainment might be
furnished to him. I think, therefore, that that cannot be set up as a
defence. It however remains for me next to consider the case with
respect to the hour of the night at which Mr. Williams applied for
admission ; and the opinion which I have formed is, that the lateness
of the hour is no excuse to the defendant for refusing to receive the prose-
cutor into his inn. Why are inns established ? For the reception of
travellers, who are often very far distant from their own homes. Now,
at what time is it most essential that travellers should not be denied
admission into the inns ? I should say when they are benighted, and
when, from any casualty, or from the badness of the roads, they arrive
at an inn at a very late hour. Indeed, in former times, when the roads
were much worse, and were much infested with robbers, a late hour of
the night was the time, of all others, at which the traveller most re-
quired to be received into an inn. I think, therefore, that if the traveller
conducts himself properly, the innkeeper is bound to admit him, at
whatever hour of the night he may arrive. The only other question
in this case is, whether the defendant's inn was full. There is no dis-
tinct evidence on the part of the prosecution that it was not. But I
think the conduct of the parties shews that the inn was not full ; be-
cause, if it had been, there could have been no use in the landlady ask-
ing the prosecutor his name, and saying, that if he would tell it, she
would ring for one of the servants.
Verdict — Guilty.
2. ESSENTIAL RELATION OF INNKEEPER AND GUEST.
KISTEN V. HILDEBRAND.
9 B. Men. (Ky.) 72; 48 Am. D. 416. 1848.
Marshall, C. J. This action on the case was brought to recover
from Kisten, as an innkeeper, a large sum of money alleged to have been
taken, through the default and negligence of the defendant, his servants,
etc., from the trunk of the plaintiff, in the inn of the defendant, he, the
plaintiff, being then a guest therein. The form of proceeding against
innkeepers in England, upon the custom of the realm, seems to have
been substantially pursued. The declaration sets out as the foundation
of the action, that " by the custom and law of this commonwealth, inn-
keepers who keep common inns for entertaining men travelling through
168 innKIeepees.
those parts where those inns are, and in the same abiding, their goods
and chattels and money, within those inns being, are bound to keep,
day and night, without diminution or loss, so that through the default
of the said innkeepers, or their servants, damage to such guests might
not, in any manner, happen," etc., and alleges that through the default
of the defendant and his servants, the money was taken and carried
away by certain malefactors. A demurrer to the declaration was over-
ruled, and a trial being had on the plea of not guilty, filed with the
demurrer, a verdict for three hundred dollars was found against the
defendant, who prosecutes this writ of error for the reversal of the judg-
ment rendered upon it.
As the custom of the realm of England, with regard to inns and inn-
keepers, and the liability of the latter, was a general custom, and, there-
fore, a part of the common law, we assume that so far as it is applicable
and not inconsistent with our own local laws and usages, it is also a
part of the common law of this state. Under this assumption, we are
of opinion that taking, into view the preamble to the declaration, in
which the defendant is charged to be an innkeeper, a cause of action
under the law set forth, is substantially shown. The demurrer to the
declaration was, therefore, properly overruled — and we only remark
further, that it is no more necessary in this than in other cases, to set
out the law of the land on which the action is founded. The law with
regard to the liability of innkeepers being one of extreme rigour, it is
essential to the safety of all persons who may be engaged in the business
of entertaining others in their houses for reward, that the extent of its
application should be clearly defined, and that it should not be carried
beyond its proper limits. An innkeeper is prima facie liable for all
losses which happen to the goods of his guests in his inn, all such being
attributed to him on the ground of public policy, and the confidence
necessarily reposed in him, and on account of the difficulty of proving
actual negligence. But he is not liable if the loss be occasioned by
external force or robbery — or if it be attributable to the neglect of the
guest, or to the act of his servant or companion. This being the extent
of his liability to his guests, it is important to determine who is an
innkeeper, and who may claim the benefit of this liability.
It was laid down in Calye's Case, 8 Co. 32 [163], that common inns
were instituted for passengers and wayfaring men. And we think it will
be found that the great liability imposed upon them, is for the benefit
of travellers and transient persons, who are often compelled to resort to
inns for shelter and entertainment, without the means of knowing the
character of the host ; and without the opportunity of securing them-
selves, against loss or damage to their goods. A common innkeeper is
defined to be " a person who makes it his business to entertain travellers
and passengers, and provide lodging and necessaries for them, and their
horses, and attendants " : Bacon's Abr., Inns and Innkeepers, B ; Story
on Bail., § 475. But it has been decided that a man may be an inn-
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 169
Tceeper, and liable as such, tijough he have no provision for horses. It
is not necessary that he should have a sign indicating that he is an inn-
keeper, but it must be his business to entertain travellers and passengers.
His duty extends chiefly to the entertaining and harbouring of travellers,
«tc., and therefore, if one who keeps a common inn refuses to receive a
traveller, or to find him in victuals, etc., for a reasonable price (without
good excuse, as that his house is full), he is liable not only to a civil
action, but to an indictment. For having taken upon himself a public
employment, he must serve the public to the extent of that employ-
ment : Bacon's Abr., Inns and Innkeepers, c. 1.
One who lodges and entertains strangers at a watering place, who
•come to drink the waters, if he entertain no others, is not thereby an
innkeeper : Bacon's Abr., Inns and Innkeepers, B. So the keeper of
& coffee-house, or a boarding-house, is not as such an innkeeper : Story
on Bail., § 475. It must be a house kept open publicly for the lodg-
ing and entertainment of travellers in general for a reasonable compen-
sation : 2 Kent's Com. 595. And although the house be an inn, and
the keeper an innkeeper, it does not follow that he is under the same
liability to all persons who may be staying at the inn with their goods.
The length of time that a man stays at an inn does not make the dif-
ference, " though he stay a week, or a month or more, so always though
not strictly transeuns, he retains his character as a traveller." Story on
Bail., § 177; Bacon's Abr., Inns and Innkeepers, c. 5. "But if a
person comes upon a special contract to board and sojourn at the inn,
he is not in the sense of the law a guest, but a boarder" : same authori-
ties.
We greatly doubt whether the evidence in this case is suflScient
to authorise the conclusion that the defendant was an innkeeper, or
that professedly, or in point of fact, he had assumed the business of
receiving and entertaining the tfavelling public generally, or that his
character or business or employment was such as to preclude him from
refusing to receive and entertain any person at his own pleasure, or to
render him liable either to an action or an indictment for such refusal,
as the keeper of a common inn may have inmates of his house for a
reward, to whom he may not be under the strict liability of an innkeeper ;
so may the keeper of a boarding-house occasionally entertain transient
persons without acquiring the character, or being under the responsi-
bilities, of an innkeeper. And certainly a man professing to be the
keeper of a boarding-house, or a licensed coffee-house, is not, though he
also entertain travellers, liable to his boarders as an innkeeper is liable
to his travelling guests. Conceding, then, that the evidence authorised
the jury to find that the defendant was an innkeeper, because he
■occasionally entertained travellers, it is also certain that his professed
and ordinary business was that of the keeper of a coffee-house and
boarding-house. And although the evidence is not very explicit with
regard to the character in which the plaintiff was an inmate of the
170 INNKEEPEKS.
house, we think it was sufficient to authorise the jury to infer that he
was there as a boarder, and not as a traveller or temporary trader. And
as the instructions of the court submitted to the jury as the decisive
question, the single inquiry whether the defendant was an innkeeper
or not, and sustained, or rather required, a verdict against him if he was
so found to be, we think it was erroneous in withdrawing from the
jury the question whether the plaintiff was a guest entitled to the
benefit of the extreme liability imposed upon an innkeeper in favour of
travellers, or whether he was a mere boarder.
The instructions also assume that the plaintiff's money was taken
in defendant's house, which should have been left to the jury, although
this assumption is perhaps sufficiently authorised by the evidence, and
would not be deemed a ground of reversal. We are also of opinion that
the definition of an innkeeper, given to the jury, though correct, should
have been more explicit ; and that, as the court told the jury, that the
calling of a house a coffee-house or a boarding-house, did not change
the liability of the defendant if he was an innkeeper, they should also
have been told, that the occasional entertainment of travellers did not
make a boarding-house or a coffee-house, a common inn, and that if
the plaintiff was a boarder and not a traveller, he could not recover
upon the general liability of an innkeeper. The court having under-
taken, on its own motion, to state the law to the jury, should have
stated the law as applicable to the whole case, leaving to them the deci-
sion of all questions of fact arising on the evidence. And as the court
had not stated the liability of an innkeeper, we think the incorrect
statement of the plaintiff's counsel, in his concluding argument to the
jury, should have been corrected at the request of the defendant's
counsel.
Wherefore the judgment is reversed, and the case remanded for a
new trial in conformity with this opinion.
HANCOCK V. RAND.
94 N. Y. 1 ; 46 Am. R. 112. 1883.
MiLLEB, J. The plaintiff claims to recover in this action the value
of property stolen while a guest at the hotel of the defendants in the
city of New York. The findings of the referee show that the plaintiff
was an inmate of the defendants' hotel from November, 1873, until
June, 1874, and that the articles lost were taken from the rooms occupied
by plaintiff in the month of March, 1874 ; that the husband of the plain-
tiff. General Hancock, was an officer in the United States army, and
that in November, 1873, he applied for rooms and board at the defend-
ants' hotel for himself and family ; that after some conversation be-
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 171
tween the defendants and said Hancock, in regard to himself and family
remaining at defendants' hotel, in which certain rooms, in a private
house adjoining said hotel, which the defendants were then using in
connection with the same, were mentioned, it was said by General Han-
cock that he expected to remain until the following summer, provided
everything was satisfactory, and provided also he was not sooner
ordered elsewhere on military duty; that the defendants offered the
terms which they would take for said rooms, which terms General
Hancock accepted on the understanding that he should continue to
occupy them until the next following spring or summer, provided every-
thing was satisfactory, and provided also he was not sooner ordered
away on military duty. The referee also found that General Hancock
and family, immediately prior to their going to the hotel of the defend-
ants, had been boarding at another hotel in New York City, and had
no permanent home anywhere ; that prior to the year 1873 and ever
since that time the home of General Hancock has been wherever his
military headquarters were, and that such headquarters during that
time have been at different places. The referee refused to find, as
requested by the defendants, that any substantial agreement had been
made by General Hancock as to the length of time he and his family
should occupy said rooms.
We think that the finding of the referee as to the understanding under
which General Hancock and family came to the defendants' hotel is
sufficiently supported by the evidence, and that his refusal to find that ,
there was any substantial contract as to time between the parties was
fully justified. It appears very distinctly by the proof that no specified
time was absolutely fixed or agreed upon for the stay of General Hancock
and family at the defendants' hotel, and no express contract was made
in regard to the same. According to the evidence the General and
family had a perfect right to leave at any time after the contract was
made, and were not bound to remain for even an entire day, the moment
General Hancock was dissatisfied he and his family had a right to leave
the hotel, so also if ordered elsewhere he had a right to leave. It rested
with him in these contingencies to do and act exactly as he pleased.
It was a fluctuating agreement, depending upon his own will and caprice,
and it cannot be said that the minds of the parties met as to any specific
time whatever. The defendants could not have recovered damages by
reason of his leaving at any moment. As an officer in the army his duty
might at any time have called him away to some distant and remote
place ; and individually he had the right to say when he should go
without consulting the defendants. Really and actually he was but a
transient guest, who had the right to come and to go whenever he pleased.
Officers of the army and navy, and soldiers and sailors, who have no
permanent residence which they can call home, may well be regarded
as travellers or wayfarers when stopping at public inns or hotels, and
to make them chargeable as mere boarders it should be shown satisfac-
172 INNKEEPERS.
torily that an explicit contract, had been made which deprived them of
the privileges and rights which their vocation conferred upon them as
passengers or travellers. General Hancock and the defendants evi-
dently had this in view in the conversation which took place between
them in regard to the former's stay at the latter's hotel. The fact that
General Hancock was subject to marching orders at any moment, and
that this contingency was expressly provided for, makes a wide dis-
tinction between the case at bar and one which possesses no such fea-
tures. This difference and the circumstances connected with it should
be sufficient to take this case out of the ordinary rule which applies
between an innkeeper and a permanent boarder, and fully sustains the
rule we have laid down without disturbing the relationship or obliterat-
ing the distinction which exists between a guest and a boarder. In
view of the evidence presented and the findings of the referee, we think
the defendants are bound within the reason of the rule under which an
innkeeper is held liable for the goods and property of his guest. As a
soldier. General Hancock was unable to acquire a permanent home, and
by reason of his profession was obliged to live temporarily and for
uncertain periods of time at different places and with innkeepers and
others who make provision for the entertainment of guests and travel-
lers. He was necessarily a transient person liable to respond to the call
of his superiors at any moment and to change the locality of himself
and family. The defendants kept a hotel or inn taking care of transient
guests, some staying for a longer, some for a shorter, period. General
Hancock, for himself and family, paid for their meals the same as other
transient guests, and by express agreement they were at liberty to leave
at any time they saw fit. Under these circumstances no reason exists
why they should not be protected as well as the other travellers or guests
at the hotel. It is very evident, from the testimony, that no absolute
and express contract was made for the hiring of the rooms and the board
of General Hancock and his famUy for any stipulated period of time,
and the most that can be claimed, on the part of the appellants, is that
it was a question of fact for the consideration of the referee and for him
to determine whether General Hancock and family were travellers and
guests, or boarders. On the one hand, as already stated. General Han-
cock was a transient person and could not depend upon remaining for
any particular period of time at any place ; he was without any perma-
nent residence or home, and it positively appears that he made no ar-
rangement for any permanent occupation of the rooms at defendants'
hotel. On the other hand, separate apartments were kept for boarders
and for transient persons by the defendants, and the General and his
family were registered among the former, but it does not appear that
he knew this fact, and hence it cannot well be claimed that he had
grounds for supposing and understood that he and his family were
boarders and not guests. The authorities hold beyond question that
the fixing of the price does not make the party a boarder. (See Pinker-
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 173
ton V. Woodward,' 33 Cal. 557 ; Berkshire Woolen Co. ». Proctor, 7
Cush. 417 [232] ; Norcross ». Norcross, 53 Me. 169 ; Walling v. Potter,
35 Conn. 183.) The fair intendment from the evidence is that General
Hancock did not go to defendants' hotel under a contract hiring the
rooms for a season, but that he was a transient person who had the right
to leave at any moment, the same as any other guest. Regarding the
evidence as it stands, and conceding the facts in reference to the ques-
tion whether General Hancock and family were travellers and guests,
or boarders, there would seem to be but little question that the weight
of the testimony is in favour of the proposition that there were travel-
lers or wayfarers and that there was no hiring of the rooms of the de-
fendants for a season or a specified time. Even if there might have
been a doubt as to whether there was a hiring for a term, as the referee
has found in favour of the plaintiff upon this question, we cannot dis-
turb the finding and it should be upheld.
In considering the question discussed it should not be overlooked
that the St. Cloud Hotel was kept as a public inn in every sense and was
clearly distinguishable from a boarding-house ; its proprietors did not
claim that it was a boarding-house, and there is no evidence to show
that it was considered in that light, and neither the fixing of the price
nor the conversation had in reference to the probability of General Han-
cock and family remaining for a period of time could alter or change its
true character. Hotels in modern days are differently conducted from
what they were in times gone by. Furnishing rooms at a fixed price
and meals at prices depending upon the orders given at the usual hotel
rates constitutes a material difference in the system of keeping hotels
from that which formerly existed. The defendants conducted a res-
taurant in connection with their hotel, at which meals were furnished
in accordance with fixed prices. General Hancock and family, after the
first month of their stay at the defendants' hotel, and at the time the
property in question was stolen, took their meals at the restaurant, for
which they paid prices for each meal the same as other guests or travel-
lers. So far then as this is concerned, they must be considered the same
as other guests. Certainly they were not boarders in the sense in which
that term is understood. As they were guests at the restaurant at the
time when the loss occurred and paid as such, it is difficult to see upon
what principle it can be urged that they were boarders because their
lodgings were in the hotel or in rooms connected therewith. To sustain
such a rule would make them boarders in part and guests in part. This
would be unreasonable, the more so in this case, because the proof does
not establish a contract for any fixed time.
The appellants' counsel claims that the referee having found that
General Hancock and family for several years prior to going to the St.
Cloud Hotel had been boarding at another hotel in New York City,
therefore they were not travellers or passengers, but were at their home
and were citizens of New York. As we have abeady seen, the General
174 INNKEEPERS.
being a soldier, and liable to be called to distant and remote places by
order of the government, and thus obliged to change his headquarters,
had no residence in the city of New York, and when stopping at a hotel
awaiting orders, with the right to leave at any moment, he must be
regarded as a transient person the same as any other traveller or pas-
senger. At common law the innkeeper was compelled to furnish
lodgings and entertainment for travellers and passengers, and he was
bound to protect the property they brought with them and was liable
if it was lost or injured. (See Mowers v. Fethers, 61 N. Y. 34, 19 Am.
Rep. 244.) "The length of time that a man is at an inn makes no dif-
ference, whether he stays a week or a month or longer : so although he
is not, strictly transient, he retains his character as a traveller," but he
may, by a special contract to board and sojourn, make himself a
boarder, and being such the innkeeper is not liable. (Story on Bail.,
§ 477 ; 2 Pars, on Contracts, 150 et seq.) The decisions have not been
entirely harmonious as to whether fixing in advance the price to be
paid and the length of the stay has the effect in law to constitute such
person a mere boarder or lodger, and to deprive such visitor of the
character of guest. There are numerous decisions in the books of recent
date which hold that where there is a special agreement as to time and
price that does not absolutely disturb the relationship of innkeeper
and guest. (Pinkerton v. Woodward, 33 Cal. 557 ; Berkshire Woolen
Co. V. Proctor, 7 Cush. 417 [232]; Norcross v. Norcross, 53 Me. 169;
Walling V. Potter, 35 Conn. 183; McDaniels «. Robinson, 26 Vt. 316;
see, also, Parker v. Flint, 12 Mod. 255.) These eases indicate a tendency
in the courts to conform the old rule to the changes made in hotel keep-
ing in modern times.
We are referred by the learned counsel for the appellants to numerous
cases to sustain the doctrine he contends for, among which are : Vance
». Throckmorton (5 Bush. [Ky.] 41) ; Manning v. Wells (9 Humph.
[Tenn.] 746) ; Hursh v. Byers (29 Mo. 469) ; Pollock v. Landis (36
Iowa, 651) ; Lusk v. Belote (23 Minn. 468), and others. A careful
examination of these authorities discloses that in each of them it is
very apparent that the relation of landlord and guest did not exist, and
that the party who claimed damages of the innkeeper was in every case
a boarder beyond any question, and that in most, if not in all of them,
there was a special contract as to time and price which established that
relationship. None of them are analogous to the case at bar, and in
none of them was it made to appear that the plaintiffs' occupation was
of a character which rendered them liable, upon call, to remove from
their location and go elsewhere. Besides, the proof shows in all these
cases a special contract which could not be terminated, as in the case
at bar, at any moment, or which was liable to be concluded by the orders
of a higher authority. The cases cited are therefore not in point, and
cannot control the decision of the question considered.
It must be borne in mind, in considering the question discussed, that
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 175
the referee refused to find that there was any substantial contract for
plaintiff's stay at the hotel and that he found differently, and hence it
may well be held, in entire harmony with the cases last cited, that the
fixing of the price did not change the relationship of the parties as inn-
keeper and guest. The common-law rule which fixes the liability of
an innkeeper to his guest is a salutary one and imposes no needless hard-
ship upon him, and it should be administered according to its spirit
without regard to technical distinctions. The statute (Chap. 421, Laws
of 1855) was enacted for the benefit of the innkeeper and, if complied
with, furnishes full and ample relief from the liability incurred under the
common law. The defendants here failed to comply with the statute by
their neglect to conform to its provisions and have no ground to com-
plain when made amenable for such failure. It is no hardship in the law
that they are called upon to answer for losses occasioned by their own
neglect. It is to be presumed that everyinnkeepersufficiently guards the
hotel under his charge so as to protect its inmates from the depreda-
tions of criminals. When they fail to do this and carelessly omit to
notify the inmates where their valuables can be fully protected, no rea-
son exists in the law or in justice why they should not respond for losses
attributable to their own remissness. The defendants here were mani-
festly wrong in failing to comply with the statute cited, and as they have
not brought themselves within any rule of law which exempts them from
the liability incurred by innkeepers generally in their relation to travel-
lers and guests, we are unable to see why they should be relieved in the
case at bar.
, The findings of the referee and his refusals to find were clearly right,
and unless some error exists in the rulings as to the evidence, they should
be sustained.
We have given due attention to the other questions raised and can
■ discover no ground of error which would authorise a reversal of the
judgment.
The judgment should, therefore, be afiirmed.
RuGER, Ch. J., Rapallo and Danporth, J J., concur; Andrews,
Earl and Finch, JJ., dissent. Judgment affirmed.
ORCHARD v. BUSH.
[1898] 2 Q. B. 284. 1898.
Appeal from a decision of the judge of the Liverpool County Court.
The action was for damages for the loss of a coat. The material
facts proved or admitted before the county court judge were as follows : —
The defendants were innkeepers, keeping the Royal Court Hotel,
Liverpool. Guests were accommodated at the hotel with sleeping-
176 INNKEEPERS.
rooms if required ; but from ninety to one hundred people, who were
not staying at the hotel, dined in it every day. The plaintiff, who was
in business in Liverpool but lived outside the town, went to the hotel
for supper about 9 o'clock in the evening. He went into the dining
room and hung his overcoat upon a hook there, where coats were usually
hung. He then left the room for a short time to speak to the manageress
of the hotel ; returned ; had his supper, and, on leaving to catch a train,
home, found that his coat was missing.
The court judge found that the plaintiff was not guilty of negligence
in leaving the coat in the dining-room temporarily whilst he went to
speak to the manageress.
The judge also found that the plaintiff was a guest of the hotel al-
though he only came in for supper, and held that the defendants were
responsible for the loss of the coat, and accordingly gave judgment for
the plaintiff for 11. 153., its value. The defendants, by leave, appealed.
Wills, J. I am of opinion that this appeal should be dismissed. The
real question is whether there was any evidence to justify the county
court judge in finding that the plaintiff was a guest at the defendants'
inn. Taking the narrower view, contended for by counsel for the de-
fendants, of what is a guest, I fail to understand in what sense he was
— «ot a guest. The room he went into was the dining-room of the hotel.
It is said that in order to make him a guest he must be a wayfarer and
traveller. The facts are that he was on his way home ; he was on his
way to the station from which he travelled home by railway. Why
was he not a wayfarer ? If he had been riding to his home on horse-
back along a country road, and between the terminus a quo and the
terminus ad quern he used an inn for the purpose of getting food for
himself and his horse, he clearly would be a wayfarer and a guest at
the inn. What difference does it make that he was not riding, as 100
years ago he probably would have been, but that he was walking to
the railway station in order to take the train, and on the way called at
an inn, and was received- there and served with such refreshment as he
required ? But I do not take the more restricted view of what consti-
tutes a guest at an inn. I think a guest is a person who uses the inn,,
either for a temporary or a more permanent stay, in order to take what
the inn can give. He need not stay the night. I confess I do not under-
stand why he should not be a guest if he uses the inn as an inn for the
purpose merely of getting a meal there. There is not much to be said,
upon the authorities, for the proposition that a person, in order to be
a guest at the inn, must be a wayfarer or traveller. I quite agree that
in olden times wayfarers were more often "guests" than anybody else.
The innkeeper's liability is said to arise because he receives persons
causa hospitandi. I cannot see why he receives them less catisa hospi-
tandi if he gives them refreshment for half a day, receiving them in the
same way as other persons are received, than if they stay the night at
his inn. It makes no difference that he receives a large number of peo-
ESSENTIAL RELATION OF INNKEEPER AND GUEST, 177
pie who only take a meal at the inn. He does receive them, and as an
innkeeper, and his liability as an innkeeper, thereupon attaches in respect
of them. The present case is stronger than the case of the guest in
Bennett v. Mellor, 5 T. R. 273. There the person held to be a guest
went to the inn for a purpose wholly unconnected with the business of
the innkeeper as an innkeeper, and, whilst waiting for his answer about
the business he had come upon, sat down and took temporary refresh-
ment. He was treated as a guest of the inn because he had received
refreshment in a public room which was part of the inn premises. There
is nothing in the report of the case to shew where he was going after he
left the inn. The use made of the inn by the plaintiff in the present
case seems much more like use as a guest than the use in Bennett «.
Mellor, 5 T. R. 273. Our decision does not touch the point which would
have arisen if the place to which the plaintifif went had been a restaurant
not attached to or part of the hotel. The dining-room here was used
as part of the inn, and used as such a room is used. What was supplied
to the plaintiff was what was supplied by the inkeeper to his guests.
I am of opinion that there was abundant evidence to support the find-
ing of the county court judge. This appeal must be dismissed.
[Opinion by Kennedy, J., omitted.]
WALPERT V. BOHAN.
126 Ga. 532 ; 55 S. E. 181 ; 6 L. R. A. N. S. 828. 1906.
Lumpkin, J. 1. If one keeps an inn, and also, separate from the inn,
keeps a bath house, where persons bathing in the sea change their gar-
ments and leave their clothes, he is not chargeable as an innkeeper for
property stolen from the bath house. Minor v. Staples, 71 Me. 316,
36 Am. Rep. 318. In the opinion in this case it is said : " We are not
now speaking of bathrooms attached to or kept within hotels, but of
separate buUdings, erected upon the seashore, and used, not as bath-
rooms, but as places in which those who bathe in the sea change their
garments and leave their clothes and other valuables while so bathing."
In Schouler's Bailments and Carriers (3 ed.), § 280, it is said : " One
who keeps a public house may, not inconsistently, carry on a restaurant,
cater to a select company, serve liquors at a bar, keep a shaving saloon,
or permit outside parties to get up a ball on his premises ; and, as to
strangers who avail themselves of such extraneous service, he is no inn-
keeper at all." It is true that the declaration alleges in general terms
that in connection with the inn, and as a part of it, and as a part of his
business at that place, the defendant maintained a certain bath house,
where he was accustomed, for rent or hire, to furnish, to such of his
guests and the general public as desired to enjoy the pleasure arid bene-
178 INNKEEPERS.
fits of sea bathing, bathrooms, bathing suits, and other bathing acces-
sories. It does not appear, however, that the bath house was physi-
cally connected with the inn, or was for the use of the guests as such,
or that becoming a guest at the inn entitled one to use the bath house,
or that conducting it was an actual part of innkeeping; but apparently
it was a separate and distinct building on the seashore, where the general
public, whether guests of the inn or not, could for hire obtain dressing
rooms and other accessories of sea bathing. We do not think this was
sufficient to shew the relation of innkeeper and guest existed between the
proprietor of the bath house and those who went there for the purpose
of bathing in the sea. Although the proprietor of the bath house may
have also been an innkeeper, operating the bath house, it did not there-
by become a part of the innkeeping. When the facts set forth shew that
the defendant, in reference to the transaction under consideration,
is not an innkeeper, merely to call him by that name in the pleading
does not determine his liability as that of an innkeeper. Ancient com-
mon-law definitions of an inn are not altogether applicable to modern
conditions and methods of travel and of innkeeping. Thus, Lord
Bacon defines an innkeeper to be " a person who makes it his business
to entertain travellers and passengers, and to provide lodgings and
necessaries for them and their horses and attendants." Bac. Abr.
title "Inns and Innkeepers," B. Few now travel with horses and
attendants ; nor is the entertainment of transient custom confined to
actual travellers. A very good definition of an innkeeper at present is
"one who regularly keeps open a public house for lodging and enter-
taining transient comers, on the general expectation of his suitable
recompense." Schouler's Bailments, §§ 279, 303. If the proprietor
of a hotel should also furnish, for hire by his guests and others, boats
for rowing and sailing on a river or lake, or should maintain -a pubUe
race course, or golf links, or a baseball park, where all could enter by
paying an admission fee, these things would evidently not be a neces-
sary part of keeping an inn, although they might furnish attractive
sports which would give pleasure to guests and others. See Bonner
V. Wellborn, 7 Ga. 296, 304 t seq.; 16 Am. & Eng. Enc. L. (2d ed.),
509.
2, 3. While this is true, we think the presiding judge erred in dismiss-
ing the petition on general demurrer. In Bird v. Everard, 4 Misc.
Rep. 104, 23 N. Y. Supp. 1008, it was held that the proprietor of a bath-
ing establishment, who receives from his patrons the sum demanded
for the privilege of a bath and assumes the custody of their wearing
apparel while the latter are enjoying the privileges thereof, becomes a
voluntary custodian of the patron's apparel for profit and is bound to
exercise due care to guard against loss or theft by others having access
to his establishment with his permission ; and for any loss or theft
which could have been prevented by the exercise of such care, such pro-
prietor is answerable in damages. See, also, Bunnell v. Stern, 122
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 179
N. Y. 539, 10 L. R. A. 481, 19 Am. St. Rep. 519, 25 N. E. 910; Tombler
V. Koelling, 60 Ark. 62, 27 L. R. A. 502, 46 Am. St. Rep. 146, 28 S. W.
795 ; Dilberto v. Harris, 95 Ga. 571, 23 S. E. 112 ; 7 Am. & Eng. Enc.
Law (2d ed.), 321, 322, and notes. The proprietor of such an establish-
ment, who receives the apparel or valuables of a bather for safe-keeping
while the customer is bathing, and receives a consideration for this and the
use of the bathroom or dressing room and accessories to the bath, being
a bailee for hire, is bound to use ordinary care, and is liable for a failure
to do so. The declaration sufficiently alleged negligence on the part
of the defendant or his agent, and was not subject to a general demurrer.
^**^*''pTILLMAN PALACE CAR CO. v. SMITH.
73 111. 360 ; 24 Am. R. 258. 1874.
This was an action brought by Chester M. Smith, appellee, against
the Pullman Palace Car Company, appellant, for the recovery of $1180,
claimed to have been lost from the Pullman sleeping car Missouri, on
the night of December 17, 1872, under the following circumstances :
On the afternoon of Dec. 17, 1872, appellee started from his home in
Oconomowoc, Wis., for a point in Missouri southwest of St. Louis, for
the purpose of buying horses and mules. He purchased a ticket through
to St. Louis, wa the Milwaukee and St. Paul Railway, to Chicago, thence
to St. Louis over the Alton and St. Louis Railway, for which he paid
$15.25. He arrived at Chicago about eight o'clock in the evening of
the same day, went to the office of appellant and bought a sleeping-car
ticket from Chicago to East St; Louis, for which he paid the sum of $2,
and took a berth in the Pullman car, which left Chicago for St. Louis
at nine o'clock p.m. His money, $1180, was in an inside vest pocket,
and when he retired for the night the vest was placed under his pillow ;
in the morning he found the vest as he left it, but the money was gone.
On behalf of the Pullman Palace Car Company, it appeared that
they have no place to store valuables, and that their agents are in-
structed to receive no parcels, valuables, or money, and receive no pay
for baggage or valuables of any kind, but only to take pay for the occu-
pancy of the berths ; and that they do not receive packages, valuables,
or money from passengers on the car to take charge of. Upon the back
of their checks, which are given when the tickets are taken up, is
printed the following : " Wearing apparel or baggage, placed in the car,
will be entirely at the owner's risk." They receive into their cars only
those who have a first-class passage ticket, or a proper pass from the
railroad company ; passengers secure their berths for a particular trip
and for a particular berth and car, paying in advance. The company
has no interest in the fare paid by the passenger to the railroad company
180 INNKEEPERS.
for transportation, and the railroad company has no interest in the prices;
paid the Pullman Palace Car Company for berths ; the latter receive:
pay for sleeping accommodations, none whatever for transportation.
[Instructions to the jury are omitted.]
The jury returned a verdict for the plaintiff for $277, upon whick
judgment was rendered, to reverse which the Pullman Palace Car Com-
pany took this appeal.
Mr. Justice Sheldon delivered the opinion of the Court : —
The instructions which the court gave to the jury made the company
responsible as insurer for the safety of the money, imposing upon it
the severe liability of an innkeeper or common carrier. And it is the
position which appellee's counsel take, that the relation between the
parties in this case was that of innkeeper and guest, and that the liability
of the company is that of an innkeeper.
In order to ascertain whether the extraordinary responsibility claimed,,
here exists, it becomes important to inquire into the nature of inns and
guests, where this liability was imposed by the common law, and see
whether the description of the same properly applies here.
Kent, in defining an inn, says : " It must be a house kept open
publicly for the lodging and entertainment of travellers in general, for
a reasonable consideration. If a person lets lodgings only, and upon
a previous contract with every person who comes, and does not afford
entertainment for the public at large, indiscriminately, it is not a
common inn." 2 Kent Com. 595. This is substantially the same
definition as is given in all the books upon the subject.
But the keeper of a mere coffee-house, or private boarding or lodging
house, is not an innkeeper, in the sense of the law. Id. 596 ; Dansey v.
Richardson, 3 Ellis & B. 144 (E. C. L. vol. 77) ; Holder v. Toulby, 98.
E. C. L. 254 ; Kisten v. Hilderbrand, 9 B. Munroe, 72 [167]. It must
be a common inn, that is, an inn kept for travellers generally, and not
merely for a short season of the year, and for select persons who are
lodgers. Story on Bailm., § 475, and cases cited in note. The duty
of innkeepers extends chiefly to the entertaining and harbouring of
travellers, finding them victuals and lodging, and securing the goods
and effects of their guests ; and, therefore, if one who keeps a common
inn refuses either to receive a traveller as a guest into his house, or to
find him victuals and lodging, upon his tendering him a reasonable
price for the same, he is not only liable to render damages for the injury
in an action on the case, at the suit of the party grieved, but also may be
indicted and fined at the suit of the king. 3 Bac. Ab. Inns and Inn-
keepers, C. The custody of the goods of his guest is part and parcel
of the innkeeper's contract to feed, lodge, and accommodate the guest
for a suitable reward. 2 Kent Com. 592.
From the authorities already cited, it is manifest that this Pullman
palace car falls quite short of filling the character of a common inn, and
the Pullman Palace Car Company, that of an innkeeper.
ESSENTIAL RELATION OF INNKEEPER AND GUEST. 181
It does not, like the innkeeper, undertake to accommodate the travel-
ling public, indiscriminately, with lodging and entertainment.
It only undertakes to accommodate a certain class, those who have
already paid their fare and are provided with a first-class ticket, entit-
ling them to ride to a particular place.
It does not undertake to furnish victuals and lodging, but lodging
alone, as we understand. There is a dining car attached to the train,
as shewn, but not owned by the Pullman Company, nor run by them.
It belongs to another company, the Chicago and Alton Dining Car
Association. Appellant, as we understand, furnishes no accommodation
whatever, save the use of the berth and bed, and a place and conveniences
for toilet purposes. We would not have it implied, however, that even
were these eating accommodations furnished by appellant, it would
vary our decision; but the not furnishing entertainment is a lack of
one of the features of an inn.
The innkeeper is obliged to receive and care for all the goods and
property of the traveller which he may choose to take with him upon
the journey. Appellant does not receive pay for, nor undertake to care
for, any property or goods whatever, and notoriously refuses to do so.
The custody of the goods of the traveller is not, as in the case of the
innkeeper, accessory to the principal contract to feed, lodge, and accom-
modate the guest for a suitable reward, because no such contract is
made.
The same necessity does not exist here, as in the case of a common
inn. At the time when this custom of an innkeeper's liability had origin,
wherever the end of the day's journey of the wayfaring man brought
him, there he was obliged to stop for the night, and entrust his goods
and baggage into the custody of the innkeeper. But here, the traveller
was not compelled to accept the additional comfort of a sleeping car ;
he might have remained in the ordinary car; and there were easy
methods within his reach by which both money and baggage could be
safely transported. On the train which bore him were a baggage and
express car, and there was no necessity of imposing this duty and lia-
bility on appellant.
It cannot be supposed that any such measure of duty or liability
attached to appellant, as is declared in the quotation cited from Bacon's
Abridgment to belong to an innkeeper. The accommodation furnished
appellee was in accordance with an express contract entered into when
he bought his berth ticket at Chicago, which was for the use of a specified
couch from Chicago to St. Louis, and appellant did not render a service
made mandatory by law, as in the case of an innkeeper.
But if it should be deemed that, on principle merely, this company
would be required to take as much care of the goods of a lodger, as an
innkeeper of those of a guest, the same may be said with reference
to the keeper of a boarding-house, or of a lodging-house. In Dansey
V. Richardson, supra, where the innkeeper's liability was refused to be
182 INNKEEPERS.
extended to a boarding-house keeper, it was said by Coleridge, J. -
"The liability of the innkeeper, as, indeed, other incidents to his
position, do not, however, stand on mere reason, but on custom, grow-
ing out of a state of society no longer existing." In Holder v. Toulby,
supra, where it was held the law imposed no duty upon a lodging-house
keeper to take due care of the goods of a lodger, Calye's Case, 8 Co.
Rep. 32 [163], was designated as fans juris upon this subject, where it
was expressly resolved, that, though an innkeeper is responsible for the
safety of the goods of a guest, a lodging-house keeper is not. And in
Parker v. Flint, 12 Mod. 255, " if," says Lord Holt, " one come to an
inn and make a previous contract for lodging for a set time, and do
not eat or drink there, he is no guest, but a lodger, and, as such, is not
under the innkeeper's protection ; but if he eat or drink there, it is
otherwise, or if he pay for his diet there, though he do not take it there."
The peculiar liability of the innkeeper is one of great rigour, and
should not be extended beyond its proper limits. We are satisfied that
there is no precedent or principle for the imposition of such a liability
upon appellant.
Appellant is not liable as a carrier. It made no contract to carry.
Appellee was being carried by the railroad company ; and if appellant
were a carrier, it would not be liable for the loss in this case, because
the money was not delivered into the possession or custody of appel-
lant, which would be essential to its liability as carrier. Town v. The
Utica and Schenectady Railroad Co., 7 Hill, 47. In 2d vol. Redf.
Am. Railw. Cases, 138, it is said : " But it has never been claimed that
the passenger carrier is responsible for the acts of pickpockets at their
stations, or upon steamboats and railway carriages."
It would be unreasonable to make the company responsible for the
loss of money which was never entrusted to its custody at all, of which
it had no information, and which the owner had concealed upon his
own person. The exposure to the hazard of liability for losses through
collusiou, for pretended claims of loss where there would be no means
of disproof, would make the responsibility claimed a fearful one. Ap-
pellee assumed the exclusive custody of his money, adopted his own
measures for its safe-keeping by himself, and we think his must be the
responsibility of its loss.
We hold the instruction to be erroneous, and the judgment of the
court below will be reversed, and the cause remanded.
Judgment reversed.
DUTY AS TO GUEST S PEKSONAL 8AFETT.
183
3. DUTY AS TO GUEST'S PERSONAL SAFETY.
GILBERT V. HOFFMAN.
66 Iowa, 205 ; 23 N. W. R. 632 ; 55 Am. R. 263. 1885.
Defendants are the keepers of a hotel, and plaintiff was a guest at
their house, and while there contracted the small-pox. She brought
this action to recover damages sustained by her in consequence of the
sickness caused by said disease. She alleged in her petition that
defendants represented to her that their hotel was a desirable place
for guests, and that it was free from small-pox, and that there was no
person in said hotel who was infected with that disease, and that,
relying upon the truth of these representations, she consented to be-
come a guest at said hotel. But she alleges that the representations
were false, and were known by defendants to be false when they made
them, and that the disease was then in the hotel, and that there was
a person then in the house who was afflicted with the disease. These
allegations are all denied by the defendants in their answer. There
was a verdict and judgment for plaintiff, and defendants appeal.
Reed, J. [Portions of opinion relating to questions of practice
omitted.]
III. The evidence given on the trial shows that plaintiff arrived by
train at the town in which the defendants' hotel was situated, at about
three o'clock in the morning. She was met at the depot by her hus-
band, who had been stopping for a number of days at the hotel, and
she accompanied him to the house, and remained there as a guest until
evening of the next day, when the hotel was closed and "quarantined"
by the authorities of the town ; that is, the inmates of the house were
not permitted to depart from it, except as they were removed to the
pest-house when they were taken with the disease ; and the public was
excluded from it. When ^he went to the house, one^of the guests was
ly^ing sick in a room in the houae. and his diseq,se prnypH fri.be ibe sx
pox. He^wasexaniined by the pnysician the day before plaintiff ar-
i;iv{;d aj; t.h(» hotel .aiid there was evidence tending to provg^ th^t tl\e
phYMcian thaTpronounced the dSease small-pqx. ^nd, inforn^ed jefepd-
anta-,that that_was its character. There is a conflict in the evidence,
it is true, as to the time when aefendants were informed as to the char-
acter of the disease with which this person was afflicted, but the jury
were warranted in finding that the information was communicated to
them on the day before plaintiff's arrival at the hotel. There was also
evidence tending to prove that, in a conversation a few hours after her
arrival, one of the defendants assured her husband in her presence that
the disease was not in the house, and that the rumours that the person
who was sick in the house had small-pox were circulated for the purpose
of injuring the business of the hotel. While plaintiff's husband was
184 INNKEEPERS.
at the depot awaiting her arrival, he was informed that a rumour was
current that the disease was in the house, and he informed her of this
before she went there.
Counsel for appellants contend that this evidence did not warrant
the jury in finding for the plaintiff, because (1) it does not shew that
defendants were guilty of such negligence as renders them liable ; and
(2) that plaintiff, by -going to the house after she was informed of the
rumour which was current as to the presence of the disease, and without
instituting an inquiry as to its truth, was guilty of such contributory
negligence as precludes a recovery. But this position cannot be main-
tained. The jury, as we have seen, were warranted by the evidence in
finding that defendants, with knowledge of the prevalence of the disease
in the hotel, kept it open for business, and permitted plaintiff to become
a guest, without informing her of the presence of the disease. That
they would be liable to one who became their guest under these circimi-
stances, and contracted the disease while in their house, and who was
himself guilty of no negligence contributing to the injury, there can
be no doubt.
The district court properly left it to the jury to determine whether
plaintiff was guilty of imprudence or negligence in going to the hotel
after she heard the rumour that the disease was in the house, without
inquiring further as to its truth ; and they were told that, if the cir-
cumstances were such as that ordinary prudence and care demanded
that she should, before going to the hotel, make further inquiry as to
the truth of the rumour, and she neglected to do this, and this neglect
contributed to the injury, she could not recover. The instruction states
the rule on the subject quite as favourably to the defendants as they
had the right to demand. By keeping their hotel open for business,
they in effect represented to all travellers that it was a reasonably safe
place at which to stop ; and they are hardly in a position now to insist
that one who accepted and acted on this representation, and was in-
jured because of its untruth, shall be precluded from recovering against
them for the injury, on the ground that she might by further inquiry
have learned of its falsity. But the jury were warranted by the evi-
dence in finding that she was not guilty of negligence in not inquiring
further as to the truth of the rumour before going to the hotel. Her
husband, who informed her of the rumour, had been stopping at the
hotel for two or three days, and had heard nothing while about the
house of the prevalence of the disease. The information as to the
currency of the rumour was communicated to him at the depot while
he was awaiting the arrival of the train. The jury might well have
concluded that under the circumstances she was justified in assuming
that the rumour was not of such importance as to demand further
investigation.
IV. Appellants assign as error the refusal of the court to give certain
instructions asked by them. The rule announced in these instructions
DUTT AS TO guest's PERSONAL SAFETY. 185
is substantially the same as that given in the instruction referred to in
the foregoing paragraph of this opinion. We need not inquire whether
they correctly express the law, as substantially the same doctrine was
given by the court in the instruction given on its own motion. Defend-
ants have no ground of complaint because of the refusal to give them.
Affirmed.
CLANCY V. BARKER.
131 Fed. 161 ; 66 C. C. A. 469. 1904.
In Error to the Circuit Court of the United States for the District
of Nebraska.
Before Sanborn, Thayer, and Hook, Circuit Judges.
Sanborn, Circuit Judge. This case was determined in the lower
■court on a demurrer to the evidence; the trial court holding, on the
conclusion of the plaintiff's testimony, that there was no substantial
evidence warranting a recovery. It accordingly directed a verdict in
iavour of the defendants. This action was taken on testimony which
tended to establish, and did establish, the following facts : —
Freeman Clancy, in whose behalf the action is brought, at the time
of the accident hereafter described, was about six years old, and was
stopping with his parents at the Barker Hotel, in the city of Omaha,
Neb. ; the father, mother, and son having been guests at the hotel for
a few days prior to the accident. During the evening of January 15,
1902, about 8.30 p.m., he went down the elevator from one of the upper
floors, where the room occupied by his parents was located, to the
ground floor of the hotel for the purpose, as he says, of getting some ice
water. Reaching the ground floor, he passed by a room where some
one was playing a harmonica. The door being ajar, he entered this
room, actuated, apparently, by no other motive than childish curiosity,
and found a boy, who was employed about the hotel either as a bell boy
or porter, engaged in playing the instrument. Another boy who ran
the hotel elevator was also in the room. Both of these employes of
the hotel seem to have been off duty at the time, and engaged in amus-
ing themselves in a room that was not occupied by guests. As the
boy Clancy entered the room, the boy who was playing the harmonica
said to him, evidently in jest, "See here, young fellow; if you touch
anything, here is what you will get," at the same time pointing a pistol
at him. The pistol was accidentally discharged, the ball striking the
boy in the head, fracturing "the frontal ethnoid and sphenoid bones
■of the head," and destroying one of his eyes. The ball also passed
through the boy's thumb, but the injury did not prove fatal.
One paragraph of the complaint, on which the case was tried, al-
leged : —
186 INNKEEPERS.
"That on or about the 12th day of January, 1902, the said father and
mother of the plaintiff entered the said hotel of defendant with their said
infant child, the plaintiff, as guests of defendant, for a temporary rest in
said city at said hotel, and were received by the said defendants as the guests
of the said innkeepers or hotel keepers ; the defendants thereby contract-
ing with the said father for and on behalf of said plaintiff, and with the plain-
tiff by implication of law, for his personal safety, kind treatment, and for
aU of the usual hospitalities, covenants, and agreements, and obligations
due from an innkeeper and hotel keeper to his guests."
Another paragraph of the complaint alleged, in substance, that it
was the duty of the bell boy or porter, through whose acts as aforesaid
the injury was sustained —
"To direct the guests of said hotel about said hotel, and to wait on, watch
over, and protect said guests and their property and the property of the
said hotel, and such other duties as are usually required of porters by inn-
keepers or hotel keepers, and imposed by law."
Another paragraph of the complaint alleged that said bell boy or
porter, being a servant of the defendants and of said hotel, in that
capacity, by the acts heretofore described —
"Violated all obligations of hospitality and patience due from said de-
fendants, through said servants, to said infant guest, and the defendants
thereby violated their agreement, duty, and obligation of law with and to
the plaintiff."
On this state of facts and pleading, counsel for the plaintiff in error
asserts a right of recovery against the defendants on two grounds :
First, he contends that by receiving the boy and his parents as guests
at the hotel the proprietors of the hotel undertook, like a common
carrier of passengers, to protect him against injuries occasioned by the
negligence or wilful misconduct of their employes in and about the
hotel, and that this contractual obligation of the defendants was vio-
lated. In the second place, counsel contends that when Lacey, the
porter, pointed the pistol at the boy, he was guilty of a wrongful and
negligent act ; that he was engaged at the time in the performance of
one of his duties as servant; and that on this ground the defendants
are liable. It is argued that it was a part of Lacey's duty as a servant,
when the child entered the room where he was playing the harmonica,
to see that he did not disturb or handle any articles in the room ; that
a jury might well infer that the act which occasioned the injury was
done by Lacey in the performance of this duty ; and that the ordinary
rule, "Respondeat superior," applies to the case.
We entertain no doubt that the act in question was in fact wrongful
and negligent, but the difficulty which we encounter in upholding this
latter theory is that the evidence fails to show that Lacey had been
charged with the duty of guarding such articles as may have been in the
room where the accident occurred, or that the room contained any
DUTY AS TO guest's PEKSONAL SAFETY. 187
articles which the child could have injured or carried away, or that he
had made any movement in that direction. All this is mere surmise,
which will not suffice to sustain a verdict. So far as the evidence war-
rants an inference, the inference is that Lacey was not engaged at the
time in the discharge of any duty for and in behalf of the defendants ;
that he was temporarily, at least, off duty, engaged in amusing him-
self ; and that he pointed the pistol at the child in sport, to see how he
would act, rather than to prevent him from touching or intermeddling
with anything in the room. The act in question seems to have been
prompted by a momentary impulse, and to have been done by Lacey
for his own amusement, and to have been in no wise connected with
the discharge of any duty or with the performance of any task that had
been devolved upon him by the defendants. Under these circumstances
we are of opinion that the proprietors of the hotel cannot be held
accountable for the act in question on the second ground above stated,
since it is too well settled to require the citation of any authority that
the master is not responsible ordinarily for the negligent acts of his
servant, unless they are committed while the servant is rendering some
service for and in behalf of the master.
But counsel for the plaintiff insists that, although the defendants were
not negligent in the- employment of their servant, the bell boy, and
although he was not acting in the course or within the actual or apparent
scope of his employment when he discharged the pistol, yet the defend-
ants are liable for the injury he inflicted, because it is a part of the
contract between an innkeeper and his guest that the former will insure
the safety of the person of the latter against injury from every act or
omission of his servants. The crucial question here, therefore, is
whether or not an innkeeper is an insurer of the safety of the person
of his guest while the latter remains in his hotel against the negligent
and wilful acts of his servants, when they are acting without the course
and without the actual or apparent scope of their employment.
An affirmative answer to this question would be in conflict with the
decisions of the courts rendered prior to the time when the contract
herein was made, and to our understanding of the law upon this sub-
ject as it then existed. The general rule of law governing the liability
of innkeepers when these defendants made their agreement with the
plaintiff, the rule which had received the approval of every court which
had ever decided the question, so far as we have been able to discover,
was that an innkeeper was not an insurer of the safety of the person of
his guest against injury, but that his obligation was limited to the
exercise of reasonable care for the safety, comfort, and entertainment
of his visitor. -Calye's Case,' 4 Coke, 202, 206 [163] ; Sandys v. Flor-
ence, 47 L. J. C. P. L. 598; Weeks v. McNulty, 101 Tenn. 499, 48
S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. 693 ; Curtis v. Dinneen,
[4 Dak. 245] 30 N. W. 148, 153 ; Sheffer v. Willoughby, 163 111. 518, 521,
522, 45 N. E. 253, 34 L. R. A. 464, 54 Am. St. Rep. 483 ; Gilbert v.
188 INNKEEPERS.
Hoffman, 66 Iowa, 206, 23 N. W. 632, 55 Am. Rep. 263 [183] ; Over-
street V. Moser, 88 Mo. App. 72, 75; Stanley v. Bircher's Ex'r, 78
Mo. 245, 248; Stott v. Churchill (Com. PL), 36 N. Y. Supp. 476, 477;
Sneed v. Morehead, 70 Miss. 690, 13 South. 235.
In another class of cases, those involving the liability of common
carriers and of the operators of palace cars to their passengers, this
measure of liability has in later years been extended to include respon-
sibility for the wilful and negligent acts of those to whom the carriers
entrust the transportation of their passengers, such as brakemen, por-
ters, and conductors, upon the ground that these servants, when upon
the trains or steamboats, are engaged in the course or scope of their
employment to conduct the safe transportation of the passengers,
whatever they may be doing. The reasons for this extension of lia-
bility are well stated in Bass v. Chicago & Northwestern Ry. Co., 36
"Wis. 450, at page 463, 17 Am. Rep. 495, and in Mallach v. Ridley
(Sup.), 9 N. Y. Supp. 922, 2 Abb. N. C. 181.
In the former case the court said : —
"These officers [the conductors and other servants in charge of the train]
may be guilty of acts of arbitrary oppression, beyond endurance, towards
passengers, which might warrant resistance. But we feel warranted by
principle and authority to hold that, in the enforcement of order on the
train, and in the execution of reasonable regulations for the safety and com-
fort of the passengers, and for the security of the train, the authority of
these officers, exercised upon the responsibility of the corporations, must
be obeyed by passengers, and that forcible resistance cannot be tolerated.
They act on the peril of the corporation, and their own. Indeed, as that
fictitious entity, the corporation, can act only through natural persons, its
officers and servants, and as it of necessity commits its trains absolutely
to the charge of officers of its own appointment, and passengers of necessity
commit to them their safety and comfort in transitu, under conditions of
such peril and subordination, we are disposed to hold that the whole power
and authority of the corporation, pro hoc vice, is vested in these officers,
and that, as to passengers on board, they are to be considered as the cor-
poration itself, and that the consequent authority and responsibility are
not generally to be straitened or impaired, by any arrangement between the
corporation and the officers ; the corporation being responsible for the acts
of the officers, in the conduct and government of the train, to the passen-
gers travelling by it, as the officers wotild be for themselves, if they were
themselves the owners of the road and train. We consider this rule essen-
tial to public convenience and safety, and sanctioned by great weight of
authority."
In the latter case the court declared : ^—
"It was long held by the courts that a common carrier was not liable for
a wilful assault by one of its employfe upon a passenger. This rule, how-
ever, has been abrogated upon the theory that the carrier invites the pas-
senger to subject himself to the protection and care of the employes of the
DUTY AS TO guest's PERSONAL SAFETY. 189
corporation, and under these circumstances the common carriers should
be responsible for aU the acts of the subordinates toward the passengers
while under his custody and control."
Counsel for the plaintiff insists that the liability of the innkeepers
should be extended in the ease at bar even beyond that of common
carriers, so that the defendants should be held liable for the injuries
inflicted by the wilful or careless act of their servant when he was
not acting within the course or scope of his employment. The argu-
ment in support of this contention is that common carriers are liable
for the negligent or wilful acts of their servants to whom they entrust
the care, custody, and control of the passengers they transport, and
that the liability of innkeepers to their guests is similar to that of car-
riers to their passengers. There are many reasons, however, why
this argument is not persuasive, and why it fails to demonstrate that
an iimkeeper insures the safety of the persons of his guests against
injuries inflicted by his servants when they are not engaged in the dis-
charge of their duties as employes.
While there are many loose statements in the books to the effect that
the liability of common carriers to their passengers and the liability of
innkeepers to their guests are similar, and while that proposition may
be conceded, it is certain that the limits of these liabilities are by no
means the same. A railroad company is liable to its passengers for a
failure to exercise the utmost care in the preparation of its road and the
operation of its engines and trains upon it, because the swift movement
of its passenger trains is always fraught with extraordinary danger,
which it requires extraordinary care to avert. But an innkeeper's
liability for the condition and operation of his hotel is limited to the
failure to exercise ordinary care, because his is ah ordinary occupation
fraught with no extraordinary danger. Sandys v. Florence, 47 L. J.
C P. L. 598, 600. It no more follows, from the similarity of the lia-
bility of the carrier to that of the innkeeper, that the latter is liable
for the wilful or negligent acts of its servants beyond the scope of
their employment, than it does that the latter is liable for a failure to
exercise the highest possible care to make his hotel and its operation
safe for its guests, because the carrier must exercise that degree of care
in the management of its railroad, engines and trains.
Again, there is a marked difference in the character of the contracts
of carriage on a railroad or steamboat and of entertainment at an inn,
and a wide difference in the relations of the parties to these contracts.
In the former, the carrier takes and the passenger surrenders to him the
control and dominion of his person, and the chief, nay, practically the
only, occupation of both parties is the performance of the contract of
carriage. For the time being all other occupations are subordinate to
the transportation. The carrier regulates the movements of the
passenger, assigns him his seat or berth, and determines when, how,
and where he shall ride, eat, and sleep, while the passenger submits
190 INNKEEPEES.
to the rules, regulations, and directions of the carrier, and is trans-
ported in the manner the latter directs. The contract is that the
passenger will surrender the direction and dominion of his person to
the servants of the carrier, to be transported in the car, seat, or berth
and in the manner in which they direct, and that the latter will take
charge of and transport the person of the passenger safely. The logi-
cal and necessary result of this relation of the parties is that every ser-
vant of the carrier who is employed in assisting to transport the pas-
senger safely, every conductor, brakeman, and porter who is employed
to assist in the transportation, is constantly acting within the scope and
course of his employment while he is upon the train or boat, because
he is one of those selected by his master and placed in charge of the
person of the passenger to safely transport him to his destination.
Any negligent or wilful act of such a servant which inflicts injury upon
the passenger is necessarily a breach of the master's contract of safe
carriage, and for it the latter must respond. But the contract of an
innkeeper with his guest, and their relations to each other, are not of
this character. The innkeeper does not take, nor does the guest sur-
render, the control or dominion of the latter's person. The performance
of the contract of entertainment is not the chief occupation of the
parties, but it is subordinate to the ordinary business or .pleasure of the
guest. The innkeeper assigns a room to his guest, but neither he nor
his servants direct him when or how he shall occupy it ; but they leave
him free to use or to fail to use it, and all the other means of entertain-
ment proffered, when and as he chooses, and to retain the uncontrolled
dominion of his person and of his movements. The agreement is not
that the guest shall surrender the control of his person and action to
the servants of the innkeeper, in order that he may be protected from
injury and entertained. It is that the guest may retain the direction
of his own action, that he may enjoy the entertainment offered, and
that the innkeeper will exercise ordinary care to provide for his comfort
and safety. The servants of the innkeeper are not placed in charge
of the person of the guest, to direct, guide, and control his location and
action, nor are they employed to perform any contract to insure his
safety ; but they are engaged in the execution of the agreement of the
master to exercise ordinary care for the comfort and safety of the
visitor. The natural and logical result of this relation of the parties
is that when the servants are not engaged in the course or scope of their
employment, although they may be present in the hotel, they are not
performing their master's contract, and he is not liable for their negli-
gent or wilful acts.
Moreover, the authorities in the cases involving the liability of com-
mon carriers, of owners of palace cars, of steamboats, and of theatres,
upon which counsel for the plaintiff seems to rely, when carefully ex-
amined, are found to be cases in which the servants were acting within
the course or scope of their employment, and they do not rest upon the
DUTY AS TO GUEST S PEESONAL SAFETY. 191
proposition that the defendants in those cases were liable for the wilful
or negligent acts of their employes beyond that scope.
In Dwindle v. New York Central, etc. R. Co., 120 N. Y. 117, 126,
127, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, the porter of
a sleeping car, who had taken up the ticket of a passenger, was held
to be acting within the scope of his employment when he struck the
passenger during an altercation between them relative to the return of
the ticket.
In Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, 591, 43 Am. Rep.
185, the court declared the limit of the company's liability to be "to
protect the passenger against any injury arising from the negligence or
wilful misconduct of its servants while engaged in performing a duty
which the carrier owes to the passenger," and held that a driver of a
street car, who was also the conductor, and who beat a passenger in
a ear, was within the scope of his employment to carry the passenger
safely when he committed the assault.
In Goddard ». Grand Trunk Railway, 57 Me. 202, 203, 2 Am. Rep.
39, a brakeman, who had authority to collect tickets, and who, after
collecting one from a passenger, demanded another of him, and~ grossly
insulted him because he declined to pay for his passage again, was held
•to have been acting within the scope of his employment, and the com-
pany was charged with the damages he inflicted.
So in Craker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 673,
17 Am. Rep. 504, a conductor who kissed a passenger ; in Pendleton
V. Kinsley, 3 Cliff. 416, 427, 428, Fed. Cas. No. 10, 922, the clerk of a
steamer who assaulted a passenger while trying to collect his fare ; in
Chicago & Eastern R. Co. ■». Flexman, 103 111. 546, 42 Am. Rep. 33 [969],
a brakeman who struck a passenger because during a search for a lost
watch- he said he thought the brakeman had it ; in Terre Haute &
Indianapolis R. Co. v. Jackson, 81 Ind. 19, 22, a conductor or brake-
man who drenched a passenger with water ; in Campbell v. Palace Car
Co. (C. C), 42 Fed. 485, a porter of a sleeping car who made indecent
proposals to a passenger ; in Williams v. Palace Car Co., 40 La. Ann.
421, 4 South. 85, 8 Am. St. Rep. 538, a porter of a Pullman car who
assaulted a passenger; and in Dickson «. Waldron (Ind. Sup.), 34 N. E.
506, 24 L. R. A. 483, 41 Am. St. Rep. 440, the ticket taker and special
policeman of a theatre, who, in endeavouring to sell the tickets to a
customer, assaulted him — were all held to be, and undoubtedly were,
acting within the scope of their various employments when they in-
flicted the injuries for which the defendants were made to pay.
When all these authorities, and others cited by counsel for the plain-
tiff, are carefully considered, it clearly appears that the controlling rea-
sons why common carriers have been held liable for the wilful or negli-
gent acts of their servants in these cases are (1) that they owe to their
passengers the highest degree of care, and (2) that during the transpor-
tation they entrust the entire care, custody, and control of their trains.
192 INNKEEPERS.
steamboats, and passengers to these servants, and the passengers yield
obedience and control of their movements to these servants, under
conditions of peril and subordination in which the passengers are
confined and helpless, and the servants in charge of the train are prac-
tically the vice principals of the defendants. Bass v. Chicago & North-
western Ry. Co., 36 Wis. 450, 463, 17 Am. Rep. 495. There are no such
reasons for the existence of the liability of innkeepers for the wilful
or negligent acts of their servants beyond the scope of their employ-
I ment, and the argument of counsel in support of such an extension by
analogy with the liability of common carriers fails (1) because innkeepers
are not liable to their guests for extraordinary care, while carriers are
liable to their passengers for the highest degree of care; (2) because
innkeepers do not entrust to their servants the absolute control and
dominion of their hotels and of the persons of thelir guests, nor do the
latter surrender themselves to the dominion and direction of such
servants ; and (3) because the wilful and negligent acts of their servants,
for which carriers have been held liable, were committed in the dis-
charge of the duties which they were employed to perform, while those
of the servants of innkeepers, now under consideration, were done out-
side the actual and the apparent scope of their employment.
In addition to the argument by analogy which we have been consider-
ing, our attention is called to the remarks of Chief Justice Shaw in
Commonwealth v. Power, 7 Mete. 596, 601, 41 Am. Dec. 465, a case in
which the question was whether a railroad company had the right to
exclude a disorderly person from its railroad station, and Chief Justice
Shaw, in discussing that question, said : —
"An owner of a steamboat or railroad, in this respect, is in a condition
somewhat similar to that of an innkeeper, whose premises are open to all
guests. Yet he is not only empowered, but he is bound, so to regulate his
house, as well with regard to the peace and comfort of his guests, who there
seek repose, as to the peace and quiet of the vicinity, as to repress and pro-
hibit all disorderly conduct therein ; and, of course, he has a right, and is
boimd, to exclude from his premises all disorderly persons, and all persons
not conforming to regulations necessary and proper to secure such quiet
and good order."
It is also called to the opinion of Judge Story, of the same tenor, in
Jencks «. Coleman, 2 Sumn. 221, Fed. Cas. No. 7, 258 [891], a case which
involved a similar question ; to wit, the right of the owner of a steam-
boat to exclude a disorderly person therefrom ; to the decision of the
Supreme Court in Rommel v. Schambacher, 120 Pa. 579, 11 Atl. 779,
6 Am. St. Rep. 732, that an innkeeper who furnished liquor to make a
man drunk, and then with gross carelessness permitted him to attach
a paper to the back of one of his customers and to set it on fire in his
plain sight, was liable for the injury; and to the opinions of various
courts in cases in which the liability of innkeepers for the loss or destruc-
DUTY AS TO GUEST S PERSONAL SAFETY. 193
tion of the property of their guests was in question. These cases have
been examined, but neither the decisions of the questions there pre-
sented, nor the opinions of the courts concerning them, are either
decisive or persuasive in the consideration and determination of the
question here under consideration, whether or not an innkeeper is an
insurer of the safety of the person of his guest against the wilful or
negligent acts of his servants beyond the scope of their employment,
because that question was not considered or determined, and clearly
was not in the minds of the judges who rendered the decisions and opin-
ions to which reference has been made. This is also true of all the
cases, opinions, and expressions which have been cited by counsel for
the plaintiff. To them all the declaration of Chief Justice Marshall in
Cohens ». Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257, applies in all its
force : —
"It is a maxim not to be disregarded that general expressions in every
opinion are to be taken in connection with the case in which those expres-
sions are used. If they go beyond the case, they may be respected, but
ought not to control the judgment in a subsequent suit, when the very point
is presented for decision."
Finally, counsel for plaintiff presents for our consideration the opin-
ion of the Supreme Court of Nebraska, rendered since the case in
hand was argued and submitted to this court, in an action brought by
the father of the plaintiff in this action for the damages which he
suffered from the very accident here involved, and in which that court
has held that the innkeepers were liable for the act of the bell boy which
inflicted the injury, although he was then acting beyond the course
and scope of his employment. Clancy v. Barker [71 Neb. 83, 91],
98 N. W. 440 [and 103 N. W. 446]. This opinion is entitled to, and it
has received, great respect and grave consideration. But, after all,
the question here is, not what the Supreme Court of Nebraska has made
the law and the contract of innkeepers since the parties to this action
made their agreement, but what that law was and what the contract
between these parties was when their minds met upon the terms of their
agreement. At that time no court had ever held, so far as our research
and the authorities cited by counsel have disclosed the decisions, that
the contract of an innkeeper was to insure the safety of the person of
his guest against the negligent or wilful acts of his servants without
the scope of their employment. The pregnant fact that no case can
be found in the entire field of English and American jurisprudence in
which an innkeeper was ever held to be an insurer of the safety of his
guest, or to be liable for the wilful or negligent acts of his servants
beyond the scope of their employment, is the most complete demonstra-
tion that this was not the law. If it had been, judgments founded upon
it would not have been lacking. Every court that had ever decided the
question had declared that the liability of the innkeeper was limited
194 INNKEEPERS.
to the exercise of reasonable care, that it did not extend to a guaranty
of safety, and hence that it extended only to the acts of his servants
within the scope of their employment. This was declared to be the
general rule of law in the digests and in the text-books. 16 Am. & Eng.
Enc. of Law (2d ed.), 546, 547, note 6.
In Calye's Case, 4 Coke, 202, 206 [163], the court declared that : —
"If the guest be beaten in the inn, the innkeeper shaU not answer for it."
In Sandys v. Florence, 47 L. J. C. P. L. 598, 600, a case in which a
ceiling fell upon a guest in a hotel, Mr. Justice Lindley said : —
"I pass over the previous allegation that it was the defendant's duty
'to keep the said hotel in a secure and proper condition, so as to be safe for
persons using the same as guests,' because I think that duty is too widely
alleged, and that the defendant's duty is, not to insure his guests, but to
see only that they do not suffer from want of reasonable and proper care
on his part."
In Weeks v. McNulty, 101 Tenn. 496, 499, 48 S. W. 809, 43 L. R. A.
185, 70 Am. St. Rep. 693, an action for damages for the death of a
guest in a hotel by fire, the court said : —
"The general rule of law governing the liability of an innkeeper is that
he is not an insurer of the person of his guest against injury, but his obli-
gation is merely to exercise reasonable care that his guests may not be
injured by anything happening through the innkeeper's negligence."
In Sheffer v. Willoughby, 163 111. 518, 521, 522, 45 N. E. 253, 34
L. R. A. 464, 54 Am. St. Rep. 483, a case in which an attempt was
made to apply the rule of absolute liability for the loss of the property
of a guest in support of a claim for damages caused by the administra-
tion of unwholesome food to his guest by the keeper of a restaurant,
the court held that the limit of the latter's liability was for the failure
to exercise reasonable care. '
In Stanley v. Bircher's Ex'rs., 78 Mo. 245, 246, 248, an action was
brought by the plaintiff, Stanley, against the executors of the estate of
Bircher for injury to her person resulting from her fall down an elevator
shaft of a hotel operated by Bircher. ,She alleged that she was a guest
at this hotel, that it became his duty and that he agreed to furnish safe
accommodations for the reasonable wants of the plaintiff, and that he
did not perform the duty or keep the agreement, in that the door to the
elevator pit was dangerously constructed and negligently left open by
Bircher and his servants, so that she walked into it and was injured.
A demurrer was interposed to this complaint on the ground that the
cause of action did not survive the death of Bircher. Mark that the
complaint clearly alleged a breach of a contract to keep the guest safely
as well as a failure to discharge the duty to exercise ordinary care as
DUTY AS TO guest's PEESONAL SAFETY. 195
in the case at bar, and that the question was whether or not the inn-
keeper's obhgation included a contract of safe-keeping. If it did, the
cause of action survived, and the action could be maintained ; otherwise,
it coidd not be. The Supreme Court of Missouri held that the obligation
of an innkeeper comprised no such contract, that the action could not
be changed from an action on the case for a breach of the duty to exercise
ordinary care to one for a breach of contract of safe-keeping by an
averment or proof of such contract and breach, because no such contract
arose out of the relation of innkeeper and guest. That court said : —
"But it is claimed by counsel for plaintiff that the action is for the breach
of a contract, and that it is not an action on the case for iajuries to the per-
son. The allusions in the petition to the formal contract between the
plaintiff and the proprietor of the hotel, whereby the plaintiff became a
guest in the hotel, cannot change the true character of the action. In
setting forth an action of trespass on the case, the pleader often finds it
proper, although not absolutely necessary, to mention matters of contract
connected with the tort, by way of inducement and explanation. In this
case the relation of host and guest, which originated in contract, explains
how the defendant's testator came to owe the plaintiff a duty. That duty,
however, the law imposes. It is a pubhc duty, which is not defined by the
contract. Neither can the proprietor relieve himself from that duty by
contract. The action in truth is for a violation of the duty which the law
imposes, independent of the contract. Neither the damages nor the scope
of the action can be measured or limited by the contract."
And in Curtis v. Dinneen, [4 Dak. 245] 30 N.,W. 148, 149, 152, the
Supreme Court of Dakota Territory directly decided the very ques-
tions presented in this case in accordance with this general rule and in
favour of the innkeeper. The complaint in that case alleged, among
other things, that : —
"The defendant undertook, for a compensation paid her by the plain-
tiff, to keep safely and from harm and in a proper manner this plaintiff
while she should remain in the plaintiff's inn or hotel, and that while the
plaintiff was stopping at the inn or hotel of the defendant this' plaintiff
was by the wrongful and spiteful act of the defendant's servants greatly
injured."
The evidence tended to show that one of the defendant's servants
assaulted and inflicted serious injury upon the plaintiff while she was
in the hotel as a guest, but the court held that the guest could not
recover, because the assault and battery, although committed by the
defendant's servant in her hotel, was not inflicted while the servant
was acting within the actual or apparent scope of his employment.
The result is that when the defendants made their contract to enter-
tain the plaintiff at their hotel, the law was, and in our opinion it still
is (Rahmel v. Lehndorff, [142 Cal. 681] 76 Pac. 659, 65 L. R. A. 88),
notwithstanding the late decision of the Supreme Court of Nebraska
196 INNKEEPEKS.
to the contrary, that their agreement was to exercise reasonable care-
for his safety, comfort, and entertainment, and that their agreement
did not include an insurance of his person against the wilful or negligent
acts of their servants beyond the course of their employment. A
change of this law and an extension of the liability of the innkeepers
now, after the execution of the contract, so as to make the agreement
include such an insurance, is to make a new agreement for the parties
after the event, and to impose upon the defendants a liability which
they could not foresee and to which they did not assent. A retroactive
decision, which makes and applies a new rule of law, and attaches an-
other and unforeseen liability to a contract after its execution, is as
vicious as an ex post facto statute.
The judgment below enforced the contract which the parties made-
in strict accordance with the law which governed it, and it is affirmed.
Thayer, Circuit Judge (dissenting). The important question in this
case is whether an innkeeper is exempt from liability to one of his guests
who is injured within the hotel by an act of gross negligence on the part
of a servant of the innkeeper, because the servant, at the time he com-
mitted the negligent act, was not engaged in rendering any service for
his master, but was momentarily off duty and awaiting orders. The
majority of the court decided that question in the affirmative, holdings
as I understand, that, if the proprietor of a hotel exercises ordinary
care in the selection of his servants, he is not responsible to his guests
for any of their acts committed, even within the hotel, no matter how
rash, negligent, or brutal they may be, nor how seriously a guest may
be injured, provided the servant was not at the moment engaged in
some work for and in behalf of the master. I am unable to assent to-
this doctrine.
The relation existing between a carrier and a passenger has on numer-
ous occasions been likened to that existing between an innkeeper and
his guest. Thus, in Commonwealth v. Power et al., 7 Mete. 596, 601,
41 Am. Dec. 465, Chief Justice Shaw said: —
"An owner of a steamboat or raUroad in this respect is in a condition
somewhat similar to that of an innkeeper whose premises are open to all-
guests. Yet he is not only empowered, but he is bound, to so regulate his
house, as well with regard to the peace and comfort of his guests who there
seek repose as to the peace and quiet of the vicinity, as to repress and pro-
hibit all disorderly conduct therein ; and, of course, he has a right and is
bound to exclude from his premises all disorderly persons and all persons
not conforming to regulations necessary and proper to secure such quiet
and good order."
This remark was quoted with approval by Ryan, C. J., in Bass v.
Chicago & Northwestern Ry. Co., 36 Wis. 450, 459, 17 Am. Rep. 495.
Also in Jencks v. Coleman, 2 Summ. 221, 226, Fed. Cas. No. 7, 258
[891], Mr. Justice Story compared the rights and duties of a carrier
DUTY AS TO guest's PERSONAL SAFETY. 197
■with those of an innkeeper, upon the evident assumption that the rela-
tion of an innkeeper to his guest was practically like that of a carrier
to a passenger.
In Norcross v. Norcross, 53 Me. 163, 169, the Supreme Court of that
state remarked, when considering an innkeeper's liability for the prop-
erty of his guest, that : " Innkeepers are under the same liability as com-
mon carriers."
And in the case of Dickson et al. v. Waldron, [136 Ind. 507] 34 N. E.
506, 510, 24 L. R. A. 483, 41 Am. St. Rep. 440, the Supreme Court of
Indiana remarked : —
"But common carriers, innkeepers, merchants, managers of theatres,,
and others who invite the public to become their patrons and guests, and
thus submit personal safety and comfort to their keeping, owe a more spe-
cial duty to those who may accept such invitation. Such patrons and guests
have a right to ask that they shall be protected from injury while present
on such invitation, and particularly that they shall not suffer wrong from
the agents and servants of those who have invited them."
Also, in the case of Pinkerton v. Woodward, 33 Cal. 557, 585, 91
Am. Dec. 657, it was held that the liability of innkeepers and of com-
mon carriers is founded upon the same considerations of public policy
in the one case as in the other.
In the absence of express authority on this point, I should be of
opinion that an innkeeper is under the same obligation to protect his
guests against the wrongful and discourteous acts of his servants, com-
mitted within or upon his premises, as a carrier to protect its passengers
against like acts of its employes. A guest comes to a hotel on the invi-
tation of the proprietor, and for the latter's profit and advantage, and
upon the implied understanding that while on the premises as a guest
he shall receive courteous and considerate treatment from the pro-
prietor and all persons who are his servants, or, at least, upon the
implied understanding that while beneath his roof the life of the guest
shall not be imperilled by the rash, inconsiderate, or wrongful acts of
those who are his servants. The general law of hospitality would seem
to impose such an obligation upon an innkeeper. He promises suitable
entertainment to all his guests, as well as respectful, considerate, and
proper treatment on the part of all of his servants. If a servant of a
hotel, when off duty, should meet a guest outside of the hotel, and not
on the premises, and there assault him, it is doubtless true — although
the case at bar requires no decision on that point — that the innkeeper
could not be charged with responsibility for the servant's conduct;
and it is probably true that the innkeeper would not be responsible for
an assault committed on one of his guests within the hotel by a stranger,
provided he has taken all reasonable precautions to prevent such occur-
rences by excluding disorderly persons from his premises. But in my
opinion the law casts on the innkeeper an obligation to see to it that
198 INNKEEPERS.
his guest is not injured, while within the hotel, by the wrongful, incon-
siderate, or negligent acts of those who are his servants.
It is said in the opinion of the majority that an innkeeper is not an
insurer of the safety of the person of his guest while within the hotel.
The same may be said of carriers. They do not insure the personal
safety of passengers, but only to exercise a very high degree of care, or,
as it is sometimes said, "the utmost care," for their protection. Yet
it is now well settled that this duty is so comprehensive that it renders
the carrier responsible for injuries inflicted on passengers so long as the
relation of carrier and passenger exists, not only by the negligent acts
of its servants done while in the performance of some duty, but also
by their wilful and wrongful acts, such as assaults committed on pas-
sengers, or indignities offered to them. The obligation also rests on
the carrier to protect its passengers while in transit, not only against
the wilful and wrongful acts of its own servants, but so far as practi-
cable from acts of violence committed by strangers and co-passengers.
It makes no difference, as it seems, what motive may have actuated a
servant of the carrier in committing the wrongful act complained of,
or whether it was done in conformity with the carrier's orders, or in
express violation thereof and on the sole responsibility of the servant ;
for, if it was done while the relation of carrier and passenger existed,
the carrier is responsible, and it cannot defend on the ground that the
act of its servant was done without its sanction and at a moment when
he was not rendering any special service to the carrier. A different
rule obtains, of course, as respects wilful and wrongful acts done by
employes to those to whom the carrier at the time owed no other or
greater duty of protection than it owed to every other person in the
community ; but, when the peculiar relation of carrier and passenger
exists, the modern rule appears to be that the carrier is under an obli-
gation to see to it that a passenger suffers no harm on account of the
wrongful and wilful acts of its servants, and that every practicable
precaution is taken to protect him against the wrongful acts of strangers
and co-passengers. Stewart v. Brooklyn & Crosstown Railroad Co.,
90 N. Y. 588, 43 Am. Rep. 185; Dwindle v. New York Central &
H. R. R. R. Co., 120 N. Y. 117, 125, 24 N. E. 319, 8 L. R. A. 224, 17
Am. St. Rep. 611 ; Goddard v. Grand Trunk Ry., 57 Me. 202, 213, 2
Am. Rep. 39, and cases there cited; Bryant v. Rich, 106 Mass. 188,
8 Am. Rep. 311 ; Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74, 80;
Craker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 17 Am. Rep.
504 ; Pendleton «. Kinsley, 3 Cliff. 416, 427, Fed. Cas. No. 10, 922 ;
Chicago & Eastern R. R. Co. v. Flexman, 103 111. 546, 42 Am. Rep.
33 [969] ; Terre Haute & Indianapolis R. R. v. Jackson, 81 Ind. 19.
Now, it is true that a hotel is an immovable structure and does not
run on wheels like a train of cars ; but in all other respects the relation
existing between an innkeeper and his guest is like that existing between
a carrier and passenger, and this fact has always been recognised,^ as
DUTY AS TO guest's PERSONAL SAFETY. 199
shown by the cases above cited. An innkeeper, Hke a carrier, is engaged
in a quasi-pubHc service. When he embarks in the business of keeping
a hotel, he is bound to provide entertainment for all travellers who seek
a place of rest and refreshment, provided they come to him in a fit con-
dition to be entertained as guests, and are able to pay the customary
charges. Unless, relieved of the obligation by an express statute, the
innkeeper, like the carrier, is an insurer of his guests' baggage against
loss occasioned otherwise than by an act of God or the public enemy.
American & English Ency. of Law (2d ed.), vol. 16, p. 528, and cases
there cited. Besides, an innkeeper is vested with the same power of
control over his premises which the carrier exercises over such means of
public conveyance as he provides. An innkeeper has the right to
exclude from his premises all disorderly persons, and to suppress all
disturbances therein that tend to disturb his guests or imperil their
safety, and according to the decision of Chief Justice Shaw in the case
above cited (7 Mete. 59€!, 601) it is his common-law duty to exercise
this power. Aside from these considerations, the innkeeper, like the
carrier, has the exclusive right to select all of the persons who are to
aid him in the discharge of his quasi-public functions. I have been
unable, therefore, to discover any sufficient reason why he should not
be held responsible to his guests for the consequences of any wilful
and wrongful acts of his servants, committed within the hotel, to the
same extent that the carrier is responsible to his passengers for like
wrongful acts of its servants; and within the authorities above cited
a carrier would be clearly responsible to one of its passengers for an
injury inflicted by one of its employes under such circumstances as
those disclosed in the present case.
Relative to the authorities cited in the majority opinion and not
already referred to, this may be said : — •
Calye's Case, 4 Coke's Rep. 63, 66 [163], contains the single detached
statement that, " if the guest be beaten in the inn, the innkeeper shall
not answer for it." But it does not say by whom beaten, whether by
a servant of the innkeeper or by a stranger. This, however, is a very
old case, decided in 1584, and the statement quoted is purely dicta,
since the case involved no question respecting the liability of an inn-
keeper for an assault committed upon a guest within the hotel. More-
over, as the learned editor of the American & English Ency. of Law re-
marks, in substance {vide, vol. 16 [2d ed.], p. 545), it may well be doubted
whether the statement above quoted would be accepted at the present
day as authority for the doctrine which it enunciates, since the modern
authorities are opposed to the view that an innkeeper cannot be held
responsible for an assault committed upon one of his guests within the
hotel by a servant, or even by a stranger when the innkeeper has not
taken proper care to exclude disorderly persons from his premises.
Curtis V. Dinneen [4 Dak. 245], 30 N. W. 148, was a case in which a
guest of a hotel kept by a married woman sought to hold her responsible
200 INNKEEPERS.
for an assault and battery committed by her husband without her con-
sent or ratification. The husband was living with the wife in the hotel,
as he had a right to do, and was assisting her to operate it, so that the
case was embarrassed by the existence of the marital relation ; the court
holding that under the circumstances the wife could not be held respon-
sible for the tort of the husband.
The other cases that are referred to are without exception cases
where it was sought to hold the innkeeper responsible for some defect
in the hotel premises, and in one of them (Sandys v. Florence, 47 L. J.
598, 600) it was remarked arguendo, in discussing a demurrer to the
complaint, that an innkeeper's duty " is not to insure his guests, but to
see only that they did not suffer from want of reasonable and proper
care on his part." None of the cases, however, discuss the particular
question which is presented in the case at bar, whether an innkeeper is
liable to his guest for the reckless conduct of one of his servants com-
mitted upon the hotel premises, whereby the life of the guest is
jeopardized. In my judgment an innkeeper ought to be held liable
for an act of that nature, and as respects that question I concur in
the view which was expressed by the Supreme Court of Nebraska in
Clancy v. Barker, [71 Neb. 83, 91] 98 N. W. 440 [and 103 N. W.
446], that was decided upon the same state of facts which this
record discloses.
I think the judgment below should be reversed, and a new trial
ordered.
4. LIABILITY FOR GUEST'S PROPERTY.
CLUTE V. WIGGINS.
14 Johns. (N. Y.), 175. 1817.
In Error, on certiorari to a justice's Court. Wiggins, a wagoner,
brought an action on the case against Clute, a tavern-keeper, to recover
the value of several bags of wheat and barley, stolen from the sleigh of
the plaintiff, during the night, while he was entertained as a guest in
the house of the defendant.
At the trial before the justice, it was proved that the defendant kept
a tavern, in the town of Half -Moon ; that the plaintiff came to the
defendant's house, with a load of wheat and barley, and was there
received as a guest for the night ; that his horses were put into the plain-
tiff's stable, and his sleigh, with the wheat and barley, " was put into
the wagon-house of the plaintiff, where it had been usual for the defend-
ant to receive loads of that description." The next morning it was
LIABILITY FOB GUESt's PROPERTY. 201
•discovered that the door of the wagon-house had been broken open,
and all the wheat and barley stolen from the plaintiff's sleigh.
The justice gave judgment for the plaintiff for twenty-five dollars,
with costs.
Pee Curiam. The liability of an innkeeper for such losses, arises
from the nature of his employment. He has privileges by special
license. He holds out a general invitation to all travellers to come to
his house, and he receives a reward for his hospitality. The law, in
return, imposes on him corresponding duties, one of which is to protect
the property of those whom he receives as guests.
On general principles applicable to this subject, the defendant is
liable for the loss sustained in this case. He received the plaintifiE as
his guest, for the night, with his loaded sleigh and horses. The sleigh,
with its contents, was put into an out-house appurtenant to the inn,
"where it had been usual for the defendant to receive loads of that
description." The doors of this wagon-house were broken open, from
which it may be inferred that the building was closed, and the doors
fastened in such a manner as to promise security. The bags of grain,
therefore, may be deemed to have been infra hospitium; and being so,
it is not necessary to prove negligence in the innkeeper, to make him
liable for the loss. (Calye's Case, 8 Co. 32 [163] ; Beimet v. Miller,
5 Term Rep. 273.)
Judgment below affirmed.
QUINTON V. COURTNEY.
1 Hayw. (N. C.) 40. 1794.
Case. Courtney was a tavern-keeper, and Quinton a traveller, who
had saddle-bags in which were two hundred and eighteen dollars ; upon
alighting at the inn, he gave the bags to a servant of the tavern-keeper,
but did not inform either the servant or the tavern-keeper that money
was in the bags : these bags were placed in the bar-room, and were
afterwards found on the lot, cut open, and the money gone. . . .
Haywood, for the Plaintiff, insisted that ordinary keepers were liable
for the loss of goods of their guests committed to their care, unless the
loss happens by the default of the guest himself. Inns were instituted
for the benefit of travellers, that they might know where to go when
travelling amongst strangers, without the danger of being robbed or
defrauded of their effects ; and to say that the innkeeper should not
be liable for the loss of hig guest's goods, would in effect destroy one of
the principal ends of the institution of inns : and if it should be required
to prove fraud or neglect upon the innkeeper, before a guest could
recover for the loss of his effects, this would destroy the "utility of the
202 INNKEEPEBS.
institution in a great measure; for frequently a stranger would not
have it in his power to prove the circumstance — there- is no inconven-
ience on the other hand comparable to this. The innkeeper has noth-
ing to do but to be careful — if he takes sufficient care, in general the
goods will not be lost. The same answer may be given to the objection
that the guest did not inform him of the contents of the bags — if he
takes sufficient care, a thing of great value will no sooner be lost than
a thing of small value ; and lie ought to use this care in respect to all
his guests, and all the effects they have with them, be the value great
or small ; and therefore there is no necessity that he should be informed
of the contents or value of the things confided to his care, and he cited
8 Rep. 33. — Bac. Ab. 182. — Buller 73, of edit. 1778. — Cro. Jac. 224.
Mr. Moore, for the Defendant, insisted in general that he could
not be made liable but by means of his neglect. He cited Coggs v.
Bernard, and many other authorities; and he argued that the laws
of England are not in force here, any further than the circumstances
of the country make them necessary ; that these kinds of frauds which
the laws of England were so careful to guard against, are not frequently
practised here, and that therefore there is no necessity for the adoption
of this hard law.
But per Williams (the only Judge on this circuit), the law is as laid
down in 8 R. 33 — Coley's [Calye's] case [163], and the innkeeper is
liable for the goods lost, unless when the guest is robbed by a compan-
ion of his own : and in some few other cases mentioned in Coley's
[Calye's] case, and in 3 Bac. Ab. 183, as where the guest is informed
that the house is full, but the traveller insists upon staying, and says
he will shift. And in order to support the action, it is sufficient for the
Plaintiff to prove that the Defendant kept a common ordinary, that he
was a guest, that the goods were brought to the inn, and were in the care
of the Defendant, and were lost.
The Plaintiff under this charge had a verdict for one hundred and
nine pounds, and judgment.
MERRITT V. CLAGHORN.
23 Vt. 177. 1851.
Redfield, J. This is an action against the defendant as a common
innkeeper, for the loss of the plaintiff's team, while a guest at the defend-
ant's house, by the burning of his barn, supposed to be the work of
an incendiary.
The case finds, that the plaintiff's loss was, without " any negligence,
in point of fact, in the defendant, or his servants." From this we are
to understand, that no degree of diligence, on his part, could have pre-
LIABILITY FOK GUEST's PROPEETT. 203
vented the loss. If, then, the defendant is liable, it must be for a loss
happening by a cause beyond his control. In saying this, we have
reference only to the highest degree of what would be esteemed reason-
able diligence, under the circumstances known to exist, before the fire
occurred. We are aware, that it would doubtless have been possible,
by human means, to have so vigilantly guarded these buildings, as
probably to have prfevented the fire. But such extreme caution, in
remote country towns, is not expected, and if practised, as a general
thing, must very considerably increase charges upon guests, which they
would not wish to incur, ordinarily, for the remote and possible advan-
tage which might accrue to them.
The question, then, is, whether the defendant is liable ? Do the
authorities justify any such conclusion ? For it is a question of author-
ity mainly. We know that many eminent judges and writers upon the
law have considered, that innkeepers are liable to the same extent as
common carriers. It may be true, that the cases are much alike in
principle. For one, I should not be inclined to question that. But if
the case were new, it is certainly not free from question, how far any
court would feel justified in holding any bailee liable for a loss like the
present. But in regard to common carriers, the law is perfectly well
settled, and they contract, with the full knowledge of the extent of their
liability, and demand, not only pay for the freight, but a premium for
the insurance, and may reinsure, if they choose. And the fact, that
carriers are thus liable, no doubt often induces the owners to omit insur-
ance. But unless the law has already affixed the same degree of extreme
liability to the case of innkeepers, we know of no grounds of policy
merely, which would justify a court in so holding.
In regard to the authorities relied upon by the counsel for the plain-
tiff, the case of Beedle v. Morris, Yelv. 162, decided as 7 Jac. 1, makes
nothing either way upon this point. The declaration only claims,
that the defendant is liable for "goods lost, through the default of the
defendant, or his servants " ; and no case questions the liability to this
extent. The dictum referred to in argument, in the Doctor and Student,
only shows, that innholders are liable for a robbery, committed upon
their guests by the servants of the house. But this is upon the ground
of want of propter care in keeping such servants. The host is, we appre-
hend, upon principles of reason and justice, always liable for any act
of his servants, or guests. He employs such servants as he chooses,
and is bound to take every quiet and orderly guest which offers, and if
he takes others, even in good faith, it ought not to be at the risk of his
other guests, who derive no profit and have no concern whatever in
their being there. In holding the innkeeper liable to this extent, all
opinions concur. It is here the discrepancy begins.
Morse v. Slue, 1 Vent. 190, decides nothing, for the case was com-
pounded. But the case was one of common carrier, by ship, as early
as the 24 Car. 2, and doubts seem then to have existed, whether even
204 INNKEEPERS.
common carriers were liable, without aiiy default ; but the law is clearly
against them now upon that point. The declaration in this case seems
to be much the same in substance as that in Yelverton, which is a ground
of argument; perhaps the extent of the liability was then considered
the same, which we should also infer from other parts of the case.
Calye's Case, 8 Coke, 32a [163], which is regarded as the leading case
upon this subject among the early reports, certainly decides nothing
more, than that the host is not liable for the horse of his guest, if put in
the pasture by direction of the owner, and there stolen, which he prob-
ably would be, if put in the barn, for it would then be the folly and neg-
lect of the hostler, not to lock the bam. The numerous dicta in this
case, as in most of the cases in my Lord Coke's Reports, go far beyond
the case, and embody the leading principles of a brief treatise upon the
subject. And these dicta have been regarded as authority, to some
extent. But even that will not justify the present action. "There
ought to be a default in the innholder or his servants " [or may we not
add guests ?]. But in the present case, there is no pretence of any
such default.
White's Case, 2 Dyer, 158b, is where the house was full, and the guest
undertook to shift for himself, being admitted as matter of favour, and
upon that condition, and the innkeeper was held not liable, even for
robbery committed in the house, which he prima facie clearly would
be in ordinary cases, and ultimately, unless he could shew that no degree
of diligence, on his part, which it was reasonable to require, could have
prevented the robbery. The case of Sanders v. Spencer, 3 Dyer, 266,
decides that goods, which the guest declines to have locked up in a
place pointed out to him, are at his own risk.
It is certain, that Sir William Jones, in his treatise upon the liabilities
of bailees, lays down no such extreme liability, on the part of innholders,
as is here claimed. He is liable, says this writer, if the goods of a guest
be stolen from his premises "by any person whatever." And he is
liable for robbery, even if committed by his servants or guests, but not
if he take ordinary care, or the force were truly irresistible. This is
the import of the rule laid down by Sir William Jones, and Mr. Justice
Story adopts almost precisely the same view, in his valuable treatise
upon bailments. The innkeeper is bound to the extremest degree of
diligence, which any prudent man would be expected to resort to in
defending his own goods, and is absolutely responsible for loss by his
own servants or guests, and, prima facie, for all losses.
Chancellor Kent, 2 Kent, 592, lays down much the same rule. He
says, the liability does not extend to loss occasioned by inevitable
casualty, or by superior force, as robbery. A more extreme case of
superior force than the present is scarcely supposable, or one more
clearly within the reason of the rule, requiring extreme strictness in
the care and responsibility of innholders.
The American cases referred to in argument certainly do not decide
LIABILITY FOR GUESt's PROPEKTY. 205
what is necessary to maintain this action. Mason v. Thompson, 9
Pick. 280, involved no question of difficulty, except whether the defend-
ant was liable at all, as a common innholder. The goods, being the
plaintiff's harness, were confessedly lost, and nothing appeared, but
that they were lost by the neglect of the defendant's servants. As a
common innholder, this imposed the burden upon him to shew that the
loss occurred without his fault. This he did not attempt. It being
settled, that, under the circumstances, the defendant was liable as a
common innholder, although the plaintiff was not at the time a lodger
in the defendant's house, there remained no further doubt in the case.
So, too, in Piper v. Manny, 21 Wend. 282, the goods were stolen
from the plaintiff's load, which was left in the open yard of the inn
by direction of the defendant's servants, and the defendant was held
liable upon the most obvious principles of the law applicable to the
subject. It is true, in both these cases, the opinion is broadly declared,
that the liability of an innholder and a common carrier is the same. But
the cases called for no such opinion, and no authority is cited for the
opinion, and it is by no means certain, that those judges would have
so held, if it had been necessary to turn the case upon that naked
•question. No authority whatever is cited in the former case except
by the reporter, who refers to Richmond v. Smith, 8 B. & C. 9, and that
was only the case of goods stolen from the inn, and it was held, the inn-
keeper was prima facie liable. And the judges here say, that " in this
respect [that is, where goods are stolen] the situation of the landlord is
precisely similar to that of a carrier."
But we find, that, when the very question comes before the English
courts, as it did in Dawson v. Chamney,^ 5 Ad. & Ellis, N. S. 164 [48
E. C. L. 164], for the first time, so far as I can find, it was found neces-
sary to put very essential qualifications upon the language of the judges,
as reported in the last case referred to. The doctrine of this case, as
expressed in the note, is, " When chattels have been deposited in a public
inn, and there lost or injured, the priTna facie presumption is, that the
loss or damage was occasioned by the negligence of the innkeeper or his
servants. But this presumption may be rebutted ; and if the jury find
in favour of the innkeeper, as to negligence, he is entitled to succeed
on a plea of not guilty."
This rule, it is there shown very clearly, is founded upon the ancient
common-law liability of innkeepers, as set forth in the writ, taken from
the Registrum Brevium, and found also in Fitzherbert's N. B., 94 B.
Of the guests, it is said, there, their " goods being in those inns, without
subtraction to keep night and day, are bound, so that for default of
them, the innkeepers or their servants, damage may not cpme in any
manner to such guests."
It is, perhaps, scarcely necessary to pursue this subject farther. It
> This case was, however, doubted and distinguished in Morgan v. Ravey, 6 H.
& N. 265 (Exoh. 1861).
206 INNKEEPEES.
is certain, no well-considered, case has held the innkeeper liable in cir-
cumstances like the present. And no principle of reason, or policy,
or justice, requires, we think, any such result, and the English law is
certainly settled otherwise. We entertain no doubt, therefore, that
the defendant is fairly entitled to have the judgment, which he obtained
in the court below, affirmed. Judgment affirmed.
SIBLEY V. ALDRICH.
33 N. H. 553 ; 66 Am. D. 745. 1856.
This action was case, for damage done to the plaintiff's horse while
in the possession and keeping of the defendant as an innkeeper, and was
referred to a commissioner, who made his report, stating the following
facts : —
The defendant was the keeper of a common inn at West Swanzey,
but had no taverner's license. On the 22d of June, 1854, James Wheeler,
the servant of the plaintiff, was received into the defendant's inn as
a traveller, and at the same time brought with him and delivered to
the defendant the plaintiff's horse, which the defendant received and
put into the stable used in connection with the inn. Afterwards, in
the same afternoon, Wheeler informed the defendant that the horse was
tied so short that he could not feed, when the defendant gave the horse
more rope. During the night following the horse was kicked by the
horse of another traveller, tied in the next stall, and his leg broken.
About a week afterwards the horse of the plaintiff was killed by his
direction. The stalls in which the horses were placed were separated
■ by a partition, five feet and one inch in length from the manger, which
was not of sufficient length.
On trial before the jury the defendant offered evidence to prove that
the damage to the plaintiff's horse did not happen through any actual
negligence of the defendant, or his servants ; but the court excluded
the evidence. Thereupon a verdict was taken, by consent, for the
plaintiff, to be set aside, or judgment rendered thereon, as the court
should order.
Peeley, C. J. The defendant offered to prove that the damage to
the plaintiff's horse was not caused by any actual negligence of himself
or his servants. He did not offer to prove that it happened through
the negligence or default of the plaintiff, direct or implied ; nor by irre-
sistible force, inevitable accident, or by the act of God, or the public
enemy. The question would seem to be whether, as a general rule,
and in all cases, an innkeeper can discharge himself from liability for
the loss of his guest's goods by shewing that it did not happen by the
actual neglect or default of himself or his servants.
LIABILITY FOR GUEST'S PROPEKTY. 207
On this point the authorities are not unanimous. Story, in his work
on Bailments, § 482, says, "By the common law, as laid down in
Calye's Case, an innkeeper is not chargeable unless there is some de-
fault in him or in his servants, in the well and safe keeping and custody
of his guest's goods and chattels within his common inn, but he is bound
to keep them safe, without any stealing or purloining"; quoting thus
far the language of the Report in Calye's Case, and then he adds, " This
doctrine is, howeverj to be taken with the qualification that the loss
will be deemed prima facie evidence of negligence." And in section
472, he says, that this doctrine should be received with some hesitation,
in view of the case of Richmond v. Smith, 8 B. & C. 9, where a differ-
ent view of the law seems to have been entertained. Story's authority
on a question of this nature is undoubtedly of great weight ; but it is
to be observed that he states his opinion with some hesitation, and he
does not appear to have reached a conclusion in this instance, after his
usual extensive and careful examination of the authorities.
In Dawson i>. Chamney, 5 A. & E. (N. S.) 165, it was held that when
goods have been deposited in a public inn, and there lost or injured, the
presumption is that the loss or damage was caused by the negligence of
the innkeeper or his servants ; but that this presumption may be re-
butted, and if the jury find in favour of the innkeeper as to negligence,
he is entitled to succeed on a plea of not guilty. Lord Denman cited
Story as authority for this rule. The circumstances of Dawson v.
Chamney were much like those of the present case. The plaintiff gave
his horse in charge to the defendant's ostler, who placed him in a stable
with another horse, that kicked him and caused the injury complained
of.
MetcaK v. Hess, 14 111. 129, is to the same point, that an innkeeper
may discharge himself by showing that the loss happened without
any default on his part. The foregoing authorities go to sustain the
position of the defendant.
In Merril v. Clagthorne [Merritt v. Claghorn], 23 Vt. 177 [202], the
court held that an action cannot be maintained against an innkeeper
to recover for property lost by fire, which was occasioned by inevitable
casualty, or superior force, and without any negligence on the part of
the innkeeper or his servants. This last case is put on peculiar grounds,
and cannot be regarded as an authority for the general position that
an innkeeper may discharge himself by shewing that the loss did not
happen by his default. The fire took in another building and spread
to the inn.
So in Kesten [Kisten] v. Hildebrand, 9 B. Mon. (Ky.) 72 [167], it
was held that an innkeeper is prima facie liable, but not for a loss by
external force or robbery, or if the loss occur by the neglect of the guest
or his servants or companions. Forward v. Pittard, 1 T. R. 27, 31.
On the other hand, there are numerous authorities, direct and strong,
to the point that the innkeeper cannot discharge himself by showing
208 INNKEEPERS.
that the loss did not happen by his default, but that he must go farther,
and shew that it was caused by the default, direct or implied, of the
owner.
Thus Chancellor Kent, 2 Com. 574, says: "An innkeeper, like a
common carrier, is an insurer of the goods of his guest, and can only
limit his liability by express agreement or notice. Rigorous as this
law may seem, and hard as it may actually be in some instances, it is,
as Sir William Jones observes, founded on the principle of public
utility, to which all private considerations ought to yield. Metcalf,
in his note to Bedell v. Morris, Yelverton, 162, plaices the liability of an
innkeeper and common carrier on the same footing, and so does the
civil law. Domat, B. 1, T. U., sec. 2, a, 1. Burgess v. Kent, 4 M. & S.
306, was much considered. The point there decided was, that an inn-
keeper is not answerable for the goods of his guest, which are lost through
the negligence of the guest out of a private room in the inn, chosen by
the guest for the purpose of exhibiting the goods for sale, the use of
which room was granted by the innkeeper, who, at the same time, told
the guest that there was a key, and that he might lock the door, which
he neglected to do. In commenting on Calye's Case and the language
of the old writ. Lord EUenborough is reported to have said, " There can
be no doubt also that there may be circumstances, as if the guest by
his own neglect induces the loss, or himself introduces the person who
purloins the goods, which form an exception to the general liability,
as not coming within the words, pro defectu hospitatoris, and under such
circumstances the plaintiff shall not complain of the loss." And Le
Blanc, J., in the same case, says, "We must take the facts from the
report, and also that the judge stated to the jury that the innkeeper
was responsible to his guest for the safe custody of his goods, but that
the guest might by his own misconduct discharge the innkeeper from
that responsibility." Here the general responsibility of the innkeeper
for the safety of his guest's goods is clearly conceded : The decision is
put on the ground of misconduct in the guest, which caused the loss,
without any intimation that mere want of negligence in the innkeeper
would discharge him. Tamunth v. Packard, 1 Starkie, 249, is to the
same point with Burgess v. Kent.
In Richmond v. Smith, 8 B. & C. 9, Lord Tenterden says : " It is
clear that at common law, when a traveller brings goods to an inn,
the landlord is responsible for them. In this respect "I think the situ-
ation of the landlord was precisely analogous to that of a common
carrier" ; and Bailey, J., in the same case, says : "It appears to me that
an innkeeper's liability very closely resembles that of a common carrier.
He is prima facie liable for any loss not occasioned by the act of God or
the king's enemies, although he may be exonerated when the guest
chooses to have the goods under his own care."
In Kent v. Shackford, 2 B. & Aid. 803, Lord Tenterden is reported
to have used the following language: "Innkeepers, like common
LIABILITY FOR GUEST's PROPERTY. 209
carriers, are liable by the custom of the realm. The principle on which
the liability of an innkeeper for the loss of the goods of his guest is
founded, is, both by the civil and common law, to compel the innkeeper
to take care that no improper person be admitted into his house, and
to prevent collusion between him and other persons. In the Digest,
L. 4, T. 9, § 1, after stating the law that an innkeeper is liable for
the goods of his guest, it is said, nisi hoc esset statutwn materia daretur
cum furibtis adversus eos, quos recipiunt, coeundi."
Amistead v. White, 6 Law & Eq. 349, was an action against an inn-
keeper, and the judge charged the jury that if the owner of the goods
was guilty of gross negligence, the innkeeper was discharged. The
court held the instructions were sufficiently favourable to the plaintiff,
and queried whether it was necessary that the negligence of the plaintiff
should be gross, to discharge the defendant. It is not easy to under-
stand why the cause should have been left to the jury in this way, if
the doctrine of the prior case of Dawson v. Chamney had been recognised
for law, and it is worthy of remark that no allusion is made to Dawson
V. Chamney in the Report of Amistead v. White.
In Mason «. Thompson, 8 Pick. 280, it was decided that an inn-
keeper is liable for the loss of his guest's goods committed to his care,
unless the loss is caused by the act of God, or the common enemy, or
by the fault of the guest. And Wilde, J., in delivering the opinion of
the court, says that this rule may undoubtedly in some cases subject
the innkeeper to loss without any negligence or default on his part;
that innkeepers, as well as common carriers, are regarded as insurers
of property committed to their care, and are bound to make restitution
for any loss or injury not caused by the act of God or the common enemy,
or the neglect or fault of the owner. And it was decided in Washburn
V. Jones, 14 Barb. 193, that an innkeeper is liable for all losses and
damages happening, even without his default, excepting such as are
caused by inevitable accident or the public enemy.
The question was very fully and ably discussed in the recent case of
Shaw V. Berry, 31 Maine, 478, and the court there came to the conclu-
sion that to discharge an innkeeper from liability for the loss of goods
in his charge, it is not sufficient for him to show that the loss did not
happen by his neglect or default, but that he must go further and show
that it happened by the fault, direct or indirect, of the owner.
The leading case on this subject is Calye's, 8 Co. 32, a. [163], in which
the point resolved was, that if a horse is put out to pasture at the request
of the owner by an innkeeper, and is stolen, the innkeeper is not liable,
because the horse, not being infra hospitium, is not in the charge and,
custody of the innkeeper as such, and his liability as an innkeeper does
not attach. The report recites the words of the old writ, and states
that by it all the cases concerning ostlers may be decided. The part
of the writ which bore on the point resolved, was that which limits the
liability of the innkeeper, by the custom of the realm, to goods of the
210 INNKEEPERS.
guest infra hospitium; and in commenting on the language of the writ
the reporter says, that "the innkeeper shall not be charged unless
there be a default in him or his servants in the well and safe keeping
and custody of the guest's goods within his common inn; for the inn-
keeper is bound in law to keep them safe there, without any stealing or
purloining, but he ought to keep his goods and chattels there in safety."
Considering the connection of these remarks with the point resolved
in the case, we think they could not have been intended to lay down
any rule defining the extent of the innkeeper's liability for goods in his
custody as such, but merely to state that his liability was confined to
goods deposited in the inn.
The case then proceeds to state an exception to the rule that the goods
within the common inn the innkeeper ought to keep in safety, to wit :
that if the goods are stolen by one whom the guest brings with him, the
innkeeper is not liable, for then the fault is the guest's. There is no
statement in the report that actual negligence is necessary to charge
the innkeeper, or that he can discharge himself by showing that the
goods were not lost by his actual negligence.
The language of the old writ has sometimes been made the ground
of an inference that there must be actual negligence to charge an inn-
keeper. The writ recites : " that by the custom of the realm innkeepers
are bound to keep the goods of their guests within their common inn,
without substfaction or loss, night and day, ita quod pro defectu hujus
modi hoapitatorum sed servientium suorum," no damage shall in any
manner befall such guests. The innkeeper is bound to keep the goods
of his guest so that no damage happen by his default or that of his
servants. The argument is that the term pro defectu implies actual
fault and negligence. But the innkeeper is sued for neglecting to per-
form his legal duty ; and the question occurs what is the duty which
the law and the custom of the realm imposes on him ? If the law
holds him to keep the goods of his guest at all events, except in case
where the loss happens by the act of God, or the public enemy, or by
the fault of the guest, then if the goods are lost by mere accident, or by
robbery, without any want of actual care on his part, the innkeeper
has still failed to perform his legal obligation, and the goods are lost by
his neglect and failure to perform the duty which the law imposes. The
law in such case charges the innkeeper with the duty of keeping the
goods safely, and imputes to him the fault, if they are lost or damaged.
In this view of their meaning these words of the writ are by no means
idle and unmeaning, because the innkeeper is not in all cases liable for
the loss of goods entrusted to his care. The loss may happen by the
act of God, by the public enemy, or by the fault of the owner, and in that
case the damage does not happen by the default of the innkeeper. If
the declaration should merely allege that the goods were lost or damaged,
without averring that the loss or damage happened by default of the
innkeeper or his servants, it is apprehended that it would be substan-
LIABILITY FOR GUEST's PEOPEKTY. 211
tially defective and bad on demurrer, on the strictest rule which has
been applied to the innkeeper's liability.
This argument from the form of pleading might be urged with equal
force to show that a common carrier is only liable for loss that happens
by his actual negligence. In the settled form of declaring in case against
a carrier it is alleged, that the defendant, " neglecting his said duty in
that behalf, did not safely and securely carry," &c., "but so negli-
gently and improperly conducted himself, that by and through the
negligence, carelessness and default of the defendant," the goods were
lost or damaged. Angell on Carriers, 429, note ; Raphael v. Pickford,
5 Manning & Granger, 551 ; 2 Chitty's PI. 271, 272.
And in the ancient form of declaring against a common carrier the
custom of the realm is alleged to be that " absque svbstrac^ione, amissione',
seu spoliatione, portare tenentur, ita quod pro defectu dictorum communium
portatorum, seu sermentium suorum hujus modi bona et catalla, eis sic
vi prefejtur deliherata, non suit perdita, amissa, seu spoliata" ; and in
assigning the breach it was alleged that "pro defectu bonae custodiae
ipsius defendentis et servientium svxirum perdita et amissa fuerunt."
Three different rules appear to be laid down on this subject in different
authorities.
1. That the innkeeper is prima facia liable for the loss of goods in
his charge ; but may discharge himself by shewing that the goods were
not lost by his negligence or default, and this is the ground taken by
the defendant in the present case. This view of the law is sustained
by Dawson v. Chamney, 5 A. & E., n. s. 165, and by Metcalf v. Hess,
14 111. 129.
2. That the innkeeper is discharged by shewing how the accident
happened, and that it happened by inevitable accident, or irresistible
force, though the accident might not amount to what the law denomi-
nates the act of God, and the force might not be the power of a public
enemy. This rule is countenanced by Merril «. Clagthorne [Merritt
V. Claghorn], 23 Vt. 177 [202], and Kesten [Kisten] v. Hildebrand, 9
B. Mon. (Ky.) 92 [167].
3. That the innkeeper is liable, unless the loss was caused by the act
of God, or the public enemy, or by the fault, direct or implied, of the
guest. This rule is maintained in Burgess s. Kent, 4 M. & S. 306
Richmond v. Smith, 8 B. & C. 9 ; Tamunth v. Packard, 1 Starke, 249
Kent V. Shackford, 2 B. & Ad. 803 ; Armistead ». White, 6 L. & E. 349
Mason v. Thompson, 8 Pick. 280; Shaw v. Berry, 31 Maine, 478.
Of text writers. Story, though with hesitation, goes for the first rule.
Kent states the third rule strongly, and Metcalf adopts the same, and
the civil law places the hability of the innkeeper and the common
carrier on the same footing.
It is somewhat singular that on a practical question, which must be
as old as the rudiments of the law, there should be found at this day such
diversity of opinion and decision. It is probably owing to the obscure
212 INNKEEPERS.
t
way in which the subject is treated in the report of Calye's Case, and
the different interpretations which have been put on that case. On the
whole we think that the better rule is the strict one, as laid down in the
elaborate and very satisfactory case of Shaw ». Berry. The weight of
authority is heavily that way, and the policy and analogies of the law
lead to the same conclusion.
Judgment on the verdicts
HULETT «. SWIFT.
33 N. Y. 571 ; 88 Am. D. 405. 1865.
Appeal from the Supreme Court. The action was for the value of
property committed by a guest to the charge of the defendant's testator,
an innkeeper in Poughkeepsie, and lost by a fire, which destroyed the
barn and stable attached to the inn, on the 26th of July, 1860.
The facts, as admitted by the pleadings and found by the referee,
were substantially these : —
One Banks, an employee of the plaintiffs, stopped at the Balding House
in Poughkeepsie, with his own horses and wagon, and a load of buck-
skin goods belonging to the plaintiffs. He was received as a guest, and
the innkeeper took charge of his property. A fire occurred in the course
of the night, which occasioned a loss to Banks and the plaintiffs of
$1250.50.
It did not appear how the fire originated, and the defendant failed
to show that it was not the result of negligence. The referee held that
the plaintiffs, in their own right, and as the assignees of Banks, were
entitled to the value of the property destroyed.
On appeal to the General Term of the fourth district, the judgment
was ajBirmed, on the ground that the innkeeper is an insurer of the goods
of his guest while they remain in his custody. From that decision the
defendant appealed.
Porter, J. An innkeeper is responsible for the safe-keeping of
property committed to his custody by a guest. He is an insurer
against loss, unless caused by the negligence or fraud of the guest, or
by the act of God or the public enemy. This liability is recognised in
the common law as existing by the ancient custom of the realm ; and
the judges in Calye's case treated the recitals in the special writ for its
enforcement, as controlling evidence of the nature and extent of the obli-
gation imposed by law on the innkeeper. (8 Coke, 32; 1 Smith's
Lead. Cas., Hare & Wallace's ed., 194, 307 [163].)
This custom, like that in the kindred case of the compion carrier,
had its origin in considerations of public policy. It was essential to
the interests of the realm, that every facility should be furnished for
LIABILITY FOR GUESX'S PROPERTY. 213
secure and convenient intercourse between different portions of the
kingdom. The safeguards, of which the law gave assurance to the
wayfarer, were akin to those which invested each EngHsh home with
the legal security of a castle. The traveller was pecuharly exposed to
depredation and fraud. He was compelled to repose confidence in a
host, who was subject to constant temptation, and favored with pecul-
iar opportunities, if he chose to betray his trust. The innkeeper was
at liberty to fix his own compensation, and enforce summary payment.
His lien, then as now, fastened upon the goods of his guest from the
time they came to his custody. The care of the property was usually
committed to servants, over whom the guest had no control, and who
had no interest in its preservation, unless their employer was held
responsible for its safety. In case of depredation by collusion, or of
injury or destruction by neglect, the stranger would of necessity be at
every possible disadvantage. He would be without the means either
of proving guUt or detecting it. The witnesses to whom he must resort
for information, if not accessories to the injury, would ordinarily be
in the interest of the innkeeper. The sufferer would be deprived, by
the very wrong of which he complained, of the means of remaining to
ascertain and enforce his rights, and redress would be well-nigh hope-
less, but for the rule of law casting the loss on the party entrusted with
the custody of the property, and paid for keeping it safely.
The considerations of public policy in which the rule had its origin,
forbid any relaxation of its rigour. The number of travellers was few,
when this custom was established for their protection. The growth of
commerce, and increased facilities of communication, have so multi-
plied the class for whose security it was designed, that its abrogation
would be the removal of a safeguard against fraud, in which almost
every citizen has an immediate interest. The rule is in the highest
degree remedial. No public interest would be promoted, by changing
the legal effect of the implied contract between the host and the guest,
and relieving the former from his common-law liability. Innkeepers,
like carriers and other insurers, at times find their contracts burden-
some ; but in the profits they derive from the public, and the privileges
accorded to them by the law, they find an ample and liberal compensa-
tion. The vocation would be still more profitable, if coupled with new
immunities; but we are not at liberty to discard the settled rules of
the common law, founded on reasons which still operate in all their
original force. Open robbery and violence, it is true, are less frequent
as civilisation advances ; but the devices of fraud multiply with the
increase of intelligence, and the temptations which spring from oppor-
tunity, keep pace with the growth and diffusion of wealth. The great
body of those engaged in this, as in other vocations, are men of char-
acter and worth ; but the calling is open to all, and the existing rule of
protection should therefore be steadily maintained. It extends to
every case, and secures the highest vigilance on the part of the inn-
214 INNKEEPERS.
keeper, by making him responsible for the property of his guest. The
traveller is entitled to claim entire security for his goods, as against the
landlord, who fixes his own measure of compensation, and holds the
property in pledge for the payment of his charges against the owner.
Tn cases of loss, either the innkeeper or the guest must be the sufferer,
and the common law furnishes the solution of the question, on which of
them it should properly fall. In the case of Cross v. Andrews, the rule
was tersely stated by the court. "The defendant, if he will keep an
inn, ought, at his ■peril, to keep safely his guests' goods." (Croke's
Eliz., 622.) He must guard them against the incendiary, the burglar
ajid the thief ; and he is equally bound to respond for their loss, whether
caused by his own negligence, or by the depredations of knaves and
marauders, within or without the curtilage.
This doctrine is too well settled in the English courts, to be shaken
by the exceptional case on which the appellant relies. (Calye's case,
8 Coke, 32 [163] ; Cross v. Andrews, Croke's Eliz. 622 ; Richmond v.
Smith, 8 Barnw. & Cress. 803 ; Cashill v. Wright, 37 Eng. Law and Eq.
175.)
In the courts of this State, it has always been held that the inn-
keeper, like the carrier, is, by the common law, an insurer. (Purvis
V. Coleman, 21 N. Y. Ill, 112, 117; Wells v. Steam Navigation Co.,
2 Comst., 204, 209 ; Gile v. Libby, 36 Barb. 70, 74 ; Ingallsbee v. Wood,
id. 458 ; Washburn v. Jones, 14 id. 193, 195 ; McDonald v. Edgerton,
5 id. 564; Taylor v. Monnot, 4 Duer, 117; Stanton v. Leland, 4 E. D.
Smith, 94; Grinnell v. Cook, 3 Hill, 488; Piper v. Many, 21 Wend.
282, 284 ; Clute t<. Wiggins, 14 Johns. 175 [200].)
The rule, as recognised by us, is sanctioned by the leading authorities
in the other states. (1 Pars, on Cont., 623 ; 1 Smith's Lead. Cas.,
Hare & Wallace's ed., 307 ; Shaw v. Berry, 31 Maine, 478 ; Sibley r.
Aldrich, 33 N. H. 533 [206] ; Berkshire Woolen Co. ■». Proctor, 7 Cush.
427 [232] ; Mason v. Thompson, 9 Pick. 280 ; Towson ». Havre de
Grace Bank, 6 Harr. & Johns. 47; Thickston v. Howard, 8 Blackf.
535, 537 ; Kisten ». Hildebrand, 9 B. Mon. (Ky.) 72 [167].
A shade of doubt has, at times, been thrown over the question, by
the unguarded language of elementary writers, and especially by the
suggestion of Judge Story, in his treatise on the law of bailments, that
the innkeeper could exonerate himself from liability by proving that he
was not guilty of actual negligence ; and this view seems to have been
adopted in two of the Vermont and one of the English cases. (Story on
Bailments, § 472 ; Dawson v. Champney, 8 Adolphus & Ellis, N. S.
164 ; Merritt v. Claghorn, 23 Vt. 177 [202] ; McDaniels v. Robinson,
28 id. 337.) The doctrine of these cases is opposed to the general
current of English and American authority, and evidently had its origin
in a misapprehension of the rule as stated by the judges in Calye's case.
It is true that the liability of the innkeeper, by the custom of the realm,
was not unlimited and absolute, and that the loss of the goods of the
LIABILITY FOR GUEST's PKOPERTY. 215
guest was merely presumptive evidence of the default of the landlord.
But this presumption could only be repelled, by proof that the loss
was attributable to the negligence or fraud of the guest, or the act of
God or the public enemy. No degree of diligence or vigilance on the
part of the innkeeper could absolve him from his common-law obliga-
tion for the loss of his guest, unless traceable to onje of these exceptional
causes. (Shaw v. Berry, 31 Maine, 478; Sibley v. Aldrich, 33 N. H.
553 [206].) The rule is salutary, and should be steadily and firmly
upheld, subject to the statutory regulations for the protection of hotel
proprietors from fraud and negligence on the part of their guests.
We are of the opinion that the judgment should be affirmed, on the
ground that the testator was an insurer of the property committed to
his charge, and that its loss has not been traced to either of the causes
recognised as creating an exception to the general rule of liability.
It is proper to remark, that if the law were otherwise, and the inn-
keeper were responsible only for actual negligence, it would not avail
the defendant on the appeal papers in the present case, as they come to
us from the court below. The finduigs of the referee are not embodied
in the case, as required by the existing practice ; and on reference to
the record prefixed to the case, it appears that the defendant failed to
repel by proof the conceded presumption of negligence. (Bissell v.
Hamlin, 20 N. Y. 519 ; Grant v. Morse, 22 id. 323.)
The judgment should be aifirmed, with costs.
All the judges concurred in the opinion of Pokteh, J., except Denio,
Ch. J., who delivered a dissenting opinion, in which Brown, J., con-
curred.
Judgment affirmed.
FAUCETT V. NICHOLS.
64 N. Y. 377. 1876.
Appeal from judgment of the General Term of the Supreme Court
in the fourth judicial department affirming a judgment in favour of
plaintiff, entered upon a verdict. (Reported below, 2 Hun, 521 ■
4 T. & C. 597.)
Andrews, J. The common-law liability of innkeepers for loss of the
property of guests by fire, occurring without the innkeeper's fault or
negligence, as declared in Hulett v. Swift (33 N. Y. 571 [212]), was
modified and limited by chapter 638 of the Laws of 1866. The case of
Hulett V. Swift was decided in 1865, and it was held that an innkeeper
was an insurer of the property committed to his custody by a guest, as
against loss by fire, and the defendant in that case was made respon-
sible for the goods of the plaintiff in his custody as innkeeper, which
216 INNKEEPERS.
were consumed by fire while in the barn of the defendant. The act of
1866 seems to have been passed in view of this decision, and to mitigate
the rigour of the rule declared in Hulett v. Swift. The statute is as
follows: "No innkeeper shall be liable for the loss or destruction by
fire of property received by him from a guest, stored, or being with the
knowledge of such guest, in a barn or outbuilding, when it shall appear
that such loss or destruction was the work of an incendiary, and occurred
without the fault or negligence of such innkeeper."
The burden is upon the innkeeper claiming the benefit of this statute
to shew that the fire occasioning the loss of the goods of the guest was
an incendiary one, and the absence of negligence on his part connected
with the transaction. He is exempted from liability when it "shall
appear" that the circumstances exist which, under the statute, exonerate
him from liability. The defendant relied upon this statute as a de-
fence in this case, and evidence was given on his part tending to show
that the fire which destroyed the barn, in which at the time were the
horses and wagon of the plaintiff, was the work of an incendiary, and
that it was set in the hay loft, to which communication was had through
a window of the barn opening into an alley in the rear, which con-
nected two streets. This window had been left open for several weeks,
and during this time lumber was piled against the barn, so that a per-
son could easily climb upon it and enter the loft through the open win-
dow. The court submitted to the jury the question whether the
defendant, in leaving the door of the loft open, was, under the circum-
stances, chargeable with negligence, and ruled, in substance,
that if the jury should find that this was a negligent act which
contributed to occasion an incendiary firing of the barn, the defendant
was liable for the loss sustained by the plaintiff.
The omission on the part of a bailee to use due care in protecting the
property entrusted to him subjects him to liability for loss or injury
resulting from such omission; and he is not exempted from respon-
sibility, although the goods have been lost by the felony of a third
person, if his negligence furnished the occasion and opportunity for its
commission.
In Coggs V. Bernard (2 Ld. Raymond, 909 [4]) Lord Holt, in con-
sidering the second sort of bailment enumerated by him, viz., com-
modatum, says : " But if the bailee put his horse in his stable, and he
were stolen from thence, the bailee shall not be answerable for him ; but
if he or his servant leave the house or stable doors open and the thieves
take the opportunity of that and steal the horse, he will be chargeable ;
because the neglect gave the thieves the occasion to steal the horse."
(See also Dansey v. Richardson, 3 E. & B. 165 ; Schwerin v. McKie,
51 N. Y. 180.) Thefts and burglaries are the frequent causes of the
loss of goods, and a bailee may reasonably be required to take notice
that the desire to obtain them is an inducement to the commission of
crime, and to act in view of this fact, and exercise due care to protect
LIABILITY FOE GUEST's PEOPERTY. 217
them from thieves and burglars. If the horses of the plaintiff had been
stolen from the barn of the defendant and his liability depended upon
the existence of negligence on his part, on proof that the doors were
left unlocked and open, and that no means had been taken to watch
or guard the barn, it would be for the jury to say whether, under the
circumstances, he was guilty of negligence. It must be admitted that
the fact that the window of the hay loft was left open, and that the
barn was accessible from the alley, is not very strong evidence of negli-
gence. The crime of incendiarism is much less frequent than theft or
robbery and is prompted, ordinarily, by different motives. But we
cannot say that the fact proved furnished no evidence upon the ques-
tion of negligence. Negligence is usually a question of fact and not of
law. The jury understood the condition and the location of the
premises, and as practical men could judge whether proper care required
the defendant to keep the window of the loft closed, as a protection
against incendiaries, who might from wantonness, revenge or other
motive, upon opportunity offered, set fire to the premises. I am of
opinion, therefore, that the question of the defendant's negligence was
a question of fact and not of law, and was properly submitted to the
jury, and that negligence on the part of an innkeeper in omitting pre-
cautions which a reasonable and prudent man ought to take to guard
against an incendiary fire, is such negligence as will deprive him of the
benefit of the statute. The loss or destruction of the property of the
guest does not in that case occur without the innkeeper's fault or negli-
gence. Negligence which precedes and facilitates the commission of
the crime, is as much within the statute as the negligent omission to
protect and remove the property of the guest after the fire had com-
menced. Whether the fire was incendiary, or accidental, or negligent
merely, was a material question on the trial. There was no direct
evidence as to how it originated. Circumstances were proved on the
part of the defendant which would have justified the jury in finding that
it was the work of an incendiary. [Discussion of evidence omitted.]
The fact in issue, to which this evidence related, was whether the
•defendant's barn was fired by an incendiary. If there had been a series
of incendiary fires in that village previous to and near the time of the
fire in question, could not this fact have been shewn in aid of the
defence ? It cannot be denied that in connection with the other cir-
cumstances proved, it would have produced upon the mind a strong
conviction that the fire in the defendant's bam was also caused by an
incendiary.
The proof offered was not merely of facts tending to establish a pre-
sumption, that an attempt to fire another building on the same night
had been made, but of an attempt made, which failed. There was
here no uncertainty as to the collateral fact sought to be proved, and
if the fact had been admitted that incendiaries were at work in another
place in the village on the same night, it would have had a direct and
228 INNKEEPEKS.
innkeepers, as bailees of the baggage and goods of their guests, extraor-
dinary care, and imposes on them a responsibility nearly commensur-
able-with that of common carriers, approximating insurance of such
articles when confided expressly or impliedly to their custody and
care. But whenever the guest assumes the custody and control of his-
goods in such a way as to indicate that he does not trust the innkeeper,,
and concedes to him no control, they are not in the implied custody of
the innkeeper, and he is therefore not responsible, unless they shall be
stolen by some of his own household, whose honesty and fidelity he is-
presumed to guarantee.
The innkeeper's responsibility is only coextensive with his custody
and control, and his pledge of the integrity of his servants. .And the
question of custody and control depends on facts indicative of intention.
If the guest, having an article not attached to his person, nor carried
about with him for his personal convenience -^ such, for example, as a.
bag of gold, a case of jewellery, or a package of paper currency — the
fact that he does not either notify the host of it, or offer to place it in
his actual custody, would imply that he trusted to his own care, and
intended to risk all consequences. And, if the article thus held by
himself alone should be stolen from him while abiding in the inn, the
loss, like the preferred custody, might be his own alone, unless it re-
sulted from the dishonesty of some of the household. The innkeeper,
deprived of both custody and control, could not be held responsible on
any just or consistent principle.
But such articles as apparel worn at the time, and watch and pocket
money, are not expected to be delivered to the innkeeper for safe-keep-
ing, and the retention of them in the guest's room neither keeps them
from the implied custody of the innkeeper, nor implies a waiver of his
responsibility. In respect to such articles, therefore, thus kept, the-
innkeeper is prima facie the responsible curator. And it seems to us
that the $90 kept in the appellant's pocket for daily use for incidental
expenses, should be considered as embraced in this last category. This
being so adjudged, the petition contains every allegation necessary
to show a cause of action to be tried on a proper issue of fact.
Wherefore, the judgment is reversed, and the cause remanded for
further pleading and proceedings.
JALIE V. CARDINAL.
35 Wis. 118. 1874.
Action to recover for money alleged to have been lost to plaintiff,,
through defendants' negligence, while the former was stopping as a
guest at the inn alleged to have been kept by defendants as partners.
The defendants, in their answer, and also by affidavit, denied the alle-
LIABILITY FOR GUEST's PROPEETY. 229
gatiotf of partnership, but admitted that at the time plaintiff is alleged
to have lost his money, Cyril Cardinal, one of the defendants, kept an
inn. They denied also that the plaintiff was ever their guest; but
alleged that at the time named in the complaint, he was a boarder by
the week, under a contract with Cyril Cardinal, and that the money
was lost through plaintiff's neglect. ... /
Dixon, C. J. [Portion of opinion relating to partnership omi±ted.I
The action was one which would have formerly been denominated
case, on the common liability of an innkeeper by the rules of the common
law, or, as known and spoken of in England, by the custom of the
realm, for the loss of money which the plaintiff brought with him to
the inn of the defendants. As such action, it presented no new or un-
settled question — no point not easily resolved by reference to the
authorities. The nature and extent of such liability are so well known
that it is unnecessary to refer to them here, except in general terms.
The innkeeper must answer in damages for the loss or injury of all goods,
money and baggage of his guest, brought within his inn, and delivered
into his charge and custody, according to the usage of travellers and
innkeepers. It is not necessary, however, that the goods be expressly
put into the charge of the innkeeper, or that his custody be exclusive,
in order that he may be held responsible. The guest may retain per-
sonal custody of his goods within the inn, as of his trunk and its con-
tents, his wearing apparel and other articles, in his room, his money
and his watch in his pockets, and any jewellery or valuables carried or
worn about his person, without discharging the innkeeper from respon-
sibility. Goods, money and baggage so in the custody of the guest
are likewise considered in the custody of the innkeeper, and subject
to that uncommon care which he is bound to exercise respecting the
effects of his guest.
Nor is the guest required to prove that his goods have been lost by
the negligence of the innkeeper. Proof of the loss by the guest while
at the inn is presumptive evidence of negligence on the part of the
innkeeper or of his domestics. It is the duty of the innkeeper to pro-
vide honest servants and keep honest inmates, and to exercise exact
care and vigilance over all persons who may come into his house,
whether as guests, or otherwise. By the common law he is responsible
not only for the acts of his servants and domestics, but also for the acts
of other guests. The reason for this stringent rule has been well stated
by Sir William Jones. He says : " Rigorous as this rule may seem, and
hard as it may actually be in one or two particular instances, it is
founded on the great principle of public utility, to which all private
considerations ought to yield. For travellers, who must be numerous
in a rich and commercial country, are obliged to rely almost implicitly
on the good faith of innkeepers, whose education and morals are none
of the best, and who might have frequent opportunities of associating
with ruffians and pilferers, while the injured guest would seldom or
230 INNKEEPEBS.
never obtain legal proof of such combinations, or even of their negli-
gence, if no actual fraud had been committed by them." Jones on
Bailments, 95, 96.
The circumstances which excuse the innkeeper and relieve him from
liability, are few in number, and likewise well understood. He may
show that the loss was attributable to the personal negligence of the
gues* himself, or occasioned by inevitable casualty, or by superior
force. He is not liable if it was caused by the act of God or the public
enemy, or by the conduct of the guest, or by the acts or misconduct of
his servants, or of the companions whom he brought with him. Be-
yond these the common few admits no excuse and affords no immunity
to the innkeeper for the loss of goods happening to a guest within his
inn, so long as the guest is a sojourner merely, abiding in and using and
occupying the inn as a place of rest and for lodging and entertainment.
An innkeeper is not bound by law to find show rooms or sales rooms
for his guests in which to expose or sell their goods, but only suitable
lodging rooms and lodging ; and if the guests use their rooms for the
purposes of such exposition or sale, this also constitutes an exception
to the general liability of the innkeeper, and he will not be held respon-
sible for the loss of such goods.
With these general principles in view, the questions presented in this
case are not difficult of determination. The exceptions taken upon the ,
trial, were but two in number, and arose upon the refusal of the court
to grant two requests to instruct, made by the defendants.
The first request related to the character of the plaintiff as a person
receiving lodging and refreshment at the inn — whether he Was a guest
or not. The plaintiff was not a neighbour or friend of the defendants
coming to their inn, but a traveller. He was a passenger or wayfaring
man, who resided at a distant place, and who sought the public house
kept by the defendants for temporary lodging and entertainment. Of
these facts the proofs leave no doubt. He came to the house, and asked
one of the defendants if they took boarders, and was answered, " Yes."
He enquired the price of board by the week, and was informed, and
was thereupon received into the house. His intention was to remain
only for three or four days, but of that no communication was made
to the defendants. Upon these facts the defendants requested the court
to charge the jury, "That if the jury shall find, from the evidence,
that the plaintiff was stopping at the hotel of the defendants, at the
time of the loss of the money and property in question, under an agree-
ment to board by the week, he was not a guest but a boarder, and the
common law liability of an innkeeper for the property of his guest does
not apply."
The point upon which the request turned was, that if the plaintiff
entered the hotel under an agreement to board by the week, he was but
a boarder and not a guest, and therefore the liability of an innkeeper
did not attach. The court was asked to hold as matter of law, that
LIABILITY FOE GUEST's PBOPEKTY. 231
agreeing for board by the week deprived the plaintiff of the character
of a guest, and transformed him into a boarder. As matter of law, the
court could not say so ; or if it had, it would have been error. It is
well settled that if a person goes to an inn as a wayfarer and a traveller,
and the innkeeper receives him into his inn as such, he becomes the inn-
keeper's guest, and the relation of landlord and guest, with all its rights
and liabilities, is instantly established between them. Neither the
length of time that a man remains at an inn, nor any agreement he may
make as to the price of board per day or per week, deprives him of his
character as a traveller and a guest, provided he retains his status as a
traveller in other respects. Berkshire Woollen Co. v. Proctor, 7 Cush.
417 [232] ; Hall v. Pike, 100 Mass. 495 ; Pitikerton v. Woodward, 33
Cal. 557 ; Norcross v. Norcross, 53 Me. 163. It was a question of fact
to be found by the jury upon all the evidence, and not one of law to
be determined by the court, whether the plaintiff was a boarder and not
a guest.
Had a proper request been prepared, directing the attention of the
jury to the evidence in that particular, and informing them that it was
for them to decide whether under the circumstances the plaintiff was
received by the defendants as a guest and the relation of landlord and
guest existed between them, no doubt such request would have been
granted. Had the court refused a request of that kind, it would doubt-
less have been error.
The other request which was denied, was in these words : " That if
the jury shaU find, from the evidence, that the money and property in
question was upon the person and under the exclusive control of the
plaintiff at the time of the loss, the defendants are not liable."
It will be observed from the statement of general principles above
made, that this request was incorrect. Possession of money upon
the person of the guest does not constitute such exclusive control and
custody on his part as will exonerate the innkeeper, unless under cer-
tain peculiar circumstances. It has been held at common law, that if,
after notice from the innkeeper that a safe was provided for money,
and that he would not be responsible for its loss unless deposited therein,
the traveller retains his money in his own possession or in his room, and
it is stolen-or lost, the innkeeper will not be liable. The decision was
put upon the ground of negligence in the guest. The retention of his
money by the plaintiff upon his own person did not excuse the defen-
dants, unless the negligence or misconduct of the plaintiff induced the
loss.
It is likewise contended that the evidence disclosed such gross
negligence on the part of the plaintiff that he ought not to have re-
covered, and that the verdict was against evidence. It was formerly
supposed that only gross negligence on the part of a guest would pre-
vent a recovery, but is now settled that a want of ordinary care con-
tributing to the loss will have that effect. Some strong facts and cir-
232 INNKEEPERS.
cumstances tending to prove negligence on the part of the plaintiff
were shown; but the question was fairly submitted to the jury, and
they have found in his favour. The effort was to show that he was
intoxicated when he retired to his room, about eleven o'clock in the day,
and that he was negligent in not finding the key in his door, and in not
locking the door. In Calye's case, 8 Coke, 32 [163], 1 Smith's Leading
Cases [*194], it was resolved, as a proposition of law, to be " no excuse
for the innkeeper that he delivered the guest the key of the chamber in
which he lodged, and that he left the chamber door open." This would
hardly be accepted or held as matter of law now-a-days, and indeed
is not, but is a question of fact for the jury. It is for the jury to say
whether such conduct on, the part of the guest constitutes negligence
or not, under the circumstances. Negligence in cases of this nature, as
in all others, is one of fact for the jury, unless the evidence is too plain
and positive to admit of doubt or controversy, when the court will be
justified in taking the case into its own hands and directing a verdict.
We cannot say, in view of the very stringent liability of innkeepers,
and of the authorities, that the court would have been justified in doing
so in this case, and hence cannot disturb the verdict as being against
the evidence. If drunk, the plaintiff might still have claimed the pro-
tection of his host, as did Falstafl, when he fell asleep "behind the
arras," and might say with him : ." Shall I not take mine ease in mine
inn, but I shall have my pocket picked ? " which seems to be a further
proof, not noticed by the advocates of that theory, that Shakespeare
was a lawyer, and therefore that Bacon wrote Shakespeare.
A third request refused related to the liability of the defendants as
partners, which, if admitted to have been correct in law, has now be-
come immaterial, since the jury have found that the partnership existed
at the time the money was lost, and was not entered into afterwards,
as assumed in the request.
By the Court, — Judgment aflirmed.
BERKSHIRE WOOLLEN CO. v. PROCTOR.
7 Gush. (Mass.) 417. 1851.
Fletcheh, J. This is an action on the case against the defendants,
as innkeepers, for the alleged loss of five hundred dollars of the plain-
tiffs' money in the inn of the defendants, known as the Marlboro'
Hotel, in the city of Boston. It was admitted that the defendants were
innkeepers, and proprietors of said Marlboro' Hotel.
It appears from the testimony, that about the 15th of October, 1849,
Asa C. Russell, an agent and servant of the plaintiff, went to Boston
with some twenty-five witnesses, to take charge of a lawsuit to which
LIABILITY FOR GUEST'S PROPERTY. 233
the plaintiffs were a party ; that he took with him one thousand dollars
of the plaintiffs' money, for the purpose of defraying the expenses of
their said suit ; that he, with some of the plaintiffs' witnesses, put up
at the Marlboro' Hotel ; that he kept a part of the money in his trunk,
in his room, and took it out as he wanted it for daily use, to pay wit-
nesses ; that on the 2d of November, 1849, he counted his money, and
found he then had just five hundred dollars, which he rolled up in a
newspaper, and put the packet in the bottom of his trunk, under his
clothes, and locked the trunk ; that on the evening of the 3d of Novem-
ber, he found that the lock had been picked and the money had been
taken from the trunk. He immediately gave notice to the defendants,
and he with them made diligent search for the money ; but it was never
found. Some of the plaintiffs' witnesses boarded with the defendants
at their said inn, and Russell told the defendants that he would be re-
sponsible for the board of said witnesses. He agreed with the defendants
for the price of his board by the week, and if he did not stay a week
the price was to be greater than at the rate by the week. He testified
that he thought he told one of the defendants that he was agent of the
plaintiffs, but was not certain ; that he did not inform the defendants
that he had money with him, till after the loss ; that the defendants
called his attention to a safe in the office after the loss, but that he did
not know whether he saw it before the loss or not. He further testified
that he thought it was a custom in Boston for innkeepers to have
safes, but not a general custom for guests to deposit in them. He did
not know that anybody deposited packets in the Marlboro' Hotel.
He also testified that it was his usual practice to lock the door of his
room when he went out, and to leave the key in the door, but could not
speak positively as to the 2d and 3d of November. This witness, and
others produced by the plaintiffs, testified to the practice of guests at
the defendants' inn, of leaving keys in the doors of their lodging rooms.
To this the defendants objected, but it was admitted, with the instruc-
tions, that it was not to be considered by the jury, unless shown to be
the usage of the house, and that known to the defendants. Russell
further testified, that the only regulations of which he saw notice
given, were contained in a printed notice posted in the house, which
■will be hereafter examined. One of the plaintiffs' witnesses testified
that one of the defendants stated, after the loss, that when he suspected
that guests had large sums of money, he was in the habit of speaking
to them about it, and regretted he had not done so to Russell.
The defendants, in their defence, offered to prove a general and uni-
form custom with innkeepers in Boston, to provide safes for the purpose
of depositing therein large sums of money and other valuable things
which their guests may have, and the custom of guests to deposit
accordingly. The court ruled that this evidence was inadmissible,
and this ruling forms the ground of one of the defendants' exceptions.
But the court ruled that it was competent for the defendants to prove
234 INNKEEPERS.
fully what was the custom of the defendants' hotel, and of their guests
in this particular. Thereupon both parties went at large into evidence
as to this alleged custom at the defendants' hotel, and of their guests.
[The several contentions for defendants, as set out in detail, suffi-
ciently appear in the following paragraphs of the opinion.]
A verdict having been found for the plaintiffs, the defendants alleged
exceptions to the foregoing rulings and instructions of the court of
common pleas.
It is maintained, in behalf of the defendants, that the evidence offered
by them, to show a general and uniform custom of the hotels in Boston,
and their guests, to have money deposited in safes kept for that pur-
pose, which was excluded at the; trial, should have been admitted.
[The offered evidence is considered in detail.]
But it is sufficient, that the evidence offered in this case was incompe-
tent to establish, or warrant the jury in finding, the existence of any
such general and uniform usage as was set up by the defendants. The
defendants were permitted fully to prove what was the custom of their
own house and guests. This was the only custom with which they
were connected, and of which they could avail themselves. For what
purpose the defendants proposed to give evidence of the custom of other
houses and their guests, was not stated, and does not appear. Surely
the defendants could not take advantage of the custom of other houses,
if it differed from their own ; and if it was the same as their own, so far
as it appears, it would have been wholly immaterial. The defendants •
having been permitted fully to prove the custom of their own house
and guests, it does not appear that their rights were, or could be, in
any way affected by the exclusion of the evidence as to the custom of
other houses and their guests.
It is further maintained for the defendants, that Russell was not a
guest, in the sense of the law, but a boarder. But Russell surely came
to the defendants' inn as a wayfaring man and a traveller, and the de-
fendants received him as such wayfaring man and traveller, as a guest
at their inn. Russell being thus received by the defendants, as their
guest at their inn, the relation of innkeeper and guest, with all the
rights and liabilities of that relation, was instantly established between
them. The length of time that a man is at an inn, makes no difference,
whether he stays a week or a month, or longer, so that always, though
not strictly transiens, he retains his character as a traveller. Story on
Bailm., § 447. The simple fact that Russell made an agreement as to
the price to be paid by him by the week, would not upon any principle
of law or reason, take away his character as a traveller and a guest.
A guest for a single night might make a special contract, as to the price
to be paid for his lodging, and whether it were more or less than the
usual price, it would not affect his character as a guest. The character
of guest does not depend upon the payment of any particular price, but
upon other facts. If an inhabitant of a place makes a special contract
LIABIUTY FOE GUESt's PROPERTY. 235
with an innkeeper there, for board at his inn, he is a boarder, and not a
traveller or a guest, in the sense of the law. But Russell was a traveller,
and put up at the defendants' inn as a guest, was received by the defend-
ants as a guest, and was, in the sense of the law, and in every sense, a
guest.
Another ground of defence taken in behalf of the defendants, is that
this action cannot be maintained, because the plaintiffs, being a corpo-
ration, were not, and could not be, in the nature of things, the guest of
the defendants ; that an innkeeper is liable only for the goods of his
guest ; and that, therefore, the defendants are not liable for the money
of the plaintiffs, as they were not, actually nor constructively, the guests
of the defendants. But this reasoning cannot prevail. Russell was
the defendants' guest, and he was the agent and servant of the plaintiffs ;
and the money which was lost, and for which this suit was brought,
was the plaintiffs' money, in the possession of Russell, delivered by the
plaintiffs to him, as their servant and agent, to be expended in their
business. This action, therefore, can well be maintained upon the
well settled principle of law, that, if a servant is robbed of his master's
money or goods, the master may maintain the action against the inn-
keeper in whose house the loss was sustained. This point was directly
settled in Bedle v. Morris, Yelv. 162, and, notes and cases cited in the
American edition. In that case it was said by the court, " And more-
over it is not material whether he was his servant or not ; for, if it was
his friend by whom the party sent the money, and he is robbed in the
inn, the true owner shall have the action." S. C. Cro. Jac. 224. The
doctrine is thus stated in Bacon : " If a man's servant, travelling on
his master's business, comes to an inn with his master's horse, which is
there stolen, the master may have an action against the host, because
the absolute property is in him. So, if A. sends money by his friend,
and he is robbed in his inn, A. shall have the action." Bac. Ab. Inns
and Innkeepers, C. 5. Such was also adjudged to be the law in Towson
V. Havre de Grace Bank, 6 Har. & Johns. 47, 53. In this case, after
stating the position, that if A. sends his money by his friend, who is robbed
in the inn at which he is a guest, A. shall have the action, the court
say : " And there is no reason why it should not be so, the innkeeper
being chargeable, not on the ground that he entertains the owner of
the money, or other goods, but because he receives, no matter by whom
paid, a compensation for the risk." See also Bennett v. Mellor, 5 T. R.
273.
The case of Mason v. Thompson, 9 Pick. 280, goes still further. In
that case, G. hired the horse, chaise and harness of the plaintiff, and
drove the same to Boston, where she stopped, as a visitor, with a
friend, and sent the horse, chaise and harness to the stable of the
defendant, who was an innkeeper, to be kept during her visit. After
four days, she sent for the property, and found that a part of it had
been stolen, for which the innkeeper was held liable to the plaintiff,
236 INNKEEPERS.
who was the owner. It was urged for the defendant, that neither G.
nor the plaintiff was the defendant's guest, as neither of them had diet
or lodging at the defendants' inn. But the court said, "it is clearly
settled, that to constitute a guest, in legal contemplation, it is not
essential that he should be a lodger, or have any refreshment, at the
inn. If he leaves his horse there, the innkeeper is chargeable on account
of the benefit he is to receive from the keeping of the horse." Upon
this point, the case of Yorke v. Grenaugh, 2 Ld. Raym. 866, was relied on.
In Grinnell v. Cook, 3 Hill, 485 [79], the case of Mason v. Thompson
was commented on, and that part of it which held, " that, to constitute
a guest in legal contemplation, it is not essential that he should be a
lodger, or have any refreshment at the inn," was controverted, as not
warranted upon principle, or by adjudged cases. Bronson, J., in giv-
ing the opinion of the court, says : " But when, as in Mason v. Thomp-
son, the owner has never been at the inn, and never intends to go there
as a guest, it seems to me little short of a downright absurdity to say,
that in legal contemplation, he is a guest." But this particular point
is not material in the present case, as in this case Russell was the
defendants' guest. Though it be settled that the owner of the goods
or money may have an action, it may also be, that an action could be
maintained either by the servant or master.
Another ground of defence is, that the defendants are not liable for
the loss in this case ; as innkeepers are liable for such sums only, as are
necessary and designed for the ordinary travelling expenses of guests,
and for no more. Such was the doctrine held by this court in the case
of Jordan v. Fall River Railroad, 5 Gush. 69, in regard to the liability
of a carrier of passengers for baggage. Formerly, it was held, that a
carrier of passengers was not answerable for baggage at all, unless a
distinct price was paid for it ; but it is now held, from the usual course
of business, that a contract to carry the ordinary baggage of the pas-
senger is included in the principal contract, in relation to the passenger,
and the price paid for fare is considered as including a compensation for
carrying the baggage ; so that a carrier is answerable for the loss of bag-
gage, although there was no particular separate agreement concerning
it. But this implied undertaking by a carrier of passengers does not
extend beyond ordinary baggage, or such things as a traveller usually
carries with him for his personal convenience on the journey, including
such an arnount of money as, under the circumstances, may be neces-
sary, and is designed, for the payment of travelling expenses. A
common carrier of passengers is not responsible, unless by a special
contract, for goods and chattels, or money, not properly belonging to
the baggage of the passenger. Jordan v. Fall River Railroad, 5 Gush.
69. But common carriers of goods are responsible for any amount
of goods and money which may be intrusted to them, when the car-
riage of money is within the scope of their employment and business.
The responsibility of innkeepers for the safety of the goods and chat-
LIABILITY FOR GUEST's PROPERTY. 237
tels and money of their guests is founded on the great principle of public
utility, and is not restricted to any particular or limited amount of goods
or money. The law on this subject is very clearly and succinctly stated
by Chancellor Kent, as follows : " The responsibility of the innkeeper
extends to all his servants and domestics, and to all the movable goods
and chattels and moneys of his guest, which are placed within the inn."
2 Kent, Com. 593. The liability of an innkeeper for th'e loss of the
goods of his guest being founded, both by the civil and common law,
upon the principle of public utility, and the safety and security of the
guest, there can be no distinction, in this respect, between the goods
and money. Kent v. Shuckard, 2 B. & Ad. 803 ; Armistead v. White,
6 Eng. Law & Eq. R. 349 ; Quinton v. Courtney, 1 Haywood, 40 [201].
The principle for which the defendants contend, that innkeepers are
liable for such sums only, as are necessary and designed for the ordinary
travelling expenses of the guest, is unsupported by authority, and wholly
inconsistent with the principle upon which the liability of an innkeeper
rests. The reasoning, both of the civil and common law, by which the
doctrine of the liability of innkeepers, without proof of fraud or negli-
gence, is maintained, is, that travellers are obliged to rely, almost
entirely, on the good faith of innkeepers ; that it would be almost im-
possible for them, in any given case, to make out proof of fraud or
negligence in the landlord ; and that therefore the public good and the
safety of travellers require that innholders should be held responsible
for the safe keeping of the goods of the guests. This reasoning main-
tains the liability of the innkeeper for the money of the guest, quite as
strongly as his liability for goods and chattels, and it would be clearly
inconsistent with the general principle upon which the liability is
founded; to hold that the defendants were not responsible for the
money lost in the present case. 2 Kent, Com. 592 to 594; Story on
Bailm., §§ 478, 481 ; Sneider «. Geiss, 1 Yeates, 35.
[A part of the opinion relating to alleged negligence of the guest is
omitted.]
All the exceptions are overruled, and judgment must be rendered on
the verdict for the plaintiffs.
WILKINS V. EARLE.
44 N. Y. 172 ; 4 Am. R. 655. 1870.
Appeal from a judgment of the Superior Court of the city of New
York, on the verdict of a jury, with special findings of fact, and excep-
tions taken at the trial, heard at the General Term, in the first in-
stance.
The plaintiff became the guest of the defendants, at their hotel in the
238 INNKEEPEKS.
city of New York, on the evening of the 20th of April, 1863. Soon after
his arrival he delivered to the servant of the defendants, who apparently
had charge at the office, a sealed envelope containing $20,000, which
the plaintiff requested the servant to deposit in a safe kept by the defend-
ants at the office for the safe keeping of money, jewels and valuables
belonging to their guests. The package was placed in the safe, which
was then locked in the plaintiff's presence. A notice was posted in
the room assigned to the plaintiff, that packages of value should be
properly labeled and deposited in an iron safe kept, at the office for that
purpose. A copy of the act, entitled " an act to regulate the liability
of hotel keepers," passed in 1855, was also posted in the room.
The servant, on receiving the package, inquired what it contained,
and the plaintiff answered "money." No further information as to
the contents was asked or given. On the following morning, when
the plaintiff called for his package, it could not be found, and has never
been returned to him.
The servant, who was within the office the previous evening, rose
before the defendants, and obtained from one of them the key of the
safe, and was seen to open it and take out some property of the defend-
ants and afterward lock it. The defendant who had handed him the
key, came to the office very soon afterward, but the servant had then
absconded; and, although diligent search was made for him by detec-
tives, employed for the purpose, he has not since been seen by the parties,
nor have they obtained any information whither he has gone or where
he can be found.
[A part of the statement, and the opinion of Leonard, C, are omitted.]
Hunt, C. It is established by the verdict, that on the evening of
April 20th, 1863, the plaintiff deposited with the agent of the defendant,
for safe keeping in his vault, a package of the value of about $21,000 ;
that the person to whom the same was delivered, forthwith deposited
the package in the safe provided for that purpose by the defendants
pursuant to their notice; that the person to whom the package was
delivered, was authorized by the defendants to receive the same on their
behalf, for the purpose of deposit in their safe. Upon delivering the
package to the clerk in the office, the plaintiff testifies, that he wrote
his name upon the same, that the clerk inquired its contents, to which
the plaintiff replied, that it contained money, that without further
inquiry, the clerk deposited the same in the safe. The plaintiff then
asked for a check or a receipt, to which the clerk replied, that they
never gave checks, but required the applicant upon demanding his
property, to identify it. The jury found a verdict for the value of the
package thus delivered, and which, upon demand the next morning,
the defendants failed to return to the plaintiff.
The judge, at the trial, held that under these circumstances, the de-
fendants were responsible, if at all, for the entire value of this package.
At the General Term, the court held that the defendants were respon-
LIABILITY FOE GUEST's PROPERTY. 241
innkeeper, for the value of certain packages of silk which the plaintiff
had and exposed for sale. The defence was attempted on the ground
that the plaintiff had taken the goods under his own protection in his
private room. It was not argued that the circumstance that the goods
were articles of merchandise afforded a defence.
Of the same character are the reports in our own State. Clute v.
Wiggins (14 J. R. 175) [200] was this : The plaintiff came to the defend-
ant's inn with a load of wheat and barley, and was received as a guest
for the night. The horses were put into the stable, and his sleigh with
its contents into a wagon-house, where it was usual for the defendant to
receive loads of that description. The next morning it was discovered
that the wagon-house had been broken open, and the wheat and barley
stolen. The innkeeper made two points : 1. That the goods had not
been delivered into his special custody. 2. That he derived no profit
from keeping the wheat. The recovery for the value of the grain was
sustained.
In Hallenbake v. Fish (8 Wend. 547), the plaintiff stopped with
his horse at the defendant's inn, and upon calling for his horse, his saddle
and bridle could not be found. The plaintiff brought trover for the
saddle and bridle. The Supreme Court held, that in trover, he must
prove an actual conversion, and that a conversion was not sufficiently
proved. They say, that upon the facts presented, there could be no
doubt that an action on the case upon the custom, would have lain
against the defendant.
In Piper v. Many (21 Wend. 283), the plaintiff, with his horses and
a sleigh load of butter, stopped at the defendant's inn. A portion of
his biitter was stolen during the night. The defendant endeavored
to protect himself on the ground, that the butter was not brought within
the inn, but was left in the yard. The court held the defendant liable.
So recently as the year 1865, in Hulett v. Swift (35 N. Y. R. 571)
[212], a similar case was presented. The plaintiff's servant, with his
horses, wagon, and a load of buckskin goods, stopped for the night at
the defendant's inn. A fire occurred during the night, by which the
property was destroyed. It did not appear how the fire originated,
and there was no evidence of negligence on the part of the defendant.
The defendant was held to be responsible.
On the general principle, see also. Story Com. §§ 480-481 ; 2 Bl.
Com. 430 ; 2 Kent's Com. 593.
The cases cited, show that the distinction contended for by the de-
fendant's counsel cannot be maintained. I am not aware of a single
reported case which' sustains it, nor of any elementary writer, who gives
countenance to it.
It is true, that the days of violence, which in early times required
this protection to the traveller, have passed away. It is not certain,
however, that we are less exposed to fraud. We may have grown wiser
and better than our fathers. It is to be hoped that we have. It may
242 INNKEEPERS.
be, however, a change of manners rather than of morals. The day of
the two-handed broad-sword had gone by ; that of sleight-of-hand and
finesse has come in. A guest is in less danger of being robbed and
murdered, but possibly not of being cheated. He is now required to
place his money and his valuables in the actual custody of his host, as
a condition of a protection for his money and jewels. (Laws 1855.)
The law makes no provision for any evidence of this deposit. In the
case before us, the clerk declined to give any. He deposits his money,
and that is all he knows about it, and he can do nothing toward its
protection. May the innkeeper say that he has been robbed, and that
he is thereby excused ? Who has robbed him, a stranger or his servant ?
May he say that the amount is too large ? He has ample means of
protecting it. If his servants and himself are honest, the money is
safe in its deposit. This honesty he is bound to guaranty. The guest
is quite in the power of the host, and unless the ancient rule is main-
tained, the danger to the public will be great. I see nothing in the
present condition of society, or modes of doing business, that calls
for its relaxation.
[A portion of the opinion relating to some minor points is omitted.]
Upon the whole case, I am of the opinion that the order of the General
Term, directing judgment for $1000, be reversed, with costs, and the
judgment be entered upon the verdict of the jury, with costs.
All concur.
Judgment reversed, and judgment ordered for the plaintiff for
$21,649.27, and interest from the rendition of the verdict.
FISHER V. KELSEY.
121 U. S. 383 ; 7 S. C. Rep. 929. 1887.
This was an action at law. Judgements for defendants. Plaintiffs
sued out this writ of error. The case is stated in the opinion of the
court.
Mr. Justice Harlan. By the general statutes of Missoiu-i of 1865,
c. 99, it was provided that —
§ 1. "No innkeeper in this state, who shall constantly have in his
inn an iron safe, in good order, and suitable for the safe custody of
money, jewelry, and articles of gold and silver manufacture, and of the
like, and who shall keep a copy of this chapter printed by itself, in large,
plain English type, and framed, constantly and conspicuously suspended
in the office, bar-room, saloon, reading, sitting, and parlor room of his
inn, and also a copy printed by itself in ordinary size plain English
type posted upon the inside of the entrance door of every public sleep-
ing-room of his inn, shall be liable for the loss of any such articles
LIABILITY FOE GUESt'S PROPERTY. 243
aforesaid suffered by any guest, unless such guest shall have first offered
to deliver such property lost by him to such innkeeper for custody in
such iron safe, and such innkeeper shall have refused or omitted to take
it and deposit it in such safe for its custody, and to give such guest a
receipt therefor.
§ 2. " No innkeeper in this state shall be liable for the loss of any
baggage or other property of a guest caused by fire not intentionally
produced by the innkeeper or his servants ; but innkeepers shall be
liable for the losses of their guests caused by the theft or negligence of
the innkeeper, or of his servants, anything herein to the contrary not-
withstanding."
The last section was amended by an act approved April 1, 1872, so
as to read : " No innkeeper in this state shall be liable for the loss of
any baggage or other property of a guest caused by fire not intention-
ally produced by the innkeeper or his servants ; nor shall he be liable
for the loss of any merchandise for sale or sample belonging to a guest,
unless the guest shall have given written notice of having such mer-
chandise for sale or sample in his possession after entering the inn, nor
shall the innkeeper be compelled to receive such guest with merchandise
for sale or sample. But innkeepers shall be liable for the losses of their
guests caused by the theft of such innkeeper, or his servants, anything
herein to the contrary notwithstanding."
William M. Fisher, having in his possession, as a travelling salesman
for the firm of which he was a member, certain goods, consisting mainly
of gold chains, chain trimmings, and necklaces, was received, with his
goods, into the Planters' House, in St. Louis — a public inn kept by
the defendants in error — and was supplied, at his own request, with a
room in which such articles could be exhibited to customers. During
his occupancy of the room for that purpose, $12,626.32 in value of the
articles were, without his knowledge, taken and carried away, so that
they could not be recovered. It does not appear that the loss was
attributable to the neglect either of Fisher or of the innkeepers. Al-
though the nature of his business was well known to the defendants,
and they were aware that the articles in question were brought into the
hotel to be exhibited for sale, in a room to be occupied for that purpose,
written notice was not served upon them that Fisher had "such mer-
chandise for sale or sample in his possession after entering the inn."
In this action, brought to recover the value of the goods stolen or lost,
the court held that such a notice was required, by the statutes of Mis-
souri, in order to fix liability upon the innkeeper. The jury having
been so instructed, there was a verdict and judgement for the defendants.
Although Fisher was received by the defendants into their hotel,
as a guest, with knowledge that his trunks contained articles having
no connection with his comfort or convenience as a mere traveller or
wayfarer, but which, at his request, were to be placed on exhibition or
for sale, in a room assigned to him for that purpose, they would not.
244 INNKEEPERS.
under the doctrines of the common law, be held to the same degree of
care and responsibility, in respect to the safety of such articles, as is
required in reference to baggage or other personal property carried by
travellers. He was entitled, as a traveller, to a room for lodging, but
he could not, of right, demand to be supplied with apartments in which,
to conduct his business as a salesman or merchant. The defendants
being the owners or managers of the hotel, were at liberty to permit the
use by Fisher of one of their rooms for such business purposes, but they
would not, for that reason and without other circumstances, be held
to have had his goods in their custody, or to have undertaken to well
and safely keep them as constituting part of the property which he
had with him in his capacity as guest. Kent says that, "if a guest
applies for a room in an inn, for a purpose of business distinct from his
accommodation as a guest, the particular responsibility does not ex-
tend to goods lost or stolen from that room." 2 Kent, Com. 596.
See also Myers v. Cottrill, 5 Bissell, 465, 470, Drummond, J. ; Story
on Bailments, § 476 ; Burgess v. Clements, 4 M. & S. 306 ; Redfield
on Carriers and Bailees, 443 ; Addison, Law of Contracts, 6th ed., 360.
Such, we think, was the state of the law in Missouri prior to the-
passage of the act of 1872. That act prescribes the conditions upon
which an innkeeper in that state may be made liable for the loss of
merchandise belonging to a guest, and brought into the hotel only
to be exhibited or sold. In view of the large and constantly increasing
business transacted by travelling salesmen, the legislature of Missouri
deemed it just to all concerned, that their relation with innkeepers,
in respect to goods carried by them, should be clearly defined and not
left to depend upon mere inference or usage. The statute makes the
innkeeper responsible, in every event, for the loss of baggage or other
property of the guest by fire, intentionally produced by the innkeeper
or his servants, or by the theft of himself or servants. But since the
innkeeper is not ordinarily bound to the same care for the safety of
goods, in the possession of a guest for the purpose merely of being exhib-
ited or sold, as for articles carried by the latter for his comfort or con-
venience as a traveller, the statute changed the rule so as to make his-
responsibility the same in both cases; provided, in the former case,
the person received as a guest gives written notice that he has mer-
chandise for sale or sample in his possession in the hotel ; leaving the
innkeeper, upon such notice, to elect whether he will permit the guest
to remain in the hotel with such merchandise for sale or sample. Notice
in this form, when the guest is permitted to remain in the hotel with
merchandise in his possession "for sale or sample," is made by the
statute evidence that the innkeeper has assumed responsibility for the
safety of such merchandise, to the full extent that he is bound by the
settled principles of law for the safety of the baggage or other articles
brought by guests into the hotel.
It is suggested that the purpose of the act of 1872 was to protect
KEGULATIONS. 245
innkeepers, and, therefore, actual knowledge that a guest has in his
possession merchandise for sale, or, at least, the consent of the inn-
keeper to the guest's use of a room in his hotel for such purpose, should
be deemed sufficient to fasten upon the innkeeper responsibility for the
safety of such merchandise. It seems to us that the statute is equally
for the benefit of travelling salesmen. Be this as it may, as the law
in regard to the liability of an innkeeper is one of extreme rigor, he
should not be held to any responsibility beyond that arising from the
relation of innkeeper and guest, unless, at least, the circumstances show
that he distinctly agreed to assume such additional responsibility.
There is no pretence in this case that the defendants made an express
agreement of that character. Nor can such an agreement be implied
merely from the knowledge on the part of the innkeeper that a guest
has in his possession in the hotel, for exhibition or sale, merchandise
for the safe custody of which he is not ordinarily responsible. Such
knowledge implies nothing more upon the part of the innkeeper than
his assent to the use of his rooms for purposes of that kind.
If as to such merchandise, it is intended to hold the innkeeper to the
strict liability imposed, at the common law, in respect to the baggage
or other personal property of a guest, the statute indicates the mode
in which that intention must be manifested. The guest must give notice
of such intention. And as the notice is expressly required to be in
writing, no other form of notice can be deemed a compliance with
the statute. Porter v. Gilkey, 57 Missouri, 235, 237. With the rea-
sons which induced the legislature to prescribe a written notice in order
to fix upon the innkeeper responsibility for the safety of merchandise
carried by travelling salesmen for sale or sample, we have nothing to
do. The law of Missouri is so written, and it is our duty to give it
effect according to the fair meaning of the words employed.
It results that the court below did not err in refusing the instruction
asked by the plaintiffs, but correctly held that the absence of the written
notice required by the act of 1872 was fatal to their right to recover.
The judgment is
Affirmed.
5. REGULATIONS.
MARKHAM v. BROWN.
8 N. H. 523 ; 31 Am. D. 209. 1837.
Trespass, for breaking and entering the plaintiff's house, in Hanover,
being a common inn, and making a noise and disturbance therein,
and assaulting and beating the plaintiff at sundry times between the
first of July, 1835, and the date of the writ, which was October 8, 1835.
246 INNKEEPERS.
Plea, the general issue, with the brief statement that the defendant
was the driver of a stage coach, and entered the plaintiff's house to
enquire for passengers, and that the force, if any, was the plaintiff's
own assault.
Paekek, J. An innkeeper holds out his house as a public place to
which travellers may resort, and of course surrenders some of the rights,
which he would otherwise have over it. Holding it out as a place of
accommodation for travellers, he cannot prohibit persons who come
under that character, in a proper manner, and at suitable times, from
entering, so long as he has the means of accommodation for them.
But he is not .obliged to make his house a common receptacle for
all comers, whatever may be their character or condition. He is not
obliged to receive one who is not able to pay for his entertainment
(3 Barn. & Aid. 283, Thompson v. Lacy) ; and there are considerations
of greater importance than this. He is indictable if he usually harbor
thieves (1 Hawk. Ch. 78, sect. 1 ; Bac. Ab., Inns. &c.) and he is answer-
able for the safe keeping of the goods of his guests (Story on Bailment,
307), and is not bound to admit one whose notorious character as a
thief furnishes good reason to suppose that he will purloin the goods of
his guests, or his own.
So he is liable if his house is disorderly (1 Hawk. 451), and cannot
be held to wait unless an affray is begun before he interpose, but may
exclude common brawlers, .and any one who comes with intent to com-
mit an assault or make an affray.
So he may prohibit the entry of one whose misconduct in other particu-
lars, or whose filthy condition, would subject his guests to annoyance.
He has a right to prohibit common drunkards and idle persons from
entering, and to require them, and others before mentioned, to depart,
if they have already entered.
And any person entering not for a lawful purpose, but to do an un-
lawful act — as to commit an assault upon one lawfully there — must
be deemed a trespasser in entering for such unlawful purpose.
As he is bound to admit travellers, under certain limitations, he may
likewise be held, under proper limitations, to admit those who have
business with them as such. This may be considered as derived from
the right of the traveller. It is conceded that he may be bound to per-
mit the entry of persons who have been sent for by the guest. But we
think the rule is not to be limited, in all cases, to this. There may be
such connection between tra-vellers and those engaged in their convey-
ance, that the latter, although not specially sent for, may have a right
to enter a common inn ; or such that the landlord, if he give a general
license to some of those whose business is connected with his guests,
in their characters as travellers, cannot lawfully exclude others, pursu-
ing the same business, and who enter for a similar object.
There seems to be no good reason why the landlord should have the
power to discriminate in such cases, and to say that one shall be admitted
UEN. 255
request of the defendant, paid the freight charges on the piano, and
took it into his custody ; that the piano was in fact the property of a
third person, who had consigned it to the defendant to sell on commis-
sion, but that the plaintiff did not know it was the property of such
third person, but received it in his character as an innkeeper and as
the property of his guest. Upon this state of facts, we are to inquire
whether the piano is chargeable with an innkeeper's lien for board and
lodging furnished his guest.
At common law, the liability of an innkeeper for the loss of the goods
of his guest is special and peculiar, and like that of the common carrier,
is founded on grounds of public policy. It must not, however, be con-
founded with that of a common carrier ; the liabilities, though similar,
are distinct. (Clark v. Burns, 118 Mass. 275 [347] ; Schouler on Bail-
ments, 259.) Whatever controversy may exist in the judicial mind as
to the true measure of the innkeeper's responsibility, it cannot be denied
that his liability for the loss of the goods of his guest is extraordinary
and exceptional. (Schouler on Bailments, 261, and notes; Coggs v.
Bernard, 1 Smith's Lead. Cas., Am. Notes, 401 [4].) Compelled
to afford entertainment to whomsoever may apply and behave with
decency, the law, as an indemnity for the extraordinary liabilities which
it imposes, has clothed the innkeeper with extraordinary privileges.
It gives him, as a security for unpaid charges, a lien upon the property
of his guest, and upon the goods put by the guest into his possession.
(Overton on Liens, 129.) Nor is the lien confined to property only
owned by the guest, but it will attach to the property of third persons
for whom the guest is bailee, provided only he received the property
on the faith of the innkeeping relation. (Schouler on Bailments, 292 ;
Calye's Case, 1 Smith's Lead. Cas. 247 [163] ; Manning v. Hollenbeck,
27 Wis. 202.) But the lien will not attach if the innkeeper knew the
property taken in his custody was not owned by his guest, nor had any
right to deposit it as bailee or otherwise, except perhaps some proper
charge incurred against the specific chattel.
In Broadwood v. Granara, 10 Exch. 417, the innkeeper knew that the
piano sent to the guest did not belong to him, and did not receive it as
part of the guest's goods ; and it was on that ground alone he was held
not entitled to his lien. But in Threfall v. Borwick, L. R. 7 Q. B. 210,
where the innkeeper had received the piano as part of the goods of his
guest, it was held he had a lien upon it. Miller, J., said : "When, hav-
ing accommodation, he has received the guest with his goods, and there-
by has become liable for their safe custody, it would be hard if he was
not to have a lien upon them. And under such circumstances, the
lien must be held to extend to goods which he might possibly have
refused to receive." Lusk, J., said : "I am of the same opinion. The
innkeeper's lien is not restricted to such things as a traveling guest
brings with him in journeying ; the contrary has been laid do^Ti long
ago. It extends to all goods the guest brings with him and the innkeeper
256 INNKEEPERS.
receives as his. If he has this lien as against the guest, the cases have
established beyond all doubt that he has the same right as against the
real owner of the article, if it has been brought to the inn by the guest
as owner." To the same effect, Quain, J., said : " There is no authority
for the proposition that the lien of the innkeeper only extends to goods
which a traveler may be ordinarily expected to bring with him. . . .
The liability, as shown by the old cases, extends to all things brought
to the inn as the property of the guest and so received, even a chest of
charters or obligations ; and why not a pianoforte ? If, therefore, the
innkeeper be liable for the loss, it seems to follow he must also have a
lien upon them. And if he has a lien upon them as against the guest,
the two cases cited (and there are more) show that if the thing be
brought by the guest as owner, and the landlord takes it in thinking
it is the guest's own, he has the same rights against the stranger, the
real owner, as against the guest." Upon appeal from the decision of
this case, in Threfall v. Borwick, L. R. 10 Q. B. 210, it was held, affirm-
ing the decision, that whether the defendant, as innkeeper, was bound
to take in the piano or not, having done so, he had a lien uj)on it. Al-
though there are certain dicta not necessary to the decision in Broadwood
V. Granara, 10 Exch. 417, to the effect that the innkeeper was not bound
to receive the piano, yet the real ground of the decision was based on
the fact that the innkeeper knew that the piano sent to his guest was
the property of a third person, and did not, therefore, receive it as part
of his guest's goods, that the right to subject the piano to his lien was
denied ; but e converso, if he had not known the piano was the property
of a third person, and had received it as the property of his guest, would
not his lien have attached ? It is not material whether the innkeeper is
bound to receive such property, or not, although it is said the liability
may be well extended, according to the advanced usages of society;
yet if he does receive as the property of his guest, and thereby becomes
liable for it, he must be entitled to his lien. (Threfall v. Borwick,
supra.)
Whenever, by virtue of the relation of innkeeper and guest, the law
imposes this extraordinary responsibility for the goods of the guest,
it gives the innkeeper a corresponding security upon the goods put by
the guest into his possession. It is true that the piano was shipped to
the defendant in his name, but he brought it to' the inn as his property,
or at least it was brought there at his request and upon his order, and
put in the custody and possession of the plaintiff as the property of his
guest. It is admitted that the plaintiff received it as an innkeeper,
and safely kept it as the property of his guest ; nor is it doubted but
what he would have been liable for its loss ; and in such case, it is diffi-
cult to perceive upon what principle of law or justice he can be denied
his lien. The judgement must be affirmed.
[Dissenting opinion of Thayer, J., omitted.]
LIEN. 257
SINGER MANUFACTURING CO. v. MILLER.
52 Minn. 516 ; 55 N. W. R. 56 ; 38 Am. St. R. 568. 1893.
Appeal by defendant, Christopher C. Miller, from a judgement of the
District Court of Hennepin County, Canty, J., entered September 26,
1892, against him for $46.
Defendant kept a public inn in Minneapolis called the Hotel Grace.
On December 1, 1890, Carl Van Raden, his wife and two children
were received by defendant as boarders, at $15 per week. They re-
mained until June 8, 1891. Among the effects which they brought to
the inn was a Singer sewing machine. When they left. Van Raden
owed $240.50 balance for their board. The defendant detained his
goods, claiming a lien on them for this sum. The plaintiff, the Singer
Manufacturing Company, then appeared and demanded the machine,
claiming that it owned it and had leased it to Van Raden, and given
him an option to buy it for $25. Defendant had not before heard of
this claim, but supposed Van Raden owned the machine. He refused
to give it up, and the company brought this action in a Justice's Court,
and at the trial proved its ownership, but was there defeated. Plain-
tiff then appealed to the District Court, where the facts were admitted
to be as above stated. The judgement of the justice was reversed, and
judgement entered for the plaintiff, on the ground that Van Raden was
a boarder and not a guest. The defendant appeals to this court.
Vandeeburgh, J. The court below found the facts as stipulated
by the parties in the agreed statement of facts, as submitted, and, as
a legal conclusion, that the plaintiff was entitled to judgement. The
defendant claimed an innkeeper's lien upon the chattel in controversy,
a sewing machine, on the ground that it was brought to his hotel by a
guest, who, it now appears, had contracted to purchase the same of
plaintiff, but the title had not passed, though the possession had been
delivered. The defendant, however, had no notice of the plaintiff's
claim, and insists upon his lien thereon, with other goods of the guest,
for the amount of his bill.
The plaintiff's counsel does not seriously contest the proposition that
an innkeeper may have such lien on goods in the possession of his guest
infra hospitium, though they belong to a third person, provided the
innkeeper has no notice of that fact.
If the innkeeper's liability would attach in case the sewing machine
were lost or stolen, it would seem but just to hold that his lien attaches
whenever there is a corresponding liability. Schouler, Bailm., § 292 ;
Manning v. HoUenbeck, 27 Wis. 202 ; Threfall v. Borwick, L. R. 7
Q. B. 711.
The respondent, however, claims that the judgement may be sup-
ported on the ground that the findings of fact show that the party who
brought the machine to defendant's hotel was received as a boarder,
258 INNKEEPEES.
and remained there as such, and not as a traveler or guest. The evi-
dence is not here, and so the question is not whether it would support
a finding either way, but whether it appears from the stipulated facts,
which are adopted as the findings in the case, that he was a guest. To
entitle the defendant to assert his innkeeper's lien, he must have
received the property as the goods of a guest, but this does not appear,
and there is no such finding. It appears from the agreed statement
that he received the party, his wife, and two children as boarders and
lodgers, and that they continued to board and lodge with him for about
six months at the rate of $15 per week, and that is all. This does not
affirmatively establish the relation of guest and innkeeper, so as to sub-
ject him to the liability, or give him the rights incident thereto.
Error must appear.
Judgement affirmed.
ROBINS V. GRAY.
[1895] 2 Q. B. 501 (C. A.) 1895.
Kat, L. J. In this case the appellants bring their action for the deten-
tion of certain sewing-machines of which they are the owners. The
defense is, " I am an innkeeper ; the goods in question came into my
possession as the goods of a guest at my inn, and I have a lien upon
them for the unpaid bill of that guest." Replication, "You knew that
they were not his goods ; you had notice that they did not belong to
him, but that they belonged to us, the plaintiffs." The question is,
whether that is a good replication. The facts are: The appellants'
traveller went to the inn taking some sewing-machines with him, and
stayed there. Whilst there other machines were sent to him by his
employers, and those machines were received by the innkeeper, and
were taken care of by him, and were in his possession. The traveller
left without paying his bill for board and lodging at the inn. I agree
with Wills J. that the fact that some of the machines were sent to the
inn after the traveller had gone there does not make any difference;
because the innkeeper accepted them as he had accepted the machines
originally brought to the inn by the traveller — that is, as the goods
of the traveller — I do not mean his property, because the innkeeper
knew that they were the property, not of the traveller, but of his
employers. Now, we have had an elaborate argument, and various
cases have been cited in support of the appellants' case. We asked
counsel if he knew of a single case in which it had been held that an
innkeeper could refuse to take in goods of an ordinary description
brought to his inn by a commercial traveller for sale in the neighbor-
hood. No case of that kind has been cited or could be found, although
this business of commercial travellers has been carried on for a very
LIEN. 259
great length of time, and so largely that there is scarcely an inn in Eng-
land to which commercial travellers do not go with the goods of their
employers, ^hat fact is suggestive in considering the contention now
put forward. Further, there is no case to be found in the books to
shew that an innkeeper would not be liable in the ordinary way for the
loss of such goods so brought to his inn by a commercial traveller, and
so taken in by himself. It is, therefore, clear that, if a commercial
traveller goes to an inn with goods as his luggage which are the ordi-
nary goods for sale of a commercial traveller, and the innkeeper takes
him and his goods in, the innkeeper's liability in respect of those goods
would be the same as in respect of the personal luggage of the traveller, i
That being undoubted, we have to consider whether the innkeeper's
lien is defeated by reason of the fact that when he took the goods in he
knew, or had had notice, that they were the property, not of the com-
mercial traveller, but of his employers. The law is stated in Robinson
V. Walter, 3 Bulstr. 269, by Dodderidge J., when the case first came be-
fore him, thus : " This is a common inn, and the defendant a common
innkeeper, and this his retainer here is grounded upon the general cus-
tom of the land : He is to receive all guests and horses that come to his
inn : He is not bound to examine who is the true owner of the horse
brought to his inn ; he is bound, as he is an innkeeper, to receive him,
and therefore there is very great reason for him to retain him, until
he be satisfied for his meat which he hath eaten ; and that the true
owner of the horse cannot have him away, until he have satisfied the
innkeeper for his meat." That is a distinct statement that this law of
an innkeeper's lien is founded on the general custom of the land, and
that an innkeeper is not bound to inquire to whom the goods which a
guest brings to the inn belong, but is bound to receive them. •
The case of Broadwood v. Granara, 10 Ex. 417, was chiefly relied on
for the appellants. There a guest staying at an inn went to a shop-
keeper in the town and hired a piano, which was sent to him at the inn
for the purpose of playing on it during his stay there, and the inn-
keeper knew that the piano was so hired for that purpose, and allowed
it to be brought into his inn. The Court held that he had no lien upon
it; but the ground of the decision is stated as clearly as possible in
the judgements. Pollock C. B. said (at p. 422) : "This is the case of
goods, not brought to the inn by a traveller as his goods, either upon
his coming to or whilst staying at the inn, but they are goods furnished
for his temporary use by a third person, and known by the innkeeper
to belong to that third person. I shall not inquire whether, if the '
pianoforte had belonged to the guest, the defendant would have had a
lien on it. It is not necessary to decide that point, for the case finds
that it was known to the defendant that the pianoforte was not the
property of the guest, and that it was sent to him for a special purpose.
Under these circumstances, I am clearly of opinion that the defendant
has no lien." Parke B. (at p. 423) said : " It is not necessary to advert
260 INNKEEPERS.
to the decisions on the subject of an innkeeper's lien, because this is not
the case of goods brought by a guest to an inn in that sense in which,
the innkeeper has a lien upon them; but it is the case of goods sent
to the guest for a particular purpose, and known by the innkeeper to
be the property of another person. It therefore seems to me that there
is no pretence for saying that the defendant has any lien." Then fol-
low words which are sufficient to determine the case before us : " The
principal on which an innkeeper's lien depends is, that he is bound
to receive travellers and the goods which they bring with them to the
inn. Then, inasmuch as the effect of such lien is to give him a right to
keep the goods of one person for the debt of another, the lien cannot be
claimed except in respect of goods which, in performance of his duty
to the public, he is bound to receive." An analogous case to that was
put by the Master of the Rolls during the argument of the present
case. Suppose a jeweller in the town sent, with the knowledge of the
innkeeper, certain jewels to a guest at the inn on approval, and allowed
them to remain in the inn for some days — could the innkeeper claim
and enforce a lien upon those jewels ? I should think he could not»
because they were sent for a special temporary purpose, and the inn-
keeper knew it ; they were, therefore, not sent as the goods — I do not
mean as the property — of the guest ; they were not goods which he
was likely to take about with him as his luggage. But, in the case
before us, the goods were received into the inn as the kind of goods with
which the guest was accustomed to travel in his employment as a com-
mercial traveller ; and they were the kind of goods which the innkeeper
would be bound to receive without inquiring — and he had no right to
inquire — to whom they belonged. If we were to hold that the inn-
keeper had no lien upon them we should be effecting a complete revolu-
tion in the custom of the land, in accordance with which an innkeeper,
who receives into his inn commercial travellers with the goods of their
employers which the travellers bring there in the course of their busi-
ness, is accustomed to believe, and has a right to believe, that he has a
lien upon those goods.
[Opinions of other judges omitted.]
Appeal dismissed^
POSTAL OFFICERS. 261
YI. POSTMASTERS AND CARRIERS OF MAIL.
1. POSTAL OFFICERS.
LANE V. COTTON.
King's Bench. 1 Ld. Raym. 646. 1701.'
The plaintifiF brought an action upon his case against the defendants
as post-master general, for that, that a letter of the plaintiff's, being
delivered into the said office, to be sent by the post from London to
Worcester, by the negligence of the defendants in the execution of their
office, was opened in the office, and divers exchequer bills therein in-
closed were taken away, ad damnum, &c. Upon not guilty pleaded,
this case was tried before Holt, chief justice at Guildhall in London,
and a special verdict found there.
The jury found the act of 12 Car. 2. c. 35. of the erection of the gen-
eral post-office, and that a general post was established pursuant to it
between London and Worcester : they find the act of 1 Jac. 2. c. 12.
which consolidates the estates in fee and in tail in the said office in the
king; that the defendants were constituted post-master general by
letters patent of the king that now is, bearing date the first year of his
reign under the great seal of England, pursuant to the said act of 12
Car. 2. c. 35. and that by the said patent they had power to make
deputies, and to appoint servants, at their pleasure, and to take security
of them, but in the name, and to the use of the king, and that the
defendants should obey such orders as they should receive from time to
time from the king under the sign manual, and as to the management
of the revenue, that they should obey the orders of the treasury, and
farther that the king granted to them, that they should not be charge-
able, to account for the mismanagement or default of their inferior offi-
cers, but only for their own voluntary defaults ; and farther the king
granted to them the salary of 1500 I. per annum out of the profits aris-
ing out of the office, &c., that the office was kept in London ; that the
plaintiff being possessed of eight exchequer bills, enclosed them in a
letter directed to John Jones, at Worcester, and delivered it to Under-
bill Breese, the receiver of the letters at the post office ; that Breese was
appointed by the defendants to receive the letters at the office, and was
removable by the defendants, but received his salary out of the revenue
of the said office by the hands of the receiver-general ; that the letter
« Also reported : Comyn, 100 ; 5 Mod. 455 ; 11 Mod. 12 ; 12 Mod. 482 ; 1 Salk.
17 ; Holt, 582 ; Carth. 487.
262 POSTMASTEKS AND CARRIERS OF MAIL.
was opened in the office by a person unknown, and the bills were taken
away ; et si, &c.
This case was argued several times at the bar by Sir Bartholomew
Shower, Mr. Northey, and Mr. Pratt, for the plaintiff; and by Ser-
jeant Wright, the solicitor general Hawles, and the attorney general
Trevor, for the defendants. And now this term the judges pronounced
their opinions in solemn arguments, viz. Turton, Powys, and Gould,
justices, that the judgment ought to be given for the defendants : and
Holt that judgment ought to be for the plaintiff.
Gcmld justice said, that at first he was of opinion with the plaintiff,
and now upon great consideration he had changed it. And he founded
his present opinion upon consideration, 1 . Of the design of the act, and
nature of the office, which is stiled in the act a letter office, and not
regarded there as an absolute security for dispatches, but for promotion
of trade in procuring speedy dispatches. If a letter had barely mis-
carried, the defendants could not have been chargeable for it; for
tho there is property in a letter, yet it is not a valuable property, for
which a man shall recover damages. Letters in their nature are missive,
and transient from hand to hand, and therefore difficult, if not impos-
sible, to be secured. And therefore he denied the assertion at the .bar
that the action would lie for the miscarriage of a letter, like Yelv. 63.
where it is held, that the value of the bond is that of the debt, not of
the wax and paper. Which determines this case, because the ex-
chequer bills being inclosed in a letter (though they are bills of credit,)
yet are estimable only as a letter. For whatsoever is carried by the
post, has the denomination of a letter.
2. If anything can support this action, it must be a contract expressed
or implied ; but here is neither the one nor the other. The security of
the dispatches depends upon the credit of the office, as founded upon
the act. Breese is as much an officer as the defendants, but they are
more general officers. But Breese is the king's officer, and if there is
any contract, it is between the plaintiff and Breese ; which appears by
the act, which appoints several acts for all, and puts confidence in all.
And therefore they resemble a community of officers acting in several
trust ; and every one shall answer for himself, not one for the act of an-
other ; as in case of a dean and chapter, 1 Edw. 5. 5. a. If the defendants
had died, yet Breese would have continued officer ; and therefore Breese
has a charge and trust of himself, and is not a deputy to the defendants.
3. This office is founded in government, and reposed in the king;
and it cannot be answerable for defaults, but the remedy is, upon
application to the king to procure the officer to be turned out. Dier,
238. In the act, par. 10. and 15. penalties are imposed upon the post-
master general for default in his office, so that the parliament has pro-
vided punishment, and did not intend, that he should be liable to
actions. In par. 7. the act appoints the delivery of letters, &c. brought
by masters of ships, &c. from beyond the sea to the deputies of the
POSTAL OFFICERS. ' 263
post-master; which shews that the act did not intend, to charge -the
post-master general. And the inconvenience recited to have happened
before by miscarriage of letters, par. 6. seems to shew, that no action lay
for the miscarriage of a letter ; and then this act did not design to give
a greater security by any other means than by alteration of the method.
4. It is inconsistent with the nature of the thing, that the post-master
general should be liable, because they could not give caution of the
receipt of a letter to be sent by the post, as the master of a ship, inn-
keeper, or carrier, may of the receipt of goods. Besides, that this office
is so extensive, and requires such a number of servants, &c. speed in
conveyance, journeys by day and night, when there is no guard in the
country ; and therefore it resembles the case of piracy, which is damnum
fatale. 4 Co. 84. Robbery a good plea for a factor, because he is
obliged to expose the goods to sale, and hath them not in safe custody,
as a bailee hath. An innkeeper shall not answer for a horse of a guest
put to grass by his order for the same reason. Plowd. 308. h, gives the
reason, why a parol promise shall not bind without consideration, be-
cause it passed lightly from a man without deliberation. So here, all
is done in a hurry, and then a letter may easily be taken away and the
plaintiff is no stranger to the difficulties.
5. Objection. 1 Vent. 190. 238. Answer. The reasons of the
said case do not hold here. For here the defendants have only a salary
for executing of part of the office. It is the recompense that binds the
contract. Now that is properly, where it is variable according to the
hazard ; but here the reward is settled, and so small that it is not pro-
portionable to the hazard. As to the second reason given there, that
the master is an officer ; that is not the only reason, though the action
would not lie, if he was a servant. 3. The post-master general cannot
give caution for the receipt of a letter.
6. The trust is only to carry letters. And therefore Breese having
received exchequer bills which are treasure, Breese has exceeded his
authority (admitting that the defendants were chargeable by the act
of Breese) and therefore the defendants are not liable. 9 H. 6. 53. b.
Cro. Jac. 468. Doct. & Stud. 137. F. N. B. 71 /.
7. If this action lay, it would be of very mischievous consequence,
because it would expose the defendants to all the frauds of the mer-
chants men. As a man might rob the mail of that which he himself
put into a letter, and afterwards bring an action and recover it, &c.
And many of the same reasons were agreed by the other two judges,
who argued for the defendants.
Powys justice agreed, that if such an office had erected at common
law by a private man for gain, an action would have lain at common law
against him for a miscarriage. Hob. 17. Cro. Jac. 330. 1 Sid. 36.
He differed from Gould justice as to the matter of exchequer bills ;
for he held, that they were not treasure, but bare bills of credit ; and
that the word packets in the act was general, and could not be confined
264 POSTMASTERS AND CAERIEKS OF MAIL.
to any particular sort of things more than another. And therefore
jewels (by him) might be sent by the post in packets.
3. He observed, that the parliament in assessing the price had regard
only to the size or weight, and not to the value, as how many sheets or
ounces; which argues, that the parliament did not intend that the
postmaster-general should be answerable for them if they were lost.
4. He held, that an action would lie against Underbill Breese, and
therefore the plaintiff is not without remedy.
5. The express words of the patent are, that the defendants shall
not answer for the default of the inferior officers.
6. The defendants have not the power of the management of the
office according to their discretion, are but subject to the control of the
king and the treasury. And because the inferior officers are servants
of the king, and not of the defendants, their wages being paid to them
out of the revenue of the post-office, and the security taken of them in
the name of the king ; and therefore it is unreasonable, that the defend-
ants should be answerable for the acts of the inferior officers. But
it would have been otherwise (by him) if the office had been farmed.
Turton justice added, that this office was not designed for the
conveyance of things of value, and therefore it would not be material,
whether exchequer bills were treasure or not, if they were valuable.
2. Exchequer bills were newly invented, and not known at the
time of the making of the act, and therefore could not be intended to
be within it.
3. He cited a record out of MoUoy, 24 Ed. 3, n. 45. that the master
may reimburse himself out of the wages of the mariners, if the loss
happened by their negligence ; which would distinguish the case of the
master of a ship from this of the postmaster-general.
4. He cited the case of Herbert ». Pagett, Raym. 53. 1 Sid. 77. where
it was held, that an action would not lie against the custos brevium, for
so negligently keeping of the records, that a particular record was lost ;
because other clerks beside his had access to the office. And here
there are many persons who have access to the post-office. And for
these reasons these three judges held, that judgment ought to be
entered for the defendants.
Holt chief justice e contra argued, that judgment ought to be given
for the plaintiff. And he said, that he would not make it any part of
the question, if a letter was broke open upon the road, whether the post-
master-general should be chargeable for it; but he would confine
himself to the present question, where a letter was delivered at the office
to the proper officer appointed to receive it, and there lost, whether in
such case the post-master general shall be liable, and he held, that he
should, for these reasons.
1. Because the post-master is by this act intrusted with the interest
and property of the subject, to the end that no damage may accrue
to him ; which is implied by the making him an officer. The act ap-
POSTAL OFFICERS. 265
points one general letter office to be erected in London, and the care
thereof is committed to the post-master general ; who, his deputies and
servants, ought to have the management solely of the post-office. So
that all the persons concerned are as his deputies. And by the nature
of the trust he ought safely to keep all letters there at his peril in his
custody. This case does not differ from the case of the marshal of the
king's bench or warden of the Fleet, who are obliged safely to keep the
prisoners at their peril and it is no plea for them, that traitors broke the
prison against their will. 33 H. 6. 1. And the law was so at common
law in case of damages recovered in trespass quare vi et armis, and when
the statute 25 Ed. 3. c. 17. made the body liable to execution for debt,
the gaoler ought to keep such, as safely as defendants condemned for
damages in trespass w et armis. The same law, if goods levied upon
a levari facias (which was the only execution before the statute gave a
fieri facias) in execution were rescued from the sheriff, he was liable
to an action. The same law of a man in execution upon the statute
of 13 Ed. 1. St. 3. de mercatorihus. The same law, if upon an extendi
facias upon a statute merchant the goods of the conusor taken by the
sheriff were rescued from him. And there is no difference between
this case of the post-master general, and the gaoler, sheriff, &c. for he
ought safely to keep the letters delivered to him, as the others ought
safely to keep their prisoners, or goods taken in execution.
2. The subject ought to pay a premium for the carriage, to him who
makes it his employment. And when a man takes an employment upon
him, to receive the goods of the subjects, and receives a premium for
it, that is sufficient to charge him to answer the loss at all adventures,
for such losses as happen within the realm. Cro. Jac. 188. Hob. 17.
Objection by Gould justice. That this office is founded in government.
Answer. If he means, that it is founded by the law ; he could not
agree his inference, because it is only founded by a different sort of law,
viz. the one by common law, the other by statute law, which cannot
make a difference. And he did not see in what sort of government it
was otherwise founded, but only that a trust is given for the benefit of
the subject.
Objection by Gould justice. That such charge ought to be by some
sort of contract.
Answer. He denied that any contract was necessary, to charge the
defendants ; but it is like the cases, where officers by course of law
receive goods for the benefit of others, they are obliged to keep them
safely by them, so that they may have the benefit of them.
Objection. The defendants received no premium from the plaintiff.
Answer. The plaintiff gives a premium, which intitles him to a
remedy ; and against whom shall he have it, if not against the public
officer, against the post-master general, by whose negligence he suffers.
2. The defendants received a premium, viz. a salary of 1500 1, per annum
(which is a sufficient reward) paid out of the profits of the office. And
266 POSTMASTERS AND CAERIERS OF MAIL.
therefore this case is not distinguishable from the case of Mors v. Slue,
1 Ventr. 190. 238. Raym. 220. [402] in which case the objection was,
that the master of the ship did not receive the freight to his own use ;
but yet adjudged, that he was Hable for the goods of which the ship
was robbed in the river : and the reasons given were, 1. because he was
an officer known ; 2. because he received his salary out of that which
was paid for freight ; both which reasons hold in this case.
Objection. The master of the ship might take caution, &c. the
postmaster-general cannot.
Answer. He did not know how the master of the ship could take
caution, &c. It was said in the case of Mors v. Slue, that if a man came
to lade goods at an unseasonable time, he was not obliged to take them
in, as before he was ready to sail. But if he takes them in before, and
they are lost, he will be liable to an action. So a common carrier may
refuse to admit goods into his warehouse, before he is ready to take his
journey; but yet neither the one nor the other can refuse to do the
duty incumbent upon them by virtue of their public employment.
3. This case is within the reason and equity upon which the cases
are founded, in which men are chargeable for negligent keeping ; and
this is the reason, that if they should not be charged without assigning
a particular neglect, they might defraud any man, as he would not be
able to prove it; and that is the reason of the cases of carriers, &c.
And this reason is given in Justinian, lib. 4. tit. 5. Minsinger. comment,
fol. 5617. Such matter is transacted among a multitude of people and
therefore no particular of them can be charged; and therefore the
officer ought to be charged, who chuses such inferior officers. The case
of Mors V. Slue was harder, because there the servants were overcome
by a superior force.
Objection. The common carrier may sue the hundred, the post-
master general cannot sue any body.
Answer. That is no reason, because a carrier was chargeable be-
fore the statute of Winton, at which time he could not sue the hun-
dred. Besides, that he is liable, where he has no remedy against the
hundred ; as for goods lost out of his warehouse, or out of his waggon
in the yard.
Objection. The innkeeper is only chargeable for goods in his custody
within his inn, and not for a horse put to grass and therefore it differs
from this case.
Answer. Here the letter was within the walls of the post-house.
But the case of the innkeeper is stronger, because he is obliged, while
he has room, to let in all travellers. But e contra of the postmaster-
general, who may chuse his deputies and servants.
Objection. The innkeeper has people up all the night in the inn.
Answer. And the postmaster-general also in the post-office.
Objection. The case of Sir Henery Herbert and Mr Paget, 1 Sid.
77. Raym. 53.
POSTAL OFFICERS. 267
Answer. There prima facie they held the defendant chargeable,
but afterwards they were of opinion for the defendant, that he was not
chargeable, because the clerks of Mr Henley had liberty to enter into
the treasury without his consent, and so the access to the records was
not confined to his servants only. But here no body could enter into
the post-office but the servants of the defendants only. This case differs
from the loss of a letter upon the road, but to that he gave no opinion ;
for a carrier receives goods, safely to keep, and safely to carry ; but the
post-master geiieral receives the letters, safely to keep and send ; so that
there may be a question, whether the post-master shall be chargeable,
when he has safely sent the letters out of the office. But admit that he
should not be liable, when the post-boy is robbed upon the road ; yet
it will not follow, that he is not chargeable for letters taken out of the
office. In the case of Morse v. Slue, if the ship had been at sea, the
master would not have been liable ; yet it does not follow, that he shall
not be chargeable for a loss at land. If a man comes to an inn and
orders the innkeeper to put his horse into the stable, being hot, and
to let him cool, and then to put him to grass ; because the innkeeper
should not be chargeable, if he were stole after he is put to grass, it does
not follow from thence that he should not be chargeable, if he be stole
before he be turned to grass, whilst he is in the stable.
4. It is the duty of the post-master to receive exchequer bills and to
send them by the mail. For he ought to receive such packets as are
proper to be sent by the post ; and such are exchequer bills.
1. If a man takes upon him a public employment, he is bound to
serve the public as far as the employment extends ; and for refusal an
action lies, as against a farrier refusing to shoe a horse, against an
innkeeper refusing a guest, when he has room, against a carrier refusing
to carry goods, when he has convenience, his waggon not being full. He
had known such action brought, and a, recovery upon it, and never
disputed. So an action will lie against a sheriff, for refusing to execute
process. The same reason will hold, that an action should lie against
the postmaster, for refusing to receive a letter, &c.
2. Exchequer bills are proper to be sent by the post. The act does
not confine it to any specific thing, but generally of packets. It ap-
pears, that the act intended that other things should be sent by the
post, as well as letters. By the words of the act, deeds and other things.
Also exchequer bills are light. And a pearl necklace of 1000 I. value
may be sent by the post.
Objection. Exchequer bills are new things created by act of parlia-
ment.
Answer. A new interest created by a subsequent statute will be
under the same remedy as a thing in esse before of the same nature.
And one may as well say, that trover or trespass will not he for them,
because they are new things. Bills of exchange might have been sent
by the post, and exchequer bills are like to them. A bill of exchange
268 POSTMASTERS AND CARRIERS OF MAIL.
payable to a man or bearer is a lawful bill of exchange, and may be
sent by the post, as well as one payable to a man or order.
Objection. That the post-master will not be chargeable for bills of
exchange lost, because they are excepted out of the act, that nothing
shall be paid for them.
Answer. That the letter ought to be intended to be written for the
sake of the bill, and therefore payment of the letter is payment for the
bill. As where a man comes to an inn, he shall pay nothing for the
keeping of his goods ; yet the advantage which the innkeeper hath by
the presence of the guest, makes him liable.
3. Exchequer bills are not excepted, and therefore shall pay postage.
4. The defendants being public officers are chargeable, though they
had no benefit ; as the sheriff, though he has no fees for suing of execu-
tions. For where the law gives a man custody of a thing virtute officii
it obliges him to keep it safely. And therefore upon the reason of
Southcote's case, 4 Co. 83. b. Cro. El. 8. 5. pi. 4. [3] if goods are delivered
to a man to be safely kept, and he accepts them, he shall be chargeable
if they are lost. An officer accepts such things as come to him virtide
officii upon this trust, and therefore he shall be chargeable for them if
they be lost; and one can not put a case of a public officer to the
contrary. The opinion in 4. Co. 83 b. Cro. El. 815. pi. 4. of a general
bailment is not law ; for upon a general bailment the bailee ought to
keep them only as his own.
5. Before the 12 Car. 2 c. 35. any one might have erected a post-
office, and such erector had been liable for miscarriage ; and therefore
this post-master is liable also ; for now the act having prohibited the
subjects to employ any other but this post-master general, it would be
hard to deprive them of the remedy which they had before.
Objection. The plaintiff has a remedy against Breese.
Answer. If it could be proved that Breese took out the exchequer
bills, he agreed that it was so ; likewise any stranger that took them
out might be charged as a tort feasor; but Breese cannot be charged
as an officer for neglect : for misfeasance of a deputy an action will lie
against him, but that is not qua officer, but qua tort feasor. And accord-
ing to this is the difference between a negligent and a voluntary escape.
A gaoler is liable to an action for the latter, but not for the former.
This office is manageable only by them, their deputies and servants,
and what is done by a deputy, is done by the principal ; and reasonable,
because the principal may remove the deputy at pleasure, though he
puts him in for life, for it is contrary to the nature of a deputy, not to
be removeable. Hob. 13. Moor, 856. A deputy may forfeit the office
of the principal ; as if he does such acts as would be a forfeiture in the
principal. 39 H. 6. c. 34.
Objection. Dier, 238.
Answer. It is (by him) directly contrary to the purpose for which
his brother Gould cited it.
POSTAL OFFICERS. 269
Objection. This will be to make the defendants responsible here
for the servants of the deputies.
Answer. If a deputy has power to make servants, the principal will
be chargeable for their misfeasance, because the act of the servant is
the act of the deputy, and the act of the deputy is the act of the princi-
pal. But here Breese is the servant of the defendants themselves.
Objection. The defendants are but fellow servants with Breese,
Because all receive their salaries from the king.
Answer. He is appointed by the defendants, and is their servant,
and removeable by them, though they do not pay him his wages. But
then suppose that Breese is not a servant of the defendants, then it
will be stronger against the defendants, for then Breese will be as a
stranger, and then they will be the rather liable, the act appointing them
to manage the office by their servants.
Objection. Powys justice compared the defendants to a captain of
a company; and he shall not be chargeable for the cowardice of his
soldiers, no more shall the defendants for the negligence of Breese,
admitting him to be a servant.
Answer. If A. received a particular damage by the cowardice of
the soldiers of a captain, he shall be chargeable ; but in such case the
prejudice is national. But the master of a ship is liable for the neglect
of his mariners.
Objection. The act did not intend that the defendants should be
chargeable.
Answer. He was of a contrary opinion, because all the power is
placed in the post-master general. And when a statute erects a new
office, and places it under such circumstances, as in consequence of
law make the officer liable ; it must be presumed to have been their
intent, that he shall be chargeable.
2. It appears by the words of the act, that they intended that the
dispatches should be safe.
3. It appears by the act, that it was the judgment of the parliament,
that they were liable for the faults of the deputy. Par. 3. It is provided
that the post-masters general, and their deputies, &c. Then par. 10.
a penalty of 5 I. is imposed upon the post-master, if there be a failure of
furnishing with post-horses, from whence it appears, that the parlia-
ment looked upon the fault of the deputy to be the fault of the post-
master.
Objection. This will ruin the office.
Answer. It will make them more careful.
Objection. This will encourage frauds.
Answer. The method to prevent them is to make the post-master
liable.
Objection. The plaintiff might have sent his exchequer bills by
some other means.'
Answer. That will not excuse the defendants ; no more than it will
270 POSTMASTERS AND CAEKIEES OF MAIL.
be an excuse to an innkeeper, that his guest, who has lost his goods,
might have gone to another inn.
Objection. The premium limited by the act is too small.
Answer. The defendants have accepted the oflSce upon those
terms.
Objection. The patent is, that they shall observe the orders of the
king under the sign manual, and the orders of the treasury concerning
the revenue.
Answer. The observance of the orders of the treasury will not inter-
rupt their care of the letters ; and if a prejudice happen by observance
of the king's orders, that will not excuse ; because they are obliged to
observe the most convenient methods for the execution of the office
according to the , directions of the act, and the patent cannot excuse
them in any neglect of that.
Objection. There is a clause in the patent, that the post-masters
shall not be answerable for a fault in their deputy, but only for their
own act.
Answer. That is only intended of imbezzlement of the revenue by
their deputies, and as to that the said clause will excuse them ; but
it will not excuse them from any remedy that the subject hath against
them for this benefit by the law. And no non-obstante in such case
will avail, nor any charter of exemption. And for these reasons he con-
cluded, that judgment ought to be given for the plaintiff, but the other
three judges being of a contrary opinion, judgment was given for the
defendants. But however, the plaintiff intending to bring a writ of
error upon the said judgment, the defendants seeing that, paid the
money to the plaintiff, as I was informed.'
2. CARRIERS UNDER CONTRACT.
SAWYER V. CORSE.
17 Gratt. (Va.) 230 ; 94 Am. D. 445. 1867.
JoTNES, J. The judgment in this case was rendered against Sawyer,
who was defendant in the court below, upon a case agreed by the
parties. He now contends that the judgment must be reversed, be-
cause it does not appear from the record that he had filed any plea.
But this objection cannot be sustained. A case may be submitted to
the court on a case agreed without a plea as well as with one, and it is
sometimes done without either declaration or plea. The defect of plead-
» Accord: Whitfield ». Lord Le Despenoer, 2 Cowp. 754 (1778). To same effect
as to negligence of a subordinate in the postal telegraph service, see Bainbridge ».
Postmaster-General, [1906] 1 K. B. 178.
CAEKIEBS UNDER CONTRACT. 271
ings is cured by the agreement. When there is a declaration and no
plea, as in the present case, the plaintiff's cause of action, as set forth
in the declaration, is submitted to the court without reference to any-
particular form of defence, and the defendant is entitled to judgment,
if the facts stated afford him a defence of which he might have availed
himself under any form of pleading. When the case is submitted after
an issue is made up, the decision of the court is restricted to that issue.
Sawyer was contractor with the post office department for carrying
mail between the cities of Alexandria and Washington, and Fleming
was the carrier employed by him. A mail bag containing a letter of
Corse, in which there was an enclosure of bank notes belonging to him,
was delivered to Fleming at the post office in Alexandria to be carried
to Washington, and was lost by him on the route under circumstances
which need not be stated. This is an action on the case brought by
Corse against Sawyer to recover the value of the bank notes. The
declaration contains three counts. The third which alleges that
Fleming was not competent and trustworthy, and seeks to charge Saw-
yer on the ground that he had appointed an unfit person as carrier, is
not sustained by the facts agreed, and may therefore be laid out of view.
The first count alleges that the loss of the letter was occasioned by neg-
ligence and want of care on the part of Sawyer himself.
It is well settled that a public officer, or other person who takes
Tipon himself a public employment, is liable to third persons in an action
on the case, for any injury occasioned by his own personal negligence or
default in the discharge of his duties. So that if the facts of this case
establish that the loss of the letter was occasioned by the negligence or
default of Sawyer himself, he is liable even though he should be con-
sidered as holding the position of a public officer or public agent, and
whatever may be the legal character of his relation to Fleming. 2
Kent, 610; Story on Agency, §§ 320, 321 ; Nowell v. Wright, 3 Allen's
R 166.
The second count alleges that the loss was occasioned by the negli-
gence of Fleming as the agent and servant of Sawyer, employed by him
to carry the mail according to his contract with the post office depart-
ment. And here again it is clear, that if Fleming was merely the pri-
vate agent and servant of Sawyer, Sawyer is liable to third persons for
injury occasioned by his negligence in the performance of his duty,
according to the maxim respondeat superior. And it is equally clear
that the fact that Sawyer's obligation to carry the mail arose under a
contract with the government, and that he made no contract with
Corse, is no answer to the present action, which is not founded on the
contract, but on the breach of duty. Winterbottom v. Wright, 10 Mees.
& Welsh. 109 ; Burnett v. Lynch, 5 Bam. & Cres. 589 (12 Eng. C. L. R.
327) ; Farrant v. Barnes, 11 Com. B. R. N. S. 553 (103 Eng. C. L. R.) ;
Marshall v. York Railway Co., 11 Com. B. R. 655 (73 Eng. C. L. R.).
Sawyer contends however that Fleming is not his agent or servant.
272 POSTMASTEES AND CARRIERS OF MAIL.
but the agent or servant of the government, and that as such he is liable
for his own default. The leading case relied upon is Lane «. Cotton
& al. decided in the year 1701, and reported in 1 Ld. Ray. R. 646, [261]
and in several other books. That was an action on the case against
Cotton and Frankland, who were together the postmaster general of
England, to recover the value of exchequer bills belonging to the plain-
tiff, which were abstracted from a letter deposited by him in the London
post office to, be transmitted by post. The letter was delivered at the
office to one Breese who was appointed by the defendants to receive
letters, who was removable by them, but who received his salary from
the receiver general out of the revenues of the post office. In the opin-
ion of the judges it was assumed that the bills were abstracted by Breese,
though it was foimd by the special verdict that they were abstracted
by a person unknown.
Three of the judges held that the defendants were not liable. With-
out going over all the grounds on which the decision was placed, it will
be sufficient for the present purpose, to state that it was placed, in part,
upon the ground, that the post office establishment was an instrument
of government, established for public convenience under the manage-
ment and control of the defendants as officers of the government, and
that Breese was himself an officer under the government, and liable as
such for his own acts, and that he was not the agent or servant of the
defendants. Lord Holt dissented, but he only differed from the other
judges upon the point whether Breese was to be regarded as the agent
and servant of the defendants or not. See 15 East, 392.
The doctrine of this case was followed by Whitfield v. Le Despeneer,
Cowp. R. 754, and may be considered as well established in England.
The same doctrine has been applied to the case of a deputy or local
postmaster, and his assistants duly appointed and qualified. These,
in like manner, are regarded as agents and servants of the government,
who are liable for their own acts and defaults, and not as agents and
servants of the postmaster, for whose acts and defaults he is to answer.
Schroyer v. Lynch, 8 Watts' R. 453 ; Wiggins v. Hathaway, 6 Barb.
S. C. R. 632 ; Dunlop v. Munroe, 7 Cranch's R. 242 ; Bolan v. William-
son, 1 Brevard's R. 181.
There has been some diversity of opinion in reference to this class
of cases, but it has been rather as to the application of 'the principle on
which they proceed, than as to the soundness of the principle itself.
See Franklin v. Low & al. 1 John. R. 396; Maxwell v. Mcllvoy, 2
Bibb's R. 211 ; Jones on Bailments, 109.
Indeed, the principle which exempts a public officer from liability for
the acts and defaults of his official subordinates appears to have been
long recognized, and to be one of general application. Doctor & Stu-
dent, Dialogue 2, Chap. 42 ; Nicholson v. Morrissey, 15 East's R. 384 ;
Viscount Canterbury ». Attorney General, 1 PhiUips' R. 306.
The doctrine is thus stated in 1 American Leading Cases (3d ed.).
CARRIERS UNDER CONTRACT. 273
621 : " With regard to the responsibility of a public officer for the mis-
conduct or negligence of those employed by or under him, the distinc-
tion generally turns upon the question whether the persons employed
are his servants, employed voluntarily or privately and paid by him,
and responsible to him, or whether they are his official subordinates,
nominated perhaps by him, but officers of the government; in other
words, whether the situation of the inferior is a public officer or private
service. In the former case the official superior is not liable for the
inferior's acts ; in the latter he is."
The exemption of public officers from responsibility for the acts and
defaults of those employed by or under them in the discharge of their
public duties, is allowed, in a great measure, from considerations of
public policy. From like considerations it has been extended to the
case of persons acting in the capacity of public agents, engaged in the
service of the public, and acting solely for the public benefit, though not
strictly ffiling the character of officers or agents of the government.
Hall V. Smith, 2 Bingh. R. 156 (9 Eng. C. L. R. 357), Holliday v. St
Leonards, Com. B. (N. S.) R. 192 (103 Eng. C. L. R. 192).
The effort has been made, both in England and the United States,
to extend the application of this principle of exemption so as to embrace
every case of a municipal corporation, clothed with authority or charged
with a duty for the accomplishment of objects of a public nature and
for the public benefit. But it has been held that where the authority,
though for the accomplishment of objects of a public nature and for
the benefit of the public, is one from the exercise of which the corpora-
tion derives a profit, or where the duty, though of a public nature
and for the public benefit, may fairly be presumed to have been en-
joined upon the corporation in consideration of privileges granted to and
accepted by it, the exemption does not apply. And the reason is that,
in such cases, the corporation is not acting merely as an agent of the
public and with a view solely to the public benefit, but that in the
former it is pursuing its own interest and profit, and in the latter is exe-
cuting a contract for which it has received a consideration. Scott v.
Mayor &c. of Manchester, 2 Hurl. & Nor. R. 204 ; Weightman v. Cor-
poration qi Washington, 1 Black's R. 39.
The books which have been cited show the grounds upon which this
sort of exemption has been allowed, and the extent to which it has been
generally carried. It ought not to be extended to other cases that do
not fall clearly within the same reasons. I have seen no case in Eng-
land, and none in this country except two hereafter mentioned, in which
such exemption has been allowed to a person undertaking by contract
to perform work or render service for the government, for a compensa-
tion to be paid to him, and with a view to his own profit, and where his
subordinates are employed and paid by him, and liable to be dismissed
at his pleasure. Such a contractor is in no just and proper sense, an
officer of the government. And though he may be said to be, in a cer-
274 POSTMASTERS AND CARRIERS OF MAIL.
tain sense, an agent of the government, because he is engaged in work-
ing for the government, yet the laborers and others whom he employs
under him, in the execution of his contract, cannot be said to be agents
of the government, which does not know them, does not appoint
them, does not control them, does not pay them, and has nothing to do
with them. The cases above cited from 2 Hurl. & Nor. and 1 Black
show that he is not such a public agent as comes within the principle
of Hall V. Smith, because he is working for his own profit, by fulfilling
a contract which he has bound himself to perform, and for which he
is to receive compensation.
In CoUett V. London &c. Railway Company, 16 Q. B. R. 984 (71 Eng.
C. L. R.), the company had been required by the postmaster general
to carry the mail under an act making it the duty of all railway com-
panies to carry the mail when required to do so by the postmaster
general. The plaintiif was an officer of the post office department
accompanying the mail, whom it was the duty of the company to
carry along with the mail. It was held that* the plaintiff was entitled
to recover against the company for an injury received by him through
the negligence of the servants of the company in charge of the train.
Now this was a stronger case than that of a voluntary contractor,
because the company could not refuse to undertake the service. Yet
it was not even contended at the bar that the company could be regarded
as a public agent exempt as such from liability to answer for the acts
of their servants. If not such a public agent in respect to the officer
in charge of the mail, how was the case different in respect to the mail,
where both the mail and the officer were carried by virtue of the same
duty, and for one and the same compensation?
The mail carriers, like all others in the service of the mail contractor,
are selected and employed by him; are paid by him; are under his
direction and control ; enter into contract with him alone ; work for
his benefit and profit, and may be discharged by him at pleasure. What
more is necessary to constitute the relation of master and servant?
The case comes fully within the doctrine laid down by Chief Justice
Best in Hall v. Smith, where he says : " The maxim of respondeat superior
is bottomed on the principle that he who expects to derive advantage
from an act which is done by another for him, must answer for any
injury which a third person may sustain from it." The fact that the
law requires the carrier to be sworn before he enters on the discharge of
his duties does not make him the agent or servant of the government,
or affect, in any degree, his relation to the contractor. The safety of
the mail and the regularity of the service being dependent, in a great
degree, upon the fidelity of the carrier, the law requires that he shall
be sworn, as a guaranty to that extent, of his fidelity, just as it required,
for like reasons, that he shall be a white person, and of not less than a
certain age. But if he is an agent of the government, for whose acts
the contractor is not responsible, why does the law trust him without
CARRIERS UNDER CONTRACT. 275
security, while it exacts security from the contractor, and that too when
the contractor is, of necessity, a man of substance, which the carrier
seldom or never is ?
But if a carrier who has taken the oath required by the act of congress
can be justly regarded as an agent and servant of the government, and
no longer the mere agent and servant of the contractor, a carrier who
has not taken the oath cannot be so regarded, because the act requires
that he shall take the oath before he enters upon his duties. As Fleming
had not taken the oath to perform his duties under Sawyer, therefore
it is not competent for Sawyer to shield himself by alleging that Flem-
ing was the agent and servant of the government ; and especially as it
was a breach of duty in him to allow a person who had not been sworn
to carry the mail. Act March 3, 1825.
The terms of the contract between Sawyer and the department indi-
cate clearly the understanding and intention of the parties to it, that
the carriers whom Sawyer might employ would be his agents and ser-
vants, for whose acts he would be answerable. Sawyer stipulates to
take the mail, and every part of it from, and deliver it, and every part
of it, into the several post oiEces, and to deliver it into the post oiEce
at the place where the carrier stops at night, if one is there kept ; and
if no office is there kept, to lock it up in some secure place, " at the risk
of the contractor." These were duties which, from their nature, were
to be performed by the carrier. The provision that the mail when
locked up at night shall be at the risk of the contractor, implies that the
mail, while in the hands of the carrier, is at the risk of the contractor.
The meaning is, that this risk shall continue, notwithstanding the mail
has been locked up in a secure place, while the contractor will be relieved
of the risk if the mail is deposited in a post-office where it will be in the
care of the postmaster. The stipulation that Sawyer shall be respon-
sible to the United States for any damage sustained through the unfaith-
fulness or want of care of his carriers ; and the other, which precedes
it, that he shall be "answerable" for them, in general terms, indicated
as clearly as anything could, short of express words, that his carriers
would be his agents and servants, for whose acts and defaults he would
be responsible.
Two cases have been cited as expressly sustaining the proposition
that a mail contractor is not responsible for the loss of a mail through
the misfeasance or negligence of a carrier. The first of them is Conwell
s. Vorhees, 13 Ohio R. 523. The court stated the question to be
whether the contractor was a common carrier or a public agent, although
the declaration, in all the counts, set forth misfeasance and negligence,
and not the liability of a common carrier, as the ground of action.
The court held that he was a public agent, on the ground that he was
engaged in the performance of a public service, under a contract with
the government, and was therefore not responsible for the misfeasance
or negligence of those employed by and under him. For the reasons
276 POSTMASTERS AND CAEEIERS OF MAIL.
already given, I do not think that this decision can be supported.
The editor of American Leading Cases, vol. 1, p. 621, intimates the
opinion that the case cannot be sustained on the ground upon whick
it was placed by the court, and that if it can be sustained at all,
which he evidently doubts, it must be on the ground that the carrier
holds an official situation, and is really in the employment of the post
office department.
The other case relied upon is Hutchins v. Brackett, 2 Foster's R. 252.
That case, though put upon the authority of Conwell v. Vorhees, was
really decided upon a ground not relied upon, or even mentioned by
the court in that case, to wit : that the carrier was a public agent,
engaged in the performance of a public duty, and not the mere servant
of the contractor. It will be observed that in Conwell v. Vorhees
the judge uses "mail carrier" in the sense of "mail contractor" (p. 542,
line 15), and that the judge in Hutchins v. Brackett misquotes the
opinion in Conwell v. Vorhees by substituting "mail carrier" for
" mail contractor," where it occurs in the 24th line of p. 542. Thus the
court in Conwell ■». Vorhees is represented as holding that a mail
carrier is a public agent, when, in point of fact, they held only that a
mail contractor is such. i
It thus appears that Hutchins v. Brackett affords no support to Con-
well V. Vorhees, and I think it clear that Hutchins v. Brackett cannot
be sustained on the ground upon which it was put. But however
that may be, that ground, as I have shown, is not applicable to this
case, in consequence of the fact that the carrier had not been duly
sworn, and in consequence of the special stiptdations of the contract
between the contractor and the department.
It is objected that upon grounds of public policy a contractor ought
not to be held responsible for the misfeasance or negligence of a carrier,
because to hold him so would operate as a discouragement to the tak-
ing of contracts for the transportation of mail. Such considerations
are of little weight when the rights and obligations of the parties are
clear on legal principles. But I do not perceive that there is any real
ground for such an apprehension. A stage owner is liable for injury
to a passenger, or for the loss of his baggage,, occasioned by the fault
of the driver. What greater hardship is there, if the stage owner is a
contractor for carrying the mail, in holding him liable for the loss of
a letter in the mail, occasioned, likewise, by the fault of the driver.
Indeed, a just regard for the interest of the public requires that the
contractor should be held responsible ; " for," to adopt the language of
Judge Livingston in reference to postmasters, mutatis mutandis, " such,
liability will greatly increase the security of the public, not only by
preventing collusion between contractors and their carriers, but by
rendering the former more circumspect in their choice, more watchful
over their agents, and more attentive to taking bonds for their faithful
conduct. It may, it is true, now and then fall hard on a contractor, but
CARRIERS UNDER CONTRACT. 277
it is better it should be so than that individuals should be without
remedy for injuries committed by their agents." 1 John. R. 404.
It has been contended by the counsel for Corse that Sawyer is liable,
under the first count of the declaration, on the ground that he was guilty
of misfeasance and negligence of his duty in entrusting the mail to a
carrier who had not taken the oath required by law, and Bishop «.
Williamson, 2 Fairf . R. 495, is relied on. In that case it was held that
where a clerk in the post oifice had not taken the oath, the postmaster
was guilty of a neglect of duty, which made him liable for a theft com-
mitted by the clerk, while in the absence of such neglect of duty he
would not have been liable, on the principle of Lane v. Cotton & al.
But the court did not hold that the postmaster was liable, because of
this neglect of duty, to answer, like an insurer, for all losses that might
have happened. If a loss had happened without any fault on the part
of the clerk, the case does not hold that the postmaster would have
been liable. And so in this case, the fact that Sawyer allowed Fleming,
who had not been sworn, to carry the mail, did not render him liable
at all events as an insurer. Judged according to what I have said
heretofore, it had no effect upon his liability, for he was liable for a loss
occasioned by Fleming's negligence, whether sworn or not. The deci-
sion in the case, therefore, at last depends on the question whether the
loss was occasioned by negligence and want of Care on the part of Flem-
ing.
The case agreed does not state whether the loss was or was not occa-
sioned by negligence and want of care on the part of Fleming. Facts
are stated, which have a bearing on that question, and the parties
probably understood that the court would determine it by inference
from the facts agreed, as was in fact done by the Circuit Court. But
a case agreed, called in the English practice a " special case," is a sub-
stitute for a special verdict, and is subject to like rules. It must state
facts, and not merely the evidence of facts (2 Tidd, 899), and it is not
competent for the court to infer other facts from those stated, unless
they result as a legal conclusion. If the parties intend that the court
shall have authority upon a case agreed to make such inference, they
must make an agreement to that effect, as is frequently, if not usually,
done in England in making up a "special case." 8 Ad. & El. 799;
7 M. & Gr. 295. This cannot be regarded as a case submitted to the
court under the provision of the Code, ch. 162, § 9, because the record
states that a " case was agreed" by the parties, " to be argued in lieu of
a special verdict." There is no alternative, therefore, but to reverse
the judgment, set aside the case agreed, and award a venire de novo.
1 Rob. (old) Prac. 373-374. If upon the new trial it shall be found by
the jury that the loss, for which the action is brought, was occasioned
by the negligence and want of due care on the part of Fleming, in the
carriage and preservation of the mail, the defendant in error will be
entitled to recover. The degree of care which Fleming was bound to
278 POSTMASTEES AND CARRIERS OF MAIL.
exercise was such as a man of ordinary prudence would have exercised
about his own affairs, under like circumstances.
I am of opinion to reverse the judgment, with costs to the plaintiff
in error, set aside the case agreed, and award a venire de novo.
The other judges concurred in the opinion of Joynes, J.
Judgment Reversed, and venire de novo awarded.
FOSTER V. METTS.
55 Miss. 77 ; 30 Am. R. 504. 1877.
M. A. Metts & Co., the defendants in error, were contractors to carry
the United States mail from Louisville to Artesia, in this state. J. C.
Foster, the plaintiff in error, had $200 in money stolen from the mail on
this route, by the carrier employed by the defendants in error to carry
the mail. Foster insisted that the defendants in error were responsible
for the safe carrying of his money, and should make good to him the
loss. The latter at first refused to recognize any liability on their part
for the loss, but finally, upon Foster's agreeing to wait a few months
for payment, they gave their note for the amount claimed, due at the
time agreed upon. The note was not paid at maturity, and this action
was brought to recover upon it. The declaration set forth the facts
which led to the giving of the note. The defendants filed a demurrer,
and it was sustained by the court. To the judgment upon the demurrer
this writ of error was sued out.
Campbell, J. The Post-office Department is a branch of the govern-
ment, instituted for public convenience. _ The government of the
United States has undertaken the business of conducting the transmis-
sion and distribution and delivery of all mail-matter. The government
is the carrier of the mails. It carries them by the aid of agents it con-
tracts with for this service. Contractors for carrying the mail are the
agents of the government in the business undertaken by them. The
sender of mail-matter has no contract with the carrier of the mail-bags,
and does not commit his mail-matter to him, but to the government,
which has undertaken to receive, carry, and deliver it. The contractor
for carrying the mail is neither a common carrier nor a private carrier.
He does not carry for individuals, nor receive any compensation from
them. He has no knowledge of the mail-matter he carries, and no con-
trol over it, except to obey the instructions of the Post-office Department.
Letters and packets are inclosed in government mail-bags, secured by
locks provided by the government, and at all times subject to the super-
vision and control of the officers and agents of the government in the
Post-office Department, who may open the mail-bags and inspect the
mail-matter they contain at will. Contractors for carrying the mail are
CARRIERS UNDER CONTRACT. 279
instruments of government whereby it performs the function of trans-
mitting mail-matter from place to place in the execution of this part
of its business.
Postmasters are necessary agents for the performances of the business
of the Post-ofRce Department, and those who carry the mail from place
to place are equally necessary, and engaged m the business of the,
government.
A rider or driver employed by the contractor for carrying the mails'
is an assistant about the business of the government. Although em-
ployed, and paid, and liable to be discharged at pleasure by the con-
tractor, the rider or driver is not engaged in the private service of the
contractor, but is employed in the public service. United States v.
Belew, 2 Brocken, 280.
A carrier of the mail is required by law to be of a certain age, to take
a prescribed oath, is exempted from militia and jury service, and is
liable to certain penalties for violations of duty, as well as subject to
be discharged from service by any post-master, in a certain contingency.
He is a subordinate agent of the government, whose employment is con-
templated and provided for by the government in contracting to have
the mail carried. lb.
Contractors for carrying the mail are responsible for their own mis-
feasances, but not for those of their assistants. The assistants must
answer for themselves. The only security for the safe transmission of
packages by mail is the safeguards thrown around it by the regulations
of the government, which announces that all valuables sent by mail
shall be at the risk of the owner. All that the government promises,
in case of loss of money or other valuables from the mail, is to endeavor
to recover it and to punish the ofPender.
The duty of contractors to carry the mail is to carry it from place to
place, subject to the regulations of the post-ofBce officials. Their obli-
gation is to the government. They and their assistants are agents of
the government, and subject to the rule of law applicable in such cases.
Story on Ag., sees. 313, 319a, 321 ; Shear. & Redf. on Neg., sec. 177.
It is well settled that postmasters are not liable for losses occasioned
by the sub-agents, clerks, and servants employed under them, unless
they are guilty of negligence in not selecting persons of suitable skill,
or in not exercising a reasonable superintendence and vigilance over
their conduct. Story on Ag., sec. 319a ; Story on Bail., sec. 463 ; 1
Am. Ld. Cas. 785 ; Schroyer v. Lynch, 8 Watts, 453 ; Wiggins v. Hath-
away, 6 Barb. 632; Keenan v. Southworth, 110 Mass. 474; Whart.
on Neg., sec. 292 ; Shear. & Redf. on Neg., sec. 180.
As remarked before, carrying the mail is just as necessary, and as
much part of the business of the government, as the service rendered
at the offices by postmasters ; and those employed about carrying the
mail are as much the agents of the government as are postmasters and
their clerks and assistants. The true test of the character of a person
280 POSTMASTEES AND CAEKIEES OF MAIL.
is, not who appoints or pays or may dismiss him, but whether or not he
is about a public employment or a private service. 1 Am. Ld. Cas.
621 ; Story on Ag., sec. 319 et seq.
In Con well v. Voorhees, 13 Ohio, 523, and Hutchins v. Brackett, 2
Post. 252, it was decided that contractors for carrying the mail are not
responsible to the owner of a letter containing money transmitted by
mail and lost by the carelessness of the agent of the contractors carry-
ing the mail. The rules applicable to agents of the public were applied.
And although the doctrine of these cases is criticised in Shearman and
Redfield on Negligence (sec. 180), and has been disputed in Sawyer
V. Corse, 17 Gratt. 230, we adopt it as the better view.
In this case the money was stolen by the mail carrier. As to that,
he certainly was not the agent of the contractors for whom he was
riding, and, if they were liable for his acts within the scope of his employ-
ment, they were not liable for his willful wrongs and crimes. McCoy
V. McKowen, 26 Miss. 487 ; New Orleans, Jackson & Great Northern
R. R. Co. V. Harrison, 48 Miss. 112 ; Foster ». Essex Bank, 17 Mass.
479 ; Wiggins v. Hathaway, 6 Barb. 632 ; Story on Ag., sec. 309.
As the defendants in error were not liable for the money "extracted"
from the mail by the carrier, they did not make themselves liable by
giving their promissory note for it. It is without consideration. The
compromise of doubtful rights is a sufficient consideration for a prom-
ise to pay money, but compromise implies mutual concession. Here
there was none on the part of the payee of the note. His forbearance
to sue for what he could not recover at law or in equity was not a suffi-
cient consideration for the note. Newell «. Fisher, 11 Smed. & M.
431; Sullivan v. Collins, 18 Iowa, 228; Palfrey v. Raikoad Co., 4
Allen, 55 ; Allen v. Prater, 35 Ala. 169 ; Edwards v. Baugh, 11 Mee.
& W. 641 ; Longridge i>. Dorville, 5 Bam. & Aid. 117; 1 Pars, on Con.
440; Smith on Con. 157; 1 Add. on Con. 28, sec. 14; 1 Hill on Con.
266, sec. 20.
Judgment affirmed.
BOSTON INS. CO. v. CHICAGO, R. I. & P. R. CO.
118 Iowa, 423; 92 N. W. R. 88; 59 L. R. A. 796. 1902.
Action to recover the value of a registered mail package which the
defendant, as one of the agencies of the government, for carriage of its
mails, undertook to carry from Kansas City, Mo., to Kinsley, Kan.,
and which it is claimed was destroyed by fire in a wreck at VoUand,
Kan., caused by the negligence of defendant's employees. The Bankers'
Mutual Casualty Company paid the loss to the owner of the package ;
and plaintiff who had reinsured the loss, repaid the amount thereof to
CAEEIEHS UNDER CONTRACT. 281
the casualty company, and as assignee of said company, and by reason
of a claim of subrogation, seeks to recover the amount paid, from the
■defendant. The defendant demurred to the petition, and its demurrer
was sustained, and judgment was rendered against the plaintiff for
<:osts. Plaintiff appeals.
Deemer, J. — Defendant, a corporation organized under the laws of
this state for the purpose of operating a railway, was in March of the
year 1899 maintaining a line of road in the state of Kansas, and was
carrying the United States mail in its passenger trains operated over
said road, pursuant to the following notice :
" Post-office Department. Office of the Second Assistant Postmaster.
•General Railway Adjustment Division. Washington, D. C, Sept. 30,
1898. Sir : The compensation for the transportation of mails," etc.,
" on route No. 155,075, between St. Joseph, Mo., and Liberal, Kansas,
has been fixed from July 1st, 1898, to June 30th, 1902, under acts of
March 3, 1873, July 12, 1876 and June 17th, 1878, upon returns show-
ing the amount and character of the service for thirty successive work-
ing days, commencing April 5, 1898, at the rate of," etc. ; " . . . and
pay is also allowed for the use of R. P. O. cars from July 1, 1898, at the
Tate of," etc. "... This adjustment is subject to further orders
and to fines and deductions, and is based on a service of not less than
six round trips per week. Very respectfully, W. S. Shallenberger,
2nd Asst. P. M. General.
"Mr. W. G. Purdy, V. Pres. Chicago, Rock Island and Pacific Rail-
way Co., Chicago, 111."
On the 16th day of March, 1899, the National Bank of Kansas City,
Mo., caused a package containing $2000 in currency to be registered by
and delivered to the post-ofiice authorities in Kansas City, Mo., for
transmission in the United States mails to the Kinsley Bank, of Kinsley,
Kan. This package was delivered in due course to the United States
mail car operated by defendant company, and taken in charge by the
mail clerks in said car for carriage to its destination. On the 17th day
of March the train, of which this car was a part, was wrecked at Vol-
land, in the state of Kansas, through the negligence of defendant's
employees in the construction and operation of a switch in its yards at
■said town, and in running the train of which the mail car was a part at
too high a rate of speed. The Kinsley Bank was insured against loss of
this character by the Bankers' Mutual Casualty Company, and the
plaintiff reinsured the risk assumed by the casualty company. Plain-
tiff paid the loss to the casualty company, and the casualty company
reimbursed the Kinsley Bank for the amount of the loss. The policy
■of insurance issued by the casualty company contained this stipula-
tion : " In all cases of loss, when it shall be claimed by the Bankers'
Mutual Casualty Company that the carrier or other party in whose
custody the property may be at the time of the loss is or may be liable,
then the assured shall, at the request of this company or its agents,
282 POSTMASTEES AND CAKRIEES OF MAIL.
assign and subrogate all their rights and claims to this company, to an
amount not exceeding the sum paid by said company." And in the
policy issued by the plaintiff, we find this provision : " It is the intent
of this insurance to fully indemnify the reassured for any and all losses^
and damages caused by the perils insured against, but in case of loss it
shall be lawful and necessary for the reassured to sue, labor and
travel for, in, and about the defense, safeguard, and recovery of the
property hereby assured, without prejudice to this insurance; and
upon the payment of any loss under this policy, the assured or their
assigns, in consideration thereof, agree to convey to the said Boston.
Marine Insurance Co., the unincumbered title in the property lost, as
absolute owner thereof, and to render all assistance in the recovery,,
reissue, or replacement of said property, where possible." After plain-
tiff had paid the loss, it received the following instruments of assign-
ment:
" To all persons coming into possession of a certain package of cur-
rency, or any part thereof, shipped by the National Bank of Com-
merce, of the town of Kansas City, Mo., unto Kinsley Bank, in the town
of Kinsley, state of Kansas, by registered mail, on March 16, 1899:
You will deliver same to the Bankers' Mutual Casualty Co., or their
order, on presentation hereof. Kinsley Bank, by F. B. Hine, Cashier.
" Deliver the above package to the Boston Investment Co. Bankers'
Mutual Casualty Co., by A. U. Quint, Treasurer."
" State of Kansas, County of Edwards — ss. : Know all men by-
these presents, that we, Kinsley Bank, hereby assign, transfer, and set
over unto the Bankers' Mutual Casualty Co., or their order, all our
right, title, and interest in any and all of the money contained in the-
package shipped by registered mail on the 16th day of March, 1899,
by the National Bank of Commerce, of the town of Kansas City, Mo.,,
unto Kinsley Bank, town of Kinsley, state of Kansas, and hereby
authorize the Bankers' Mutual Casualty Co., or their assigns, to main-
tain action in their own name to recover any or all of said money, with,
the same rights and powers as we ourselves could do it. Kinsley Bank,.
by F. B. Hine, Cashier."
I. The action is to recover the amount of the loss from the railway
company, on the theory that it was under a duty to the Kinsley Bank to-
safely carry all proper mailable material properly addressed to it, and
that plaintiff is either the assignee of the Kinsley Bank, or, having paid
the loss, is entitled to be subrogated to the rights of that Bank against
the railway company. This duty is said to arise both by statute and
by contract between the United States government and the defendant
company. We must assume, for the purposes of the case, that defend-
ant's employees were negligent both in the operation of the train and
in the operation of the switch; but something more is necessary to-
create liability. Actionable negligence consists not only in some care-
less or reckless act of commission or omission, but there must also h&
CARRIERS UNDER CONTRACT. 283
found a breach of duty, created or imposed by law, owing to the party
injured, from him who was guilty of the negligent act. This duty may
be general and owing to everybody, or it may be particular and owing '
to a single individual only, by reason of his peculiar position ; and in
every instance the complaining party must point out how the duty
arose which is charged to have been neglected. Cooley, Torts (2nd
Ed.), pp. 791-793. The defendant, as a common carrier of freight and
passengers, was under a general duty to everyone whom it undertook to
serve in either capacity. It might also assume particular duties to single
individuals by reason of contract relations, and the first question which
arises in the case is, was it under any duty, either general or particular,
to the Kinsley Bank ? And if so, what was the nature of that duty ?
Under authority conferred by the constitution to establish postoffices
and post roads (Constitution, U. S. article 1, section 8, paragraph 7)
the general government has undertaken the business of transmitting,
distributing and delivering all mail matter. It has a monopoly on this
business, which it enforces by appropriate penalties. The postoffice
department is a branch of the government, and all mail matter is car-
ried by it. With reference to railways, we find the following material
provisions in the Revised Statutes of the United States :
" Sec. 3999. If the postmaster general is unable to contract for carry-
ing the mail on any railway route at a compensation not exceeding the
maximum rates herein provided or for which he may deem a reason-
able and fair compensation, he may separate the letter mail from the
other mail, and contract, with or without advertising, for carrying such
letter mail, by horse express or otherwise, at the greatest speed that
can be reasonably obtained, and for carrying the other mail in wagons
or otherwise at a slower rate of speed.
" Sec. 4000. Every railway company carrying the mail, shall carry
on any train which may run over its road, and without extra charge
therefor, all mailable matter directed to be carried thereon, with the
person in charge of the same.
"Sec. 4001. All railway companies to which the United States
have furnished aid by grant of lands, right of way or otherwise, shall
carry the mail at such prices as Congress may by law provide ; and until
such price is fixed by law, the postmaster general may fix the rate of
compensation.
"Sec. 4002. The postmaster general is authorized and directed
to readjust the compensation hereafter to be paid for the transmission
of mail on railway routes, upon the conditions and at the rates herein-
after mentioned : First. That all the mails shall be conveyed with due
frequency and speed ; and that sufficient and suitable room, fixtures,
and furniture, in a car or apartment properly lighted and warmed,
shall be provided for route agents to accompany and distribute the mails.
Second. The pay per mile per annum shall not exceed the following
rates, viz. : . . . "
284 POSTMASTEES AND CAEEIEES OF MAIL.
In addition to this, congress in the year 1879 passed an act which
provided that the postmaster general should in all cases decide upon
which trains and in what manner mails should be conveyed. 1 Sup.
Rev. St. U. S. pp. 245, 250. The Revised Statutes also provide, in
substance, that all railroads or parts of railroads which are now or may
hereafter be in operation are post roads, and that the postmaster general
shall provide for the carrying of the mails on all roads established by
law as often as he, having due regard to productiveiiese and other cir-
cumstances, may think proper. Revised Statutes U. S., sections 3964,
3965.
Plaintiff contends that these statutes impose on railways the duty of
carrying United States mail, while defendant argues that two classes
of railroads are recognized: First, "land-grant roads;" and, second,
roads which did not receive aid in that form, — and that, as to the first,
there is an absolute duty resting upon them to carry the mails, and,
as to the second, the matter is simply one of contract, there being no
duty resting upon them in the absence of agreement. The authorities,
in a measure, at least, seem to support appellee's contention. Eastern
R. Co. V. U. S., 129 U. S. 391 (9 Sup. Ct. Rep. 320, 32 L. Ed. 730) ;
Minneapolis & St. L. Ry. Co. ». U. S., 24 Ct. CI. 350; U. S. ■». Alabama
G. S. R. Co., 142 U. S. 615 (12 Sup. Ct. Rep. 306, 35 L. Ed. 1134) ;
U. S. «. Central Pac. R. Co., 118 U. S. 235 (6 Sup. Ct. Rep. 1038, 30
L. Ed. 173). But however this may be, — and we make no definite
pronouncement on the point, — the conclusion reached does not deter-
mine the nature of the defendant's duty. The whole matter, in either
event, seems to be relegated, under certain limitations, to the post-
master general ; and he acts for and on behalf of the general govern-
ment. The duty, then, whether created by statute or arising out of
contract, is to the government; and railroad companies, in carrying
the mails, are agents of the government, in the exercise of a public
function. Neither the sender nor the addressee of mail matter had
any contract with the railway company; nor does the one deliver to,
nor the other receive such matter from, the railway company. The
railway company does not carry for individuals, nor receive any compen-
sation from them. Letters and packages are inclosed in government
mail bags, secured by locks provided by the government, taken in charge
by agents of -the government, delivered by these to other agents of the
government in cars of such character as the general government re-
quires, handled by government agents within these cars, and by them
delivered to other agents of the government for transmission or delivery
to the addresses. Mailable matter is at all times in charge of the gov-
ernment appointees or contractors. Railroads, as carriers of the mail,
have no knowledge of the contents of the mail sacks, and no authority
or right to control these sacks, except to obey the instructions of the
postofRce department. In so far as they handle the mail, they are
simply instrumentalities of the government for the performance of a
CAEEIEKS UNDER CONTRACT. 285
public function, and are neither common nor private carriers for the
government or the individual. There is no contract between the
carrier and the individual, and no duty owing from the one to the
other, except as that other is an integral part of the whole people.
There is no privity whatever between the individual and the railway
company in the carriage of mail, and as the railway has no control there-
of, and cannot direct as to how it shall be handled, while on the train,
it would be most unjust to hold it responsible to the individual ad-
dressee. Manifestly, the railway is neither a common nor a private
carrier for the individual. It neither receives nor undertakes to deliver
any of the letters or packages carried over its line. They are received
by the government or its agents, which undertakes to deliver them at
their destination. The railway company is not, as we understand it,
a bailee of the matter carried by it ; that is, a bailee in the ordinary
sense. Neither the sender of the letter nor the government delivers
mail to the railway company. It is at all times in charge of officers and
agents of the government. The railway company simply has charge
of the car in which the mails are carried, and its responsibility with
respect thereto is to the general government. Muster v. Railroad Co.,
61 Wis. 325 (21 N. W. Rep. 223, 50 Am. St. Rep. 141). Nor do we think
the relation of master and servant exists between the sender or addressee
of mail matter and the railroad company. To the existence of this
relation it is necessary that the master (the individual) have complete
control of the servant (the railroad company) ; that is, that he have
the right to say not only what shall be done, but how it should be
accomplished. These elements are not present in the case now before
us.
II. Defendant's liability, then, must be predicated upon contract,
or arise out of a duty created by statute. The contract in this case
was made by the general government for the benefit of the public,
and mediately for individuals, and not distributively for individuals
and indirectly for the public. The Kinsley Bank was a stranger to
this contract, and it was not made for its benefit. True, it had an in-
direct interest in the performance of the contract, as had all who had
occasion to use the mails being carried over defendant's line of road,
but this interest was not sufficient to constitute a privity, which must
■exist, either directly or by substitution, in order to give it a right of
action upon the contract. Parker v. Jeffrey (Or.), 37 Pac. Rep. 712 ;
German State Bank v. Northwestern Water & Light Co., 104 Iowa, 717 ;
Davis V. Waterworks Co., 54 Iowa, 59 ; Becker v. Waterworks, 79 Iowa,
419. It is clear, we think, there can be no action against the defendant
founded upon contract.
III. We are also constrained to hold, as heretofore indicated, that
the defendant, in carrying the mails, is neither a private nor a common
carrier. It owed no duty to the sender or to the addressee of mail
matter. The law has made it an instrumentality of government for
286 POSTMASTEKS AND CAHEIEKS OF MAIL.
the performance of acts in execution of functions assumed and con-
trolled by it. It receives its compensation from the government, and,
at most, is a public agent or agency, discharging public duties. What
is the liability of such an officer or agent ? If it owes no duty to the
individual, it incurs no liability to him, even though the individual may
have been injured by its action or nonaction. And the mere fact that
an individual has sustained injury by reason of the act of a public officer
is not enough to create a right of action in that individual. Moss v.
Cummings, 44 Mich. 359 (6 N. W. Rep. 843) ; Butler v. Kent, 19 Johns.
223 (10 Am. Dec. 219) ; State v. Harris, 89 Ind. 363 (46 Am. St. Rep.
169). To sustain a right of action by a private individual as against
a public oflScer, it must not only appear that the duty violated was one
owed to individuals, but the individual must show some reason why he
singles himself out as the party injured. Moss v. Cummings, supra.
Governmental duties in the exercise of constitutional powers are owing
to the public ; and, as a general rule, no public officer or agency charged
with the exercise of governmental functions, such as are involved in
this case, can be called upon to answer in a private action for the manner
in which that authority has been exercised. But in some cases, if the
duty is purely ministerial, and is one in which individuals have a special
interest, they may be liable for neglect or default in the performance
of such duty. Even where this exception prevails it must be shown that
the party sought to be charged was himself guilty of some neglect of
duty to the individual, and he cannot be charged with the negligence or
default of his agent necessarily employed in the work. Mersey Docks
V. Gibbs, 17 H. L. Gas. 686 ; Walsh v. Trustees, 96 N. Y. 427. In other
words, the maxim respondeat superior does not obtain. A public
officer or agent who has exercised ordinary care in the selection of
competent subordinates is not responsible for the misfeasance or positive
wrongs, or for the nonfeasance or negligence, of these subordinates
properly employed by or under him in the discharge of his official duties.
Robertson v. Sichel, 127 U. S. 507 (8 Sup. Ct. Rep. 1286, 32 L. Ed.
203). To charge a public officer for the negligent performance of a
ministerial duty, it must appear not only that the individual has a dis-
tinct and direct interest in its performance, but also a legal right to
require its performance. Hence, when the duty is one owing solely
to the public, although the individual may have a mediate interest
therein, no liability is incurred, to the individual, however much he
may be injured. Eslava ». Jones, 83 Ala. 139 (3 South Rep. 317, 3
Am. St. Rep. 699). This rule, also, has some exceptions, which find
place under the maxim, " Sic utere tva," etc. But none of these excep-
tions apply to this case.
These rules and exceptions will harmonize and fully explain most, if
not all, of the cases cited by counsel. Thus a postmaster or clerk who
personally receives a letter from an individual owes that individual a.
duty, and is liable for its nonperformance, or for his negligent acts in
CARRIERS UNDER CONTRACT. 287
•connection therewith. This is because he becomes in a sense, a bailee
for the time being of the person from whom he receives it. And the
same rule obtains when the postmaster, clerk, or carrier receives a
letter or package for delivery to a private individual. See Christy
V. Smith, 23 Vt. 663; Ford v. Parker, 4 Ohio St. 576; Cdleman v.
Frazier, 4 Rich. Law, 146; Maxwell v. Mclvoy, 2 Bibb, 211; Fitz-
gerald V. Burrill, 106 Mass. 446 ; Raisler «. Oliver, 97 Ala. 710 (12 South.
Rep. 238, 38 Am. St. Rep. 213) ; Sawyer «. Corse, 17 Grat. 230 (99 Am.
Dec. 445) [270] ; Raihoad Co. v. Lampley, 76 Ala. 357 (52 Am. St.
•Rep. 334) ; Joslyn v. King, 27 Neb. 38 (42 N. W. Rep. 756, 4 L. R. A.
457, 20 Am. St. Rep. 656). A railway mail or postal clerk is also held
to be a passenger while riding on trains, and entitled to protection as
such. This is because he is rightfully on the train, and personally
entitled to all the rights of a passenger. Railroad Co. v. Derby, 14-
How. 486 (14 L. Ed. 502) ; Seybolt v. Railroad Co., 95 N. Y. 563
(47 Am. St. Rep. 75) ; Magoffin v. Railway Co., 102 Mo. 540 (15 S. W.
Rep. 76, 22 Am. St. Rep. 798) ; Mellor v. Railway Co., 105 Mo. 455
(16 S. W. Rep. 849, 10 L. R. A. 36) ; Railway Co. «. Hampton, 64 Tex.
427 ; Railway Co. j). Wilson, 79 Tex. 371 (15 S. W. Rep. 280, 11 L. R. A.
486, 23 Am. St. Rep. 345) ; Railway Co. v. Ketcham, 133 Ind. 346
(33 N. E. Rep. 116, 19 L. R. A. 339, 36 Am. St. Rep. 550) ; Baltimore
& 0. R. Co. V. State, 72 Md. 36 (17 Atl. Rep. 1107, 6 L. R. A. 706,
20 Am. St. Rep. 454) ; Lawton v. Waite (Wis.), 79 N. W. Rep. 321
(45 L. R. A. 616). But see, in this connection. Price v. Railroad Co.,
113 U. S. 218 (5 Sup. Ct. Rep. 427, 28 L. Ed. 980).
IV. If, then, the doctrine of respondeat superior does not apply, —
and we think it does not, — defendant if responsible at all, is liable only
for its own personal negligence. That is to say, it must be shown that
the corporation itself did or neglected to do some act which was required
of it in the exercise of ordinary care. If the defendant were an indi-
vidual, instead of a corporation, the case would not be difficult of solu-
tion ; but as it is a corporation, and can act only through agents, there
is always some difficulty in determining whether or not the act complained
of was its act or the act of a mere subordinate. If it used ordinary care
to supply suitable cars and a sufficient number of competent employees
for the work, it fulffiled its duty and it is not liable for the negligence
of subordinate employees to whom it must of necessity delegate its work.
Now, the negligence charged is not a failure to perform any of these
duties, but the neglect and default of its employees charged with the
operation of trains and care of switches. The work required of these
subordinates could all be properly delegated, and none of these em-
ployees were vice principals. They were not, in the work they were
performing, the alter ego of the defendant. Even if the rules contended
for by appellant are to be applied, we do not think a cause of action is
stated.
Our conclusions find some support in Conwell v. Voorhees, 13 Ohio,
288 POSTMASTERS AND CARRIERS OF MAIL.
523 (42 Am. Dec. 206) ; Hutchins v. Brackett, 22 N. H. 252 (53 Arj.
Dec. 248). The only case directly in point is German State Bank v.
Minneapolis St. P. & S. Ste. R. Co., (C. C.) 113 Fed. Rep. 414, which
we understand has recently been affirmed by the United States Circuit
court of appeals for this circuit. [Bankers Mut. Cas. Co. v. Minneap-
olis, etc. R. Co., 117 Fed. 434, 54 C. C. A. 608, 65 L. R. A. 397.] That
case is in line with our holding, and we approve of the reasoning therein.
These conclusions render it unnecessary that we consider the other
points made by appellee regarding plaintiff's right to recover.
The ruling on the demurrer was right, and the judgment is Affirmed.
THE WINKFIELD.
Court of Appeal. [1902] Prob. Div. 42 ; 85 L. T. R. 668. 1901.
[For this case, see page 14, supra.]
VII-VIII
CARRIERS
VII. CARRIEES OF GOODS.
1. WHO AEE COMMON CAKEIEKS.
a. Nature of Public Calling.
MUNN V. ILLINOIS.
94 U. S. 113. 1876.
Chief Justice Waite: The question to be determined in this
case is whether the general assembly of Illinois can, under the limi-
tations upon the legislative power of the States imposed by the Con-
stitution of the United States, fix by law the maximum of charges
for the storage of grain in warehouses at Chicago and other places
in the State having not less than one hundred thousand inhabitants,
" in which grain is stored in bulk, and in which the grain of different
owners is mixed together, or in which grain is stored in such a man-
ner that the identity of different lots or parcels cannot be accurately
preserved."
It is claimed that such a law is repugnant —
1. To that part of Sec. 8, Art. 1, of the Constitution of the United
States which confers upon Congress the power, " to regulate commerce
with foreign nations and among the several States."
2. To that part of Sec. 9 of the same article which provides that " no
preference shall be given by any regulations of commerce or revenue
to the ports of one State over those of another " ; and
3. To that part of Amendment 14 which ordains that no State shall
"deprive any person of life, liberty, or property, without due pro-
cess of law, nor deny to any person within its jurisdiction the
equal protection of the laws."
We will consider the last of these objections first.
Every statute is presumed to be constitutional. The courts ought
not to declare one to be unconstitutional, unless it is clearly so. If
there ia doubt, the expressed wiU of the legislature should be
sustained.
The Constitution contains no definition of the word " deprive," as
used in the Fourteenth Amendment. To determine its signification,
therefore, it is necessary to ascertain the effect which usage has given
it, when employed in the same or a like connection.
289
290 CAERIEES OF GOODS.
While this provision of the amendment is new in the Constitution
of the United States, as a limitation upon the powers of the States,
it is old as a principle of civilized government. It is found in Magna
Charta and, in substance if not in form, in nearly or quite all the
constitutions that have been from time to time adopted by the several
States of the Union. By the Tifth Amendment, it was introduced
into the Constitution of the United States as a limitation upon the
powers of the national government, and by the Fourteenth as a
guaranty against any encroachment' upon an acknowledged right of
citizenship by the legislatures of the States.
When the people of the United Colonies, separated from Great
Britain, they changed the form, but not the substance, of their
government. They retained for the purposes of government all the
powers of the British Parliament, and through their State constitu-
tions, or other forms of social compact, undertook to give practical
effect to such as they deemed necessary for the common good and
the security of life and property. All the powers which they re-
tained they committed to their respective States, unless in expressed
terms or by implication reserved to themselves. Subsequently,
when it was found necessary to establish a national government for
national purposes, a part of the powers of the States and of the
people of the States was granted to the United States and the people
of the United States. This grant operated as a further limitation
upon the powers of the States, so that now the government of the
States possesses all the powers of the Parliament of England, except
such as have been delegated to the United States or reserved by the
people. The reservations by the people are shown in the prohibi-
tions of the constitutions.
When one becomes a member of society, he necessarily parts with
some rights or privileges which, as an individual not affected by
his relations to others, he might retain. "A body politic," as aptly
defined ia the Preamble of the Constitution of Massachusetts, "is
a social compact by which the whole people covenants with each
citizen, and each citizen with the whole people, that all shall be
governed by certain laws for the common good." This does not con-
fer power upon the whole people to control rights which are purely
and exclusively private, Thorpe «. K. & B. Eailroad Co., 27 Vt. 143;
but it does authorize the establishment of laws requiring each citizen
to so conduct himself, and so use his own property, as not unnecessa-
rily to injure another. This is the very essence of government, and
has found expression in the maxim sio utere tuo ut alienum non Icedas.
From this source come the police powers, which, as was said by Mr.
Chief Justice Taney in the License Cases, 5 How. 638, "are nothing
more or less than the powers of government inherent in every sov-
ereignty, . . . that is to say, . . . the power to govern men and
things." Under these powers the government regulates the conduct
of its citizens one towards another, and the manner in which each
shall use his own property, when such regulations become necessary
WHO ABE COMMON CARRIERS. 291
for the public good. In their exercise it has been customary in
England from time immemorial, and in this country from its first
colonization, to regulate ferries, common carriers, hacimen, bakers,
millers, wharfingers, innkeepers, etc., and in so doing to fix a maxi-
mum of charge to be made for services rendered, accommodations
furnished, and articles sold. To this day statutes are to be found in
many of the States upon some or all these subjects ; and we think it
has never yet been successfully contended that such legislation came
within any of the constitutional prohibitions against interference with
private property. With the Fifth Amendment in force, Congress,
in 1820, conferred power upon the city of Washington "to regulate
. . . the rates of wharfage at private wharves, . . . the sweeping
of chimneys, and to fix the rates of fees therefor, . . . and the
weight and quality of bread," 3 Stat. 587, sect. 7; and, in 1848,
" to make all necessary regulations respecting hackney carriages and
the rates of fare of the same, and the rates of hauling by cartmen,
wagoners, carmen, and draymen, and the rates of commission of
auctioneers," 9 id. 224, sect. 2.
Prom this it is apparent that, down to the time of the adoption of
the Fourteenth Amendment, it was not supposed that statutes regu-
lating the use, or even the price of the use, of private property
necessarily deprived an owner of his property without due process
of law. Under some circumstances they may, but not under all.
The amendment does not change the law in this particular ; it simply
prevents the State from doing that which will operate as such a
deprivation.
This brings us to inquire as to the principles upon which this
power of regulation rests, in order that we may determine what is
within and what without its operative effect. Looking, then, to the
common law, from whence came the right which the Constitution
protects , we find that when private property is " affected with a pub-
lie interest, it ceases to be juris privati only." This was said by
Lord Chief Justice Hale more than two hundred years ago, in his
treatise De Portibus Maris, 1 Harg. Law Tracbs, 78, and has been
accepted without an objection as an essential element in the law of
property ever since. Property does become clothed with a public
interest when used in a manner to make it of public consequence
and affect the community at large. When, therefore, one devotes
his property to a use in which the public has an interest, he, in
•effect, grants to the public an interest in that use, and must submit
to be controlled by the public for the common good, to the extent of
the interest he has thus created. He may withdraw his grant by
discontinuing the use; but, so long as he maintains the use, he must
submit to the control.
Thus, as to ferries. Lord Hale says, in his treatise De Jure Maris,
1 Harg. Law Tracts, 6, the king has "a right of franchise or privi-
lege, that no man may set up a common ferry for all passengerSj
without a prescription time out of mind, or a charter from the king.
292 CAKEIEES OF GOODS.
He may make a ferry for his own use or the use of his family, but
not for the common use of all the king's subjects passing that way;
because it doth in consequence tend to a common charge, and is-
become a thing of public interest and use, and every man for his
passage pays a toll, which is a common charge, and every ferry
ought to be under a public regulation, viz. , that it give attendance
at due times, keep a boat in due order, and take but reasonable toll;
for if he fail in these he is finable." So if one owns the soil and
landing-places on both banks of a stream, he cannot use them for
the purposes of a public ferry, except upon such terms and conditions
as the body politic may from time to time impose ; and this because
the common good requires that all public ways shall be under the
control of the public authorities. This privilege or prerogative of
the king, who in this connection only represents and gives another
name to the body politic, is not primarily for his profit, but for the.
protection of the people and the promotion of the general welfare.
And, again, as to. wharves and wharfingers. Lord Hale, in his
treatise De Portibus Maris, already cited, says : —
" A man, for his own private advantage, may, in a port or town,
set up a wharf or crane, and may take what rates he and his cus-
tomers can agree for cranage, wharfage, housellage, pesage; for he
doth no more than is lawful for any man to do, viz., makes the most
of his own. „ . . If the king or subject have a public wharf, unto
which all persons that come to that port must come and unlade or
lade their goods as for the purpose, because they are the wharfs only
licensed by the queen, ... or because there is no wharf in that
port, as it may fall out where a port is newly erected; in that case
there cannot be taken arbitrary and excessive duties for cranage,
wharfage, pesage, etc., neither can they be enhanced to an immod-
erate rate; but the duties must be reasonable and moderate, though
settled by the king's license or charter. For now the wharf and
crane and other conveniences are affected with a public interest,
and they cease to be juris privati only ; as if a man set out a street
in new building on his own land, it is now no longer bare private-
interest, but is affected by a public interest."
This statement of the law by Lord Hale was cited with approba-
tion and acted upon by Lord Kenyon at the beginning of the present
century, in Bolt v. Stennett, 8 T. E. 606.
And the same has been held as to warehouses and warehousemen.
In Aldnutt v. Inglis, 12 East, 527, decided in 1810, it appeared that
the London Dock Company had built warehouses in which wines were
taken in store at such rates of charge as the company and the owners-
might agree upon. Afterwards the company obtained authority,
under the general warehousing act, to receive wines from imports-
before the duties upon the importation were paid; and the question
was, whether they could charge arbitrary rates for such storage or
must be content with a reasonable compensation. Upon this point
Lord Ellenborough said (p. 637) : —
WHO ARE COMMON CAREIEES.
293
"There is no doubt that the general principle is favored, both in
law and justice, that every man may fix whatever price he pleases
upon his own property, or the use of it; but if for a particular pur-
pose the public have a right to resort to his premises and make use
of them, and he have a monopoly in them for that purpose, if he
will take the benefit of that monopoly, he must, as an equivalent,
perform the duty attached to it on reasonable terms. The question
then is, whether, circumstanced as this company is, by the com-
bination of the warehousing act with the act by which they were
originally constituted, and with the actually existing state of things
in the port of London, whereby they alone have the warehousing of
these wines, they be not, according to the doctrine of Lord Hale,
obliged to limit themselves to a reasonable compensation for such
warehousing. And, according to him, whenever the accident of time
casts upon a party the benefit of having a' legal monopoly of landing
goods in a public port, and where he is the owner of the only wharf
authorized to receive goods which happens to be built in a port newly
erected, he is confined to take reasonable compensation only for
the use of the wharf."
And further on (p. 5.39) : —
" It is enough that there exists in the place and for the commodity
in question a virtual monopoly of the warehousing for this purpose,
on which the principle of law attaches, as laid down by Lord Hale
in the passage referred to (that from De Portibus Maris already
quoted), which includes the good sense as well as the law of the
subject."
And in the same case Le Blanc, J., said (p. 541) : —
"Then, admitting these warehouses to be private property, and
that the company might discontinue this application of them, or that
they might have made what terms they pleased in the first instance,
yet having, as they now have, this monopoly, the question is, whether
the warehouses be not private property clothed with a public right,
and, if so, the principle of law attaches upon them. The privilege,
then, of bonding these wines being at present conferred by the Act
of Parliament to the company's warehouses, is it not the privilege
of the public, and shall not that which is for the good of the public
attach on the monopoly, that they shall not be bound to pay an
arbitrary but a reasonable rent? But upon this record the company
resist having their demand for warehouse rent confined within any
limit; and, though it does not follow that the rent, in fact, fixed
by them is unreasonable, they do not choose to insist on its being
reasonable for the purpose of raising the question. For this pur-
pose, therefore, the question may be taken to be whether they may
claim an unreasonable rent. But though this be private property,
yet the principle laid down by Lord Hale attaches upon it, that when
private property is affected with a public interest it ceases to be
juris privati only; and, in case of its dedication to such a purpose
294 CARRIERS OF GOODS.
as this, the owners cannot take arbitrary and .excessive duties, but
the duties must be reasonable."
We have quoted, thus largely, the words of these eminent ex-
pounders of the common law, because, as we think, we find in them
the principle which supports the legislation we are now examining.
Of Lord Hale it was once said by a learned American judge : —
"In England, even on the rights of prerogative, they scan his
words with as much care as if they had been found in Magna Charta;
and, the meaning once ascertained, they do not trouble themselves to
search any further." 6 Cow. (N. Y.) 536, note.
In later times, the same principle came under consideration in the
Supreme Court of Alabama. The Court was called upon, in 1841,
to decide whether the power granted to the city of Mobile to regu-
late the weight and price of bread was unconstitutional, and it was
contended that " it would interfere with the right of the citizen to
pursue his lawful trade or calling in the mode his judgment might
dictate;" but the court said, "there is no motive . . . for this
interference on the part of the legislature with the lawful actions of
individuals, or the mode in which private property shall be enjoyed,
unless such calling affects the public interest, or private property is
employed in a manner which directly affects the body of the people.
Upon this principle, in this State, tavern-keepers are licensed; . . .
and the County Court is required, at least once a year, to settle the
rates of innkeepers. Upon the same principle is founded the con-
trol which the legislature has always exercised in the establishment
and regulation of mills, ferries, bridges, turnpike roads, and other
kindred subjects." Mobile v. Yuille, 3 Ala. n. s. 140.
From the same source comes the power to regulate the charges of
common carriers, which was done in England as long ago as the
third year of the reign of William and Mary, and continued until
within a comparatively recent period. And in the first statute we
find the following suggestive preamble, to wit: —
"And whereas divers wagoners, and other carriers, by combina-
tion amongst themselves, have raised the prices of carriage of goods
in many places to excessive rates, to the great injury of the trade :
Be it, therefore, enacted," etc. 3 W. & M. c. 12, sect. 24; 3 Stat, at
Large (Great Britain), 481.
Common carriers exercise a sort of public office, and have duties
to perform in which the public is interested. New Jersey Nav. Co.
V. Merchants' Bank, 6 How. 382. Their business is, therefore,
"affected with a public interest," within the meaning of the doctrine
which Lord Hale has so forcibly stated.
But we need not go further. Enough has already been said to
show that, when private property is devoted to a public use, it is
subject to public regulation. It remains only to ascertain whether
the warehouses of these plaintiffs in error, and the business which
is carried on there, come within the operation of this principle.
WHO AKE COMMON CARRIERS. 295
It matters not in this ease that these plaintiffs in error had built
their warehouses and established their business before the regula-
tions complained of were adopted. What they did was from the
beginning subject to the body politic to require them to conform to
such regulation as might be established by the proper authorities
for the common good. They entered upon their business and pro-
vided themselves with the means to carry it on subject to this
condition. If they did not wish to submit themselves to such inter-
ference, they should not have clothed the public with an interest in
their concerns. The same principle applies to them that does to the
proprietor of a hackney-carriage, and as to him it has never been
supposed that he was exempt from regulating statutes or ordinances
because he had purchased his horses and carriage and established
his business before the statute or the ordinance was adopted.
Justice Field (dissenting). ^
The power of the State over the property of the citizen under
the constitutional guaranty is well defined. The State may take
his property for public uses, upon just compensation being made
therefor. It may take a portion of his property by way of taxation
for the support of the government. It may control the use and pos-
session of his property, so far as may be necessary for the protection
of the rights of others, and to secure to them the equal use and
enjoyment of their property. The doctrine that each one must so
use his own as not to injure his neighbor, — sic utere tuo ut alienum
non loedas, — is the rule by which every member of society must
possess and enjoy his property; and all legislation essential to
secure this common and equal enjoyment is a legitimate exercise
of State authority. Except in cases where property may be de-
stroyed to arrest a conflagration or the ravages of pestilence, or
be taken under the pressure of an immediate and overwhelming
necessity to prevent a public calamity, the power of the State over
the property of the citizen does not extend beyond such limits.
It is true that the legislation which secures to all protection in
their rights, and the equal use and enjoyment of their property,
embraces an almost infinite variety of subjects. Whatever affects
the peace, good order, morals, and health of the community, comes
within its scope; and every one must use and enjoy his property
subject to the restrictions which such legislation imposes. What
is termed the police power of the State, which, from the language
often used respecting it, one would suppose to be' an undefined and
irresponsible element in government, can only interfere with the
conduct of individuals in their intercourse with each other, and in
the use of their property, so far as may be required to secure these
objects. The compensation which the owners of property, not hav-
ing any special rights or privileges from the government in conneo-
' Justice Stbong concurred in the dissent.
296 CAEBIEES OF GOODS.
tion with it, may demand for its use, or for their own services in
union with it, forms no element of consideration in prescribing regu-
lations for that purpose. If one construct a building in a city, the
State, or the municipality exercising a delegated power from the
State, may require its walls to be of sufficient thickness for the uses
intended; it may forbid the employment of inflammable materials
in its construction, so as not to endanger the safety of his neighbors ;
if designed as a theatre, church, or public hall, it may prescribe
ample means of egress, so as to afford facility for escape in case of
accident; it may forbid the storage in it of powder, nitro-glycerine,
or other explosive material ; it may require its occupants to remove
daily decayed vegetable and animal matter, which would otherwise
accumulate and engender disease; it may exclude from it all occu-
pations and business calculated to disturb the neighborhood or infect
the air. Indeed, there is no end of regulations with respect to the
use of property which may not be legitimately prescribed, having
for their object the peace, good order, safety, and health of the com-
munity, thus securing to all the equal enjoyment of their property;
but in establishing these regulations it is evident that compensation
to the owner for the use of his property, or for his services in union
with it, is not a matter of any importance; whether it be one sum
or another does not affect the regulation, either in respect to its
utility or mode of enforcement. One may go, in like manner,
through the whole round of regulations authorized by legislation,
State or municipal, under what is termed the police power, and in
no instance will he find that the compensation of the owner for the
use of his property has any influence in establishing them. It is
only where some right or privilege is conferred by the government
or municipality upon the owner, which he can use in connection
with his property, or by means of which the use of his property is
rendered more valuable to him, or he thereby enjoys an advantage
over others, that the compensation to be received by him becomes a
legitimate matter of regulation. Submission to the regulation of
compensation in such cases is an implied condition of the grant,
and the State, in exercising its power of prescribing compensation,
only determines the conditions upon which its concessions shall be
enjoyed. When the privilege ends, the power of regulation ceases.
Jurists and writers on public law find authority for the exercise
of this police power of the State and the numerous regulations which
it prescribes in the doctrine already stated, that every one must use
and enjoy his property consistently with the rights of others, and
the equal use and enjoyment by them of their property. "The
police power of the State," says the Supreme Court of Vermont,
" extends to the protection of the lives, limbs, health, comfort, and
quiet of all persons, and the protection of all property in the State.
According to the maxim, sic utere tuo ut alienuvi non loedas, which
being of universal application, it must, of course, be within the range
WHO ARE COMMON CARRIEKS. 297
of legislative action to define the mode and manner in which every
one m,ay so use his own as not to injure others." Thorpe v. Kutland
& Burlington Railroad Co., 27 Vt. 149. " We think it a settled
principle growing out of the nature of well-ordered civilized society,"
says the Supreme Court of Massachusetts, "that every holder of
property, however absolute and unqualified may be his title, holds
it under the implied liability that his use of it shall not he injurious
to the equal enjoyment of others having an equal right to the enjoy-
ment of their property nor injurious to the rights of the community."
Commonwealth v. Alger, 7 Cush. 84. In his Commentaries, after
speaking of the protection afforded by the Constitution to private
property, Chancellor Kent says: "But though property be thus
protected, it is still to be understood that the law-giver has the right
to prescribe the mode and manner of using it, so far as may be neces-
sary to prevent the abuse of the right, to the injury or annoyance of
others, or of the public. The government may, by general regula-
tions, interdict such uses of property as would create nuisances and
become dangerous to the lives, or health, or peace, or comfort of
the citizens. Unwholesome trades, slaughter-houses, operations
oifensive to the senses, the deposit of powder, the application of
steam-power to propel cars, the building with combustible materials,
and the burial of the dead may all be interdicted by law, in the
midst of dense masses of population, on the general and rational
principle that every person ought so to u^e his property as not to injure
his neighbors, and that private interests must be made subservient to
the general interests of the community." 2 Kent, 340.
The Italics in these citations are mine. The citations show what
I have already stated to be the case, that the regulations which the
State, in the exercise of its police power, authorizes with respect to
the use of property are entirely independent of any question of com-
pensation for such use, or for the services of the owner in connec-
tion with it.
There is nothing in the character of the business of the defendants
as warehousemen which called for the interference complained of in
this case. Their buildings are not nuisances; their occupation of
Teceiving and restoring grain infringes upon no rights of others,
disturbs no neighborhood, infects not the air, and in no respect pre-
vents others from using and enjoying their property as to them may
seem best. The legislation in question is nothing less than a bold
assertion of absolute power by the State to control at its discretion
the property and business of the citizen, and fix the compensation
lie shall receive. The will of the legislature is made the condition
xipon which the owner shall receive the fruits of his property and
the just reward of his labor, industry, and enterprise. "That gov-
ernment," said Story, "can scarcely be deemed to be free where the
Tights of property are left solely dependent upon the will of the
legislative body without any restraint. The fundamental maxims of
298 CARRIERS OF GOODS.
a free government seem to require that the rights of personal liberty
and private property should be held sacred." Wilkeson v. Leland,
2 Pet. 657. The decision of the Court in this case gives unrestrained
license to legislative will.
The several instances mentioned by counsel in the argument, and
by the Court in its opinion, in which legislation has fixed the com-
pensation which parties may receive for the use of their property
and services, do not militate against the views I have expressed of
the power of the State over the property of the citizen. They were
mostly cases of public ferries, bridges, and turnpikes, of wharfingers,
hackmen, and draymen, and of interest on money. In all these
cases, except that of interest on money, which I shall presently
notice, there was some special privilege granted by the State or
municipality; and no one, I suppose, has ever contended that the
State has not a right to prescribe the conditions upon which such
privileges should be enjoyed. The State in such cases exercises no
greater right than an individual may exercise over the use of his
own property when leased or loaned to others. The conditions upon
which the privilege shall be enjoyed being stated or implied in the
legislation authorizing its grant, no right is, of course, impaired by
their enforcement. The recipient of the privilege, in effect, stipu-
lates to comply with the conditions. It matters not how limited
the privilege conferred, its acceptance implies an assent to the regu-
lation of its use and the compensation for it. The privilege which
the hackman and drayman have to the use of stands on the public
streets, not allowed to the ordinary coachman or laborer with teams,
constitutes a sufficient warrant for the regulation of their fares. In
the case of the warehousemen of Chicago, no right or privilege is
conferred by the government upon them; and hence no assent ot
theirs can be alleged to justify any interference with their charges
for the use of the property.^
1 In Budd V. New York, 143 U. S. 517 (1892), in which the majority of
the court reaffirmed the views expressed by the majority in the principal case
as to state regulation of charges for storage of grain in elevators, Mr. Justice
Brewer (Field and Brown, JJ., concurring) dissented, using in part this lan-
guage (p. 549): "The vice df the doctrine [announced by the majority] is,
that it places a public interest in the use of property upon the same basis as
a public use of property. Property is devoted to a public use when, and only
when, the use is one which the public in its organized capacity, to wit, the
State, has a right to create and maintain, and, therefore, one which all the
public have a right to demand and share in. The use is public, because the public
may create it, and the individual creating it is doing thereby and pro tanto the
work of the State. The creation of all highways is a public duty. Railroads are
highways. The State may build them. It an individual does that work, he is
pro tanto doing the work of the State. He devotes his property to a public use.
The State doing the work fixes the price for the use. It does not lose the right to
WHO ARE COMMON CAEKIEES. 299
6. Who exercise such Galling.
ALLEN 6t al., Appellants, v. SACKEIDEE et al.
37 N. Y. 341. 1867.
Parker, J. The action was brought against the defendants to
charge them, as common carriers, with damage to a quantity of grain
shipped by the plaintiifs in the sloop of the defendants, to be trans-
ported from Trenton , in the province of Canada, to Ogdensburgh, in
this State, which accrued from the wetting of the grain in a storm.
The case was referred to a referee, who found as follows: —
"The plaintiffs, in the fall of 1859, were partners, doing busi-
ness at Ogdensburgh. The defendants were the owners of the sloop
' Creole,' of which Farnham was master. In the fall of 1869 the
plaintiffs applied to the defendants to bring a load of grain from the
bay of Quinte to Ogdensburgh. The master stated that he was a
stranger to the bay, and did not know whether his sloop had capacity
to go there. Being assured by the plaintiff that she had, he engaged
for the trip at three cents per bushel, and, performed it with safety.
In November, 1859, plaintiffs again applied to defendants to make
another similar trip for grain, and' it was agreed at one hundred
dollars for the trip. The vessel proceeded to the bay, took in a
load of grain, and on her return was driven on shore, and the cargo
injured to the amount of f 1346.34; that th« injury did not result
from the want of ordinary care, skill, or foresight, nor was it the
result of inevitable accident, or what, in law, is termed the act of
God. From these facts, my conclusions of law are, that the defend-
ants were special carriers, and only liable as such, and not as com-
mon carriers; and that the proof does not establish such facts as
would make the defendants liable as special carriers; and, there-
fore, the plaintiffs have no cause of action against them."
The only question in the case is, were the defendants common
carriers? The facts found by the referee do not, I think, make the
defendants common carriers. They owned a sloop; but it does not
appear that it was ever offered to the public or to individuals for
use, or ever put to any use, except in the two trips which it made
for the plaintiffs, at their special request. Nor does it appear that
the defendants were engaged in the business of carrying goods . or
that they held themselves out to the world as carriers, or had ever
fix the price, because an individual voluntarily undertakes to do the work. But
this public use is very different from a public interest in the use. There is scarcely
any property In whose use the public has no interest. " See also his dissent (Field,
Jackson, and White, concurring) in Brass v. Stoeser, 153 U. S. 391 (1894), a case
also relating to regulation of elevator charges.
300 CAREIEKS OF GOODS.
offered their services as such. This casual use of their sloop in
transporting plaintiffs' property falls short of proof sufficient to
show them common carriers.
A common carrier was defined, in Gisbourn v. Hurst, 1 Salk.
249,* to be, any man undertaking, for hire, to carry the goods q/
all persons indifferently; " and in Dwight v. Brewster, 1 Pick. 50
[16], to be one who undertakes, for hire, to transport the goods of
such as choose to employ Mm, from place to place." In Orange Bank
■<j. Brown, 3 Wend. 161, Chief Justice Savage said: "Every person
who undertakes to carry, for a compensation, the goods of all per-
sons indifferently, is, as to the liability imposed, to be considered a
common carrier. The distinction between a common carrier and a
private or special carrier is, that the former holds himself out in
common, that is, to all persons who choose to employ him, as ready
to carry for hire; while the latter agrees, in some special case, with
some private individual, to carry for hire." Story on Contracts,
§ 752 a. The employment of a common carrier is a public one,
and he assumes a public duty, and is bound to receive and carry
the goods of any one who offers. " On the whole," says Professor
Parsons, " it seems to be clear that no one can be considered as a
common carrier unless he has, in some way, held himself out to the
public as a carrier, in such manner as to render him liable to an
action if he should refuse to carry for any one who wished to employ
him." 2 Pars, on Cont. [5th ed.] 166, note.
The learned counsel for the appellant in effect recognizes the
necessity of the carrier holding himself out to the world as such,
in order to invest him with the character and responsibilities of a
common carrier; and, to meet that necessity, says: "The 'Creole'
was a freight vessel, rigged and manned suitably for carrying freight
1 GISBOURN V. HURST.
COMMON BENCH, 1 Salk. 249. 1710.
In trover upon a special verdict the case was, The goods in the declaration were the
plaintiff's, and by him delivered in London to one Eichardson, to carry down to
Birmingham. This Richardson was not a common carrier, but for some small time
last past brought cheese to London, and in his return took such goods as he could get
to carry back in his wagon into the country for a reasonable price. When he returned
home, he put his wagon with the cheese into the barn, where it continued two nights
and a day, and then the landlord came and distrained the cheese for rent due for the
house, which was not an inn, but a private house ; and it was agreed pej' eur. That
goods delivered to any person exercising a public trade or employment to be carried,
wrought, or managed in the way of his trade or employ, are for that time under a legal
protection, and privileged from distress for rent ; but this being a private undertaking
required a further consideration ; and it was resolved. That any man undertaking for
hire to carry the goods of all persons indifferently, as in this case, is, as to this privi-
lege, a common carrier ; for the law has given the privilege in respect of the trader,
and not in respect of the carrier ; and the case in Cro. El. 596, is stronger. Two
tradesmen brought their wool to a neighbor's beam, which he kept for his private us«,
and it was held that it could not be distrained.
■WHO AEE COMMON CARRIERS. 301
from port to port; her appearance in the harbor of Ogdenshurgh,
waiting for business, was an emphatic advertisement that she sought
employment." These facts do not appear in the findings oi the
Teferee, and, therefore, cannot, if they existed, help the appellants
upon this appeal.
It is not claimed that the defendants are liable, unless as common
carriers. Very clearly they were not common carriers; and the
judgment should, therefore, be affirmed.
GORDON V. HUTCHINSON.
1 W. & S. (Pa.) 285. 1841.
This was an action on the case by James B. Hutchinson against
James Gordon. The defendant pleaded non assurn.psit.
The facts were that the defendant, being a farmer, applied at the
store of the plaintiff for the hauling of goods from Lewistown to
Bellefonte, upon his return from the former place, where he was
going with a load of iron. He received an order and loaded the
goods. On the way the head came out of a hogshead of molasses,
and it was wholly lost. In this action the plaintifE claimed to
recover the price of it. There was much proof on the subject of the
occasion of the loss : whether it was in consequence of expansion cf
the molasses from heat, or of negligence on the part of the wagoner,
of which there was strong evidence.
The defendant took the ground that he was not subject to the
responsibilities of a common carrier, but only answerable for negli-
gence, inasmuch as he was only employed occasionally to carry for
hire. But the Court below (Woodward, President) instructed the
jury that the defendant was answerable upon the principles which
govern the liabilities of a common carrier.
Gibson, C. J. The best definition of a common carrier in its appli-
cation to the business of this country is that which Mr. Jeremy
(Law of Carriers, 4) has taken from Gisbourn v. Hurst, 1 Salk. 249
[300], which was the case of one who was at first not thought to be
a common carrier only because he had, for some small time before,
brought cheese to London, and taken such goods as he could get to
carry back into the country at a reasonable price; but the goods
having been distrained for the rent of a barn into which he had put
his wagon for safe keeping, it was finally resolved that any man
undertaking to carry the goods of all persons indifferently, is, as to
exemption from distress, a common carrier. Mr. Justice Story has
cited this case (Commentaries on Bail. 322) to prove that a common
carrier is one who holds himself out as ready to engage in the trans-
portation of goods for hire as a business, and not as a casual occu«
302 OAEEIEES OF GOODS.
pation^ro hae vice. My conclusion from it is different. I take it a
wagoner who carries goods for hire is a common carrier, whether
transportation be his principal and direct business, or an occasional
and incidental employment. It is true the Court went no further
than to say the wagoner was a common carrier as to the privilege of
exemption from distress; but his contract was held not to be a pri-
vate undertaking as the Court was at first inclined to consider it, but
a public engagement, by reason of his readiness to carry for any one
who would employ him, without regard to his other avocations, and
he would consequently not only be entitled to the privileges, but be
subject to the responsibilities of a common carrier; indeed, they are
correlative, and there is no reason why he should enjoy the one
without being burdened with the other. Chancellor Kent (2 Com-
mentaries, 597) states the law on the authority of Eobinson v.
Dunmore, 2 Bos. & Pul. 416, to be that a carrier for hire in a par-
ticular case, not exercising the business of a common carrier, is
answerable only for ordinary neglect, unless he assume the risk of
a common carrier by express contract; and Mr. Justice Story (Com.
on Bail. 298) as well as the learned annotator on Sir William Jones's
Essay (Law of Bail. 103 d. note 3) does the same on the authority
of the same case. There, however, the defendant was held liable
on a special contract of warranty, that the goods should go safe;
and it was therefore not material whether he was a general carrier
or not. The judges, indeed, said that he was not a common carrier,
but one who had put himself in the case of a common carrier by his
agreement; yet even a common carrier may restrict his responsibility
by a special acceptance of the goods, and may also make himself
answerable by a special agreement as well as on the custom. The
question of carrier or not, therefore, did not necessarily enter into
the inquiry, and we cannot suppose the judges gave it their prin-
cipal attention.
But rules which have received their form from the business of a
people whose occupations are definite, regular, and fixed must be
applied with much caution and no little qualification to the business
of a people whose occupations are vague, desultory, and irregular.
In England, one who holds himself out as a general carrier is bound
to take employment at the current price; but it will not be thought
that he is bound to do so here. Nothing was more common formerly
than for the wagoners to lie by in Philadelphia for a rise of wages.
In England the obligation to carry at request upon the carrier's par-
ticular route is the criterion of the profession, but it is certainly not
so with us. In Pennsylvania, we had no carriers exclusively between
particular places, before the establishment of our public lines of
transportation ; and according to the English principle we could have
had no common carriers, for it was not pretended that a wagoner
could be compelled to load for any part of the Continent. But the
policy of holding him answerable as an insurer was more obviously
WHO ARE COMMON OAKRIEES. 303
dictated by the solitary and mountainous regions through which his
course for the most part lay, than it is by the frequented thorough-
fares of England. But the Pennsylvania wagoner was not always
such even by profession. No inconsiderable part of the transporta-
tion was done by the farmers of the interior, who took their produce
to Philadelphia, and procured return loads for the retail merchants
of the neighboring towns ; and many of them passed by their homes
with loads to Pittsburg or Wheeling, the principal points of embark-
ation on the Ohio. But no one supposed they were not responsible
as common carriers; and they always compensated losses as such.
They presented themselves as applicants for employment to those
who could give it ; and were not distinguishable in their appearance,
or in their equipment of their teams, from carriers by profession. I
can readily understand why a carpenter, encouraged by an employer
to undertake the job of a cabinet-maker, shall not be bound to bring
the skill of a workman to the execution of it ; or why a farmer, tak-
ing his horses froni the plough to turn teamster at the solicitation of
his neighbor, shall be answerable for nothing less than good faith ;
but I am unable to understand why a wagoner soliciting the employ-
ment of a common carrier, shall be prevented, by the nature of any
other employment he may sometimes follow, from contracting the
responsibility of one. What has a merchant to do with the private
business of those who publicly solicit employment from him? They
offer themselves to him as competent to perform the service required,
and, in the absence of express reservation, they contract to perform
it on the usual terms, and under the usual responsibility. Now,
what is the case here? The defendant is a farmer, but has occa-
sionally done jobs as a carrier. That, however, is immaterial. He
applied for the transportation of these goods as a matter of busi-
ness, and consequently on the usual conditions. His agency was not
sought in consequence of a special confidence reposed in him — ,
there was nothing special in the ease — - on the contrary, the employ-
ment was sought by himself, and there is nothing to show that it
was given on terms of diminished responsibility. There was evi-
dence of negligence before the jury; but, independent of that, we
are of' opinion that he is liable as an insurer.
Judgment affirmed?'
CITIZENS' BANK v. NANTUCKET STEAMBOAT CO.
2 Story (U. S. C. C), 16. 1811.
Stoet, Circuit Justice. . . . The suit is in substance brought to
recover from the steamboat company a sum of money, in bank bills
and accounts, belonging to the Citizens' Bank, which was intrusted
1 Ace. : Moss w. Bettis, 4 Heisk. 661. Cmitra: Fish v. Chapman, 2 Ga. 349,
304 CARRIERS OF GOODS.
by the cashier of the bank to the master of the steamboat,, to be
carried in the steamboat from the island of Nantucket to the port of
New Bedford, across the intermediate sea, which money has been
lost, and never duly delivered by the master. . . .
Having stated these preliminary doctrines, which seem necessary
to a just understanding of the case, we may now proceed to a direct
consideration of the merits of the present controversy. And in my
judgment, although there are several principles of law involved in
it, yet it mainly turns upon a matter of fact; namely, whether the
steamboat company were, or held themselves out to the public to be,
common carriers of money and bank bills, as well as of passengers
and goods and merchandise, in the strict sense of the latter terms j
or the employment of the steamboat was, so far as the company are
concerned, limited to the mere transportation of passengers and
goods and merchandise on freight or for hire ; and money and bank
bills, although known to the company to be carried by the master,
were treated by them as a mere personal trust in the master by the
owners of the money and bank bills, as their private agents, and for
which the company never held themselves out to the public as
responsible, or as being within the scope of their employment and
business as carriers.
The ground of the defence of the company is, that, in point of
fact, although the transportation of money and bank bills by the
master was well known to them, yet it constituted no part of their
own business or employment; that they never were, in fact, common
carriers of money or bank bills ; that they never held themselves out
to the public as such, and never received any compensation there-
for; that the master, in receiving and transporting money and bank
bills, acted as the mere private agent of the particular parties, who
intrusted the same to him, and not as the agent of the company or
by their authority; that, in truth, he acted as a mere gratuitous
bailee or mandatary on all such occasions ; and even if he stipulated
for, or received, any hire or compensation for such services, he did
so, not as the agent of or on account of the company, but on his own
private account, as a matter of agency for the particular bailors or
mandators. Now, certainly, if these matters are substantially made
out by the evidence, they constitute a complete defence against the
present suit.
DWIGHT V. BREWSTER.
1 Pick. (Mass.) 50. 1822.
The defendants contended that they were not liable as common
carriers, their business being the conveyance of passengers and their
luggalge : that the taking small packages was an affair of the drivers.
WHO ARE COMMON CAEEIEES. 305
wlio received tlie compensation, and who were answerable for negli-
gence only, and that the proprietors were not responsible, though it
appeared that less wages were paid to the drivers, in consequence of
the opportunity they had of earning small sums of money in this
way; whereas large packages were usually entered on the way-bill,
and the proprietors received the compensation for the trans-
portation.
Pakker, C. J. ... On the second count, which charges the
defendants as common carriers, we think the facts proved are suffi-
cient to constitute them such. Packages were usually taken in the
stage-coach for transportation; large .packages were entered in the
book kept for the proprietors, and compensation taken for their use.
That the principal business was to carry the mail and. passengers
is no reason why the proprietors should not be common carriers of
merchandise, etc. A common carrier is one who undertakes, for
hire or reward, to transport the goods of such as choose to employ
him from place to place. This may be carried on at the same time
with other business. The instruction of the judge in this particular,
that the practice of taking parcels for hire, to be conveyed in the
stagecoach, constituted the defendants common carriers, we think
was right.
FLINT, ETC. E. CO. V. WEIR.
37 Mich. 111. ■ 1876.
CooLEY, C. J. . . . The evidence was put into the case by stipu-
lation, and in the main the facts are undisputed. It appears that
the plaintiff took passage upon the cars of the defendant from Detroit
to Saginaw, and that he had with him a trunk, which he avers con-
tained the articles of personal property described in the declaration.
This trunk has been lost, but whether through any fault of the rail-
way company is in dispute. It is, however, shown by the plaintifl
himself that both he and his trunk were being carried, not for hire
and reward, but gratuitously. There was consequently no contract
for carriage by the railway company, and this action, which is in
assumpsit, cannot be maintained. Nolton v. Western E. Corp., 15
N. Y. 444, 446.
There can be no question that a railway company which receives
property for gratuitous carriage assumes, like any other gratuitous
bailee, certain duties in respect to it, and that a suit will lie for a
failure to perform these duties. But the obligation in such case is
quite different from the obligation of a bailee who, for a considera-
tion received or promised, undertakes to carry or to perform any
other service with respect to the subject of the bailment. In the
306 CARRIERS OF GOODS.
latter case the terms of the contract, if an express contract was
made, will be the measure of the duties to be performed; and in the
absence of any express contract the law itself will impose upon the
bailee a higher degree of care and watchfulness than it demands
of him who, for the mere accommodation of the bailor, undertakes
the charge of his goods. The gratuitous bailee must not be reck-
less ; he must observe such care as may reasonably be required of
him under the circumstances ; but it is not the same care which is
required of the bailee who, for his own profit, assumes the duty.
This is elementary, and is so reasonable that it requires no discus-
sion. When care is bargained for and compensated, something is
expected and is demandable beyond what can be required of him
who undertakes a merely gratuitous favor.
Reliance is placed by the plaintiff upon certain cases which are
supposed to have decided that the obligation of a railway company
to carry safely is unaffected by the fact that no fare was paid.
None of them so decides. . . .
But we do not care to comment upon these cases, or to say more
of them than this : that the right of recovery in each of them where
the carriage was gratuitous was based upon the duty of one who
undertakes to carry persons, to carry them safely, — a duty indepen-
dent of any contract, and which the carrier owes, not exclusively to
the person being carried, but also to the State itself. In such a
case, especially if the mode of carriage is peculiarly subject to dan-
gerous and destructive accidents, the carrier may well be required
to observe a high degree of care and diligence. But where only
property is in question, there >is no reason why any different rule
should be applied to a railroad company taking charge of property
gratuitously, to that which governs the relation in the case in any
other gratuitous bailment. Nor is it material that the gratuitous
carriage of a trunk was accompanied by the gratuitous carriage of a
person ; the duty to carry the trunk safely was only the same that
the law would have imposed had the trunk been taken upon a freight
train gratuitously ; and no greater degree of care could be demanded
in one case than in the other. It may therefore be conceded that
the same extreme care is demandable of carriers of persons in all
cases where injuries to persons are in question, and the concession
will not in any manner affect the present suit.
But as the plaintiff has brought his action, not in tort, but upon
contract, there can be no recovery under his declaration, and the
extent of the duty which, under the circumstances, was imposed
upon the railway company becomes immaterial. The judgment must
be reversed, with costs, but as the facts are not embodied in a find-
ing by the circuit judge, so as to permit of our entering final judg-
ment in this court, a new trial must be ordered.
WHO AKE COMMON CAKEIERS. 307
PIEKCE V. MILWAUKEE, etc. R. CO.
23 Wis. 387. 1868.
Action to recover the value of eight bundles of bags, which had
been in use for two seasons in transporting grain from Lake City,
Minnesota, to Genoa, Wisconsin, by way of the river and the
defendant's railway. The complaint alleged that the bags were
delivered by the packet company doing business on the river, to the
defendant at La Crosse; and that defendant, as a common carrier,
received said bags to be safely carried by it over its railway, and
delivered at Milwaukee to the plaintiff, " for a reasonable compensa-
tion to be paid by the plaintiff therefor." Answer, a general denial.
At the trial defendant sought to avoid liability, as a common carrier,
for the loss of the bags, by showing a uniform and long-established
custom of the river and railway, that all bags used in the transporta-
tion of grain on said river or railway were carried free of charge,
when empty, claiming that for bags so carried it could be held
responsible only in case of gross negligence.
Paine, J. After carefully considering the original briefs of
counsel and the arguments upon the rehearing, I have come to the
conclusion that the carrying of the bags of the plaintiff by the com-
pany cannot be considered as gratuitous, whether the custom was
only to return bags free that had gone over the road filled, or
whether it was a general custom to carry the bags of customers free
both ways, without regard to the question whether, at any particu-
lar time, they were returning from a trip on which they had passed
over the road, filled or not. If such a relation were created by an
express contract, instead of being based upon a custom, it would
seem clear that there would be a sufficient consideration for the
agreement to carry the bags. If a written contract should be signed
by the parties, in which the one should agree to give the company
the transportation of his grain at its usual rates, and the company
should agree in consideration thereof to carry the grain at those
rates, and also to carry the bags both ways whenever the customer
might desire it, without any further charge, there can be no doubt
that the giving to the company his business, and the payment of
the regular freight, would be held to constitute the consideration for
this part of the agreement on the part of the company. But if it
would be so in such a case, it is equally so when the same under-
standing is arrived at through the means of a custom. The com-
pany, by establishing such a custom, makes the proposition to all
persons, that if they will become its customers, it will carry their
bags both ways without any other compensation than the freight
upon the grain. Persons who become its customers in view of such
308 CAEEIEES OF GOODS.
a custom do so with that understanding. And the patronage and
the freights paid are the consideration for carrying the hags. The
company, in making such a proposition, must consider that this
additional privilege constitutes an inducement to shippers to give it
their freight. And it must expect to derive a sufficient advantage
from an increase of business occasioned hy such inducement, to com-
pensate it for such transportation of the bags. And it ought not to
be allowed, when parties have become its customers with such an
understanding, after losing their bags, to shelter itself under the
pretext that the carrying of the bags was a mere gratuity, and it is
therefore liable only for gross negligence.
It makes no difference that the custom is described as being to
carry the bags free. In determining whether they are really car-
ried "free" or not, the whole transaction between the parties must
be considered. And when this is done, it is found that all that is
meant by saying that the empty bags are carried free, is, that the
customers pay no other consideration for it than the freight derived
from the business they give the company. But this, as already seen,
is sufficient to prevent the transportation of the bags from being
gratuitous. Smith v. E. E, Co., 24 N. Y. 222; see also Bissel v.
Eailroad Co., 25 id. 442. . . ,
I can see no ground for any such difficulty as that suggested
by the appellant's counsel on the re-argument. He said, if this
undertaking to return bags free was to be considered a matter
of contract on the part of the company, it would be unable to
collect its freight on delivering grain upon the ground that its
contract was not then completed. But this could not be so. The
company, on delivering the grain, parts with the possession of
the property to the shipper or his consignee. And on doing that, it
is of course entitled to its freight. And its agreement to return the
bags without further charge, or to carry them free both ways when-
ever its customer should deliver them empty for that purpose, could
not have the effect of destroying this right. The contract would be
construed according to the intention of the parties. See Angell on
Carriers, § 399, note 3, and cases cited. And here it would be
very obvious that neither of the parties contemplated any relin-
quishment by the company of its right to freight on delivering the
grain. The transaction for that purpose would be distinct. Here
the defendant's evidence showed that the plaintiff was a "customer."
The company claims that he had complied with the custom on his
part, so as to make it applicable to him. But if he had done so, as
that constitutes a sufficient consideration to prevent the carrying of
his bags from being gratuitous, the company is liable.
Bt the Coubt. The judgment is affirmed, with costs.
WHO ARE COMMON CAEKIEES. 309
GEAY V. MISSOUEI EIVEE PACKET CO., Appellant.
64 Mo. 47. 1876.
Norton, Judge. This was an action in whicli defendant is sought
to be charged as a common carrier for transporting a jack, the prop-
erty of plaintiff, in so careless a manner as to occasion his death.
The defendant by way of defence denied negligence as charged, and
set up in his answer as a further defence that the shipment of the
jack was to be made gratuitously and without compensation, and not
for hire
The following instruction asked by defendant was refused by the
Court : " If the jury believe from the evidence that the jack in con-
troversy was to be transported from Berlin on the south side of the
Missouri Eiver to Grider's landing on the north side of said river by
said defendants, without hire or reward from plaintiff and solely
and gratuitously to accommodate plaintiff, then the defendant is not
liable in this action unless the jury should further find that the
defendant was guilty of gross negligence, which the Court defines to
be that omission of care which even the most inattentive and thought-
less never fail to take of their own concerns." The instruction
asserted a correct principle of law as applicable to mere manda-
taries. It was nevertheless rightfully refused by the Court, because
under the view we take of the case, as disclosed in the record, there
was no evidence on which to base it. It appears from the evidence
that plaintiff applied to one Eider, captain of the Steamboat " Alice,"
which was being used by defendants in their business as carriers, to
ship his horse and jack, and that he agreed to transport them for
him. He asked Eider what would be the charge, who said in reply
that he never took anything for less than a dollar, and directed
plaintiff to bring on his stock. Eider testifies as follows: "I
promised Gray to take his stock; he came and asked me what I
would charge. I said ' not much, if anything. ' I did not intend
to charge him anything. I took him over purely to accommodate
Gray."
The secret intention of Eider, unexpressed and locked up in his
breast, not to charge Gray anything for the transportation of his
stock, does not tend to establish an agreement for its gratuitous
transportation, especially when connected with what he did express,
that he would "charge him not much, if anything." We apprehend
that if Gray had been sued for the transportation of his stock, it
would have been no reply to the action for him to have set up as a
defence that Eider said when he was applied to for tlie price that
he would not charge him much, if anything.
After an injury results to property intrusted to a common carrier
310 CAKEIERS OF GOODS.
for transportation, who upon receiving it for that purpose declined
to fix the price or charge for the transportation, he cannot be allowed
to come in and defeat a recovery hy saying that at the time of its
reception he had a secret intention, unexpressed to the shipper or
consignor, and not agreed to by him, not to charge anything, and
that the transportation was gratuitous and not for hire. The instruc-
tion copied as well as the first instruction asked by defendant upon
a kindred subject were therefore properly refused. The seventh
instruction given on behalf of plaintiff in so far as it contained the
word " gratuitously " was erroneous, but as under the views above
expressed no injury could result therefrom to defendant it is no
cause for disturbing the judgment.
It is also objected that the court misdirected the jury by its third
instruction, in which they were told that if they found for plaintiff
they would assess his damages at the actual value of the jack at the
time he was shipped with the six per cent interest from that time.
It is a general rule that when goods are delivered by a common
carrier according to contract, the measure of damages is the value
of the goods with interest from the day they should have been
delivered, less the freight if unpaid. Sedg. on Dam. 424; King v.
Shepherd, 3 Sto. 349; Gushing v. Wells, Fargo & Co., 98 Mass. 550;
Woodward v. Illinois Central B. R. Co., 1 Bissel, 503; Corby v.
Davidson, 13 Minn. 92; Mote v. Chicago & N. W. E. K. Co., 27
Iowa, 22.
In the case of Atkinson v. Steamboat Castle Garden, 28 Mo. 124,
Judge Scott remarks "that the allowance of interest in these cases
depends on circumstances, and will be given or withheld in all other
cases of unliquidated damages." When a loss occurs without neg-
ligence in cases of this class, interest might be withheld. In the
case' at bar the negligence as shown by the proof was of the grossest
character, and the manner in which the jack was thrown down and
dragged on to the boat might well have subjected the parties engaged
in it to a prosecution under the statute for cruelty to animals. In
consequence of it plaintiff had an animal with broken limbs thrown
on his hands to be cared for, till he died from the injuries, one week
after they were inflicted. We think the circumstances justified the
allowance of interest.
While the instruction as to the measure of damages is silent in
regard to the duty of the jury to deduct from the value of the animals
and interest the freight, the silence of the court may be justified by
the silence of the witnesses in regard to what it was worth.
The defendant agreed to ship the stock without the price being
fixed or agreed upon, and the promise to pay what was reasonably
worth arose by implication of law, and in the absence of proof,
showing what it was worth, the court committed no error in not
alluding to it.
Judgment affirmed.
WHO ABE COMMON CAJIEIEES. 311
HALE u THE NEW JEESEY STEAM NAVIGATION CO.
15 Conn. 539. 1843.
Williams, Ch. J. The suit was brought for two carriages shipped
on board the "Lexington," against the defendants, as common
carriers, to be transported in said- boat, for hire, from New York to
Boston or Providence. The boat and goods were destroyed by fire,
in the Sound; and a verdict being given for the plaintiff, the
defendants excepted to the charge, and claimed : —
1. That they were not common carriers or subject to the rules
that govern common carriers. It was long since settled, that any
man, undertaking for. hire to carry the goods of all persons indif-
ferently, from place to place, is a common carrier. Gisbourn v.
Hurst, 1 Salk. 249 [300]. Common carriers, says Judge Kent, consist
of two distinct classes of men, viz., inland carriers by land or water,
and carriers by sea; and in the aggregate body are included the
owners of stage-coaches, who carry goods, as well as passengers for
hire, — wagoners, teamsters, cartmen, the masters and owners of
ships, vessels and all water-craft, including steam vessels and steam
towboats. belonging to internal as well as coasting and foreign navi-
gation, lightermen and ferrymen. 2 Kent's Com. 598 (2nd ed.).
And there is no difference between a land and a water carrier, 3 Esp.
Ca. 127; 10 Johns. R. 7; Story on Bailments, 319, 323.
LIVEEPOOL STEAM CO. v. PH(ENIX INS. CO.'
129 U. S. 397. 1889.
Gray, J. (at page 437). . . , The contention that the appellant is
not a common carrier may also be shortly disposed of.
By the settled law, in the absence of some valid agreement to the
contrary, the owner of a general ship, carrying goods for hire,
whether employed in internal, in coasting, or in foreign commerce,
is a common carrier, with the liability of an insurer against all
losses, except only such-two irresisti^ile causes as the act of God and
public enemies. Molloy, bk. 2, c. 2, sec. 2; Bac. Ab. Carrier, A;
Barclay v. Cucullay Gana, 3 Doug. 389; 2 Kent Com. 598, 599; Story
on Bailments, sec. 501; The Niagara, 21 How. 7, 23; The Lady
Pike, 21 Wall. 1, 14.
' For the remainder of the case, see page 197.
312 CARRIERS OF GOODS.
In the present case the Circuit Court has found as facts : " The
' Montana ' was an ocean steamer, built of iron, and performed regu-
lar service as a common carrier of merchandise and passengers
between the ports of Liverpool, England, and New York, in the line
commonly known as the Guion Line. By her, and by other ships
in that line, the respondent was such common carrier. On March
2, 1880, the ' Montana ' left the port of New York, on one of her regu-
lar voyages, bound for Liverpool, England, with a full cargo, con-
sisting of about twenty-four hundred tons of merchandise, and with
passengers." The bills of lading, annexed to the answer and to
the findings of fact, show that the four shipments in question
amounted to less than one hundred and thirty tons, or hardly more
than one twentieth part of the whole cargo. It is clear, therefore,
upon this record, that the appellant is a common carrier, and is
liable as such, unless exempted by some clause in the bills of
lading. . . .
McAETHUE & HUKLBEET v. SEAKS.
21 Wend. (N. Y. Sup. Ct.) 190. 1839.
COWEN, J
The defendant was a common carrier; and it is not denied as
a general rule, that, to protect himself from responsibility for the
loss, he was bound to prove that it arose from the act of God, or
the enemies of the country. To the latter, the proof offered
makes no pretensions ; and it was thrown out in argument that the
former part of the rule has no application to carriers navigating
the dangerous waters of Lake Erie. No such local exception is
known to the law of England or Scotland, whatever the general
dangers of navigation. 2 Kent's Com. 597, 607, 608, 3 ed. Nor
can it be indulged with safety either in principle or practice. No
such exception has been made by any case in this State; nor am
I aware that it has ever been contended for, though there have
been several closely litigated suits, for losses by carriers upon our
Great Lakes. I do not find that it has been recognized by any case
in the neighboring States ; and distinctions in favor of carriers by
water generally, which have been countenanced in one case, Aymar
V. Astor, 6 Cowen, 266, by a dictum of the late Chief Justice of this
State, and by two or three cases in Pennsylvania, have been treated
as unfounded anomalies, to be disapproved as contrary to decisions
in neighboring States, and even in our own. Story on Bailm. -323,
§ 497; 2 Kent's Com. 607, 608, 3 ed.; Crosby v. Eitch, 12 Conn. E.
419. In Elliott v. Eozell, 10 Johns. E. 1, the rule was applied to
the navigation of the river St. Lawrence in scows, late in the season,
between Ogdensburgh and Montreal, which was known by the
WHO AEE COMMON OAERIEES. 313
fihippers to be very dangerous: see also Kemp v. Coughtry, H
Johns. E. 107; Colt v. M'Mephen, 6 Johns. E. 160; Harrington v.
Lyles, 2 Nott. & M. 88, 89, and the cases there cited. Williams
V. Grant, 1 Conn. E. 487, and several cases hereafter cited. Bell v.
Eeed, 4 Binn. 127, was like the one at bar, a case of navigation
■on Lake Erie, and proceeded throughout on the assumption that
defendants must, in order to excuse the loss, prove the utmost care
in themselves and convince the jury that the loss arose from the act
of God.
HALL V. EENFEO.
3 Mete. (Ky.) 51. 1860.
DuvALL, J. . . . The testimony shows conclusively that the
defendant was, at the time the alleged loss occurred, the keeper of
a public ferry, or that he held himself out to the world as such.
Upon this point there is no contradiction or even contrariety in the
proof.
Did he thereby subject himself to the obligations and liabilities of
a common carrier? The authorities are conclusive of this question.
In the case of Eobertson & Co. v. Kennedy, 2 Dana, 430, a
oommon carrier is defined to be, " one who undertakes, for hire or
reward, to transport the goods of all such as choose to employ him
from place to place;" that draymen, cartmen, etc., who undertake
to carry goods for hire as a common employment, from one part of a
town to another, come within the definition; and that the mode of
transportation is immaterial. Public ferrymen, or those who hold
themselves out as such, are undoubtedly common carriers. "The
owner of a private ferry may so use it (although on a road not opened
by public authority, or repaired by public labor) as to subject him-
self to the liabilities of a common carrier ; and he does do so if he
notoriously undertakes for hire, to convey across the river, all per-
sons indifferently, with their carriages and goods." Angell on the
Law of Carriers , sec. 82.
THE NEAFFIE.
1 Abbott (U. S. C. C), 465. 1870.
Woods, C. J. The business of "The Neaffie," as the evidence
shows, is to tow flats and other water-craft from one point to another
in and about the harbor of the city of New Orleans. The hire for
her services varies according to the bargain made at the time the
•service is rendered.
314 CAKKIEKS OF GOODS.
A common carrier is often defined to he: "One who undertakes
for hire to transport the goods of such as choose to employ him from
point to point." This definition is very broad, and in its applica-
tion to facts is subject to certain limitations. A better and more
precise definition is, " One who offers to carry goods for any person
between certain termini or on a certain route, and who is bound to
carry for all who tender him goods and the price of carriage." Was
"The Neaffie " a common carrier under either of these definitions?
Chief Justice Marshall, in Boyce v. Anderson, 2 Pet. 150, says;
"The law applicable to common carriers is one of great rigor.
Though to the extent to which it has been carried, and in cases to
which it has been applied, we admit its necessity and its policy,
we do not think it ought to be carried further or applied to new
cases." So unless the case of steam-tugs towing boats and their
cargoes can be brought strictly within the definition of common
carriers, I am not disposed to apply to them the great rigor of
the law applicable to common carriers. Can it be said that the
tug-boats plying in the harbor of New Orleans undertake to
transport the goods found on the water-craft which they take in
tow? It appears to me that it is the boat in which the goods are
put that undertakes to transport them. The tug only furnishes the
motive-power. It is like the case of the owner of a wagon laden
with merchandise hiring another to hitch his horses to the wagon to
draw it from one point to another, the owner of the wagon riding in
it, and having charge of the goods. In such a case, could it be
claimed with any show of reason that the owner of the team was a
common carrier? The reason of the law which imposes upon the
common carrier such rigorous responsibility fails in such a case.
The tug-boats plying in New Orleans harbor do not receive the
property into their custody, nor do they exercise any control over
, it other than such as results from the towing of the boat in which
it is laden. They neither employ the master and hands of the boat
towed, nor do they exercise any authority over them beyond that of
occasionally requiring their aid in governing the flotilla. The boat,
goods, and other property remain in charge and care of the master
and hands of the boat towed. In case of loss by fire or robbery,
without any actual 'default on the part of the master or crew of the
tow-boat, it can be hardly contended they would be answerable, and
yet carriers would be answerable for such loss.
That tow-boats are not common carriers has been held in the fol-
lowing cases: Caton V. Rumney, 13 Wend. 387; Alexander v. Greene,
3 Hill, 9; Wells v. Steam Navigation Co.,2Comst. 204; Pennsyl-
vania, D. & M. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248;
Leonard v. Hendrickson, 18 Penn. St. 40. In Vanderslice v. The
Superior, 13 Law Eep. 399, Mr. Justice Kane held a steam tow-
boat liable as a common carrier; but when the case came before the
Circuit Court, Mr. Justice Grier said he could not assent to the doc-
WHO ARE COMMON CARKIEES. 315
trine. I am aware that a contrary doctrine had been applied by
the Supreme Court of Louisiana to steam-tugs towing between the
city of New Orleans and the mouth of the Mississippi Eiver.
These tow-boats are distinguishable from those plying in the har-
bor of New Orleans; but if it were otherwise, I think the weight
of authority and reason is with those who hold tow-boats not to be
common carriers.* . . .
COUP V. WABASH, etc. EY. CO.
56 Mich. 111. 1885.
Campbell, J. Plaintiff, who is a circus proprietor, sued defend,
ant as a carrier for injuries to cars and equipments, and to persons
and animals caused by a collision of two trains made up of his cir-
cus cars, while in transit through Illinois. The court below held
defendant to the common-law liability of a common carrier, and held
there was no avoiding liability by reason of a special contract under
which the transportation was directed. The principal questions
raised on the trial arose out of discussions concerning the nature of
defendant's employment, and questions of damage. Some other
points also appeared. In the view which we take of the case, the
former become more important, and will be first considered.
Plaintiff had- a large circus property, including horses, wild ani-
mals, and various paraphernalia, with tents and appliances for
exhibition. . . .
The defendant company has an organized connection, under the
same name, with railways running between Detroit and St. Louis,
through Indiana and Illinois. On the 25th of July, 1882, a written
contract was made at St. Louis by defendant's proper agent with
plaintiff to the following effect. Defendant was to furnish men and
motive-power to transport the circus by train of one or more divi-
sions, consisting of twelve flat, six stock, one elephant, one baggage,
and three passenger coaches, being in all twenty-three cars from
Cairo to Detroit with privilege of stopping for exhibition at three
places named, fixing the time of starting from each place of exhibi-
tion, leaving Cairo August 19th, Delphi, August 21st, Columbia
City, August 22d, exhibiting at Detroit August 23d, and then to be
turned over to the Great "Western Transfer Line boats. Plaintiff
was to furnish his own cars, and two from another company at Cairo,
in good condition and running order. It was agreed that " for the
use of the said machinery, motive-power, and men, and the privileges
above enumerated, plaintiff should pay $400 for the run to Delphi,
$175 to Columbia City, and f 225 to Detroit, each sum to be paid
before leaving each point of departure."
It was further expressly stipulated that the agreement was not
I Ace. : Varble v. Bigley, 14 Bush (77 Ky.), 698 ; 29 Am. R. 435 (1879).
316 CARRIERS OF GOODS.
made with defendant as a carrier, but merely " as a hire of said
machinery, motive-power, and right of way, and the men to move
and work the same ; the same to be operated under the management,
direction, orders, and control of said party of the second part (plain-
tiff) or his agent, as in his possession, and by means of said em-
ployees as his agents, but to run according to the rules^ regulations,
and time-tables of the said party of the first part."
The contract further provides that defendant should not be respon-
sible for damage by want of care in the running of the cars or other.
wise, and for stipulated damages in case of any liability. It also
provided for transporting free on its passenger trains two advertis-
ing cars and advertising material.
The plaintiff's cars were made up in two trains at Cairo, and
divided to suit instructions. The testimony tended to prove that
two cars were added to the forward train by order of plaintiff's
agent, but in the view we take the question who did it is not impor-
tant. The forward train was for some cause on which there was
room for argument brought to a stand-still, and run into by the
other train and considerable damage done by the collision.
Defendant insisted that plaintiff made out no cause for recovery,
and that the contract exempted them. Plaintiff claimed, and the
court below held the exemption incompetent.
Unless this undertaking was one entered into by the defendant as
a common carrier, there is very little room for controversy. The
price was shown to be only ten per cent of the rates charged for
carriage, and the whole arrangement was peculiar. If it was not a
contract of common carriage, we need not consider how far in that
character contracts of exemption from liability may extend. In our
view it was in no sense a common carrier's contract, if it involved
any principle of the law of carriers at all.
The business of common carriage, while it prevents any right to
refuse the carriage of property such as is generally carried, implies,
especially on railroads, that the business will be done on trains made
up by the carrier and running on their own time. It is never the
duty of the carrier, as such, to make up special trains on demand, or
to drive such trains made up entirely by other persons or by their
cars. It is not important now to consider how far, except as to
owners of goods in the cars forwarded, the reception of cars, loaded
or unloaded, involves the responsibility of carriers as to the owners
of the cars as such. The duty to receive cars of other persons, when
existing, is usually fixed by the railroad laws, and not by the com-
mon law. But it is not incumbent upon companies in their duty as
common carriers to move such cars except in their own routine.
They are not obliged to accept and run them at all times and seasons,
and not in the ordinary course of business.
The contract before us involves very few things ordinarily under-
Jaken by carriers. The trains were to be made up entirely of cars
WHO ARE COMMON CAREIEES. 317
which belonged to plaintiff, and which the defendant neither loaded
nor prepared, and into the arrangement of which, and the stowing
and placing of their contents, defendant had no power to meddle.
The cars contained horses which were entirely under control of
plaintiff, and which, under any circumstances, may involve special
risks. They contained an elephant, which might very easily involve
difficulty, especially in case of accident. They contained wild ani-
mals which defendant's men could not handle, and which might also
become troublesome and dangerous. It has always been held that it
is not incumbent on carriers to assume the burden and risks of such
carriage.
The trains were not to be run at the option of the defendant, but
had short routes and special stoppages, and were to be run on some
part of the road chiefly during the night. They were to wait over
for exhibitions, and the times were fixed with reference to these
exhibitions, and not to suit the defendant's convenience. There was
iilso a divided authority, so that while defendant's men were to
attend to the moving of the trains, they had nothing to do with
loading and unloading cars, and had no right of access or regulation
in the cars themselves.
It cannot be claimed on any legal principle that plaintiff could, as
a matter of right, call upon defendant to move his trains under such
circumstances and on such conditions, and if he could not, then he
could only do so on such terms as defendant saw fit to accept. It
was perfectly legal and proper, for the greatly reduced price, and
with the risks and trouble arising out of moving peculiar cars and
peculiar contents on special excursions and stoppages, to stipulate
for exemption from responsibility for consequences which might
follow from carelessness of their servants while in this special
employment. How far, in the absence of contract, they would be
liable in such a mixed employment, where plaintiff's men as well as
their own had duties to perform connected with the movement and
arrangement of the business, we need not consider.
It is a misnomer to speak of such an arrangement as an agreement
for carriage at all. It is substantially similar to the business of
towing vessels, which has never been treated as carriage. It is,
although on a larger scale, analogous to the business of furnishing
horses and drivers to private carriages. Whatever may be the lia-
bility to third persons who are injured by carriages or trains, the
carriage-owner cannot hold the persons he employs to draw his
vehicles as carriers. We had before us a case somewhat resembling
this in more or less of its features in Mann v. White Eiver Log &
Booming Co., 46 Mich. 38, where it was sought to make a carrier's
liability attach to log-driving, which we held was not permissible.
All of these special undertakings have peculiar features of their
own, but they cannot be brought within the range of common
carriage.
318 CARRIERS OF GOODS.
It is therefore needless to discuss the other questions in the case,
which involve several rulings open to criticism. We think the
defendant was not liable in the action, and it should have been
taken from the jury, and a verdict ordered of no cause of action.
The judgment must be reversed and a new trial granted.
BUCKLAND v. ADAMS EXPEESS CO.
97 Mass. 124. 1867.
CoNTBACT to recover the value of a case of pistols. In the Superior
Court judgment was entered for the plaintifEs on agreed facts; and
the defendants appealed to this court.
BiGBLOw, C. J. We are unable to see any valid reason for the
suggestion that the defendants are not to be regarded as common
carriers. The name or style under which they assume to carry on
their business is wholly immaterial. The real nature of their occu-
pation and of the legal duties and obligations which it imposes on
them is to be ascertained from a consideration of the kind of service
which they hold themselves out to the public as ready to render to
those who may have occasion to employ them. Upon this point
there is no room for doubt. They exercise the employment of
receiving, carrying, and delivering goods, wares, and merchandise
for hire on behalf of all persons who may see fit to require their
services. In this capacity they take property from the custody of
the owner, assume entire possession and control of it, transport it
from place to place, and deliver it at a point of destination to some
consignee or agent there authorized to receive it. The statement
embraces all the elements essential to constitute the relation of com-
mon carriers on the part of the defendants towards the persons who
employ them. Dwight v. Brewster, 1 Pick. 50, 53 [304] ; Lowell
Wire Fence Co. v. Sargent, 8 Allen, 189; 2 Eedfield on Railways,
1-16.
But it is urged in behalf of the defendants that they ought not to
be held to the strict liability of common carriers , for the reason that
the contract of carriage is essentially modified by the peculiar mode
in which the defendants undertake the performance of the service.
The main ground on which this argument rests is, that persons exer-
cising the employment of express carriers or messengers over rail-
roads and by steamboats cannot, from the very nature of the case,
exercise any care or control over the means of transportation which
they are obliged to adopt; that the carriages and boats in which the
merchandise intrusted to them is placed, and the agents or servants
by whom they are managed, are not selected by them nor subject to
their direction or supervision ; and that the rules of common law,
regulating the duties and liabilities of carriers, having been adapted
WHO AEE COMMON CAEEIEES. 319
to a different mode of conducting business, by which the carrier was
enabled to select his own servants and vehicles and to exercise a
personal care and oversight of them, are wholly inapplicable to a
contract of carriage by which it is understood between the parties
that the service is to be performed, in part, at least, by means of
agencies over which the carrier can exercise no management or con-
trol whatever. But this argument, though specious, is unsound.
Its fallacy consists in the assumption that at common law, in
the absence of any express stipulation, the contract with an owner
or consignor of goods delivered to a carrier for transportation neces-
sarily implies that they are to be carried by the party with whom
the contract is made, or by servants or agents under his imme-
diate direction and control. But such is not the undertaking of
the carrier. The essence of the contract is that the goods are to
be carried to their destination unless the fulfilment of this under-
taking is prevented by the act of God or the public enemy. This,
indeed, is the whole contract, whether the goods are carried by land
or water, by the carrier himself or by agents employed by him. The
contract does not imply a personal trust, which can be executed only
by the contracting party himself or under his supervision by agents
and means of transportation directly and absolutely within his con-
trol. Long before the discovery of steam-power, a carrier who
undertook to convey merchandise from one point to another was
authorized to perform the service through agents exercising an inde-
pendent employment, which they carried on by the use of their own
vehicles and under the exclusive care of their own servants. It cer-
tainly never was supposed that a person who agreed to carry goods
from one place to another by means of wagons or stages could escape
liability for the safe carriage of the property over any part of the
designated route by showing that a loss happened at a time when
the goods were placed by him in vehicles which he did not own, or
which were under the charge of agents whom he did not select or
control. -The truth is that the particular mode or agency by which
the service is to be performed does not enter into the contract of
carriage with the owner or consignor. The liability of the carrier
at common law continues during the transportation over the entire
route or distance over which he has agreed to carry the property
intrusted to him. And there is no good reason for making any dis-
tinction in the nature and extent of this liability attaching to car-
riers, as between those who undertake to transport property by the
use of the modern methods of conveyance, and those who performed
a like service in the modes formerly in use. If a person assumes to
do the business of a common carrier, he can, if he sees fit, confine it
within such limits that it may be done under his personal care and
supervision or by agents whom he can select and control. But if he
undertakes to extend it further, he must either restrict his liability
by a special contract or bear the responsibility which the law afiixes
320 CAERIEES OF GOODS.
to the species of contract into which he voluntarily enters. There
is certainly no hardship in this, because he is bound to take no
greater risk than that which is imposed by law on those whom he
employs as his agents to fulfil the contracts into which he has
entered.
It is not denied that in the present case the goods were lost or
destroyed while they were being carried over a portion of the route
embraced in the contract with the plaintiffs, and before they had
reached the point to which the defendants had agreed to carry them.
It is not a case where the agreement between the parties was that
the merchandise was to be delivered over by the defendants to other
carriers at an intermediate point, thence to be transported over an
independent route to the point of destination without further agency
on the part of the defendants. The stipulation was that the defend-
ants should carry the property from the place where they received it
to the point where it was to be delivered into the hands of the con-
signee. The loss happened before the defendants had fulfilled their
promise.
Judgtmnt for plaintiff,'^
EOBEETS V. TIJENEE.
12 Johns. (N. Y. Sup. Ct.) 231. 1814.
This was an action on the case, against the defendant, as a
common carrier.
The defendant resided at Utica, and pursued the business of for-
warding merchandise and produce from Utica to Schenectady and
Albany. The ordinary course of this business is, for the forwarder
to receive the merchandise or produce at his store, and send it by
the boatman, who transports goods on the Mohawk Eiver, or by
wagon to Schenectady or Albany, for which he is paid at a certain
rate per barrel, etc. ; and his compensation consists in the difference
between the sum which he is obliged to pay for transportation, and
that which he receives from the owner of the goods.
The defendant received from the plaintiff, who resided in Caze-
novia, in Madison County, by Aldrich, his agent, twelve barrels of
pot ashes, to be forwarded to Albany, to Trotter; the ashes were
put on board a boat, to be carried down the Mohawk to Schenectady,
and whilst proceeding down the river, the boat ran against a bridge
and sunk, and the ashes were thereby lost.
The defendant's price for forwarding goods to Schenectady was
* Defendant's attorney relied in argument on Roberts v. Turner, which follows.
WHO ARE COMMON CARKIEES. 321
twelve shillings per barrel, and the price which he had agreed to pay
for the transporting the goods in question to that place was eleven
shillings ; the defendant had no interest in the freight of the goods,
and was not concerned as an owner in the boats employed in the
carriage of merchandise.
The judge being of the opinion that the testimony did not make
out the defendant to be a common carrier, nonsuited the plaintiff j
and a motion was made to set aside the nonsuit.
Spencer, J. On the fullest reflection, I perceive no grounds for
changing the opinion expressed at the circuit. The defendant is in
no sense a common carrier, either from the nature of his business,*
or any community of interest with the carrier. Aldrich, who, as
the agent of the plaintiff, delivered the ashes in question to the
defendant, states the defendant to be a forwarder of merchandise
and produce from Utica to Schenectady and Albany ; and that he
delivered the ashes, with instructions from the plaintiff to send them
to Colonel Trotter.
The case of a carrier stands upon peculiar grounds. He is held
responsible as an insurer of the goods, to prevent combinations,
chicanery, and fraud. To extend this rigorous law to persons stand-
ing in the defendant's situation, it seems to me, would be unjust
and unreasonable. The plaintiff knew, or might have known (for
his agent knew), that the defendant had no interest in the freight
of the goods, owned no part of the boats employed in the carriage of
goods, and th^t his only business in relation to the carriage of goods
consisted in forwarding them. That a person thus circumstanced
should be deemed an insurer of goods forwarded by him , an insurer
too, without reward, would, in my judgment, be not only without
a precedent, but against all legal principles. Lord Kenyon, in treat-
ing of the liability of a carrier (6 T. E. 394), makes this criterion
to determine his character; whether, at the time when the accident
happened, the goods were in the custody of the defendants as com-
mon carriers. In Garside v. The Proprietors of the Trent and
Mersey Navigation (4 T. E. 581), the defendants, who were common
carriers, undertook to carry goods from Stoneport to Manchester,
and thence to be forwarded to Stockport, and were put into the
defendants' warehouse, and burnt up before an opportunity arrived
to forward them. Lord Kenyon held, the defendants' character of
carriers ceased when the goods were put into the warehouse. This
case is an authority for saying that the responsibilities of a common
carrier and forwarder of goods rest on very different principles.
In the present case, the defendant performed his whole undertak-
ing; he gave the ashes in charge to an experienced and faithful
boatman.
322 CAEEIEES OF GOODS.
TRANSPORTATION CO. v. BLOCH BROTHERS.
86 Tenn. 392. 1888.
Caldwell, J. This action was brought in the Circuit Court of
Davidson County, by Bloch Bros., against the Merchants' Dispatch
Transportation Co., as a common carrier, to recover the value of a
certain case of merchandise. Verdict and judgment were for the
i plaintiffs, and the defendant has appealed in error. ...
The contention of the defendant in the court below was, that these
stipulations in the bill of lading relieved it from liability for the
loss of plaintiffs' goods, and the charge of the Trial Judge with
respect thereto is now assailed as erroneous. . . .
This instruction properly treats the defendant as a common car-
rier. The duties which it undertakes, and which it holds itself out
to the public as willing to undertake and perform, give it that char-
acter. In very many cases it has been expressly adjudged to be a
common carrier, and in others such has been assumed to be its char-
acter without a discussion of the question. We cite a few of these
cases: Merchants' Dispatch Transportation Co. v. Comforth, 3 Colo.
280 (25 Am. R. 757); 45 Iowa, 470; 47 Iowa, 229; id. 247; id. 262;
80 111. 473; 89111. 43; id. 152.
The text-writers say that despatch companies are common carriers,
and class them with express companies because of the many points
of similarity in their business, and the fact that they alike generally
use the vehicles of others in the transportation of freight. Lawson
on Contracts of Carriers, sec. 233; Hutchinson on Carriers, sec. 72.
0. Baggage of Passengers.
ORANGE COUNTY BANK v. BROWN.
9 Wend. (N. Y. Sup. Ct.) 85. 1832.
This was an action on the case.
The suit' was brought against the defendants as the owners of »
steamboat called the "Constellation," for the loss of a trunk belong'
ing to a passenger on board the boat, who was the agent of the
plaintiffs and intrusted with the carriage of $11,250 from the city
of New York to the banking house of the plaintiffs, in the village
of Goshen. The declaration contained a count reciting that the
defendants, on the 16th of November, 1827, were the owners or pro-
WHO AKE COMMON CAEEIEES. 323
prietors of a steamboat called the "Constellation," navigated on
the Hudson River, between the cities of New York and Albany, for
the carriage, conveyance, and transportation of passengers and their
baggage and effects , for hire and reward, commonly called passage-
money; touching upon the passage from New York to Albany at the
village of Newburgh, for the purpose of landing passengers and their
baggage or effects ; that on the said 15th day of November, in the
year, etc., one William Phillips, as the agent of the plaintiffs, at
the special instance and request of the defendants, delivered to R.
G. Cruttenden, then being master of the "Constellation," the trunk
or baggage of him the said William Phillips, containing divers goods
and chattels of them the plaintiffs, — to wit, bank notes amounting in
the aggregate to the sum of $11,250, — to be safely and securely car-
ried and conveyed in the said vessel from the city of New York to
the village of Newburgh, for hire and reward then and there paid to
Cruttenden as such master of the boat and agent of defendants, in
that behalf. It is then averred that although the vessel on the same
day arrived at Newburgh, yet that the defendants and their agent,
not regarding their duty, did not deliver the said trunk or baggage
containing the said bank notes to the said Phillips, but so negli-
gently, carelessly, and improperly conducting the carriage and con-
veyance thereof that for want of due care in the defendants and
their agents, the trunk containing the bank notes aforesaid was
wholly lost to the plaintiffs, to wit, at, etc. The declaration con-
tained various other counts. The defendants pleaded the general
issue.
On the trial of the cause, William Phillips was sworn as a witness
on the part of the plaintiffs, and testified that in November, 1827, he
went on board the " Constellation " at the city of New York, with
the intention of proceeding to Newburgh, that on the wharf near the
boat he met Cruttenden, the master of the boat, and told him that
he had a trunk of importance which he wanted to put into the ofB.ce.
Cruttenden answered, "as soon as we get under weigh;" to which
he replied that he wanted it in immediately, as he wished to go
ashore. Cruttenden then told him to go to the young man or mate.
He accordingly went to the ofl&ce and spoke to a young man who
appeared to be doing business there, and told him he had a trunk of
importance which he wished to put into the office. The young man
made the same answer as the master: "as soon as we get under
weigh." The witness said he wished to go ashore, and was then
told, "Come round to the door; you may put it there," pointing to a
place behind the door. The witness deposited the trunk in the place
pointed out, and went on shore, and was absent eight or ten minutes.
While on shore he bought some oranges, which he held in a hand-
kerchief until the boat got" under weigh, when he went to the office
to put the oranges into the trunk, and found that it was gone. He
immediately apprised the master and the clerk of the fact; search
324 CAEEIERS OF GOODS.
■was made, but the trunk could not be found. He testified that there
were in his trunk, when he went on board, seven sealed packages of
bank notes, received by him from the first teller of the Bank of
America, and which be had been requested by the president of the
Bank of Orange County to carry to that bank from the Bank of
America. When he received the packages, the president of the
Bank of Orange County told him that it was his practice when he
had charge of packages of money to carry to Goshen, to deliver them
to the captain of the steamboat immediately upon going on board,,
and advised him to follow the same course, which he, the witness,^
considered as a direction to him, and acted accordingly. On his-
cross-examination, he said he did not inform the clerk that his trunk
contained bank bills, nor did he tell Cruttenden, the master of the
boat, that it contained anything more than his own property; nor
did he tell him that he was going to Newburgh. It was satisfac-
torily proved that the packages contained $11,250.
The plaintiffs having rested, the defendants' counsel moved for a
nonsuit on various grounds. The presiding judge ruled that the
liability of the defendants rested on the general law respecting car-
riers ; that it admitted of some doubt whether the risk in this case
commenced until the commencement of the voyage ; that it was mat-
ter of doubt whether the defendants, in the case of mere baggage,
were insurers for more than the property of the passenger; in most
cases it would be a risk wibhout compensation, which was not in the
spirit of the law ; that'when a carrier is to be made liable for bank
bills, not made up in a package pointing to its contents, common,
justice required that he should be informed of the nature of his
charge, so that he might take the necessary precautions for the
safety of the bills and for his own protection; that in his opinion
the information of Phillips to the master of the boat of the value-
and contents of the trunk, was not, under all the circumstances of
the case, suf3.cient to entitle the plaintiff to recover, and on that
ground he directed a nonsuit. A nonsuit was accordingly entered,
which the plaintiffs now move to set aside.
Nelson, J. This case is peculiar in many of its features, and
must be determined by a recurrence to some of the general and fun-
damental principles which govern actions of this kind. The rule of
the common law in relation to common carriers has been frequently
pronounced a rigorous one, and its vindication by Lord Holt affords-
abundant evidence, if any were wanting, of the truth of the obser-
vation. He says, in Lane v. Coulton, 1 Vin. Abr. 219, though one
may think it a hard case that a poor carrier that is robbed on the
road, without any manner of default in him, should be answerable
for all the goods he takes, yet the inconveniency would be far more
intolerable if it were not so, for it would be in his power to combine
with robbers, or to pretend a robbery or some other accident, with-
out a possibility of a remedy to the party, and the law will not
WHO ARE COMMON CAERIEES. 325
expose him to so great a temptation. This reason, which I believe
is the only one that has ever been given for the origin of the rule,
and which probably had much foundation in fact in the early and
rude age in which it must have been established, it is obvious, at
this day, is nearly as applicable to every person intrusted with the
property of another, as it is to the common carrier. In proportion,
however, to the rigor of the liability, was exacted the compensation
for it and the means of enforcing payment, which affords a sort of
equivalent for the harshness of the rule. Accordingly we find it
frequently laid down in actions of this kind, as a fundamental
proposition, that the common carrier is liable in respect to his
reward, and that the compensation should be in proportion to the
risk. So strictly was this rule adhered to that it was repeatedly
decided by Lord Holt that the hackney coachman was not liable for
the. travelling trunk of the passenger which was lost, unless a dis-
tinct price had been paid for the trunk as well as the person; and
where it was the custom of the stagecoach for passengers to pay for
baggage above a certain weight, the coachman was responsible only
for the loss of goods beyond such weight. 1 Vin. Abr. 220, and
cases there cited. So in the analogous case of the innkeeper, if a
guest stops at an inn, and departs for a few days, leaving his goods,
if they are stolen during his absence, the landlord is not liable as
innkeeper, for at the time of the loss the owner was not his guest,
and he had no benefit from the keeping of the goods. Cro. Jac.
188 ; 1 Vin. Abr. 225. It has since been determined that the stage
coachman is responsible for the baggage of the passenger, though no
distinct price was paid for it, upon the ground, however, still con-
sistent with the principle of the above cases ; to wit, that the reward
for carrying the same was included in the fare for carrying the
passenger. 1 Wheaton's Selwyn, 301, n. 1.
Now, upon the ground that the defendants in this case have
received no compensation or reward from the plaintiffs or any other
person for the transportation or risk of the money in question, and
that they were deprived of such reward by the unfair dealing of the
agent of the plaintiffs with the defendants, I am of opinion the
plaintiffs cannot recover, and that they were properly nonsuited
upon the trial. As a general rule where there has been no qualified
acceptance of goods by special agreement, or where an agreement
cannot be inferred from notice, the carrier is bound to make inquiry
as to the value of the box or article received, and the owner must
answer truly at his peril; and if such inquiries are not made, and it
is received at such price for transportation as is asked with reference
to its bulk, weight, or external appearance, the carrier is responsible
for the loss, whatever may be its value. If he has given general
notice that he will not be liable over a certain amount, unless the
value is made known to him at the time of delivery and a premium
for insurance paid, such notice, if brought home to the knowledge
326 CAERIEES OF GOODS.
of the owner (and courts and juries are liberal in inferring such
knowledge from the publication of the notice), is as effectual in
qualifying the acceptance of the goods as a special agreement, and
the owner, at his peril, must disclose the value, and pay the premium.
The carrier in such case is not bound to make the inquiry, and if
the owner omits to make known the value, and does not therefore
pay the premium at the time of delivery, it is considered as dealing
unfairly with the carrier, and he is liable only to the amount men-
tioned in his notice, or not at all, according to the terms of his
notice. 1 Wheaton's Selw. 305, 306, 308, and notes; 6 Com. L.
E. 333; 4 Burr. 2298; 5 Com. L. E. 476; 8 Pick. 182; 11 Com. L.
E. 243.
In this case no notice has been given by the defendants limiting
their responsibility, and they are no doubt liable to the full value of
the baggage of the passenger lost, or of the goods lost, which they
had received without any special agreement, qualifying the risk for
transportation. The defendants cannot succeed upon this ground.
But in the absence of notice, if any means are used to conceal the
value of the article, and thereby the owner avoids paying a reason-
able compensation for the risk, this unfairness and its consequence
to the defendants, upon the principles of common justice as well as
those peculiar to this action, will exempt them from the respon-
sibility; for such a result is alike due to the defendants, who have
received no reward for the risk, and to the party who has been the
cause of it by means of disingenuous and unfair dealing. Thus,
where the plaintiff delivered to the carrier a box, telling him there
was a book and tobacco in it, when it contained one hundred pounds,
and it was lost , he should not recover. It is true that in such a case
a party did recover, though Eolle, C. J., considered it a cheat; but
it is clear that at this day he could not recover. 4 Burr. 2301.
So where a box, in which there was a large sum of money, was
brought to a carrier, who inquired its contents, and was answered it
was filled with silk, upon which it was taken and lost, it was held
the owner could not recover. Ibid. So where a bag sealed was
delivered to a carrier, and was said to contain two hundred pounds,
and a receipt was given for the same, when, in fact, it contained
four hundred pounds, and it was lost, the carrier was held answer-
able only for the two hundred pounds, as the reward extended no
farther. 4 Burr. 2301; Selw. 305 (n.) These cases all proceed upon
the ground that the carrier is deprived of his reward for the extra
value of the article, and consequent extra risk incurred, by means
of the unfair if not fraudulent conduct of the owner, and therefore
the rigor of the common-law rule is not applied to him , and he is
only held responsible for the loss in case of gross negligence. If
the defendants are to be made responsible to the plaintiffs through
the medium and acts of their agent, who was employed to carry the
money from New York to the bank, the plaintiffs also must be held
WHO AKE COMMON CAEKIEES. 327
responsible to the defendant for his conduct; the obligation must be
reciprocal. Instead of committing the several packages of money to
the captain, which of themselves generally indicate their value, and
in this case would have done so, as the figures (by which I under-
stand the quantity of money in each package) could be seen upon
them, and thereby enable the captain to exact a reasonable compen-
sation for the risk, and apprise him of the necessity of greater care
and caution in the safe conveyance of the money, which he naturally
would bestow in proportion to the valued the agent of the plaintiffs
put them into his trunk, and committed it to the captain as his bag-
gage, affording no other indication of the value of its contents than
that it was a trunk of importance. This was enough to attract the
attention of the felon who might be standing by to its contents, but
certainly was not calculated to afford information to the captain of
the extraordinary character and value of those contents. The cap-
tain might understand he had a costly wardrobe and other neces-
saries and conveniences for travelling of great value, but not that
the trunk contained eleven thousand dollars in bank bills, which the
traveller was carrying for hire or friendship , and not as travelling
expenses.
It may be difficult to define with technical precision what may
legitimately be included in the term baggage, as used in connection
with travelling in public conveyances ; but it may be safely asserted
that money , except what .may be carried for the expenses of travel-
ling, is not thus included, and especially a sum like the present,
which was taken for the mere purpose of transportation. We have
already seen that formerly so strict was the rule that the carrier was
liable only in respect to the reward adhered to, that he was not held
liable for the loss of the baggage of the passenger unless a distinct
price was paid for it. The law is now very properly altered, as a
reasonable amount of baggage, by custom or the courtesy of the car-
rier, is considered as included in the fare for the person ; but courts
ought not to permit this gratuity or custom to be abused, and under
pretence of baggage to include articles not within the sense or mean-
ing of the term, or within the object or intent of the indulgence of
the carrier, and thereby defraud him of his just compensation, and
subject him to unknown and illimitable hazards. If the amount of
money in the trunk in this case is not fairly included under the
term baggage, -as used in the connection we here find it (and I can-
not think it is), then the conduct of the agent was a virtual conceal-
ment of that sum ; his representation of his trunk and the contents
as baggage was not a fair one, and was calculated to deceive the
captain; and it would be a violation of first principles to permit the
plaintiffs to recover. The case of Miles v. Cattle et al., 19 Com. L.
E. 219, in some respects resembles this case. The plaintiff was
going to L., and took a seat in a public conveyance. He had with
him a bag labelled "T. Miles, traveller," containing clothes worth,
328 CAERIEES OF GOODS.
about fifteen pounds. Before lie started, G. delivered him a parcel
containing a fifty -pound bank note, addressed to an attorney in L.,
which the plaintiff was desired to book at the defendants' office, and
to be forwarded by the defendants to L. The plaintiff, instead of
doing so, put the parcel in his own bag, intending to convey it to L.
himself. If the parcel had been sent by the defendants, it would
have cost four shillings and sixpence. The bag and contents were
lost. The verdict was found for the fifteen pounds, with leave to
apply to increase it, on the facts in the case, by adding the fifty
pounds. The court denied the application, principally upon the
ground that the plaintiff had no interest in the fifty pounds. But it
was conceded by the court that the owner could not recover on the
facts. Tindale, J., says, in violation of his trust the plaintiff
thought proper not to deliver the parcel to the defendants, but to
deposit it in his own bag; thereby depriving the owner of any
remedy he might have had against the defendants, and the defend-
ants of the sum they would otherwise have earned for the carriage of
the parcel. In this case the president of the bank directed Phillips
to commit the packages directly to the captain, and had he followed
such directions, the captain would have been enabled to charge a
reward for the carriage of the same, and the captain, or the defend-
ants, would have been responsible for its safety. His omission to
follow the directions was a violation 'of his trust, for which the
defendants are not accountable.
It was decided in Sewall v. Allen et al., in the Court of Errors,
6 Wend. 336, that the Dutchess and Orange Steamboat Company,
and the members thereof, were not liable for the loss of packages
of bank bills intrusted to the captain of the boat, on the ground that
the carriage of bank bills was not within the ordinary business of
the company; and so far as the usage extended, it was a personal
trust committed to the captain, who alone received the compensa-
tion, or, in other words, the company were neither by their charter
or usage under it, common carriers of bank bills. From the facts
appearing in that case, I presume the principle here decided by the
highest judicial tribunal in the State would be equally applicable to
this company, though from the direction the cause took upon the
trial, facts suflB.cient do not appear to raise the question. If so, it
seems to me impossible to maintain the proposition that the defend-
ants would be holden responsible for the loss of an article in the
trunk of a passenger, which in no sense of the term can be con-
sidered a part of the baggage of the passenger, and for the transpor-
tation of which no compensation is received by the company, when,
confessedly, they would not be accountable for the same article, if
it had been committed directly to the care of the captain, and a
reasonable reward paid him for transportation. It is said the
difference between the cases consists in this, that in the one case it
is a part of the baggage of the passenger, the carrying of which is
WHO ARE COMMON CAKRIEES. 329
within the ordinary business of the company, and for which they
receive the reward, and in the other it is a private transaction
between the owner and the captain; the answer I think is, that put-
ting the article in the trunk does not make it baggage. If it is
included within that term, it is as much baggage when distinctly
committed to the care of the captain as when in the trunk; the
place in which it is cannot, in this instance, at least, vary the char-
acter of the article or the transaction; the object is the transporta-
tion of the money, without reference to a connection with the person
■of the passenger.
Having come to the conclusion upon what I view as the merits
and principle of the case, that the plaintiffs cannot recover, it is
unimportant to examine any other question discussed upon the
argument.
Motion for a new trial denied.
EAILEOAD COMPANY v. FEALOFF.
100 U. S. 24. 1879.
Eeeok to the Circuit Court of the United States for the Southern
District of New York.
Mr. Justice Harlan delivered the opinion of the court.
This is a writ of error to a judgment rendered against the New
York Central and Hudson Eiver Eailroad Company, in an action by
Olga de Maluta Fraloff to recover the value of certain articles of
wearing apparel alleged to have been taken from her trunk while
she was a passenger upon the cars of the company, and while the
trunk was in its charge for transportation as part of her baggage.
There was evidence before the jury tending to establish the fol-
lowing facts : —
The defendant in error, a subject of the Czar of Enssia, possess-
ing large wealth, and enjoying high social position among her own
people, after travelling in Europe, Asia, and Africa, spending some
time in London and Paris, visited America in the year 1869, for the
■double purpose of benefiting her health and seeing this country.
She brought with her to the United States six trunks of ordinary
travel-worn appearance, containing a large quantity of we^iring
apparel, including many elegant, costly dresses, and also rare and
valuable laces, which she had been accustomed to wear upon different
dresses when on visits, or frequenting theatres, or attending dinners,
balls, and receptions. A portion of the laces was made by her
ancestors upon their estates in Eussia. After remaining some weeks
in the city of New York, she started upon a journey westward, going
330 CAEEIERS OF GOODS.
first to Albany, and taking witli her, among other things, two of the
trunks brought to this country. Her ultimate purpose was to visit a
warmer climate, and, upon reaching Chicago, to determine whether
to visit California, New Orleans, Havana, and probably Rio Janeiro.
After passing a day or so at Albany, she took passage on the cars of
the New York Central and Hudson Eiver Eailroad Company for
Niagara Falls, delivering to the authorized agents of the company
for transportation as her baggage the two trunks above described,
which contained the larger portion of the dress-laces brought with
her from Europe. Upon arriving at Niagara Tails she ascertained
that one of the trunks, during transportation from Albany to the
Falls, had been materially injured, its locks broken, its contents
disturbed, and more than two hundred yards of dress-lace abstracted
from the trunk, in which it had been carefully placed before she left
the city of New York. The company declined to pay the sum
demanded as the value of the missing laces ; and, having denied all
liability therefor, this action was instituted to recover the damages
which the defendant in error claimed to have sustained by reason of
the loss of her property.
Upon the first trial of the case, in 1873, the jury, being unable
to agree, was discharged. A second trial took place in the year
1875. Upon the conclusion of the evidence in chief at the last trial,
the company moved a dismissal of the action, and, at the same time,
submitted numerous instructions which it asked to be then given to
the jury, among which was one peremptorily directing a verdict in
its favor. That motion was overruled, and the court declined to
instruct the jury as requested. Subsequently, upon the conclusion
of the evidence upon both sides, the motion for a peremptory instruc-
tion in behalf of the company was renewed, and again overruled.
The court thereupon gave its charge, to which the company filed
numerous exceptions, and also submitted written requests, forty-
two in number, for instructions to the jury. The coui-t refused to
instruct the jury as asked, or otherwise than as shown in its own
charge. To the action of the court in the several respects indicated
the company excepted in due form. The jury returned a verdict
against the company for the sum of $10,000, although the evidence,
in some of its aspects, placed the value of the missing laces very far
in excess of that amount.
It would extend this opinion to an improper length, and could
serve no useful purpose, were we to enter upon a discussion of the
various exceptions, unusual in their number, to the action of the
court in the admission and exclusion of evidence, as well as in refus-
ing to charge the jury as requested by the company. Certain con-
trolling propositions are presented for our consideration, and upon
their determination the substantial rights of parties seem to depend.
If, in respect of these propositions, no error was committed, the
judgment should be affirmed without any reference to points of a
■WHO AEE COMMON CAKEIEKS. 331
minor and merely technical nature, whicli do not involve the merits
of the ease, or the just rights of the parties.
In behalf of the company it is earnestly claimed that the court
erred in not giving a peremptory instruction for a verdict in its
behalf. This position, however, is wholly untenable. Had there
been no serious controversy about the facts, and had the law upon
the undisputed evidence precluded any recovery whatever against
the company, such an instruction would have been proper. 1 Wall.
369; 11 How. 372; 19 id. 269; 22 Wall. 121. The court could not
have given such an instruction in this case without usurping the
functions of the jury. This will, however, more clearly appear
from what is said in the course of this opinion.
The main contention of the company, upon the trial below, was
that good faith required the defendant in error, when delivering her
trunks for transportation, to inform its agents of the peculiar char-
acter and extraordinary value of the laces in question ; and that her
failure in that respect, whether intentional or not, was, in itself, a
fraud upon the carrier, which should prevent any recovery in this
action.
The Circuit Court refused, and, in our opinion, rightly, to so
instruct the jury. We are not referred to any legislative enactment
restricting or limiting the responsibility of passenger carriers by
land for articles carried as baggage. Nor is it pretended that the
plaintiff in error had, at the date of these transactions, established
or promulgated any regulation as to the quantity or the value of
baggage which passengers upon its cars might carry, without extra
compensation, under the general contract to carry the person.
Further, it is not claimed that any inquiry was made of the defend-
ant in error, either when the trunks were taken into the custody of
the carrier, or at any time prior to the alleged loss, as to the value
of their contents. It is undoubtedly competent for carriers of pas-
sengers, by specific regulations, distinctly brought to the knowledge
of the passenger, which are reasonable in their character and not
inconsistent with any statute or their duties to the public, to protect
themselves against liability, as insurers, for baggage exceeding a
fixed amount in value, except upon additional compensation, pro-
portioned to the risk. And in order that such regulations may be
practically effective, and the carrier advised of the full extent of its
responsibility, and, consequently, of the degree of precaution neces-
sary upon its part, it may rightfully require, as a condition precedent
to any contract for the transportation of baggage, information from
the passenger as to its value ; and if the value thus disclosed exceeds
that which the passenger may reasonably demand to be transported
as baggage without extra compensation, the carrier, at its option,
can make such additional charge as the risk fairly justifies. It is
also undoubtedly true that the carrier may be discharged from lia-
bility for the full value of the passenger's baggage, if the latter, by
332 CARRIERS OF GOODS.
false statements, or by any device or artifice, puts off inquiry as to
such value, whereby is imposed upon the carrier responsibility
beyond what it was bound to assume in consideration of the ordinary
fare charged for the transportation of the person. But in the
absence of legislation limiting the responsibility of carriers for the
baggage of passengers ; in the absence of reasonable regulations upon
the subject by the carrier, of which the passenger has knowledge;
in the absence of inquiry of the passenger as to the value of the
articles carried, under the name of baggage, for his personal use and
convenience when travelling; and in the absence of conduct upon
the part of the passenger misleading the carrier as to the value of his
baggage, — the court cannot, as matter of law, declare, as it was in
eif ect requested in this case to do , that the mere failure of the pas-
senger, unasked, to disclose the value of his baggage, is a fraud
upon the carrier, which defeats all rights of recovery. The instruc-
tions asked by the company virtually assumed that the general law
governing the rights, duties, and responsibilities of passenger car-
riers, prescribed a definite, fixed limit of value, beyond which the
carrier was not liable for baggage, except under a special contract or
upon previous notice as to value. We are not, however, referred to
any adjudged case, or to any elementary treatise which sustains that
proposition, without qualification. In the very nature of things, no
such rule could be established by the courts in virtue of any inherent
power they possess. The quantity or kind or value of the baggage
which a passenger may carry under the contract for the transporta-
tion of his person depends upon a variety of circumstances which do
not exist in every case. "That which one traveller," says Erie,
C. J., in Philpot v. Northwestern Railway Co., 19 C. B. n. s. 321,
"would consider indispensable, would be deemed superfluous and
unnecessary by another. But the general habits and wants of man-
kind will be taken in the mind of the carrier when he receives a
passenger for conveyance." Some of the cases seem to announce the
broad doctrine that, by general law, in the absence of legislation,
or special regulations by the carrier, of the character indicated,
a passenger may take, without extra compensation, such articles
adapted to personal use as his necessities, comfort, convenience, or
even gratification may suggest ; and that whatever may be the quan-
tity or value of such articles, the carrier is responsible for all damage
or loss to them, from whatever source, unless from the act of God or
the public enemy. But that, in our judgment, is not an accurate
statement of the law. Whether articles of wearing apparel, in any
particular case, constitute baggage, as that term is understood in the
law, for which the carrier is responsible as insurer, depends upon
the inquiry whether they are such in quantity and value as passen-
gers under like circumstances ordinarily or usually carry for per-
sonal use when travelling. "The implied undertaking," says Mr.
Angell, "of the proprietors of stagecoaches, railroads, and steam-
WHO ARE COMMON CAREIEKS. 333
boats to carry in safety the baggage of passengers is not unlimited,
and cannot be extended beyond ordinary baggage, or such baggage
as the traveller usually carries with him for his personal con-
venience." Angell, Carriers, sec. 115. In Hannibal Railroad v.
Swift, 12 Wall. 272 [342], this court, speaking through Mr. Justice
Field, said that the contract to carry the person " only implies an
■undertaking to transport such a limited quantity of articles as are
ordinarily taken by travellers for their personal use and convenience,
such quantity depending, of course, upon the station of the party,
the object and length of his journey, and many other considera-
tions." To the same effect is a decision of the Queen's Bench in
Macrow v. Great Western Railway Co., Law Kep. 6 Q. B. 121,
where Chief Justice Cockburn announced the true rule to be " that
whatever the passenger takes with him for his personal use or con-
venience, according to the habits or wants of the particular class to
which he belongs, either with reference to the immediate necessities
or to the ultimate purpose of the journey, must be considered as
personal luggage." 2 Parsons, Contr., 199. To the extent, there-
fore, that the articles carried by the passenger for his personal use
exceed in quantity and value such as are ordinarily or usually
carried by passengers of like station and pursuing like journeys,
they are not baggage for which the carrier by general law is respon-
sible as insurer. In cases of abuse by the passenger of the privilege
which the law gires him, the carrier secures such exemption from
responsibility, not, however, because the passenger, uninquired of,
failed to disclose the character and value of the articles carried, but
because the articles themselves, in excess of the amount usually or
ordinarily carried, under like circumstances, would not constitute
baggage within the true meaning of the law. The laces in question
confessedly constituted a part of the wearing apparel of the defend-
ant in error. They were adapted to and exclusively designed for
personal use, according to her convenience, comfort, or tastes , during
the extended journey upon which she had entered. They were not
merchandise, nor is there any evidence that they were intended for
sale or for purposes of business. Whether they were such articles in
quantity and value as passengers of like station and under like cir-
cumstances ordinarily or usually carry for their personal use, and to
subserve their convenience, gratiiication, or comfort while travel-
ling, was not a pure question of law for the sole or final determina-
tion of the court, but a question of fact for the jury, under proper
guidance from the oourt as to the law governing such cases. It was
for the jury to say to what fextent, if any, the baggage of defendant
in error exceeded in quantity and value that which was usually
carried without extra compensation, and to disallow any claim for
such excess.
Upon examining the carefully guarded instructions given to the
jury, we are unable to see that the court below omitted anything
334 CARRIERS OF GOODS.
essential to a clear comprehension of tlie issues, or announced any
principle or doctrine not in harmony with settled law. After sub-
mitting to the jury the disputed question as to whether the laces
were, in fact, in the trunk of the defendant in error, when delivered
to the company at Albany for transportation to Niagara Falls, the
court charged the jury, in substance, that every traveller was
entitled to provide for the exigencies of his journey in the way of
baggage, was not limited to articles which were absolutely essential,
but could carry such as were usually carried by persons travelling,
for their comfort, convenience, and gratification upon such journeys;
that the liability of carriers could not be maintained to the extent
of making them responsible for such unusual articles as the excep-
tional fancies, habits, or idiosyncrasies of some particular individual
may prompt him to carry; that their responsibility as insurers was
limited to such articles as it was customary or reasonable for
travellers of the same class, in general, to take for such journeys
as the one which was the subject of inquiry, and did not extend to
those which the caprice of a particular traveller might lead that
traveller to take ; that if the company delivered to the defendant in
error, aside from the laces in question, baggage which had been
carried, and which was sufficient for her as reasonable baggage,
within the rules laid down, she was not entitled to recover; that if
she carried the laces in question for the purpose of having them
safely kept and stored by the railroad companies and hotel-keepers,
and not for the purpose of using them, as occasion might require,
for her gratification, comfort, or convenience, the company was not
liable; that if any portion of the missing articles were reasonable
and proper for her to carry, and all was not, they should allow her
the value of that portion.
Looking at the whole scope and bearing of the charge, and inter-
preting what was said, as it must necessarily have been understood
both by the court and jury, we do not perceive that any error was
committed to the prejudice of the company, or of which it can com-
plain. No error of law appearing upon the record, this court cannot
reverse the judgment because, upon examination of the evidence, we
may be of the opinion that the jury should have returned a verdict
for a less amount. If the jury acted upon a gross mistake of facts,
or were governed by some improper influence or bias, the remedy
therefore rested with the court below, under its general power to set
aside the verdict. But that court finding that the verdict was abun-
dantly sustained by the evidence, and that there was no ground to
suppose that the jury had not performed their duty impartially and
justly, refused to disturb the verdict, and overruled a motion for a
new trial. Whether its action, in that particular, was erroneous or
not, our power is restricted by the Constitution to the determination
of the questions of law arising upon the record. Our authority does
not extend to a re-examination of facts which have been tried by the
WHO ARE COMMON CAEEIEES. 335
jury under instructions correctly defining the legal rights of parties.
Parsons v. Bedford, 3 Pet. 446; 21 How. 167; Insurance Company
V. Polsom, 18 Wall. 249.
It is, perhaps, proper to refer to one other point suggested in the
elaborate brief of counsel for the company. Our attention is called
to section 4281 of the Revised Statutes, which declares that " if any
shipper of platina, gold, gold-dust, coins, jewelry, ... trinkets,
. . . silk in a manufactured or unmanufactured form, whether
wrought up or not wrought up with any other material, furs or
laces, or any of them, contained in any parcel, package, or bundle,
shall lade the same as freight or baggage on any vessel, without, at
the time of such lading, giving to the master, clerk, agent, or owner
of such vessel receiving the same, a written notice of the true char-
acter and value thereof, and having the same entered on the bill of
lading therefor, the master and owner of such vessels shall not be
liable as carriers thereof in any form or manner; nor shall any
such master or owner be liable for any of such goods beyond the
value and according to the character thereof, so notified and
entered."
It is sufiicient to say that the section has no application whatever
to this case. It has reference alone to the liability of carriers by
water who transport goods and merchandise of the kind designated.
It has no reference to carriers by land, and does not assume to
declare or restrict their liability for the baggage of passengers.
Judgment affirmed.
Mr. Justice Pield, with whom concurred Mr. Justice Millee
and Mr. Justice Strong, dissenting.
t dissent from the judgment of the court in this case. I do not
think that two hundred and seventy-five yards of lace, claimed by
the owner to be worth f 75,000, and found by the jury to be of the
value of $10,000, can, as a matter of law, be properly considered as
baggage of a passenger for the loss of which the railroad company,
in the absence of any special agreement, should be held liable.
KANSAS CITY, etc. E. CO. v. MOEEISON.
34 Kan. 502. 1886.
On March 2, 1884, William Morrison filed his petition against the
Kansas City, Port Scott & Gulf Eailroad Company, in the District
Court of Labette County, to recover f 495. 12, with interest thereon
from February 8, 1884, the alleged value of certain wearing apparel
and tools. The petition also averred that the railroad company
was a corporation operating a railroad from Port Scott to Parsons,
336 CAEKIERS OF GOODS.
and was a carrier of passengers between those points on February 8,
1884, and subsequent thereto; that the plaintiff on said date was a
watchmaker and jeweller, and that the articles described in the peti-
tion constituted the tools necessarily used by him in carrying on his
occupation; that on said February 8, the plaintiif was a passenger
on the railroad from Fort Scott to Parsons, and at the same time
delivered his trunk to the company to be carried as baggage between
said points; that plaintiff arrived in Parsons on said day, and at
once and on several occasions thereafter demanded of the company
a delivery of his baggage, which was refused until February 23;
that the trunk was delivered on that day, but that the wearing
apparel and tools described in the petition were missing from it;
and that such loss was caused by the negligence of the company.
HoETON, C. J. . . . The evidence on the part of the railroad
company established that the trunk reached Parsons on February 9,
1884; that it was apparently in good order when it arrived; that on
February 15, the depot was burglarized, and the trunk broken open
and robbed.
The jury found that the plaintiff demanded his trunk on February
9, 1884, and again demanded it on February 11; and these findings
are supported by the evidence because the demand made by the
porter of the Belmont, on the 11th, was the same as if plaintiff
had made the demand, as the porter was acting for him and in his
interest. Therefore we may omit from this case all discussion of
the liability of the defendant below as warehouseman or bailee for
hire. If plaintiff demanded his baggage, as testified to, and the
company, having the trunk at its depot at Parsons, refused to
deliver it, the company is responsible to the owner for its contents,
although the trunk was subsequently broken open and robbed with-
out its fault. The liability of the railroad company was co-exten-
sive with its custody of the trunk, and continued until it was safely
delivered into the hands of its owner, if the owner called for and
demanded the trunk within a reasonable time after it reached
Parsons. All of this was done by the owner. A. T. & S. F. Eld.
Co. V. Brewer, 20 Kas. 670; C. E. I. & Pac. Eld. Co. v. Conklin,
32 id. 55; Thompson on Carriers, pp. 530-532.
We think, therefore, that there is only one principal question pre-
sented by the record for our determination; that is, whether the
tools of plaintiff below are proper baggage for a watchmaker and
jeweller. The general rule is, that the implied obligation of a com-
mon carrier to carry the baggage of a passenger does not extend
beyond ordinary baggage ; and it may be said generally that by bag-
gage we are to understand such articles of personal convenience or
necessity as are usually carried by passengers for their personal use,
and not merchandise or other valuables, although carried in the
trunks of passengers, which are not, however, designed for any such
use, but for other purposes, such as a sale and the like. Story on
WHO ARE COMMON CAERIEES. 337
Bailments, 499; Hutchinson on Carriers, § 679. The decisions on
the subject of passengers' baggage turn upon the question : What
articles may baggage consist of? This is a mixed question of law
and fact, to be determined by the jury under proper instructions
from the court. In Macrow v. Eailway Co., 2 L. E. 6 Q. B. 612,
the question coming before the court as to what was properly
included by the term baggage, the true rule was said by Cockburn,
C. J., to be: —
" That whatever the passenger takes with him for his personal
use or convenience, according to the habits or wants of the particu-
lar class to which he belongs, either with reference to the immediate
necessities or to the ultimate purpose of the journey, must be con-
sidered as personal luggage. This would include, not only all
articles of apparel, whether for use or ornament, but also the gun
case or fishing apparatus of the sportsman, the easel of the artist on
a sketching tour, or the books of the student, and other articles of
an analogous character, the use of which is personal to the traveller,
and the taking of which has arisen from the fact of his journeying.
. . . But merchandise, or furniture, or household goods, would not
come within the description of ordinary luggage, unless accepted as
such by the carrier."
It is also held by the authorities that a reasonable quantity of his
tools is proper baggage for a mechanic. Davis v. Eailroad Co., 10
How. Pr. 330; Porter v. Hilderbrand, 14 Pa. St. 129. The case of
Davis V. Eailroad Co., supra, and Porter v. Hilderbrand, supra, are
cited by Thomp.son in his work on Carriers, and also by Hutchinson
in his book on the same subject; and are also referred to in
other text-books without criticism or other unfavorable comment.
Thompson on Carriers, 513; Hutchinson on Carriers, § 683.
These cases are quite similar to the one at bar, excepting that the
tools in controversy are more valuable. In Davis v. Eailroad Co.,
the contents of the trunk consisted of ordinary wearing apparel, a
gun, and a set of harness-maker's tools, worth ten dollars. The
plaintiff was a harness-maker by trade, and it was proved that it is
usual for those of that trade, in going from place to place, to take
their tools with them in their trunks. In Porter v. Hilderbrand,
the plaintiff was a carpenter, and his trunk contained $45 of cloth-
ing and 155 of carpenters' tools. He was moving from Pennsylvania
to the State of Ohio, and he delivered his trunk to the owners of a
stage to carry it from Pittsburgh to Wooster, Ohio. In that case,
the court speaking through Bell, J., said: —
" Another question disclosed by the record is, whether a recovery
can be had for the value of the carpenters' tools, which the jury
have found were a reasonable part of the plaintiff's baggage. . . .
The right to carry tools as baggage is unquestionably open to abuse ;
but in the language of the court in MeGill v. Eowand, 3 Barr. 451, ■
the correction is to be found in the intelligence and integrity of the
338 OAEEIERS OF GOODS.
jury called to determine under the circumstances of each case. It
is, it is said, a common thing for journeymen mechanics to carry in
their trunks, with clothing, a small and select portion of their tools.
To this practice I see no such objection as ought to put this kind of
property out of the protection afforded to the necessaries a traveller
is compelled by legitimate considerations to transport with his per-
son. Upon this score, the judgment rendered below is, I think,
unobjectionable. "
The evidence shows that plaintiff below was a watchmaker and
jeweller; that he went to Parsons to work at watchmaking; that the
tools in his trunk were intended for repairing watches and were
necessary for his work; and that they were the tools usually carried
by a person of his trade or occupation. The plaintiff is therefore,
strictly speaking, a mechanic, and a reasonable quantity of his tools
is proper baggage. The term " baggage " was fairly defined to the
jury in the instructions of the court, and we do not think any of the
instructions were misleading or prejudicial, although as a whole
they were unnecessarily prolix. What was a reasonable quantity of
tools for plaintiff below to carry, was a question for the jury.
The judgment of the District Court must be affirmed.*
GREAT NOETHEEN EAILWAY, Appellant, v.
SHEPHEED.
8 Exch. 30. 1852.
Pakke, B. In this case, there being no special contract, the
defendants were bound to carry the plaintiff and his luggage, which
term, according to the true modern doctrine on the subject, com-
prises clothing and such articles as a traveller usually carries with
him for his personal convenience ; perhaps even a small present, or
a book for the journey, might be included in the term; but certainly
not merchandise or materials bought for the purpose of being manu-
factured and sold at a profit. Angell on Carriers, sec. 115; Story on
* In the case at bar, we are of opinion that the feather-bed was not a part of the
personal baggage of the plaintiff, and that the defendants are not liable for it under
their contract. The case finds that it was not intended for personal use during the
voyage. It was an article of furniture, and it is difficult to see how it can any more
properly be called personal baggage than any other article of household furniture.
The presiding judge correctly ruled that, upon the facts proved, this was a question of
law. Morton, J., in Connolly v. Warren, 106 Mass. 146. Ace. : Macrow v. Great
Western R. Co., L. E. 6 Q. B. 612. Contra : Ouimit v. Henshaw, 35 Vt. 604, 622.
The manuscript books of a student may be baggage : Hopkins v. Westcott, 6 Blatch.
64; or the "price book" of atrarelling salesman: Gleason v. Transportation Co.,
32 Wis. 86.
WHO ARE COMMON CAEEIEES. 339
Bailments, 526, 5th ed. note. In this ease, nine-tenths of the articles
■were of the latter description. Now, if the plaintiff had carried
these articles exposed, or had packed them in the shape of mer-
chandise, so that the company might have known what they were,
and they had chosen to treat them as personal luggage, and carry
them without demanding any extra remuneration, they would have
been responsible for the loss. So also upon any limit in point of
weight if the company chose to allow a passenger to carry more,
they would be liable. The judge states, that there was no evidence
as to whether defendants carried passengers by this excursion train
upon the terms contained in the 6th section of the T & 8 Vict. c. 85,
unless the court shall be of opinion that the fact that the charge for
each passenger was less than a penny a mile was of itself sufficient
proof that they carried upon those terms. That, however, it is not
necessary to decide ; because, assuming that they did not carry on
those terms, the defendants only agreed for the stipulated fare to
carry passengers and everything which constituted personal luggage,
and were not bound to carry merchandise or articles wholly uncon-
nected with luggage. If, indeed, they had notice, or might have
suspected from the mode in which the parcels were packed that
they did not contain personal luggage, then they ought to have
objected to carry them ; but the case finds that they had no notice
of what the packages contained. Whether this was done for any
fraudulent purpose, it is not necessary to inquire; because, even if
there was no fraudulent intent, the plaintiff has so conducted him-
self that the company were not aware that he was not carrying lug-
gage , and therefore the loss must be borne by him. It was con-
tended that, after the accident happened, a new special contract was
entered into, by which the company undertook to take care of the
plaintiff's luggage. But this argument fails. If, indeed, an acci-
dent had happened to a perfect stranger, and the company had
agreed without compensation to forward his luggage, they would,
according to Coggs v. Bernard, be responsible for its loss. But in
this case the plaintiff was a passenger, and the intention of the com-
pany was only to carry into effect the original contract; and from
that alone their obligation arises. I am therefore of opinion that
the company are not liable; and the judgment of the court below
must be reversed.
KANSAS CITY, P. S. & M. K. CO. v. McGAHEY.
63 Ark. 344; 38 S. W. R. 659 ; 36 L. K. A. 781 ; 58 Am. St. R. 111. 1897.
[For this case, see infra, p. 636.]
340 CAEEIEES OF GOODS.
MICHIGAN CENTRAL E. CO. v. CARROW.
73 lU. 348. 1874.
Scott, J. . . . By common custom the personal luggage of the
traveller is carried without extra charge. Passenger carriers do not
assume to carry anything as baggage except such things as may be
necessary to the convenience and comfort of the traveller, and per-
haps sufficient money to defray the expenses of the journey. This
fact is well known to all persons who seek passage in railway car-
riages. With a great majority of travellers the amount of baggage
carried is of no considerable value. The companies have no
arrangements for the carrying and safe keeping of costly articles.
The contract is simply for passage and the usual personal baggage
not exceeding in weight the amount prescribed by the regpilations
of the company.
If this implied contract with the carrier of passengers is to be
varied, modified, or enlarged, it must be by direct notice of the
contents of the package offered as baggage which, in effect, would
amount to a special contract. The company may rely upon the
representation that whatever is offered as baggage is that, and noth-
ing else. The law seems to be settled that it need not inquire as to
its contents. If the passenger has merchandise cheeked as baggage
without such notice , the company cannot be held liable as a com-
mon carrier. Cahill v. L. & N. W. Ry. Co., 10 C. B. n. s. 154;
Chicago & Cincinnati Air Line R. R. Co. v. Marcus, supra ; Collins
V. Boston & Maine R. R. Co., 10 Cush. 506; Great Northern Rail-
road Co. V. Shepherd, 8 W. H. & G. 30 [338]; Batson v. Donovan,
4 B. & A. 21.
Upon the doctrine of these cases, it is very clear appellant was
not a common carrier of the goods destroyed. Appellee gave the
agents of the company no notice whatever his trunk contained valu-
able merchandise. No one knew better than appellee the company
did not carry merchandise as baggage, free of charge, and without
notice of the contents of the trunk there is neither reason nor
authority for holding the company liable as an insurer against loss.
In Cahill v. L. & N. W. Ry. Co., supra, Willis, J., very aptly re-
marks that "where a passenger takes a ticket at the ordinary charge,
he must, according to common sense and common experience, be
taken to contract with the railway company for the carriage of him-
self and his personal luggage only, and that he can no more extend
the contract to the conveyance of a single package of merchandise
than of his entire worldly possessions." So we say in this case, it
was not in the power of appellee to extend the liability of the com-
pany on account of his own convenience. There was no undertak-
WHO AEE COMMON OAKRIEES. 341
ing to carry merchandise, and he had no right to impose his goods
subtilely upon the company , and then seek to make the obligation
that of a common carrier. If he desired to have his merchandise or
wares go upon the train with him, it was but just to the carrier he
should disclose its nature and value, and if the company then chose
to treat it as baggage, the liability of a common carrier would attach,
but not otherwise.
The case of the Great Northern Eailway Co. v. Shepherd, supra,
is a case where the passenger had a quantity of ivory handles in his
baggage. No notice was given , and it was not so packed as to indi-
cate to the carrier it contained merchandise. It was decided the
carrier of passengers for hire is, at common law, only bound to carry
their personal luggage. Therefore, if a passenger has merchandise
among his luggage, or so packed the carrier has no notice it is mer-
chandise, he is not responsible for its loss.
The case of Cahill v. L. & N. W. Ry. Co., supra, in some of its
features is like the ease at bar. The plaintiff was a commercial
traveller. He had checked, as baggage, a box covered with a black
leather case, which had painted across the top, on each end, the word
" Glass " in large white letters, and also the name of his employer
in like legible letters. It contained valuable merchandise. No
information was given by the plaintiff to the company's servants,
nor was any inquiry made by them as to the contents of the box.
It was held, in an action against the company for the loss of the
box, that, inasmuch as it contained merchandise only and no per-
sonal luggage, there was no contract to carry it, and consequently it
was not liable for the loss.
The case was reargued in the Exchequer Chamber, before a full
bench. 13 J. Scott, 818. Coekburn, C. J., agreed with the judges
of the Court of Common Pleas, if the company chose to take as
ordinary baggage that which it knew to be merchandise, it is not
competent, in the event of loss, to claim exemption from liability
on the ground the article consists of merchandise. " But, " he adds,
" on the contrary, if a passenger who knows or ought to know that he
is only entitled to have his ordinary personal luggage carried free of
charge, choose to carry with him merchandise for which the com-
pany is entitled to charge, he cannot claim to be compensated in
respect to any loss or injury, by the company to whom he has
abstained from giving notice of the contents."
The fact the box was marked " Glass " was not a circumstance, in
the opinion of the court, that would charge the company with notice-
it contained merchandise. It could regard it as an indication it was
to be handled with more than ordinary care. This case is a much
stronger one than the present plaintiff's case. There was very much
more to put the company on inquiry. It was ruled, however, it
was not the duty of the company to inquire as to the contents of
the luggage, but it was the duty of the plaintiff himself to give
342 CAEEIEES OF GOODS.
notice, and his failure to do so was sufficient to bar a recovery. To
the same effect is the case of The Belfast & Ballymena R. E. Co. v.
Keys, 9 House of Lords Cases, 556. The case of Dunlap v. The
International Steamboat Co., 98 Mass. 371, is in entire conformity
with the views expressed in the English cases. , . -^
HANNIBAL RAILEOAD v. SWIFT.
12 Wall. (U. S.) 262. 1870.
Field, J. ... A considerable portion of the property, it is true,
was not personal baggage, which the company was obliged to trans-
port under the contract to carry the person; nor does it appear that
it was offered to the company as such. It embraced buffalo robes,
hair mattresses, pillows, writing-desks, tables, statuary, and pic-
tures, in relation to which there could be no concealment, and it is
not pretended that any was attempted. Where a railroad company
receives for transportation, in cars which accompany its passenger
trains, property of this character, in relation to which no fraud or
concealment is practised or attempted upon its employees, it must
be considered to assume, with reference to it, the liability of com-
mon carriers of merchandise. It may refuse to receive on the pas-
senger train property other than the baggage of the passenger, for a
contract to carry the person only implies an undertaking to transport
such a limited quantity of articles as are ordinarily taken by travel-
lers for their personal use and convenience ; such quantity depend-
ing, of xjourse, upon the station of the party, the object and length
of the journey, and many other considerations. But if property
offered with the passenger is not represented to be baggage, and it
is not so packed as to assume that appearance, and it is received for
transportation on the passenger train, there is no reason why the
carrier shall not be held equally responsible for its safe conveyance
as if it were placed on the freight train, as undoubtedly he can make
the same charge for its carriage.^
1 Jcc: Humphreys v. Perry, 148 U. S. 627.
2 But in Blumantle v. Fitohburg R. Co., 127 Mass. 322, a package was received
appearing to be merchandise, and the court say; In the case at bar, the plaintiff offered
and delivered the bundles as his personal baggage, and requested that they might be
checked as such ; and the baggage-master gave him checks for them accordingly, as he
was bound to do for personal baggage of passengers, by the St. of 1874, c. 372, § 136.
There was no evidence that either the plaintiff or the baggage-master agreed or intended
that they should be carried as freight, or that the baggage-master had any authority to
receive freight on a passenger train, or to bind the corporation to carry merchandise as
personal baggage. The case cannot be distinguished in principle from the previous de-
WHO AEE COMMON CAERIEKS. 343
HENDERSON v. LOUISVILLE, etc, E. 00.
123 U. 8. 61. 1887.
This was an action against a railroad company. Judgment for
defendant. Plaintiff sued out this writ of error.
Justice Gbay. This was an action against a railroad corporation
by a passenger to recover for the loss of a handbag and its contents.
The plaintiff, a married woman, suing by authority of her hus-
band, alleged in the original petition that on October 25, 1883, the
defendant, being a common carrier of goods and persons , for hire,
received her into one of its cars as a passenger from her summer
residence at Pass Christian, in the State of Mississippi, to her winter
residence in New Orleans, having in her hand, and in her immediate
custody, possession, and control, a leather bag of a kind usually car-
ried by women of her condition and station in society, containing
$5800 in bank bills, and jewelry worth $4075; that while the plain-
tiff, holding the bag in her hand, was attempting to close an open
window next her seat, through which the cold wind was blowing
upon her, the bag and its contents, by some cause unknown to her,
accidentally fell from her hand through the open window upon the
railroad; that she immediately told the conductor of the train that
the bag contained property of hers of great value, and requested him
to stop the train, and to allow her to leave the car and retake the
bag and its contents ; but he refused to do so, although nothing hin-
dered or prevented him, and, against her protestations, caused the
train to proceed at great speed for three miles to Bay St. Louis,
where he stopped the train, and she despatched a trusty person to
the place where the bag.had fallen ; but before he arrived there, the
bag, with its contents, was stolen and carried away by some person
or persons to the plaintiff unknown, " and was Vholly lost to the
plaintiff by the gross negligence of the defendant as aforesaid."
The mere statement of the case is sufficient to demonstrate the
correctness of the judgment below.
The facts alleged in the original petition constitute no breach or
neglect of duty on the part of the defendant towards the plaintiff.
She did not intrust her bag to the exclusive custody and care of the
defendant's servants, but kept it in her own immediate possession,
cisions of this court, already cited. Evidence tending to show that the baggage-master
knew or supposed the bundles to contain merchandise, or that other passengers had
similar bundles, would not warrant the jury in finding that the defendant agreed to
transport the plaintiff's merchandise, or became liable therefor as a common carrier.
The instructions under which the case was submitted to the jury were therefore
erroneous.
344 CAKEIEES OF GOODS.
without informing the defendant of the value of its contents, until
after it had dropped from her hand through the open window. Even
if no negligence is to be imputed to her in attempting to shut the
window with the bag in her hand, yet her dropping the bag was not
the act of the defendants or its servants, nor anything that they
were bound to foresee or guard against; and after it had happened
she had no legal right, for the purpose of relieving her from the
consequences of an accident for which they were not responsible, to
require them to stop the train, short of a usual station, to the delay
and inconvenience of other passengers, and the possible risk of col-
lision with other trains.
Judgment affirmed.
EIEST NATIONAL BANK v. MARIETTA, etc. R. CO.
20 Ohio St. 259. 1870.
Scott, J
Upon well-settled principles the defendant became bound, in
consideration of the fare paid by McElroy, to use the highest
degree of diligence and care in transporting him to his place of
destination. And this contract for the carriage of his person
necessarily included the wearing apparel which accompanied his
person, such reasonable sum of money as might be in good faith
carried with him for the expenses of the journey, together with all
such articles, to a reasonable extent, at least, as are ordinarily
carried or worn upon the person for purposes of personal use, con-
venience, or ornament; and we agree with counsel for plaintiff that
the contract also included the carriage of "his baggage delivered to
the defendant as such to be carried, to the extent of an ordinary and
reasonable wardrobe for one in his station in life, together with such
articles as are usually found in the paraphernalia of a traveller."
But the notes for the loss of which this action is brought can
neither be regarded as a part of the passenger's baggage, nor as
money intended to defray the expenses of the journey. The statements
of the petition show that the notes were simply being transmitted,
for business purposes, from Greenfield to Cincinnati, and were not
intended to be used by the passenger for defraying the expenses of
his journey or otherwise. The trip may have been undertaken on
account of the money, but the money was not carried on account of
the trip. Nor was the defendant intrusted with the custody of these
notes, or specially charged with any care or oversight in respect to
them. They remained in the exclusive custody and control of
McElroy. And as they were clearly not included in the contract
for the transportation of the passenger and his baggage, and were
WHO AKE COMMON CARKIEKS. 345
not subjected to the custody of the carrier, it is difficult to see how
he can be held liable for a want of care over them.
We do not call in question the right of a passenger to carry about
his person, for the mere purpose of transportation, large sums of
money, or small parcels of great value, without communicating the
fact to the carrier, or paying anything for their transportation. But
he can only do so at his own risk, in so far as the acts of third per-
sons, or even ordinary negligence on the part of the carrier or his
•servants is concerned. For this secret method of transportation
would be fraud upon the carrier, if he could thereby be subjected to
an unlimited liability for the value of parcels never delivered to
him for transportation, and of which he has no knowledge, and has
therefore no opportunity to demand compensation for the risk
incurred. No one could reasonably suppose that a liability which
might extend indefinitely in amount would be gratuitously assumed,
•even though the danger to be apprehended should arise from the
inadvertent negligence of the carrier himself.^
LEWIS V. NEW YORK SLEEPING CAR CO.
143 Mass. 267. 1887.
Two actions, each with a count in contract and a count in tort, to
recover for the loss of the plaintiff's property alleged to have been
stolen while the plaintiff was riding as a passenger in the defendant's
•car, through the negligence of the defendant's servant. . . .
The jury returned a verdict for the plaintiff in each case; and the
defendant alleged exceptions.
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
«how 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
1 Ace. /Weets v. N. Y., N. H., & H. R. R. Co., 72 N. Y. 50.
346 CABRIEES OF GOODS.
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, the 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, bat, 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 afEord
him this protection. While it is not liable as a common carrier or
as an innholder, yet it is its duty to use reasonable care to guard the
passengers from theft, and if, through want of such care, the per-
sonal 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 Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474;
Pullman Car Co. v. Gardner, 3 Penny. 78 ; Pullman Palace Car Co.
V. Gaylord, 23 Am. 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 morn-
ing, that he was required to be on duty for thirty-six hours con-
tinuously, which included 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,*
» Contra: Pullman P. C. Co. v. Lowe, 28 Nebr. 239.
WHO AKE COMMON CAREIERS. 347
CLAEK V. BUKNS.
118 Mass. 275. 1875.
Contract, for the value of a watch, against the owners of a steam-
ship as common carriers, with counts in tort for negligence, and also
counts charging them as innkeepers. The case was submitted to the
Superior Court on an agreed statement of facts in substance as
follows : —
The defendants are the owners of the Cunard line of steamers, so
called, which run between Boston and Liverpool, and New York and
Liverpool, and are common carriers of passengers and freight between
those places. On November 28, 1871, the plaintiff left Liverpool on
board the steamship " Calabria, " one of the Cunard line, for New
York, as a first-class passenger. The plaintiff paid for his ticket,
by which he became entitled to the usual accommodation on board
the ship for sleeping and lodging, and to be supplied with proper
food. He took with him and wore on his person in the daytime the
watch referred to in the declaration. He occupied a state-room with
two berths, one of which was occupied by another passenger, placed
there by the defendants , and it is admitted that the watch was not
taken by him. The state-room had a lock, but no key or other
fastening. When the plaintiff went to bed on Sunday evening,
December 3, at nine o'clock, he put his watch in the pocket made
for it in his waistcoat, which he hung by the arm-holes on a hook in
his state-room, intended for clothes to be hung on. He did not
fasten his state-room door, having no means to do so. The lamp in
the state-room was so placed that the steward had to come into the
state-room and go to the farther end thereof to light it and to put
the light out, and was in the habit of doing so at the time appointed,
by the rules and regulations of the ship, for lighting the lamps and
putting out the lights. Passengers are not allowed to light or put
out the lamps. The lamps are put out at ten o'clock, p.m. When
the plaintiff first arose to dress himself at the usual hour on Monday
morning, his watch was missing. He notified the captain imme-
diately of his loss, and the purser made a thorough search of the
state-room, and then a careful examination of the plaintiff's trunk
and the trunk of the gentleman who occupied the other berth in the
state-room, but without success.
The plaintiff had the usual accommodations given to first-class
passengers on board the defendants' steamers, and it is the usual
custom of the defendants not to permit the locking of state-room
doors, nor to permit passengers to control the lamps in their state-
rooms or the windows thereof, but to give the stewards access at all
times to the state-rooms in order that passengers may not, by the
348 CAEEIEKS OF GOODS.
use of matches, or by imprudently opening their windows, incur the
risk to themselves, their fellow-passengers, and the ship and cargo,
of fire, and of the entrance of water through the windows, and also
that they may be accessible in case of accident or danger, or of their
own helplessness from sickness or other causes.
When the plaintiff reached Boston he called on the defendants'
agent, Mr. Alexander, of whom he purchased his ticket, and re-
quested of him payment for the loss sustained by him, and at the
same time complained that the state-rooms were not allowed to be
locked, to which Alexander replied, giving as a reason for the rule,
that the state-rooms must be accessible for the safety of the ship,
cargo, and passengers. The plaintiff had crossed the ocean three
times before in boats of the Cunard line and had never had a key or
fastening to his state-room, and understood that it was against the
rule or custom of these ships. The watch was worth one hundred
and twenty-five dollars. The pleadings may be referred to.
If upon the foregoing facts the plaintiff was entitled to recover,
judgment was to be rendered for $125, and interest from date of the
writ, with costs ; otherwise judgment for the defendants, with costs.
Upon the facts agreed, Beigham, C. J., ruled that the plaintiff
could not maintain this action, and ordered judgment for the
defendants; and the plaintiff alleged exceptions.
Gkay, C. J. The liabilities of common carriers and innkeepers,
though similar, are distinct. No one is subject to both liabilities at
the same time, and with regard to the same property. The liability
of an innkeeper extends only to goods put in his charge as keeper of
a public-house, and does not attach to a carrier who has no house and
is engaged only in the business of transportation. The defendants,
as owners of steamboats carrying passengers and goods for hire, were
not innkeepers. They would be subject to the liability of common
carriers for the baggage of passengers in their custody, and might
perhaps be so liable for a watch of the passenger locked up in his
trunk with other baggage. But a watch, worn by a passenger on
his person by day, and kept by him within reach for use at night,
whether retained upon his person, or placed under his pillow, or in
a pocket of his clothing hanging near him, is not so intrusted to
their custody and control as to make them liable for it as common
carriers. Steamboat Crystal Palace v. Vanderpool, 16 B. Mon. 302;
Tower v. Utica Eailroad, 7 Hill, 47 ; Abbott v. Bradstreet, 56 Maine,
530 ; Pullman Palace Car Co. v. Smith, 7 Chicago Leg. News, 237 [179].
Whether the defendants' regulations as to keeping the doors of
the state-rooms unlocked, the want of precautions against theft, and
the other facts agreed, were sufficient to show negligence on th& part
of the defendants, was, taking the most favorable view for the
plaintiff, a question of fact, upon which the decision of the court
below was conclusive. Fox v. Adams Express Co., 116 Mass. 292.
Exceptions overruled.
DELIVERY TO CAKRIEK. 349
2. DELIVEEY TO CAKRIEE.
GROSVENOR, Respondknt, v. NEW YORK CENT. R, CO.,
Appellant.
39 N. Y. 34. 1868.
The complaint in this action alleges that, in April, 1861, the
plaintiff delivered to the defendant, at Clifton Springs, a cutter, to
be carried by it to Buffalo, and paid the defendant therefor, which
the defendant agreed to do, and that by the negligence of the
defendant, it became wholly lost to the plaintiff. The answer denies
these allegations. The issue was tried in the Superior Court of
Buffalo, before Justice Clinton and a jury, when the following facts
were proved : That the plaintiff called upon the defendant's depot
agent at Clifton, and paid him the freight on the cutter, and the
fare of his servant to Buffalo, and told him that he would send them
down in the morning, to go by the afternoon train. The servant
brought the cutter, by plaintiff's direction, to have it shipped to
Buffalo, and arrived at the depot about six o'clock in the morning,
and placed it on the platform of the freight-house, next the railroad
track, with one end next the freight-house, and the other toward the
track, and went back after the thills ; that he returned in about an
hour with them and stopped in front of the passenger depot, about
six rods from the freight-house, and saw the defendant's baggage-
man, Hall, who, at the time, was sweeping out the depot, and said
to him, there is some stuff to go to Buffalo. He asked on what
train, to which he replied, the one o'clock, and then took the
thills and laid them with the cutter. He had not then seen the
baggage-man do anything with the freight, and did not ask for or
take any receipt for the property; that one, Sutherland, was the
■defendant's agent there, and had been such agent for three years,
and was alone authorized to receive and deliver freight, and resided
in the depot. The defendant proved Hall was baggage-man, and
had never received freight or given receipts therefor, except by his
•especial directions, and had no general orders on that subject. That
freight is always received and delivered at the east end of the freight-
house. That there is a platform alongside of the freight-house,
next the track, and comes within a few inches of a freight-car
on the track, which is used for receiving and delivering freight
from and to the cars, when it is taken into or from the freight -house
and weighed; and that it is received from and delivered at the east
end of the depot. That the cutter when on the platform, where it
was left by plaintiff's servant, could not be seen from the passenger
depot. That the cutter, placed on the platform, as stated, would
350 CARRIERS OF GOODS.
project over it nine incLes. That two or three hours after it was
ieft, a car in a passing train caught the cutter and broke it, and the
first knowledge the agent had of its being there, was seeing it pass
his office at the passenger depot on this car, broken. That it was
the invariable custom for the shipper to mark property and its des-
tination, before the defendant received it, when he weighed it and
ascertained the freight; and that the plaintifE's servant did mark a
box, which he brought with the cutter in the afternoon, before ship-
ment, and said he wanted it to go to BufEalo.
At the close of the plaintifE's testimony, and at the close of the
evidence, the defendant made a motion for a nonsuit, upon the
ground, that, upon the undisputed facts, the plaintiff was not entitled
to recover, which motion was denied by the court, and an exception
taken to the decision by the defendant.
The jury found a verdict for the plaintiff for $78.16, for which
judgment with costs was entered. The defendant appealed to the
General Term of that court, where the judgment was affirmed. The
defendant thereupon appealed to this court.
Miller, J. I am of the opinion that the court erred in refusing
to nonsuit the plaintiff upon the trial. To render a party liable as
a common carrier, it must be established that the property was
actually delivered to the common carrier or to some person duly
authorized to act on his behalf. The responsibility of the carrier
does not commence until the delivery is completed. Angell on Car-
riers, § 129; Story on Bailments, § 532. It is not enough that the
property is delivered upon the premises , unless the delivery is accom-
panied by notice to the proper person. Packard v. Getman, 6 Cow.
757; Trevor V. U. & S. E. K. Co., 7 Hill, 47; Blanchard o. Isaacs,
3 Barb. 388; 2 Kent Com. 604; 1 Pars, on Con. 654. The liability
of the carrier attaches only from the time of the acceptance of the
goods by him. Story on Bailments, § 533; 6 Cow. supra. To com-
plete the delivery of the property within the rules laid down in
the authorities, I think it is also essential that the property should
be placed in such a position that it may be taken care of by the
agent or person having charge of the business, and under his imme-
diate control. It must be accepted and received by the agent. It
appears in the case at bar that the cutter of the plaintiff was placed
upon the platform of the defendant's freight-house, by a servant of
the plaintiff, the freight having been previously paid, to be trans-
ported to Buffalo. At the time when it was thus left, a baggage-
man in the defendant's employment, who was then engaged in
sweeping out the depot, was notified that there was some freight to
go to Buffalo in the noon train. The servant of the plaintiff testifies
that he had seen this person receive and put freight on the cars, and
at this time he apparently had charge of the depot, although the
proof on the part of the defendant shows that another employee was
the real freight agent, and the person with whom the contract was
DELIVEKY TO CAREIEK. 351
made for the carriage of the property, and that the baggage-man had
no authority to receive it. Upon this state of facts, I am inclined
to think that the plaintiff had established sufficient pnma facie. to
submit to the jury the question whether the baggage-man was author-
ized to receive the property, and whether the notice to him was of
itself sufficient. Persons dealing with railroad corporations, and
parties engaged in the transportation of freight, have a right to con-
sider that those usually employed in the business of receiving and
forwarding it, have ample authority to deal with them. It is
enough to establish a delivery, in the first instance, to prove that a
person thus acting received and accepted the property for the pur-
pose of transportation, and even although it subsequently appears
that another employee was actually the agent having charge of this
department of business, yet the company who sanction the perform-
ance of this duty by other persons in their employment, and thus
hold out to the world that they are authorized agents, are not at
liberty to relieve themselves from responsibility by repudiating
their acts. So far, then, as this branch of the case is concerned, it
was at least a question of fact, to be submitted to the jury under
proper instructions, whether the baggage-man of the defendant, to
whom it is claimed by the plaintiff the cutter was delivered, was the
agent of the defendant, duly authorized to receive the same, and
whether notice of its delivery was given to him as such agent. But
whether he was such agent, or the duty of receiving freight devolved
upon another person, the defendant could not be held liable under
any circumstances, without an actual and complete delivery of the
property into the possession of. the corporation, and under its con-
trol. This, T think, was not done. The undisputed testimony
shows that the cutter was placed upon the platform, and that within
two or three hours afterward, it was carried away and broken to
pieces by a passing train of cars. The fact that it was thus carried
away evinces that it was carelessly exposed by the plaintiff's ser-
vant; that the destruction of the cutter was occasioned by his negli-
gence, and that the delivery was not as perfect and complete* as it
should have been.
The accident would not have happened had the cutter been placed
beyond the reach of passing trains. It was not enough that the
agent was notified, to make out a valid acceptance and delivery.
The place of delivery was important, and it was equally essential
that due care should be exercised. Suppose the servant had left
the cutter on the track of the railroad, and notified the agent, would
the defendant have been responsible? Clearly not, for the apparent
reason that there was no delivery upon the premises, no surrender of
the property into the possession of the agent. Until it was actually
delivered, the agent was under no obligation to take charge of the
property, even if notified. It is apparent that the plain iff was in
fault in not delivering the property to the defendant, and in leaving
352 CARRIERS OF GOODS.
it in an exposed condition, which caused its destruction; and, hav-
ing failed to establish this material part of his case, should have
been nonsuited. As a new trial must be granted for the error stated,
it is not important to examine the other questions raised and
discussed.
Judgment reversed, and new trial granted, with costs to abide the
event.
GREEN V. MILWAUKEE & ST. PAUL E. CO.
38 la. 100. 1874.
Action to recover the value of a trunk and contents of clothing
alleged to have been lost or destroyed while in possession of defend-
ant as a carrier. There was a trial to a jury, and a verdict rendered
against plaintiff under an instruction of the court to the effect that
there was no evidence showing that the trunk was delivered to
defendant or its agents. From a judgment rendered upon this ver-
dict plaintiff appeals.
Beck, C. J. The evidence discloses the fact that plaintiff, desir-
ing to take passage by an early morning train on defendant's road
at Boscobel, in the State of Wisconsin, for Decorah, sent her trunk
the evening before by a drayman to defendant's depot. It was left
I by the drayman in the waiting-room, and as there were no employees
of defendant about the premises, no notice thereof was given to any
one. This was after business hours- in the evening. It was shown
that plaintiff had quarterly, for three years, been in the habit of
making the same journey she was about to take, and had always
sent her trunk the evening before, as she did in this case, and that
other travellers were in the habit of doing the same thing when they
went by the early train. The drayman testified that he had often
left baggage at the depot under similar circumstances, but that his
custom was to notify the depot agent or servant of defendant.
Upon this evidence the court directed the jury that there was no
proof of the delivery of the trunk to defendant or its servants.
It is not claimed that defendant would be liable without a delivery,
either actual or constructive, of the property to its agent or servant.
That a delivery may be made at the proper place of receiving such
baggage under the express assent or authority of the carrier without
notice to its employees will not, we presume, be disputed. It is
equally clear upon principle that this assent may be presumed from
the course of business or custom of the carrier. Upon evidence of
this character contracts based upon business transactions are con-
stantly established. The citation of authority is not required to
support this position. See Merriam v. Hartford & N. H. R. E. Co.,
20 Conn. 354.
DELIVERY TO CAEEIER. 353
The instruction which is the foundation of plaintiff's objection
directs the jury that there was no evidence of a delivery of the trunk
to the defendant. In this we think there is error. There was evi-
dence tending to show a course of business on the part of defendant^
a custom, to receive baggage left at the station-house, as in this
case, without notice to plaintiff's servants. Upon evidence of this
character, it was proper that the facts should have been left to the
determination of the jury, whether there had been a delivery of
the property within the rules above announced, — whether a course
of business, a custom, had been established, to the effect that a
delivery of baggage at the station-house without notice, was regarded
by the defendant as a delivery to its servants, and whether plain-
tiff's trunk was received under this custom. It is a well-settled rule
that the courts cannot determine upon the sufiiciency of evidence to
authorize a verdict where there is a conflict, or some evidence upon
the whole case. In such a case an instruction to the effect that there
is no evidence, and directing a verdict accordingly, is erroneous.
Way V. Illinois Cent. R. E. Co., 35 Iowa, 585.
The judgment of the District Court is reversed, and the cause
remanded.
Meversed,
MICHIGAN SOUTHERN, etc. R. CO. v. SHURTZ.
7 Mich. 515. 1859.
Martin, C. J. The principal question presented by this case,
is whether the railroad company are liable as common carriers for
the wheat deposited in their warehouse, to await orders for trans-
portation, and a determination of what shall be its destination. We
think they are not, nor should they be. By their charter the com-
pany have no right to charge as warehousemen for storage of goods
awaiting transportation ; but this disability does not of itself create
any liability. When the goods are delivered to be transported to a
specified point, the liabilitj'- of the company as carriers commences
immediately ; but if they are deposited to await orders, — if the
company cannot carry them because ignorant of the contemplated
destination, or because no destination has been concluded upon by
the owner, — it would be gross injustice to hold them subject to the
extraordinary liabilities of common carriers, while thus awaiting the
determination of their owner. While the wheat was lying in their
warehouse awaiting the determination of Shurtz as to its destination ,
the company cannot be regarded as anything more than gratuitous
bailees, and are liable only as such. If the intention of Shurtz
cannot be clearly seen to have been that it should be transported to
354
CAEEIEES OF GOODS.
any particular place, how can they be seen to be carriers of it? Can
the company be carriers of a thing not to be carried? But when
Shurtz had determined to what point he would have his wheat trans-
ported, and had notified the company of such determination, then
their liability as carriers commenced, and it became their duty to
forward it without delay. This is the obligation of their charter,
and a want of facilities for transportation will not relieve them
from that liability.
3. DUTY TO SERVE THE PUBLIC.
a. Without discrimination.
CHICAGO & N. W. RY. CO. v. PEOPLE.
56 111. 365. 1870.
Lawrence, C. J. This was an application for a mandamus, on
the relation of the owners of the Illinois River elevator, a grain
warehouse in the city of Chicago, against the Chicago and North-
western Railroad Company. The relators seek by the writ to com-
pel the railway company to deliver to said elevator whatever grain
in bulk may be consigned to it upon the line of its road. There was
a return duly made to the alternative writ, a demurrer to the return,
and a judgment pro forma upon the demurrer, directing the issuing
of a peremptory writ. From that judgment the railway company
has prosecuted an appeal.
Since the 10th of August, 1866, the Chicago and Northwestern
Company, in consequence of certain arrangements and agreements
on and before that day entered into between the company and the
owners of certain elevators known as the "Galena," "Northwestern,"
"Munn & Scott," "Union," "City," "Munger and Armor," and
"Wheeler," has refused to deliver grain in bulk to any elevator
except those above named. There is also in force a rule of the
company, adopted in 1864, forbidding the carriage of grain in bulk
if consigned to any particular elevator in Chicago, thus reserving to
itself the selection of the warehouse .to which the grain should be
delivered. The rule also provides that grain in bags shall be
charged an additional price for transportation. This rule is still in
force.
In the oral argument of this case it was claimed, by counsel for
the respondent, that a railway company was a mere private corpora*
DUTY TO SERVE THE PUBLIC. 355
tion , and that it was the right and duty of its directors to conduct
its business merely with reference to the pecuniary interests of the
stockholders. The printed arguments do not go to this extent, in
terms, but they are colored throughout by the same idea, and in one
of them we find counsel applying to the Supreme Court of the United
States, and the Supreme Court of Pennsylvania, language of severe,
and almost contemptuous, disparagement, because those tribunals
have said that "a common carrier is in the exercise of a sort of
public ofiBce." N. J. Steam Nav. Co. v. Merch. Bank, 6 How. 381;
Sanford v. Eailroad Co., 24 Penn. 380. If the language is not
critically accurate, perhaps we can pardon these courts, when we
find that substantially the same language was used by Lord Holt,
' in Coggs V. Bernard, 2 Lord Eaymond, 909, the leading case in all
our books on the subject of bailments. The language of that case
is, that the common carrier "exercises a public employment."
We shall engage in no discussion in regard to names. It is
immaterial whether or not these corporations can be properly said
to be in the exercise of "a sort of public office," or whether they
are to be styled private or quasi-public corporations. Certain it is,
that they owe some important duties to the public, and it only con-
cerns us now to ascertain the extent of these duties as regards the
case made upon this record.
It is admitted by respondent's counsel that railway companies
are common carriers, though even that admission is somewhat grudg-
ingly made. Regarded merely as a common carrier at common law,
and independently of any obligations imposed by the acceptance of
its charter, it would owe important duties to the public, from which
it could not release itself, except with the consent of every person
who might call upon it to perform them. Among these duties, as
well defined and settled as anything in the law, was the obligation
to receive and carry goods for all persons alike, without injurious
discrimination as to terms, and to deliver them in safety to the con-
signee, unless prevented by the act of God or the public enemy.
These obligations grew out of the relation voluntarily assumed by
the carrier toward the public, and the requirements of public policy,
and so important have they been deemed that eminent judges have
often expressed their regret that common carriers have ever been
permitted to vary their common-law liability, even by a special
■contract with the owner of the goods.
Regarded, then, merely as a common carrier at common law, the
respondent should not be permitted to say it will deliver goods at
the warehouses of A. and B., but will not deliver at the warehouse
of C, the latter presenting equal facilities for the discharge of
freight, and being accessible' on respondent's line.
But railway companies may well be regarded as under a higher
obligation, if that were possible, than that imposed by the common
law, to discharge their duties to the public as common carriers fairly
356 CAKEIEES OF GOODS.
and impartially. As has been said by other courts, the State has
endowed them with something of its own sovereignty, in giving
them the right of eminent domain. By virtue of this power, they
take the lands of the citizen against his will and can, if need be,
demolish his house. Is it supposed these great powers were granted
merely for the private gain of the corporators? On the contrary, we
all know the companies were created for the public good.-
The object of the legislature was to add to the means of travel
and commerce. If, then, a common carrier at common law came
under obligations to the public from which he could not discharge
himself at his own volition , still less should a railway company be-
permitted to do so, when it was created for the public benefit and
has received from the public such extraordinary privileges. Rail-
way charters not only give a perpetual existence and great power,
but they have been constantly recognized by the courts of this^
country as contracts between the companies and the State, imposing
reciprocal obligations.
The courts have always been, and we trust always will be, ready-
to protect these companies in their chartered rights, but, on the
other hand, we should be equally ready to insist that they perform
faithfully to the public those duties which were the object of their
chartered powers.
The contract in question is peculiarly objectionable in its char-
acter and peculiarly defiant of the obligations of the respondent tO'
the public as a common carrier. If the principle implied in it were
conceded, the railway companies of the State might make similar
contracts with individuals at every important point upon their lines,
and in regard to other articles of commerce besides grain, and thus-
subject the business of the State almost wholly to their control, as
a means of their own emolument. Instead of making a contract-
with several elevators, as in the present case, each road that enters
Chicago might contract with one alone and thus give to the owner of
such elevator an absolute and complete monopoly in the handling-
of all the grain that might be transported over such road. So, too,.
at every important town in the interior, each road might contract-
that all the lumber carried by it should be consigned to a particular
yard. How injurious to the public would be the creation of such a-
system of organized monopolies in the most important articles of
commerce, claiming existence under a perpetual charter from the
State, and, by the sacredness of such charter, claiming also to set
the legislative will itself at defiance, it is hardly worth while to
speculate. It would be difficult to exaggerate the evil of which such
a system would be the cause, when fully developed and managed by
unscrupulous hands.
Can it be seriously doubted whether a contract, involving such a
principle, and such results, is in conflict with the duties which the-
DUTY TO SERVE THE PUBLIC. 357
company owes to the public as a common carrier? The fact that a
contract has been made is really of no moment, because, if the com-
pany can bind the public by a contract of this sort, it can do the
same thing by a mere regulation of its own, and say to these relators
that it will not deliver at their warehouse the grain consigned to
them, because it prefers to deliver it elsewhere. The contract, if
vicious in itself, so far from excusing the road, only shows that the
policy of delivering grain exclusively, at its chosen warehouses, is
a deliberate policy, to be followed for a term of years, during which
these contracts run.
The principle that a railroad company can make no injurious or
arbitrary discrimination between individuals in its dealings with the
public, not only commends itself to our reason and sense of justice,,
but is sustained by adjudged cases.. In England, a contract which
admitted to the door of a station, within the yard of a railway com-
pany, a certain omnibus, and excluded another omnibus, was held
void. Marriot v. L. & S. W. R. K. Co., 87 Eng. Com. Law, 498.
In Gaston v. Bristol & Exeter Railroad Company, 95 Eng. Com.
Law, 641, it was held that a contract with certain ironmongers, to
carry their freight for a less price than that charged the public, was
illegal, no good reason for the discrimination being shown.
In Crouch v. The L. & N. W. R. Co., 78 Eng. Com. Law, 254, it
was held, a railway company could not make a regulation for the
conveyance of goods which, in practice, affected one individual only.
In Sandford v. Railroad Company, 24 Penn. 382, the court held,
that the power given in the charter of a railway company to regu-
late the transportation of the road did not give the right to grant
exclusive privileges to a particular express company. The court
say, " If the company possessed this power, it might build up one
set of men and destroy others; advance one kind of business and
break down another, and make even religion and politics the tests
in the distribution of its favors. The rights of the people are not
subject to any such corporate control."
We refer also to Rogers' Locomotive Works v. Erie R. R. Co.,
5 Green, 380, and State v. Hartford & N. H. R. Co., 29 Conn. 538.
It is insisted by counsel for the respondent that, even if the
relators have just cause of complaint, they cannot resort to the writ
of mandamus. We are of opinion, however, that they can have an
adequate remedy in no other way, and that the writ will therefore
lie.
The judgment of the court below awarding a peremptory manda-
mus must be reversed, because it applies to the Galena division of
respondent's road, as well as to the Wisconsin and Milwaukee
divisions. If it had applied only to the latter, we should have
affirmed the judgment. The parties have stipulated that, in case of
reversal, the case shall be remanded, with leave to the relators to
358 CARRIERS OF GOODS.
traverse the return. We therefore make no final order, but remand
the case, with leave to both parties to amend their pleadings, if
desired, in view of what has been said in this opinion.
Judgment reversed.
AYEES V. CHICAGO & N. W. EY. CO. , Appellant.
71 Wis. 372. 1888.
Appeal from the Circuit Court for Sauk County.
This case was here on a question of pleading upon a former appeal.
58 Wis. 537. The amended complaint is to the effect that the
defendant, being a common carrier engaged in the transportation of
live-stock, and accustomed to furnish cars for all live-stock offered,
was notified by the plaintiffs, on or about October 13, 1882, to have
four such cars for the transportation of cattle,- hogs, and sheep at its
station La Valle, and three at its station Reedsburg, ready for load-
ing on Tuesday morning, October 17, 1882, for transportation to
Chicago ; that the defendant neglected and refused to provide such
cars at either of said stations for four days, notwithstanding it was
able and might reasonably have done so; and also neglected and
refused to carry said stock to Chicago with reasonable diligence, so
that they arrived there four days later than they otherwise would
have done; whereby the plaintiffs suffered loss and damage, by
decrease in price and otherwise, $1700.
The answer, in effect, admitted the defendant's incorporation with
the privileges alleged; "that it was at times engaged in the trans-
portation over its roads of live-stock when and if it was able to do
so, and was accustomed to furnish suitable cars therefor upon reason-
able notice when within its power to do so; and to receive , transport,
and deliver such live-stock with reasonable despatch, but only upon
special contracts at the time entered into between the shipper and
this defendant, and upon such terms and conditions as should be
agreed upon in writing; that one of the lines of this defendant's
railway is located as in said amended complaint stated." The
answer also, in effect, alleged that "within a reasonable time, and
as soon as it reasonably could, and as soon as it was within its
power to do so," after the application of the plaintiffs for such cars,
the defendant "forwarded four suitable and empty cars to La Valle,"
and "three suitable and empty cars to Reedsburg," which cars were
severally forwarded with reasonable despatch, and arrived in due
course and as soon as they could with reasonable despatch be for-
warded over its line ; that at the times of such respective shipments
the plaintiffs entered into an agreement in writing with the defend-
ant for the transportation of said stock at special rates, and in con-
DUTY TO SERVE THE PUBLIC. 359
sideration thereof it was agreed that the defendant should not he
liable for loss from the delay of trains not caused by the defendant's
negligence.
At the close of the trial the jury returned a special verdict to the
effect, (1) at the times named the plaintiffs were copartners at Eeeds-
burg, engaged in buying and shipping live-stock to the Chicago
market for sale; (2) that at the times stated the defendant was a
common carrier, and as such engaged in the transportation of live-
stock, and accustomed to furnish cars for and transport all live-stock
offered for that purpose ; (3) that one of its lines ran from La Valle
and Keedsburg to Chicago ; (4) that October 13, 1882, the plaintiffs,
being fully apprised of the state of the Chicago market for live-stock
and prices , proceeded to buy therefor seven car-loads of cattle , hogs,
and shelep, four to be loaded at La Valle and three at Eeedsburg;
(5, 6, 7, 8, 9, 10, 14) that the plaintiffs notified the defendant's
agents at the respective stations, October 13, 1882, to have such
cars in readiness at said stations respectively, October 17, 1882, and
that such notices were reasonable, and such agents promised to order
the cars and have them in readiness at the time; (11) that two cars
were furnished at Keedsburg, October 17, 1882, and one October 19,
1882; (12) that the four were furnished at La Valle, October 19,
1882 ; (13) that the defendant furnished two as soon as it reasonably
couldj but five it did not ; (15) that the plaintiffs received no notice
before October 17, 1882, that the cars would not be furnished as
ordered ; (16, 17, 18) that prior to that time, and with the expecta-
tion that the cars would be on hand as ordered, the plaintiffs had
bought sufi&cient stock to load said several cars, and had the same
at said respective stations on the morning of October 17, 1882; (19)
that the defendant, being able to furnish, such cars, disregarded its
duty as a common carrier of live-stock in not having the same on
hand when ordered; (20) that had the cars been so furnished, they
would have arrived at Chicago on the morning of October 18, 1882;
(21) as it was, two arrived thereon Thursday, October 19,1882, a.m.,
and five on Friday, October 20, 1882, at 5.45 p.m. ; (22, 23, 24) that
the market value of hogs in Chicago, on Friday, October 20, was
$7.36 per hundred, on Saturday, October 21, was $7.11, and on
Monday, October 23, $6.81; (26, 26, 27) that the loss on the hogs,
by reason of depreciation of the market, was $140.08; that the total
damages of the plaintiffs on all the stock were $825.97, made up of
the following items, to wit: Taking care of and feeding stock, $50;
shrinkage on hogs, cattle, and sheep, $408.35; depreciation in value
on hogs and sheep, $172.58; and interest on the above sums until
the rendition of the verdict, $195.04.
The defendant thereupon moved for judgment in its favor upon
the verdict and record, which was denied. Thereupon the defendant
moved to set aside the verdict, and for a new trial, upon the grounds
that the verdict is against the weight of the evidence, and for errors
360 CAREIERS OF GOODS.
of the court in its charge to the jury and in its rulings on the trial,
and because the damages were excessive and contrary to the proofs,
which motion was denied. Thereupon, and upon the motion of the
plaintiffs, judgment was ordered in their favor on the special verdict
for $825.97 damages and costs. Prom the judgment entered thereon
accordingly the defendant appeals.
Cassoday, J. There is no finding of any agreement on the part
of the defendant to have the cars in readiness at the stations on
Tuesday morning, October 17, 1882. There is no testimony to
support such a finding. One of the plaintiffs testified, in effect,
that he told the agent that he would want the cars on the morning
of the day named ; that the agent took down the order, put it on his
book, and said, "All right," he would try and get them, but that
they were short because they were then using more cars for other
purposes ; that nothing more was said. It appears in the case that
the cars were in fact furnished. It also appears that, as the ship-
ments were made, special written contracts therefor were entered
into between the parties, whereby it was, in effect, agreed and
understood that the plaintiffs should load, feed, water, and take care
of such stock at their own expense and risk, and that they would
assume all risk of injury or damage that the animals might do to
themselves or each .other, or which might arise by delay of trains;
that the defendants should not be liable for losa by jumping from
the cars or delay of trains not caused by the defendant's negligence.
The court, in effect, charged the jury that there was no evidence of
any negligence on the part of the defendant causing delay in any
train after shipment, and hence that the delay of the two cars
admitted to have been furnished in time was not before them for
consideration. This relieves the case from all liability on contract.
It also narrows the case to the defendant's liability for the delay of
two days in furnishing the five cars at the stations named, as ordered
by the plaintiffs, and in the absence of any contract to do so.
In Richardson v. C. & N. W. R. Co., 61 Wis. 601, 18 Am. & Eng.
E. Gas.. 530, it was, in effect, held competent for a railroad company
engaged in the business of transporting live-stock to exempt itself
by express contract " from damage caused wholly or perhaps in part
by the instincts, habits, propensities, wants, necessities, vices, or
locomotion of such animals." And it was then said: "Since the
action is not based upon contract, the plaintiff' must recover, if ai,
all, by reason of the defendant's liability as a common carrier upon
mere notice to furnish cars and a readiness to ship at the time
notified. Did such notice and readiness to ship create such liability?
We , have seen that a carrier of live-stock may, to at least a certain
extent, limit its liability. Whether the defendant was accustomed
to so limit its liability, or to carry all live-stock tendered upon
notice, without restriction, does not appear from the record. If it
was accustomed to so limit, and the limitation was legal, it should
DUTY TO SERVE THE PUBLIC. 361
at least have been so alleged, together with an offer to comply with
the customary restriction. If it was accustomed to carry all live-
stock offered upon notice and tender, and without restriction, then
it would be difficult to see upon what ground it could discriminate
against the plaintiff by refusing to do for him what it was constantly
in the habit of doing for others."
In that case there was a failure to allege any such custom or hold-
ing out on the part of the defendant, or that reasonable notice had
been given to the defendant to furnish suitable cars to the person
applying therefor, or that the same was within its power to do so ;
and hence the demurrer was sustained. The allegations thus want-
ing in that case are present in this complaint. It is, moreover, in
effect admitted that the defendant was at times, when able to do so,
engaged in the transportation of live-stock over its roads, one line
of which runs through the stations in question ; that it was accus-
tomed to furnish suitable cars therefor, upon reasonable notice, when
within its power to do so; and to receive, transport, and deliver
such live-stock with reasonable despatch, but only upon special con-
tracts at the time entered into between the shipper and the defend-
ant, and upon such terms and conditions as should be agreed upon
in writing. It is, moreover, manifest that the defendant actually
undertook to furnish the cars at the time designated by the plain-
tiffs ; that it succeeded in furnishing two of them on time ; that there
was a delay of two days in furnishing the other five ; and that the
plaintiffs were willing to, and did, submit to the terms and condi-
tions of carriage imposed by the defendant by signing the special
written contracts mentioned. It must be assumed, also, that such
special written contracts were substantially the same as all contracts
made by the defendant at that season of the year for the shipment
of similar live-stock under similar circumstances. Otherwise the
defendant would be justly chargeable with unlawful discrimination ;
the right to do which the learned counsel for the defendant frankly
disclaimed upon the argument.
We are therefore forced to the conclusion that at the time the
plaintiffs applied for the cars the defendant was engaged in the
business of transporting live-stock over its roads, including the line
in question, and that it was accustomed to furnish suitable cars
therefor, upon reasonable notice, whenever it was within its power
to do so ; and that it held itself out to the public generally as such
carrier for hire upon such terms and conditions as were prescribed
in the written contracts mentioned. These things, in our Judgment,
made the defendant a common carrier of live-stock, with such
restrictions and limitations of its common-law duties and liabilities
as arose from the instincts, habits, propensities, wants, necessities,
vices, or locomotion of such animals, under the contracts of carriage.
This proposition is fairly deducible from what was said in Eiehard-
fion V. C. & N. W. E. Co., supra, and is supported by the logic of
362 CARRIEKS OF GOODS.
numerous eases. North Penn. E. Co. v. Commercial Bank, 123 U.
S. 727; Moulton v. St. P., M. & M. E. Co., 31 Minn. 85, 12 Am. &
Eng. E. Cas. 13; Lindsley v. C. M. & St. P. E. Co., 36 Minn. 539 j
Evans v. F. E. Co., Ill Mass. 142; Kimball v. E. & B. E. Co., 26 Vt.
247, 62 Am. Dec. 567; Eixford v. Smith, 52 N. H. 356; Clark v. E.
& S. E. Co., 14 N. Y. 570, 67 Am. Dec. 205; South & N. A. E. Co.
V. Henlein, 52 Ala. 606; Baker v. L. & N. E. Co., 10 Lea, 304, 16
Am. & Eng. E. Cas. 149; Philadelphia, W. & B. E. Co. v. Lehman,
56 Md. 209; McFadden v. M. P. E. Co., 92 Mo. 343; 3 Am. & Eng.
Cyclop. Law, pp. 1-10, and cases there cited. This is in harmony
with the statement of Parke, B., in the case cited by counsel for the
defendant, that "at common law a carrier is not bound to carry for
every person tendering goods of any description, hut his obligation
is to carry according to his public profession." Johnson v. Midland
E. Co. , 4 Exch. 372. Being a common carrier of live-stock for hire,
with the restrictions and limitations named, and holding itself out
to the public as such, the defendant is bound to furnish suitable
cars for such stock, upon reasonable notice, whenever it can do so
with reasonable diligence without jeopardizing its other business as
such common carrier. Texas & P. E. Co. v. Nicholson, 61 Tex.
491; Chicago & A. E. Co. v. Erickson, 91 111. 613; Rallentine v. N.
M. E. Co., 40 Mo. 491; Guinn v. W., St. L. & P. E. Co., 20 Mo.
App. 453.
Whether the defendant could with such diligence so furnish upon
the notice given, was necessarily a question of fact to be determined.
The plaintiffs, as such shippers, had the right to command the
defendant to furnish such cars. But they had no right to insist
upon or expect compliance, except upon giving reasonable notice of
the time when they would be required. To be reasonable, such
notice must have been sufficient to enable the defendant, with reason-
able diligence under the circumstances then existing, to furnish the
cars without interfering with previous orders from other shippers at
the same station, or jeopardizing its business on other portions of its
road. It must be remembered that the defendant has many lines of
railroad scattered through different States. Along each and all of
these different lines it has stations of more or less importance. The
company owes the same duty to shippers at any one station as it
does to the shippers at any other station of the same business
importance.
The rights of all shippers applying for such cars under the same
circumstances are necessarily equal. No one station, much less any
one shipper, has the right to command the entire resources of the
company to the exclusion or prejudice of other stations and other
shippers. Most of such suitable cars must necessarily be scattered
along and upon such different lines of railroad, loaded or unloaded.
Many will necessarily be at the larger centres of trade. The con-
ditions of the market are not always the same, but are liable to
DUTY TO SERVE THE PUBLIC. 363
fluctuations, and may be such as to create a great demand for such
cars upon one or more of such lines, and very little upon others.
Such cars should be distributed along the different lines of road, and
the several stations on each, as near as may be in proportion to the
ordinary business requirements at the time, in order that shipments
may be made with reasonable celerity. The requirement of such
fair and general distribution and uniform vigilance is not only
mutually beneficial to producers, shippers, carriers, and purchasers,
but of business and trade generally. It is the extent of such busi-
ness ordinai'ily done on a particular line, or at a particular station,
which properly measures the carrier's obligation to furnish such
transportation. But it is not the duty of such carrier to discrimi-
nate in favor of the business of one station to the prejudice and
injury of the business of another station of the same importance.
These views are in harmony with the adjudications last cited.
The important question is whether the burden was upon the plain-
tiffs to prove that the defendant might, with such reasonable dili-
gence and without thus jeopardizing its other business, have
furnished such cars at the time ordered and upon the notice given;
or whether such burden was upon the defendant to prove its ina-
bility to do so. We find no direct adjudication upon the question.
Ordinarily, a plaintiff alleging a fact has the burden of proving it.
This rule has been applied by this court, even where the complaint
alleges a negative, if it is susceptible of proof by the plaintiff.
Helper v. State, 58 Wis. 46. But it has been held otherwise where
the only proof is peculiarly within the control of the defendant.
Mecklem v. Blake, 16 Wis. 102; Beckmann v. Henn, 17 Wis. 412;
Noonan v. Ilsley, 21 Wis. 144; Great Western E.. Co. v. Bacon, 30
111. 352; Brown v. Brown, 30 La. Ann. 511. Here it may have
been possible for the plaintiffs to have proved that there were at the
times and stations named, or in the vicinity, empty ears, or cars
: which had reached their destination and might have been emptied
with reasonable diligence, but they could not know or prove, except
by agents of the defendant, that any of such cars were not subject
to prior orders or superior obligations. The ability of the defend-
ant to so furnish with ordinary diligence upon the notice given, upon
the principles stated, was, as we think, peculiarly within the knowl-
edge of the defendant and its agents, and hence the burden was upon
it to prove its inability to do so. Where a shipper applies to the
proper agency of a railroad company engaged in the business of
such common carrier of live-stock for such cars to be furnished at
a time and station named, it becomes the duty of the company to
inform the shipper within a reasonable time, if practicable, whether
it is unable to so furnish, and if it fails to give such notice, and
has induced the shipper to believe that the cars will be in readiness
at the time and place named, and the shipper, relying upon such
conduct of the carrier, is present with his live-stock at the time and
364 CAEKIEES OF GOODS.
place named, and finds no cars, there would seem to be no good
reason why the company should not respond in damages. Of course,
these observations do not involve the question whether a railroad
company may not refrain from engaging in such business as a com-
mon carrier; nor whether, having go engaged, it may not discontinue
the same.
The court very properly charged the jury, in effect, that if all the
cars had been furnished on time, as the two were, it was reasonable
to presume, in the absence of any proof of actionable negligence on
the part of the defendant, that they would have reached Chicago at
the same time the two did, — to wit, Thursday, October 19, 1882, a.m.,
— whereas they did not arrive until Friday evening. This was in
time, however, for the market in Chicago on Saturday, October 21,
1882. This necessarily limited the recovery to the expense of keep-
ing, the shrinkage, and depreciation in value from Thursday until
Saturday. Chicago & A. E. Co. v. Erickson, 91 111. 613. The trial
court, however, refused to so limit the recovery, but left the jury
at liberty to include such damages down to Monday, October 23,
1882. For this manifest error, and because there seems to have
been a mistrial in some other respects, the judgment of the Circuit
Court is reversed and the cause is remanded for a new trial.
SAEGENT V. BOSTON & LOWELL EAILEOAD
COEPOEATION.
115 Mass. 416. 1874.
ToET against the Boston & Lowell Eailroad Corporation, and the
Nashua & Lowell Eailroad Corporation.
Wells, J. This action is founded upon the supposed obligation
of the defendants, as common carriers, to provide facilities and
accommodations to enable the plaintiff to transact his business as
expressman over and upon the railroads of the defendants. For this
purpose he requires that his merchandise and parcels shall be trans-
ported, not as freight under the general charge and control of the
managers and servants of the railroads, but in their passenger trains
and under the exclusive control and supervision of the plaintiff and
his agents ; who also require special accommodations and facilities in
the cars and stations of the defendants, for the receipt and distribu-
tion of their packages. It is not alleged that there is any contract
for such services. The contract which once existed, and the course
of business in previous years, are recited for the purpose of showing
the manner in which the business of the plaintiff had grown up and
the good-will connected therewith had been gained, as bearing upon
DUTY TO SEKVE THE PUBLIC. 365
the damages caused by withdrawing from him the means for its
further prosecution. The complaint is, that under the guise of a
proposal to sell or let the privilege which the plaintiff and his asso-
ciates had before enjoyed, to be used exclusively by the one party
who would pay most for it, the defendants had in fact denied it to
all, and assumed the conduct of the business of express carriage and
parcel delivery by its own agents and servants.
The allegation of the second count, that the defendant had refused
to receive and transport articles of freight for the plaintiff in the
usual modes of transportation of freight, is abandoned.
We know no principle or rule of law which imposes upon a rail-
road corporation the obligation to perform service in the transpor-
tation of freight, otherwise than a carrier of goods for the owner
in accordance with their consignment; or which forbids it from
establishing uniform regulations applicable alike to all persons com-
posing the public to whom the service is due. We are pointed to
no provision in the charters of these defendants, or in the general
laws relating to railroads, which subjects the use of their roads to
the convenience or requirements of other carriers than the corpora-
tions authorized to construct and operate them, and such other rail-
roads ds may have been authorized to enter upon or unite with and
use them. Gen. Sts. c. 63, § 117.
All ^he provisions of law for the regulation of railroads contem-
plate the unlimited exercise by the corporation of the rights and
duties of general carriers of goods and passengers ; and this involves
the right to adopt any and all reasonable rules and regulations to
direct the mode in which their business shall be transacted. They
cannot be required to convert their passenger trains to the purposes
of freight at the discretion of parties not responsible for the manage-
ment of the trains ; nor can they be compelled to admit others than
their own agents and servants upon their trains or to their stations
for the custody, care, receipt, and delivery of freight or parcels.
Whether the defendants, in establishing and conducting the busi-
ness of their own "parcel department," undertake to collect and
distribute goods and parcels in a manner which involves acts ultra
vires, does not affect the question; nor, if they do so, does it afford
the plaintiff any ground of action. His claim is for their refusal to
furnish to him certain claimed facilities upon the roads. That
refusal does not involve any acts or exercise of powers ultra vires.
Nor does the fact that for many years the defendants did afford
certain facilities to separate and independent carriers, as express
companies, confer any right upon them or impose any obligation,
either of contract or duty, upon the defendants to continue the same
unchanged.
Whatever may have been contemplated, when the charters for
these roads were granted, as to the parties by whom and the mode
in which the tracks would be used for the running of trains or car.^
366 CARRIERS OF GOODS.
riages upon them, and the manner in which tolls would be received,
it cannot be doubted that since the St. of 1845, c. 191, the direction
of the use of the roads, and the control of all carriages upon them , are
exclusively in the directors of the corporations owning them. It is
a franchise of a public nature, it is true; and the directors are bound
to conduct its exercise with a view to public convenience. But they,
and not the individual members of the public, are intrusted with
the discretion, authority, and duty, in the first instance, to deter-
mine what the ^public convenience requires. They are subject, in
this respect, to the oversight and regulation of the legislature. It
is only when they disregard such regulations as are provided by law,
or required by a reasonable consideration of the public cohvenience
and purposes of their charter, that individuals are entitled to
complain.
The plaintiff's counsel argues that it is unreasonable, and a viola-
tion of the legal obligations of the defendants, to make any discrimi-
nation between individuals ; or to refuse to the plaintiff privileges
which they grant to any other party ; and therefore that the arrange-
ment of the defendants with another express company, by which the
plaintiff was excluded from similar facilities, was a-violation of his
legal rights. Such does not appear to be the rule of the common
law as held in Massachusetts. Fitchburg Eailroad v. Gage, 12
Gray, 393. If such a rule has been established by the St. of 1867,
c. 339, the plaintiff's ease is not maintained upon that ground; 1st,
because the contracts with other parties complained of were made
before the statute, to wit, in December, 1865, for one year from
January 1, 1866, and renewed only for one year from January 1,
1867, — and although the report finds that during the time from
January 1, 1866, to the date of the writ November 15, 1871, the
plaintiff " has repeatedly demanded to be allowed to carry on his
express business over said roads as formerly," it does not appear
that any such demand was made after that statute took effect and
before the arrangement with those other parties expired. 2d, because
the declaration does not charge any such wrong. The allegation is
that the parties with whom the supposed contracts were made " were
and are only the paid agents of said defendant corporations, and
not the proprietors of said express privileges, and that they have
continued as such, and such only, to the date of this writ; and that
the profits accruing from said fraudulent arrangement are the prop-
erty of said defendant corporations." The whole scope and drift of
the declaration is to charge the defendants with " conspiring and
illegally contriving," by means of pretended contracts with other
parties, to deprive the plaintiif of the profits of his express business
in order to operate the same to their own use. The gravamen of his
complaint then is not, that the defendants have refused to give him
" equal terms, facilities, and accommodations " with other persons
and companies, but simply that they have refused to give him such
DUTY TO SERVE THE PUBLIC. 367
facilities as he requires, for his special business as carrier, ovei
their roads. His claim must stand upon the right to demand such
facilities independently of any enjoyment of like facilities by others.
As an absolute right this cannot be maintained.
The plaintiff contends that the " parcel department " which the
defendants have established, to the exclusion of the plaintiff and
others desiring to make like arrangements, is in contravention of
the equality required by the statute, as much as if it were conducted
in the interest of a third party. But we think the statute was
intended to apply to the dealings of the railroad corporation with
the public, and not to the mode in which it should arrange and
conduct the different branches of its business as carrier. All the
plaintiff can demand is that, in each of those branches, he shall have
equal terms with other persons and companies.
The report finds that when the plaintiff demanded to be allowed
to carry on his express business over said roads as formerly, " there
was sufficient accommodation in the defendants' baggage ears for
the plaintiff as well as other occupants of said cars." But there was
no refusal to carry the plaintiff and his freight upon the same terms
and in the same manner as the defendants performed like services
for other persons and companies. It was a refusal only to permit
the plaintiff to occupy a portion of the space in the cars and stations
in the same manner and for the same purposes as the defendants
themselves used and occupied them, paying therefor, and for the
required transportation, some special rate which could not well be
adjusted otherwise than by special agreement.
The plaintiff fails to make out a legal cause of action, and the
Judgifnent must be for the defendants.^
ATCHISON, TOPEKA & SANTE 'Et E. CO. vj DENVER
& NEW ORLEANS R. CO.
110 U. S. 667. 1884
This was a bill in equity filed by the Denver & New Orleans Rail-
road Co., a Colorado corporation owning and operating a railroad in
that State, between Denver and Pueblo, a distance of about one
hundred and twenty-five miles, against the Atchison, Topeka
& Santa Fe Railroad Company, a Kansas corporation, owning and
operating a railroad in that State from the Missouri Eiver, at Kansas
City, westerly to the Colorado State line, and also operating from
there, under a lease, a road in Colorado from the State line to
Pueblo, built by the Pueblo & Arkansas Valley Railroad Company,
1 Ace. : Express Cases, 117 U. S. 1. Cmitra : New England Exp. Co. v. Maine
Cent. E. Co., 57 Me. 188 ; McDuflFee v. Portland, &c. E., 52 N. H. 430.
368 CARRIERS OF GOODS.
— a Colorado corporation. The two roads so operated by the
Atchison, Topeka & Santa 'F6 Company formed a continuous line-
of communication from Kansas City to Pueblo, about six hundred,
and thirty-four miles. The general purpose of the suit was to com-
pel the Atchison, Topeka & Santa ¥4> Company to unite with the
Denver & New Orleans Company in forming a through line of rail-
road transportation to and from Denver over the Denver & New
Orleans road with all the privileges as to exchange of business, divi-
sion of rates, sale of tickets, issue of bills of lading, checking of
baggage and interchange of cars, that were or might be customary
with connecting roads, or that were or might be granted to the
Denver & Rio Grande Eailroad Company, another Colorado corpora-
tion, also owning and operating a road parallel to that of the Denver
& New Orleans Company between Denver and Pueblo, or to any
other railroad company competing with the Denver & New Orleans
for Denver business.
[In 1879 the Atchison, Topeka & Santa Fe Company made an
arrangement with the Denver & Kio Grande Company for connec-
tions between Pueblo and Denver, with division of rates as to joint
business.]
In 1882 the Denver & New Orleans Company completed its road
between Denver and Pueblo, and connected its track with that of the
Atchison, Topeka & Santa Fe, in Pueblo, twelve or fifteen hundred
feet easterly from the junction of the Denver & Eio Grande and
about three-quarters of a mile from the union depot, at which the
Atchison, Topeka & Santa Fe and the Denver & Eio Grande inter-
change their business, and where each stopped its trains regularly
to take on and let off passengers and receive and deliver freight.
The Denver & New Orleans Company erected at its junction with
the Atchison, Topeka & Santa Fe platforms and other accommoda-
tions for the interchange of business, and before this suit was begun
the general superintendent of the Denver & New Orleans Company
made a request in writing of the general manager of the Atchison,
Topeka & Santa F^ [that through bills of lading be given over the
two roads, and that the Atchison, Topeka & Santa Fe road deliver
cars to the Denver & New Orleans road at the junction of the two
roads; also that tickets be placed on sale over the two roads, and a
system of through checking of baggage be adopted in the method
usual between roads having a joint running arrangement].
This request was refused, and the Atchison, Topeka & Santa F6
Company continued its through business with the Denver & Eio
Grande as before, but declined to receive or deliver freight or pas-
sengers at the junction of the Denver & New Orleans road, or to give
or take through bills of lading, or to sell or receive through tickets,
or to check baggage over that line. All passengers or freight coming
from or destined for that line were taken or delivered at the regular
depot of the Atchison, Topeka <& Santa F^ Company in Pueblcj.
DUTY TO SERVE THE PUBLIC. 369
and the prices charged were according to the regular rates to and
from that point, which were more than the Atchison, Topeka & Santa
Fe received on a division of through rates to and from Denver under
its arrangement with the Denver & Kio Grande Company.
Mr. Chief Justice Waixe
At common law, a carrier is not bound to carry except on his
own line, and we think it quite clear that if he contracts to go be-
yond, he may, in the absence of statutory regulations to the contrary,
determine for himself what agencies he will employ. His contract
is equivalent to an extension of his line for the purpose of the con-
tract, and if he holds himself out as a carrier beyond the line, so that
he may be required to carry in that way for all alike, he may, never-
theless, confine himself in carrying to the particular route he chooses
to use. He puts himself in no worse position, by extending his route
with the help of others, than he would occupy if the means of trans-
portation employed were all his own. He certainly may select his
own agencies and his own associates for doing his own work.
The Atchison, Topeka & Santa Fe Company, as the lessee of
the Pueblo & Arkansas Valley Eailroad, has the statutory right to
establish its own stations and to regulate the time and manner in
which it will carry persons and property and the price to be paid
therefoj*. As to all these matters, it is undoubtedly subject to the
power of legislative regulation, but in the absence of regulation it
owes only such duties to the public, or to individuals, associations,
or eorporatiqps, as the common law, or some custom having the
force of law, has established for the government of those in its con-
dition. As has already been shown, the Constitution of Colorado
gave to every railroad company in the State the right to a mechani-
cal union of its road with that of any other company in the State,
but no more. The legislature has not seen fit to extend this right,
as it undoubtedly may, and consequently the Denver & New Orleans
Company comes to the Atchison, Topeka & Santa Pe Company just
as any other customer does, and with no more rights. It has estab-
lished its junction and provided itself with the means of transacting
its business at that place, but, as yet, it has no legislative authority
to compel the other company to adopt that station or to establish an
agency to do business there. So far as statutory regulations are
concerned, if it wishes to use the Atchison, Topeka & Santa Fe
road for business, it must go to the place where that company takes
on and lets off passengers or property fq^r others. It has as a rail-
road company no statutory or constitutional privileges in this partic-
ular over other persons, associations, or corporations. It saw fit to
establish its junction at a place away from the station which the
Atchison, Topeka & Santa Fd Company had, in the exercise of its
legal discretion, located for its own convenience and that of the
public. It does not now ask to enter that station with its track or
to interchange business at that place, but to compel the Atchison,
370 CAREIEES OF GOODS.
Topeka & Santa 'F6 Company to stop at its station and transact a
connecting business there. No statute requires that connected roads
shall adopt joint stations, or that one railroad company shall stop at
or make use of the station of another. Each company in the State
has a legal right to locate its own stations, and, so far as statutory
regulations are concerned, it is not required to use any other.
A railroad company is prohibited, both by the common law and
by the Constitution of Colorado, from discriminating unreasonably
in favor of or against another company seeking to do business on its
road; but that does not necessarily imply that it must stop at the
junction of one and interchange business there, because it has estab-
lished joint depot accommodations, and provided facilities for doing
a connecting business with another company at another place. A
station may be established for the special accommodation of a par-
ticular customer; but we have never heard it claimed that every
other customer could, by a suit in equity, in the absence of a statu-
tory or contract right, compel the company to establish a like station
for his special accommodation at some other place. Such matters
are, and always have been, proper subjects for legislative considera-
tion, unless prevented by some charter contract; but, as a general
rule, remedies for injustice of that kind can only be obtained from
the legislature. A court of chancery is not any more than is a court
of law, clothed with legislative power. It may enforce, in its own
appropriate way, the specific performance of an existing legal obli-
gation arising out of contract, law, or usage, but it cannot create the
obligation.
In the present case, the Atchison, Topeka & Santa Fe and the
Denver & Rio Grande Companies formed their business connection
and established their junction or joint station long before the Denver
& New Orleans road was built. The Denver & New Orleans Com-
pany saw fit to make its junction with the Atchison, Topeka &
Santa F^ Company at a different place. Under these circumstances,
to hold that, if the Atchison, Topeka & Santa Fe continued to stop
at its old station, after the Denver & New Orleans was built, a re-
fusal to stop at the junction of the Denver & New Orleans was an
unreasonable discrimination as to facilities in favor of the Denver
& Eio Grande Company, and against the Denver & New Orleans,
would be in effect to declare that every railroad company which,
forces a connection of its road with that of another company has a
right, under the Constitutiop or at the common law, to require the
company with which it connects to do a connecting business at the
junction, if it does a similar business with any other company under
any other circumstances. Such, we think, is not the law. It may
be made so by the legislative department of the government, but it
does not follow, as a necessary consequence, from the constitutional
right of a mechanical union of tracks, or the constitutional prohibi-
tion against undue or unreasonable discriminations in facilities.
DUTY TO SERVE THE PUBLIC. 371
This necessarily disposes of the question of a continuous business,
or a through line*f or passengers or freight, including through tickets,
through bills of lading, through checking of baggage, and the like.
Such a business does not necessarily follow from a connection of
tracks. The connection may enable the companies to do such a,
business conveniently when it is established, but it does not of
itself establish the business. The legislature cannot take away the
right to a pliysical union of two roads, but whether a connecting
business shall be done over them after the union is made depends on
legislative regulation, or contract obligation. An interchange of
cars, or the hauling by one company of the cars of the other, implies
a stop at the junction to make the exchange or to take the cars. If
there need be no stop, there need be no exchange or taking on of cars.
The only remaining questions are as to the obligation of the
Atchison, Topeka & Santa ¥6 Company to carry for the Denver
& New Orleans when passengers go to or freight is delivered at the
regular stations, and the prices to be charged. As to the obligation
to carry, there is no dispute, and we do not understand it to be
claimed that carriage has ever been refused when applied for at the
proper place. The controversy, and the only controversy, is about
the place and the price.
That the price must be reasonable is conceded, and it is no doubt
true that in determining what is reasonable the prices charged for
business coming from or going to other roads connecting at Pueblo
may be taken into consideration. But the relation of the Denver &
New Orleans Company to the Atchison, Topeka & Santa ¥6 is that
of a Pueblo customer, and it does not necessarily follow that the
price which the Atchison, Topeka & Santa F6 gets for transporta-
tion to and from Pueblo, on a division of through rates among the
component companies of a through line to Denver, must settle the
Pueblo local rates. It may be that the local rates to and from
Pueblo are too high, and that they ought to be reduced, but that is
an entirely different question from a division of through rates.
There is no complaint of a discrimination against the Denver &
New Orleans Company in respect to the regular Pueblo rates;
neither is there anything except the through rates to show that the
local rates are too high. The bill does not seek to reduce the local
rates, but only to get this company put into the same position as
the Denver & Rio Grande on a division of through rates. This
cannot be done until it is shown that the relative situations of the
two companies with the Atchison, Topeka & Santa Fe, both as to
the kind of service and as to the conditions under which it is to be
performed, are substantially the same, so that what is reasonable
for one must necessarily be reasonable for the other. When a busi-
ness connection shall be established between the Denver & New
Orleans Company and the Atchison, Topeka & Santa Fe at their
junction, and a continuous line formed, different questions may
372 CAKEIEES OF GOODS.
arise; but so long as the situation of the parties continues as it is
now, -we cannot say that, as a matter of law, the prices charged by
the Atchison, Topeka & Santa Fe, for the transportation of persons
and property coming from or going to the Denver & New Orleans,
must necessarily be the same as are fixed for the continuous line
over the Denver & Eio Grande.
All the American cases to which our attention has been called by
counsel relate either to what amounts to undue discrimination be-
tween the customers of a railroad company, or to the power of a
court of chancery to interfere, if there is such a discrimination.
None of them hold that, in the absence of statutory direction, or a
specific contract, a company having the power to locate its own
stopping-places can be required by a court of equity to stop at
another railroad junction and interchange business, or that it must,
under all circumstances, give one connecting road the same facilities
and the same rates that it does to another with which it has entered
into special contract relations for a continuous through line and
arranged facilities accordingly. The cases are all instructive in
their analogies, but their facts are different from those we have now
to consider.
We have not referred specially to the tripartite agreement or its
provisions, because, in our opinion, it has nothing to do with this
ease as it is now presented. The question here is whether the
Denver & New Orleans Company would have the right to the relief
it asks if there were no such contract, not whether the contract, if
it exists, will be a bar to such a right. The real question in the
case, as it now comes before us, is whether the relief required is
legislative in its character or judicial. We think it is legislative,
and that upon the existing facts a court of chancery can afford no
remedy.
The decree of the Circuit Court is reversed, and the cause remanded
with direction to dismiss the bill without prejudice.
STATE, EX EEL. V. CINCINNATI, etc. R. CO.
47 Ohio St. 130. 1890.
Bbadburt, J. These actions are brought under the fourth clause
of sec. 6761, Revised Statutes, which authorize an action of quo
warranto to be brought against a corporation " when it has misused
a franchise, privilege, or right conferred upon it by law, or when it
claims or holds by contract or otherwise, or has exercised a fran-
chise, privilege, or right in contravention of law."
DUTY TO SEBYE THE PUBLIC. 373
The petitions charge, among other things, that the defendants
misused their corporate powers and franchises by discriminating in
their rates of freight in favor of certain refiners of petroleum oil
connected with the Standard Oil Company, by charging other
shippers of like products unreasonable rates, by arbitrarily and
suddenly changing the same, and finally, by confederating with the
favored shippers to create and foster a monopoly in refined oil, to
the injury of other refiners and the public; and further, that the
defendants claimed and exercised,, in contravention of law, the right
to charge, for shipping oil in tank cars, a lower rate of freight per
hundred pounds than they charged for shipping the same in barrels,
in car-load lots. The defendant, by answer, among other matters,
denied charging any shippers unreasonable rates of freight, or that
they arbitrarily or suddenly changed such rates, and denied any
confederacy with any one to establish a monopoly.
The actions were referred to a referee to take the evidence and to
report to this court his findings of fact and conclusions of law there-
from ; all which has been done, and the cases are before us upon
this report.
To the report of the referee exceptions were filed by all parties.
The defendants, however, do not now insist upon their exceptions
to the finding of the referee in so far as it relates to the facts;
indeed, it is difficult to conceive any grounds for their doing so, for
these findings are mainly based upon the testimony of the officers
and agents of the railroad companies.
That the Cincinnati, Washington & Baltimore Eailway Company
did discriminate in its rates for freight on petroleum oil in favor of
the Camden Consolidated Oil Company, and that the Cincinnati,
New Orleans & Texas Pacific Railway Company did the same in favor
of the Chess-Carly Company, is shown by the finding of the referee,
which is clearly sustained by the evidence. That these discriminat-
ing rates were in some instances strikingly excessive, tended to foster
a monopoly, tended to injure the competitors of the favored shippers
and were in many instances prohibitory, actually excluding these
competitors from extensive and valuable markets for their oil, giving
to the favored shippers absolute control thereof, is established beyond
any serious controversy. The justification interposed is that this
was not done pursuant to any confederacy with the favored shipper
or with any purpose to inflict injury on their competitors, but in
order that the railroad companies might secure freight that would
otherwise have been lost to them. This we do not think sufficient.
We are not unmindful of the difficulties that stand in the way of
prescribing a line of duty to a railway company, nor do we under-
take to say they may not pursue their legitimate objects, and shape
their policy to secure benefits to themselves, though it may press
severely upon the interests of others; but we do hold that they
374 CAEEIEKS OF GOODS.
cannot be permitted to foster or create a monopoly, by giving to a
favored shipper , a discriminating rate of freight. As common car-
riers, their duty is to carry, indifferently, for all who may apply,
and in the order in which the application is made and upon the same
terms; and the assumption of a right to make discriminations in
rates for freight, such as was claimed and exercised by the defend-
ants in this case, on the ground that it thereby secured freight that
it would otherwise lose, is a misuse of the rights and privileges con-
ferred upon it by law. A full and complete discussion of the prin-
ciples and a thorough collection of the authorities, bearing upon the
duties of railroad companies toward their customers, is to be found
in the opinion of Atherton, J'., in the case of Scofield v. Eailway,
43 Ohio St. 571, to which nothing need be now added.
It appears that of the two -methods of shipping oil, that by the bar-
rel in car-load lots and that in tank cars, the first only was available
to George Eice and the other refiners of petroleum oil at Marietta,
Ohio, as they owned no tank cars, nor did the defendants own or
undertake to provide any ; but that both methods were open to the
Camden Consolidated Oil Company and the Chess-Carly Company,
by reason of their ownership of tank cars, and that the rate per bar-
rel in tank cars was very much lower than in barrel packages in box
cars; that, in fact, the Cincinnati, Washington & Baltimore Eail-
way Company, after allowing the Camden Consolidated Oil Company
a rebate, and allowing the Baltimore & Ohio Eailway Company for
switching cars, received from the Camden Consolidated Oil Company
only about one half the open rates it charged the Marietta refiners,
and that both railroad companies claimed the right to make different
rates, based upon the different methods of shipping oil, and the fact
of the ownership by shippers of the tank cars used by them. It was
the duty of the defendants to furnish suitable vehicles for transport-
ing freight offered to them for that purpose, and to offer equal terms
to all shippers. A railroad is an improved highway; the public are
equally entitled to its use; it must provide equal accommodation for
all upon the same terms. The fact that one shipper may be pro-
vided with vehicles of his own entitles him to no advantage over his
competitor not so provided. The true rule is announced by the
Interstate Commerce Commission, in the report of the ease of George
Eice V. The Louisville & Nashville Eailroad Company et al. " The
fact that the owner supplies the rolling stock when his oil is shipped
in tanks, in our opinion,, is entitled to little weight when rates are
under consideration. It is properly the business of railroad com-
panies to supply to their customers suitable vehicles of transporta-
tion (Eailroad Co. v. Pratt, 22 Wall. 123), and then offer their use
to everybody impartially." Page 50 of the report of the case. No
doubt a shipper who owns cars may be paid a reasonable compensa-
tion for the use , so that the compensation is not made a cover for
discriminating rates, or other advantages to such owner as a shipper.
DUTY TO SERVE THE PUBLIC. 375
Nor is there any valid objection to such owner using them exclu-
sively, as long as the carrier provides equal accommodations to its
other customers. It may be claimed that if a railroad company
permit all shippers indifferently, and upon equal terms, to provide
cars suitable for their business, and to use them exclusively, no
discrimination is made. This may be theoretically true, but it is
not so in its application to the actual state of the business of the
country; for a very large portion of the customers of a railroad
have not a volume of business large enough to warrant equipping
themselves with cars, and might be put at a ruinous disadvantage in
the attempt to compete with more extensive establishments. Aside
from this, however, a shipper is not bound to provide a car; the
duty of providing suitable facilities for its customers rests upon the
railroad company, and if, instead of providing sufScient and suit-
able cars itself, this is done by certain of its customers even for
their own convenience, yet the cars thus provided are to be regarded
as part of the equipments of the road. It being the duty of a rail-
road company to transport freight for all persons indifferently, and
in the order in which its transportation is applied for, it cannot be
permitted to suffer freight cars to be placed upon its track by any
customer for his private use, except upon the condition that, if it
does not provide other cars sufi&cient to transport the freight of other
customers in the order application is made, they may be used for
that purpose. Were this not so, a mode of discrimination, fatal to
all successful competition by small establishments and operators with
large and more opulent ones, could be successfully adopted and
practised at the will of the railroad company and the favored
shipper.
The advantages, if any, to the carrier, presented by the tank-
car method of transporting oil, over that by barrels in box cars in
car-load lots, are not sufficient to justify any substantial difference
in the rate of freight for oil transported in that way; but if there
were any such advantages, as it is the duty of the carrier to furnish
proper vehicles for transporting it, if it failed in this duty it could
not in justice avail itself of its own neglect as a ground of discrimi-
nation. It must either provide tank ears for all its customers
alike, or give such rates of freight in barrel packages, by the car-
load, as will place its customers using that method on an equal
footing with its customers adopting the other method.
Judgment ousting defendants from the right to make or charge a
rate of freight per hundred pounds for transporting oil in iron tank
ears, substantially lower than for transporting it in barrels, in car-
load lots.
376 OAEEIEES OF GOODS.
b. For a reasonable compensation.
BASTARD V. BASTARD.
King's Bench. 2 Shower, 81. 1679.
Case against the defendant as a common carrier, for a box deliv-
ered to him to be carried to B. and lost by negligence.
Williams moved in arrest of judgment, for that there was no par-
ticular sum mentioned to be paid or promised for hire, but only^ro
mercede rationahili ; resolved well enough, and judgment given pro
plaintiff; for perhaps there was no particular agreement, and then
the carrier might have a quantum meruit for his hire, and he is
therefore as chargeable for the loss of the goods in the one case
as the other.
RAGAN" & BUFFET v. AIKEN.
9 Lea (Tenn.), 609. 1882.
CooPEE, J
The third ground of demurrer is that the facts stated in the bill
do not show a case of improper discrimination within the meaning
of the franchises under which the defendant is operating his road.
The facts are that the defendant, to induce merchants in Lee
County, Virginia, and Hancock County, Tennessee, to ship over
his road, instead of taking a different route, has entered into a con-
tract with them not to charge exceeding 15 cents per hundred
pounds on their goods. And the question is whether the defendant
can make such a contract, under the circumstances stated.
The English authorities hold that at common law the common
carrier is not bound to carry at equal rates for all customers in like
condition. The authorities are collected in McDuffee v. Portland &
Rochester Railroad, 52 N. H. 430, and in 3 Am. & Eng. R. Cas. 602.
In this country, the courts have generally held otherwise, and that
statutes prohibiting discrimination are merely declaratory of the
common law. Sinking Fund Cases, 99 U. S. 17; Messenger f.
Pennsylvania Railroad Company, 36 N. J. L. 407, 531. Discrimi-
nation in rates of freight, if fair and reasonable, and founded on
grounds consistent with the public interest, are allowable. Hersh
V. Northern, etc. Railroad Company, 74 Pa. St. 181; Chicago, etc.
Railroad Company v. People, 67 111. 11 ; Fitchburg Railroad Com-
pany V, Gage, 12 Gray, 393. The important point to every freighter
DUTY TO SEEVE THE PUBLIC. 377
is that the charge shall be reasonable, and a right of action will not
exist in favor of any one unless it be shown that unreasonable ine-
quality had been made to his detriment. A reasonable price paid
by such a party is not made unreasonable by a less price paid by
■others. Or, as said by Crompton , J. , to the plaintiff, upon the
trial of such a suit : " The charging another party too little is not
charging you too much." Garten z;. B. & E. Eailroad Company, 1
B. & 8. 112, 154, 165; McDuffee v. Portland & Eochester Eailroad,
52 N". H. 430. In determining whether a company has given undue
preference to a particular person, the court may look to the interests
of the company: Eansome v. Eastern Counties Eailway, 1 C. B.
N. s. 437; 1 id. 135.
In other words, if the charge on the goods of the party complain-
ing is reasonable, and such as the company would be required to
adhere to as to all persons in like condition, it may, nevertheless, 1
lower the charge to another person if it be to the advantage of the
■company, not inconsistent with the public interest, and based on a
suflS.cient reason. It is obvious that the intention of the defendant,
in this instance, was not to discriminate against the complainants in
favor of any person of the same place, and in the same condition.
His object was to get business for his road from persons at a dis-
tance from its terminus, which otherwise would reach their destina-
tion by a different route. Under these circumstances, we cannot see
that the contracts complained of are against public policy, or that
the complainants have been damaged, if the charges on their goods
were reasonable. The bill contains no allegation that the charges
made against, and paid by, the complainants were unreasonable.
Without such an averment there has been no damage. The third
ground of demurrer was, therefore, well taken.*
CHICAGO, BUELINGTON & QUINCY E. CO. v. IOWA.
94 U. S. 155. 1876.
Appeal from the Circuit Court of the United States for the Dis-
trict of Iowa.
Mr. Chief Justice Waite. Eailroad companies are carriers for
hire. They are incorporated as such, and given extraordinary
powers, in order that they may the better serve the public in that j
capacity. They are, therefore, engaged in a public employment
affecting the public interest, and, under the decision in Munn v.
Illinois, 94 U. S. 113 [289], subject to legislative control as to their
rates of fare and freight, unless protected by their charters.
1 Ace: Fitchburg E. Co. 0. Gage, 12 Gray, 393; Ex parte Benson, 18 S. C. 38 ;
/ohnson v. Pensacola, etc. E. Co., 16 Fla. 623.
378 CAREIEES OF GOODS.
The Burlington and Missouri Eiver Railroad Company, the bene-
fit of whose charter the Chicago, Burlington and Quincy Kailroad
Company now claims, was organized under the general corporation
law of Iowa, with power to contract, in reference to its business,
the same as private individuals, and to establish by-laws and make
all rules and regulations deemed expedient in relation to its affairs,
but being subject, nevertheless, at all times to such rules and regu-
lations as the general assembly of Iowa might from time to time
enact and provide. This is, in substance, its charter, and to that
extent it is protected as by a contract; for it is now too late to con-
tend that the charter of a corporation is not a contract within the
meaning of that clause in the Constitution of the United States
which prohibits a State from passing any law impairing the obliga-
tion of a contract. Whatever is granted is secured subject only to
the limitations and reservations in the charter or in the laws or
constitutions which govern it.
This company, in the transactions of its business, has the same
rights, and is subject to the same control, as private individuals
under the same circumstances. It must carry when called upon to
do so, and can charge only a reasonable sum for the carriage. In
the absence of any legislative regulation upon the subject, the courts
must decide for it, as they do for private persons, when contro-
versies arise, what is reasonable. But when the legislature steps in
and prescribes a maximum of charge, it operates upon this corpora-
tion the same as it does upon individuals engaged in a similar busi-
ness. It was within the power of the company to call upon the
legislature to fix permanently this limit, and make it a part of the
charter; and, if it was refused, to abstain from building the road
and establishing the contemplated business. If that had been done,
the charter might have presented a contract against future legisla-
tive interference. But it was not; and the company invested its
capital, relying upon the gpod faith of the people and the wisdom
and impartiality of legislators for protection against wrong under
the form of legislative regulation.
It is a matter of no importance that the power of regulation now
under consideration was not exercised for more than twenty years
after this company was organized. A power of government which
actually exists is not lost by non-user. A good government never
puts forth its extraordinary powers, except under circumstances
which require it. That government is the best which, while per-
forming all its duties, interferes the least with the lawful pursuits
of its people.
In 1691, during the third year of the reign of William and Mary,
Parliament provided for the regulation of the rates of charges by
common carriers. This statute remained in force, with some amend-
ment, until 1827, when it was repealed, a.nd it has never been
re-enacted. No one supposes that the power to restore its pro-
DUTY TO SERVE THE PUBLIC. 379
visions lias been lost. A change of circumstances seemed to render
such, a regulation no longer necessary, and it was abandoned for the
time. The power was not surrendered. That remains for future
exercise, when required. So here, the power of regulation existed
from the beginning, but it was not exercised until in the judgment
of the body politic the condition of things was such as to render it
necessary for the common good.
Neither does it affect the case that before the power was exercised
the company had pledged its income as security for the payment of
debts incurred, and had leased its road to a tenaht that relied upon
the earnings for the means of paying the agreed rent. The com-
pany could not grant or pledge more than it had to give. After
the pledge and after the lease the property remained within the
jurisdiction of the State, and continued subject to the same govern-
mental powers that existed before.
The objection that the statute complained of is void because it
amounts to a regulation of commerce among the States, has been
sufficiently considered in the case of Munn v. Illinois. This road,
like the warehouse in that case, is situated within the limits of a
single State. Its business is carried on there, and its regulation is
a matter of domestic concern. It is employed in State as well as in
interstate commerce, and, until Congress acts, the State must be
permitted to adopt such rules and regulations as may be necessary
for the promotion of the general welfare of the people within its
own jurisdiction, even though in so doing those without may be
indirectly affected.
It remains only to consider whether the statute is in conflict with
sec. 4, art. 1, of the Constitution of Iowa, which provides that "all
laws of a general nature shall have a uniform operation," and that
"the general assembly shall not grant to any citizen, or class of
citizens, privileges or immunities which, upon the same terms, shall
not equally belong to all citizens."
The .statute divides the railroads of the State into classes, accord-
ing to business, and establishes a maximum of rates for each of the
classes. It operates uniformly on each class, and this is all the
Constitution requires. The Supreme Court of the State, in the case
of McAunich v. M. & M. Railroad Co., 20 Iowa, 343, in speaking of
legislation as a class, said, "These laws are general and uniform,
not because they operate upon every person in the State, for they do
not, but because every person who is brought within the relation
and circumstances provided for is affected by law. They are general
and uniform in their operation upon all persons in the like situa-
tion, and the fact of their being general and uniform is not affected
by the number of persons within the scope of their operation."
This act does not grant to any railroad company privileges or
immunities which, upon the same terms, do not equally belong to
every other railroad company. Whenever a company comes into
380 CAKEIERS OF GOODS.
any class, it has all the " privileges and immunities " that have
been granted by the statute to any other company in that class.
It is very clear that a uniform rate of charges for all railroad com-
panies in the State might operate unjustly upon some. It was
proper, therefore, to provide in some way for an adaptation of the
rates to the circumstances of the different roads; and the general
assembly, in the exercise of its legislative discretion, has seen fit to
do this by a system of classification. Whether this was the best
that could have been done is not for us to decide. Our province is
only to determine whether it could be done at all, and under any
circumstances. If it could, the legislature must decide for itself,
subject to no control from us, whether the common good requires
that it should be done. Decree affirmed.
Mr. Justice Eield and Mr. Justice Strong dissented.
EEAGAZSr V. FAEMEES' LOAN & TEUST CO.
154 U. S. 362. 1894.
Mb. Justice Bebwer
It appears from the bill that, in pursuance of the powers given
to it by this act, the State commission [Eeagan et al."] has made
a body of rates for fares and freights. This body of rates, as a
whole, is challenged by the plaintiff [defendant in error, trustee
under a railroad trust deedj as unreasonable, unjust, and working a
destruction of its rights of property. The defendant denies the
power of the court to entertain an inquiry into that matter, insist-
ing that the fixing of rates for carriage by a public carrier is a
matter wholly within the power of the legislative department of
the government and beyond examination by the courts.
It is doubtless true, as a general proposition, that the formation
of a tariff of charges for the transportation by a common carrier of
persons or property is a legislative or administrative rather than
a judicial function. Yet it has always been recognized that, if a
carrier attempted to charge a shipper an unreasonable sum, the
courts had jurisdiction to inquire into that matter and to award to
the shipper any amount exacted from him in excess of a reasonable
rate; and also in a reverse case to render judgment in favor of the
carrier for the amount found to be a reasonable charge. The prov-
ince of the courts is not changed, nor the limit of judicial inquiry
altered, because the legislature instead of the carrier prescribed the
rates. The courts are not authorized to revise or change the body
of rates imposed by a legislature or commission; they do not deter-
mine whether one rate is preferable to another, or what under all
circumstances would be fair and reasonable as between the carriers
DUTY TO SERVE THE PUBLIC. 381
and the shippers; they do not engage in any mere administrative
work ; but still there can be no doubt of their power and duty to
inquire whether a body of rates prescribed by a legislature or a com-
mission is unjust and unreasonable, and such as to work a practical
destruction to rights of property, and if found so to be, to restrain
its operation. In Chicago, Burlington & Quincy Railroad v. Iowa,
94 U. S. 165 [377] and Peik v. Chicago & Northwestern Eailway,
94 U. S. 164, the question of legislative control over railroads was
presented, and it was held that the fixing of rates was not a matter
within the absolute discretion of the carriers, but was subject to
legislative control. As stated by Justice Miller, in Wabash, etc.
Eailway v. Illinois, 118 U. S. 557, 569, in respect to those cases :
" The great question to be decided, and which was decided, and
which was argued in all those cases, was the right of the State,
within which a railroad company did business, to regulate or limit
the amount of any of these traffic charges."
There was in those cases no decision as to the extent of control,
but only as to the right of control. This question came again before
this court in Railroad Commission Cases, 116 XJ. S. 307, 331, and
while the right of control was re-af&rmed, a limitation on that right
was plainly intimated in the following words of the Chief Justice :
"From what had thus been said, it is not to be inferred that this
power of limitation or regulation is itself without limit. This
power to regulate is not a power to destroy, and limitation is not
the equivalent of confiscation. Under pretence of regulating fares
and freights the State cannot require a railroad corporation to carry
persons or property without reward ; neither can it do that which in
law amounts to a taking of private property for public use without
just compensation, or without due process of law."
This language was quoted in the subsequent case of Dow v.
Eeidelman, 125 U. S. 680, 689. Again, in Chicago & St. Paul
Eailway v. Minnesota, 134 U. S. 418, 458, it was said by Mr.
Justice Blatchford, speaking for the majority of the court: —
" The question of the reasonableness of a rate of charge for trans-
portation by a railroad company, involving as it does the element of
Tcasonableness, both as regards the company and as regards the
public, is eminently a question for judicial investigation, requiring
the process of law for its determination."
And in Chicago & Grand Trunk Eailway v. Wellman, 143 U. S.
339, 344, is this declaration of the law : —
" The legislature has power to fix rates, and the extent of judicial
interference is protection against unreasonable rates."
Budd V. New York, 143 IT. S. 517, announces nothing to the
contrary. The question there was not whether the rates were
reasonable, but whether the business, that of elevating grain, was
within legislative control as to the matter of rates. It was said in
the opinion : " In the cases before us, the records do not show that
382 CARRIERS OF GOODS.
the charges fixed by the statute are unreasonable." Hence there
was no occasion for saying anything as to the power or duty of the
courts in case the rates as established had been found to be unreas-
onable. It was enough that upon examination it appeared that
there was no evidence upon which it could be adjudged that the
rates were in fact open to objection on that ground.
These cases all support the proposition 'that while it is not the
province of the courts to enter upon the merely administrative duty
of framing a tariff of rates -for carriage, it is within the scope of
judicial power and a part of judicial duty to restrain anything
which, in the form of a reg^ulation of rates, operates to deny to the
owners of property invested in the business of transportation that
equal protection which is the constitutionai right of all owners of
other property. There is nothing new or strange in this. It has
always been a part of the judicial function to determine whether the
act of one party (whether that party be a single individual, an
organized body, or the public as a whole) operates to divest the
other party of any rights of person or property. In every constitu-
tion is the guarantee against the taking of private property for
public purposes without just compensation. The equal protection
of the laws which, by the Fourteenth Amendment, no State can
deny to the individual, forbids legislation, in whatever form it may
be enacted, by which the property of one individual is, without
compensation, wrested from him for the benefit of another, or of
the public. This, as has been often observed, is a government of
law, and not a government of men, and it must never be forgotten
that under such a government, with its constitutional limitations
and guarantees, the forms of law and the machinery of government,
with all their reach and power, must in their actual workings stop
on the hither side of the unnecessary and uncompensated taking or
destruction of any private property, legally acquired and legally
held. It was, therefore, within the competency of the Circuit Court
of the United States for the Western District of Texas, at the
instance of the plaintiff, a citizen of another State, to enter upon an
inquiry as to the reasonableness and justice of the rates prescribed
by the railroad commission. Indeed, it was in so doing only exer-
cising a power expressly named in the act creating the commission.
carrier's liability. 383
4. CAERIEE'S LIABILITY.
a. Act of God.
PEOPRIETORS OF THE TRENT NAVIGATION v. WOOD.
King's Bench. 3 Esp. 127. 1785.
This was an action of assumpsit.
The declaration stated that the plaintiffs, as proprietors of the
Trent Navigation, undertook to carry the defendant's goods from
Hull to Gainsborough; that in the river Humber, the vessel on
board which the defendant's goods were, sunk, by driving against
an anchor in the river; and the goods were, in consequence of the
accident, considerably damaged. That the plaintiffs repaired the
damage the goods had sustained, and sent them home to the defend-
ant; and the breach was, that the defendant refused to pay the
money the plaintiffs had expended in the recovery of the goods.
There was also a count in the declaration for money had and
received, which was for freight. At the trial the plaintiffs were
nonsuited.
A rule having been obtained, to show cause why the nonsuit
should not be set aside, it came on to be argued on this.
The counsel for the defendant being desired to begin, — Cowper
contended, that the defendant was not liable to pay this money;
there was no pretence to say that the accident happened from the
act of God; for it was expressly stated and proved that the acci-
dent was occasioned by the negligence of the persons on board a
barge in the river, in not having his buoy out, to mark the place
where his anchor lay. A great deal of evidence was adduced at the
trial to prove this ; but, as between the carriers and the owners of
the goods, the misconduct of a third person is immaterial, since a
remedy lies over against the party so offending. The plaintiffs
would have been liable had the goods been totally lost; and there-
fore a fortiori shall answer this damage themselves.
Bower, on the same side. The question is. Whether the plaintiffs
as carriers are liable for the damage done to the goods in question ?
The law in all cases throws the burden, when there is a loss, upon
a common carrier, even if the goods are taken by robbery, where it
is impossible for him to save them ; and the reason is, to prevent
any collusion between him and the thief. He is certainly liable in
all cases, except the two, of accidents happening by the act of God,
or of the king's enemies. Here is no pretence for either. A
damage taking place by a natural accident that could not be fore-
seen, may be called the act of God; but this arose from the miscon-
384 CAERIEES OF GOODS.
duct of a third person, and cannot therefore come within the
meaning of that expression.
Bearcroft, for the plaintiffs. This is a question that concerns all
common carriers; they are the bailees of goods; and as they get
a profit by this undertaking, they are also liable to answer for
losses, if the smallest degree of negligence is proved; but in the
present case there was no possibility of seeing or knowing of the
anchor that did the mischief, and therefore the accident happened
from an inevitable necessity ; which, though it may not come up to
the precise idea of the act of God, is yet such a necessity as affords
a justification to the plaintiffs.
Plomer, on the same side. There is no neglect proved on the part
of the plaintiffs ; and as to the remedy over against a third person,
it must first be determined who are immediately answerable for the
loss, before it can be known who is entitled to this remedy. It was
in evidence at the trial, that there is considerable danger in the
voyage from Hull .to Gainsborough, and that it is therefore usual
for the owners of the goods to insure them; and as there was no
insurance in this case, but only the price of the freight, which has
been paid into court, I contend that it was only a special acceptance
on the part of the plaintiffs, and therefore that they are not liable
for the loss occasioned by the accident which has happened. It is
like a voyage to the East Indies; and as there is a great risk in
all sea-voyages, it would be very unreasonable to make a party
liable generally to answer the loss where he has not stipulated for
the purpose. The evidence at the trial of an usage to insure goods
for this voyage varies the case very much from that of a common
carrier, where there is no insurance; therefore, as it appears that
there was a special acceptance in this case, the plaintiffs are not
liable to answer the damages done to the goods.
Lord Mansfield asked, if there was any case which made dis-
tinction between a land and a water carrier. And, none being men-
tioned, Cowper, in reply, put a case of an East Indian in the Downs
running down another vessel ; and said that the owners of the vessel
run down would certainly have an action against the other for the
damage, and would also be liable as common carriers to their
employers. That this accident happened in the river Humber,
clearly infra corpus comitatus ; and therefore was not a sea-voyage.
A custom to insure was certainly proved ; but because it is usual, a
man is not obliged to do it; and a carrier will be equally answerable.
If a man pleases, he may insure his goods by the Chester wagon ;
but if he does, still the wagoner must be liable in case of a loss.
Lord Mansfield. This is certainly a sea-voyage. It is a general
question, and no case has been cited exactly in point ; but it is clear
that the carrier is liable in all cases, except for accidents happen-
ing by the act of God or by the king's enemies. The act of God
is a natural necessity, and inevitably such, as winds, storms, etc.
caeeiek's liYbilitt. 385
The ease of robbery is certainly very strong, but not a natural neces-
sity ; and in this case there is an injury by a private man, within
the reason of the instance of robbery; yet I think the- carriers ought
to be liable. There is some sort of negligence here; for as the buoy
could not be seen , there should have been, on that account, a greater
degree of caution used.
WiiLEs, Justice, of the same opinion.
AsHHUKST, Justice. The general rule is, that the carrier is liable
in every instance, except for accidents happening by the act of God
or the king's enemies ; but another rule is now attempted to be
set up ; which is, that the carrier ought not to be liable, where no
negligence is imputable to him ; but no case has been cited to prove
this doctrine; and I think that good policy and convenience require
the rule to be adhered to which has hitherto prevailed. It will
naturally lead to make carriers more careful in general. If this
sort of negligence were to excuse the carrier, when he finds that an
accident has happened to goods from the misconduct of a third person,
he would give himself no farther trouble about the recovery of them ;
nor do I think that in this case the carrier is entirely free from
every imputation of negligence. His not seeing the buoy ought to
have put him upon inquiring more minutely about the anchor.
BuLLEK, Justice. This case is very different from those relied
upon by the plaintiffs ; two grounds have been made for the plain-
tiffs : first. That upon general principles of law they are not liable ;.
and secondly. That they are not liable, because this was a special
acceptance, which excluded the risks of the sea; but for this there
is no color at all. It was proved, at the trial, that it was usual to
insure ; but that does not show that the carrier is not liable where
there is no insurance : the merchant is not bound to insure, nor does
that vary the obligation. Neither is it to be presumed, that because
the price of insurance is low, this risk is excluded when not insured ;
the carrier knows the degree of danger, and proportions his premium
accordingly.
As to the general principle, there is no distinction between a land
and a water carrier. In the case of a robbery the carrier is subject
to force which he cannot resist; yet he shall be liable. In this
case, I think there was a degree of negligence in point of fact ; but
the negligence in point of law was sufficient.
Mule discharged.
FORWARD V. PITTAED.
King's Bench. 1 Term R. 27. 1785.
This was an action on the case against the defendant as a common
carrier, for not safely carrying and delivering the plaintiff's goods.
386 CARRIERS OF GOODS.
This action was tried at tlie last summer assizes at Dorchester,
before Mr. Baron Perryn, when the jury found a verdict for the
plaintiff, subject to the opinion of the court on the following case :
"The defendant was a common carrier from London to Shafts-
bury. That on Thursday the 14th of October, 1784, the plaintiff
delivered to him on Weyhill twelve pockets of hops to be carried by
him to Andover, and to be by him forwarded to Shaftsbury by his
public road wagon, which travels from London through Andover to
Shaftsbury. That, by the course of travelling, such wagon was not
to leave Andover till the Saturday evening following. That in the
night of the following day after the delivery of the hops, a fire
broke out in a booth at the distance of one hundred yards from the
booth in which the defendant had deposited the hops, which burnt
for some time i^ith unextinguishable violence, and during that time
communicated itself to the said booth in which the defendant had
deposited the hops, and entirely consumed them without any actual
negligence in the defendant. That the fire was not occasioned by
lightning."
iV". Bond, for the plaintiff. The question is, whether a carrier is
liable for the loss of goods occasioned by fire, without any negli-
gence in him or his servants. The general proposition is, that the
carrier is liable in all cases, except the loss be occasioned by the
act of God or the king's enemies. Lord Eaymond, 909; 1 Wils.
281. And this doctrine has lately been recognized by this Court, in
the case of the Company of the Trent Navigation v. Wood. East.
25 Geo. 3 B. E. The only doubt is on the construction of the words
" the act of God." It is an effect immediately produced without the
interposition of any human cause. In Amies and Stephens, 1 Stra.
128, these words were held to include the case 6f a ship being lost
by tempest. In the books, under the head of "waste," there is an
analogous distinction to be found : if a house fall down by tempest,
or be burned by lightning, it is no waste ; but burning by negligence
or mischance is waste. Co. Lit. 53, a, b.
Before the 6th of Anne, 6 Ann. c. 31 ; 10 Ann. c. 14, an action lay
against any person in whose house a fire accidentally began: this
shows that an accidental fire was not in law considered as the act of
God ; but the person was punishable for negligence. Suppose a fire
happens in a house where there are different lodgers, each of whose
lodgings is considered as a separate house: if the fire be communi-
cated from one lodging to another, and the Court say the first fire
was the act of man, at what time will it be said that it ceases to be
the act of man and commences to be the act of God ? If it were not
the act of man in the first house, it is impossible to draw the line.
In the case of the Company of the Trent Navigation and Wood,
Lord Mansfield said, "By the act of God is meant a natural, not
merely an inevitable, accident."
If it be contended for the defendant that it is here stated that
carrier's liability. 387
there was no actual negligence, that will not serve him; for this
action was not founded in negligence. Lord Holt says, there are
several species of bailments, and different degrees of liability
annexed to each; and a carrier is that kind of bailee who is answer-
able though there be no actual negligence.
Borough, for the defendant, observed that the point in this case
■was not before the Court in any of the cases cited. The general
question here is, whether a carrier is compellable to make satisfac-
tion for goods, delivered to him to carry, and destroyed by mere
accident, in a case where negligence is so far from being imputed
to him that it is expressly negatived ? This action of assumpsit
must be considered as an action founded on what is called the custom
of the realm relating to carriers. And from a review of all the
cases on this subject it manifestly appears that a carrier is only
liable for damage and loss occasioned by the acts or negligence of
himself and servants, that is, for such damage and loss only as
human care or foresight can prevent; and that there is no implied
contract between him and his employers to indemnify them against
unavoidable accidents. The law with respect to land carriers and
water carriers is the same. Rich v. Kneeland, Cro. Jac. 330; Hob.
17, 5 Burr. 2827.
In Vid. 27. The declaration, in an action against a waterman
for negligently keeping his goods, states the custom relative to
carriers thus, " absque suhstractione, amissione, sen spoliatione, portare
tenentur, ita quod pro defectu dietorum communium portatorum seu
servientium suorum, hujusmodi bona et catalla eis sic ut prefertyr
deliberata, non sint perdita, amissa, seu spoliata." It then states the
breach, that the defendant had not delivered them, and "pro defectu
bonce custodice ipsius defendentis et servientium suorum perdita et
amissa fuerunt." In Brownl. Eed. 12, the breach in a declaration
against a carrier iS;^ "defendens tarn negligenter et improvide custodivit
et carriavit, Sec" In Clift. 38, 39, Mod. Intr. 91, 92, and Heme, 76,
the entries are to the same effect. In Eich and Kneeland, Hob. 17,
the custom is stated in a similar way ; and in the Exchequer
Chamber it was resolved, " that though it was laid as a custom of
the realm, yet indeed it is common law." On considering these
cases, it is not true that " the act of God and of the king's enemies "
is an exception from the law. Por an exception is always of some-
thing comprehended within the rule, and therefore excepted out of
it; but the act of G-od and of the king's enemies is not within the
law as laid down in the books cited.
All the authorities cited by the counsel for the plaintiff are founded
on the dictum in Coggs ■«. Bernard, 2 Lord Eaymond, 909, [4] where
this doctrine was first laid down; but Lord Holt did not mean to
state the proposition in the sense in which it has been contended he
did state it. He did not intend to say, that cases falling within the
reasoning of what are vulgarly called "acts of God" should not
388 CABEIERS OF GOODS.
also be good defences for a carrier. After saying (Lord Raymond,
918), "the law charges the persons, thus intrusted to carry goods,
against all events but the acts of God and of the enemies of the
king," he proceeds thus, "for though the force be never so great, as
if an irresistible multitude of people should rob him, nevertheless
he is chargeable. And this is a politic establishment, contrived by
the policy of the law for the safety of all persons, the necessity of
whose affairs oblige them to trust these sorts of persons, that they
may be safe in their ways of dealing; for else these carriers might
have an opportunity of undoing all persons who had any dealings
with them, by combining with thieves, etc., and yet doing it in
such a clandestine manner as would not be possible to be discov-
ered." As Lord Holt therefore states the responsibility of carriers
in case of robbery to take its origin from a ground of policy, he
could not mean to say that a carrier was also liable in cases of
accidents, where neither combination or negligence can possibly
exist.
It appears from the Doctor and Student (Dial. 2, c. 38, p. 270)
that, at the time that book was written, the carrier was held liable
for robberies which diligence and foresight might prevent. And
what is there said agrees precisely with the custom, and does not
bear hard on the carrier. If he will travel by night, and is robbed,
he has no remedy against the hundred; for then he is not protected
by the statute of Winton, and he ought to be answerable to the
employer. If he travel by day and is robbed, he has a remedy.
Now the carrier may not perhaps be worth suing; and the employer
may bring the action against the hundred in his own name ; which
action he would be deprived of, if the carrier travelled by night.
There is not a single authority in all the old books which says
that a carrier is responsible for mere accidents. He only engages
against substraction, spoil, and loss, occasioned by the neglect of
himself or his servants. These words plainly point at acts to be
done, and omissions of care and diligence. But in the present case
there is no act done ; and there cannot be said to be any omission
of care and diligence, since they could not have prevented the
calamity.
Lord Holt, in Coggs v. Bernard, seems to have traced, with great
attention, the different species of bailments. He cites many pas-
sages from Bracton, who has nearly copied them from Justinian.
So that it is probable that the custom relating to carriers took its
origin from the civil law as to bailments. Now it is observable that
in no one case of bailment is the bailee answerable for an accident;
he is only liable for want of diligence. The only difference in this
respect between the civil and the English law is, that the former
(Justin, lib. 3, 15, s. 2, 3, 4, tit. 35, s. 5) distinguishes between
the different degrees of diligence required in the different species
of bailment; which the latter does not.
cakeier's liability. 389
In all the cases to be found in our books may be traced the true
ground of liability, negligence. If the law were not as is now con-
tended for, the question of negligence could never have arisen; and
the case of robbery could not have borne any argument; whereas
the case of Mors v. Slue, 1 Vent. 190, 238, [402] came on repeatedly
before the Court, and created very considerable doubts.
In the case of Dale v. Hall, 1 Wils. 281 [7731, and the Proprietors
of the Trent Navigation v. Wood, 3 Esp. 127 [383], there were clear
facts of negligence. In the first, the rats gnawed a hole in the hoy,
which undoubtedly might have been prevented. And in the other,
each of the judges, in giving his opinion, said there was negligence.
In the Year Books, 22 Ass. 41, there is a case of an action against
a waterman for overloading his boat so that the plaintifE's horse was
drowned. This case is re90gnized in Williams v. Lloyd, S. W.
Jones, 180, where it is said "it was there agreed that if he had not
surcharged the boat, although the horse was drowned, no action lies,
notwithstanding the assumpsit; but if he surcharged the boat, other-
wise; for there is default and negligence in the party." The
Court in 22 Ass. 41, said, "it seems that you trespassed when you
surcharged the boat by which the horse perished." The same case
is to be found in 1 Eo. Abr. 10, pi. 18, Bro. Tit. Action sur le Case
78. And it is also recognized in Williams v. Hide and Ux. Palm.
648.
In Winch. 26. To an action against a carrier, there is a special
plea that the inn in which the goods were deposited was burned by
fire, and that the plaintifE's goods were at the same time destroyed,
without the default or neglect of the defendant or his servants. To
this the plaintiff demurred, not generally but specially, "that the
plea amounted to the general issue.''
In all actions founded in negligence, the negligence is alleged and
tried, as a fact; as in actions against a farrier, smith, coachman,
etc. It is the constant course in such actions to leave the question
of negligence to the jury. It appears in Dalston v. Janson, 5 Mod.
90, that the defendant formerly used to plead particularly to the
neglect. In 43 Edw. 3, 33; Clerk's Assist. 99; Mod. Intr. 95, and
Brown. Eed. 101, which were actions founded in negligence, the
negligence is traversed. Now a traverse can be only of matter of
fact. And here negligence is expressly negatived by the case.
However, if the Court should be of the opinion that the carrier
is answerable for every loss, unless occasioned by the act of God
or the king's enemies, he then contended that, as the act of God
was a good ground of defence, this accident, though not within the
words, was within the reason, of that ground. It cannot be said
that misfortunes occasioned by lightning, rain, wind, etc., are the
immediate acts of the Almighty ; they are permitted, but not directed
by him. The reason why these accidents are not held to charge
a carrier, is, that they are not under the control of the contracting
390 CAKEIEKS OF GOODS.
party, and therefore cannot affect the contract, inasmuch as he
engages only against those events which by possibility he may pre-
vent. Lord Bacon, in his Law Tracts, commenting on this maxim,
Reg. 5, necessitas induoit privileffium quoad jura privata, says, " the
law charges no man with default where the act is compulsory and
not voluntary, and where there is not a consent and election ; there-
fore, if either there be an impossibility for a man to do otherwise,
or so great a perturbation of the judgment and reason as in pre-
sumption of law man's nature cannot overcome, such necessity
carrieth a privilege in itself." Necessity, he says, is of three sorts,
and under the third, he adds, "If a fire be taken in a street, I may
justify pulling down the walls or house of another man to save the
row from the spreading of the fire." Now in the present case, if
any person, in order to stop the progress of the flames, had insisted
on pulling down the booth wherein the hops were deposited, and in
doing this the hops would have been damaged, the carrier would not
have been liable to make good such damage ; for it would have been
unlawful for him to have prevented the pulling down the booth.
It is expressly found, in the present case, that the fire burnt with
unextinguishable violence. The breaking out of the fire was an
event which God only could foresee. And the course it would take
was as little to be discovered by human penetration.
Bond, in reply. There are several strong cases where there could
not be any negligence. It is not suflBcient in these cases to negative
any negligence; for everything is negligence which the law does
not excuse, 1 Wils. 282. And the question here is, is this a ease
which the law does excuse ? In Goffe v. Clinkard, cited in Wils. 282,
there was all possible care on the part of the defendants. The judg-
ment in the case of Gibbon v. Peyton and another, 4 Burr. 2298,
which was an action against a stagecoachman for not delivering
money sent, is extremely strong; there Lord Mansfield said, 4 Burr.
2030, " a common carrier, in respect Of the premium he is to receive,
runs the risk of them, and must make good the loss, though it
happen without any fault in him ; the reward making him answer-
able for their safe delivery."
That a carrier was liable in the case of a robbery was first held in
9 Ed. 4, pi. 40.
A bailee only engages to take care of his goods as his own, and is
not answerable for a robbery; but a carrier insures. 1 Ventr. 190,
238; Sir T. Eaym. 220, s. c; 1 Mod. 85.
I In Barclay and Heygena, E. 24, G. 3, B'. E., which was an action
against a master of a ship to recover the value of some goods put on
board his ship in order to be carried to St. Sebastian; it was proved
that an irresistible force broke into the ship in the river Thames, and
stole the goods ; yet the defendant was held answerable. In Sutton
and Mitchel, at the sittings at Guildhall after Tr. 25, G. 3, the ques-
tion was not disputed as far as to the value of the ship and freight.
gaeriee's liability. 391
There is no distinction between that case and a land carrier. And
there can be no hardship in the Court's determining in favor of the
plaintiff; for when the law is once known and established, the
parties may contract according to the terms which it prescribes.
As to negligence being a matter of fact, that is answered by the
decision in the Company of the Trent Navigation against Wood.
Lord MANsriELD. There is a nicety of distinction between the
act of God and inevitable necessity. In these cases actual negli-
gence is not necessary to support the action. Cur. adv. vult.
Afterward Lord Mansfield delivered the unanimous opinion of the
Court.
After stating the case — The question is, whether the common
carrier is liable in this case of fire ? It appears from all the cases
for one hundred years back, that there are events for which the
carrier is liable independent of his contract. By the nature of his
contract, he is liable for all due care and diligence; and for any
negligence he is suable on his contract. But there is a further
degree of responsibility by the custom of the realm, — that is, by the
common law; a carrier is in the nature of an insurer. It is laid
down that he is liable for every accident, except by the act of God
or the king's enemies. Now what is the act of God ? I consider
it to mean something in opposition to the act of man; for every-
thing is the act of God that happens by his permission ; everything
by his knowledge. But to prevent litigation, collusion, and the
necessity of going into circumstances impossible to be unravelled,
the law presumes against the carrier, unless he shows it was done
by the king's enemies, or by such act as could not happen by the
intervention of man, as storms, lightning, and tempests.
If an armed force come to rob the carrier of the goods, he is
liable; and a reason is given in the books, which is a bad one, viz.,
that he ought to have a sufficient force to repel it; but that would
be impossible in some cases, as, for instance, in the riots in the year
1780. The true reason is, for fear it may give room for collusion,
that the master may contrive to be robbed on purpose, and share the
spoil.
In this case, it does not appear but that the fire arose from the
act of some man or other. It certainly did arise from some act of
man; for it is expressly stated not to have happened by lightning.
The carrier therefore in this case is liable, inasmuch as he is liable
for inevitable accident. ,
Judgment for the plaintiff.
392 CABEIEES OF GOODS.
COLT V. M'MECHEN.
6 Johns. (N. Y. Sup. Ct.) 160. 1810.
This was an action on the case, against the defendant, as a
common carrier of goods for hire, in a certain sloop, called the
"Margaret," between Kinderhook and New York, on the Hudson
Eiver. The declaration stated that the plaintiffs were possessed of
certain goods, etc., which the defendant, by his servant Matthew
M'Kean, master of the said sloop, received oq board to carry, trans-
port, and convey from New York to Kinderhook landing, for a reas-
onable price or compensation, etc., but that the goods were never
delivered, etc. Plea, not guilty.
Spencer, J. The plaintiffs have moved for a new trial on two
grounds : 1st, For a misdirection to the jury, in stating that the
failure of the wind was the act of God; and, 2d, Tor that the ver-
dict was against evidence, on the point submitted to the jury, in
relation to the negligence or carelessness of the master of the sloop,
after she struck.
There can be no contrariety of opinion, on the law which renders
common carriers liable. However rigid the rule may be, they are
responsible for every injury done to goods intrusted to them to
carry, unless it proceeds from the act of God, or the enemies of the
land. What shall be considered the act of God, as contra-distin-
guished from an act resulting from human means, affords the only
difficulty in the case.
The cause was summed up to the jury on this point, "that if they
were satisfied from the whole evidence, that the vessel ran ashore
in consequence of the sudden failure of the wind, the law would
consider it as the act of God, and exculpate the defendant." By
finding a verdict for the defendant, the jury have believed the testi-
mony of Captain M'Kean, and the other witnesses produced by the
defendant, in their account of the manner and circumstances under
which the vessel grounded. The substance of that testimony is,
that the vessel being on her passage from New York to Kinderhook,
late in the month of November, 1800, proceeded on the passage to
West Camp, where the vessel came to, from thence they weighed
anchor and beat against the wind; from the lateness of the season,
and for fear of ice, the captain was anxious to make Livingston's
dock, which was considered a place of safety, and at which they had
nearly arrived, when the accident happened; that the wind was
light and variable, but sufficient to enable them to make considerable
progress, and would have been sufficient, if it had continued, to
have enabled them to have reached the dock, in a few more tacks ;
they were standing for the west shore, and had approached it, as
near as usual and proper, when they put down the helm to bring her
caeriee's liability. 393
about, the jib sail began to fill, the vessel partly changed her tack,
when the wind suddenly ceased blowing, and the headway under which
the vessel was, shot her on the bank. Captain M'Kean states, that
he was well acquainted with the shore, and had before approached
as near as he did then, when beating to windward ; and that, when
standing for the west shore, he had wind enough to enable him to
manage the vessel with safety ; that as the water fell, the stern of
the sloop settled, and did not rise until flood tide, in consequence of
which the water rushed in at the windows, and thereby the plain-
tiff's goods were wet and damaged. He states, distinctly, that the
su.dden and entire failure of the wind was the sole cause of the
vessel's grounding.
The case of Amies v. Stevens, 1 Str. 128, shows that a sudden
gust of wind, by which the hoy of the carrier, shooting a bridge,
was driven against a pier and overset, by the violence of the shock,
has been adjudged to be the act of God, or vis divina. The sudden
gust, in the case of thehoyman, and the sudden and entire failure
of the wind sufficient to enable the vessel to beat, are equally to be
considered the acts of God. He caused the gust to blow in the one
case; and in the other, the wind was stayed by Him.
It has been said, that the captain was guilty of negligence in
attempting to beat, and in approaching the shore as near as he did
when the disaster happened, the wind being, as he states, light and
variable. It may be observed, that the master had his choice of
alternatives, either to improve the wind he then had, in order to
reach a place of safety, or to be exposed, in the middle of the river,
to the effects of ice. The season of the year, and the interests of
all concerned, justified the captain in attempting to reach Living-
ston's dock. It was not, as I recollect, pretended, on the trial, that
his conduct was improper and unusual,, in approaching the shore as
near as he did on the tack in which the vessel grounded; at all
events, the case does not show that the judge expressed any opinion
on that point; and the plaintiff must have had the full benefit of
that objection to the captain's conduct. I should undoubtedly have
been of opinion, as the captain was situated, taking into view the
lateness of the season, the narrowness of the channel, and the fact
that he was not nearer the shore than is usual and customary in
beating, that he was not guilty of negligence or improper conduct
in that respect.
No rule of law having been violated, in the charge to the jury, if
there even were grounds for saying that there is some degree of
negligence imputable to the master, that point has been under the
consideration of the jury, or it was not insisted on before them,
and, in either case, when the plaintiffs attempt to fix the defendants
with a loss from a very rigid rule of law, I should not disturb the
verdict of a jury, to give them another opportunity to urge that
objection. In the case of The Proprietors of the Trent Navigation
394 CAREIEKS OF GOODS.
V. Wood, the vessel was sunk, by driving against an anchor, in the
river Humber, and the goods were considerably damaged by the
accident; it was not pretended by the counsel that this was the act
of God, and Lord Mansfield considered it the injury of a private
man, within the reason of the instance of robbery. Abbott, in his-
notice of this case (Abbott, 256), observes that both parties were
held to have been guilty of negligence, the one in leaving his anchor
without a buoy, the other in not avoiding it ; as when he saw the
vessel in the river, he must have known that there was an anchor
near at hand ; or if it was to be taken , that negligence was impu-
table only to the master, who had left his anchor without a buoy,
that he was answerable over to the masters and owners of the vessel,
whose cargo had been injured. Again, he observes (p. 227), that if
a ship is forced on a rock or shallow, by adverse winds or tempests,
or if the shallow was occasioned by a recent collection of sand,
where ships could before sail with safety, the loss is to be attributed
to the act of God, or the perils of the sea. Upon a position so
plain, in my apprehension, as that the sudden cessation of a wind
which was competent, at the very moment when the vessel began
to come about, for the avoidance of the shoal, was the act of God,
and did not arise from the fault or negligence of man, I am at a
loss for further illustration.
The second point, on which a new trial is sought, was fairly and
fully before the jury; and without entering upon it further, I can-
not but express my perfect concurrence in opinion with them ; the
master did everything which could reasonably be expected of him
to prevent the vessel from sinking. Accordingly, my opinion is
against a new trial.
Thompson, J., Van Ness, J., and Yates, J., concurred.
Kent, Ch. J. I concur in the general doctrine, that the sudden
failure of the wind was an act of God. It was an event which
could not happen by the intervention of man, nor be prevented by
human prudence. But I think here was a degree of negligence,
imputable to the master, in sailing so near the shore under a "light,
variable wind," that a failure in coming about would cast him
aground. He ought to have exercised more caution, and guarded
against such a probable event, in that case, as the want of wind to
bring his vessel about. A common carrier is only to be excused
from a loss happening in spite of all human effort and sagacity.
Trent Navigation v. Wood, 3 Esp. N. P. 127 [383]. A casm for-
tuitus was defined, in the civil law, to be quod fato contingit, cuivis
diligentisstmo possit contingere. But as this point does not appear
to have been particularly urged at the trial, and the verdict nega-
tives the charge of negligence; and as the responsibility of com-
mon carriers may be deemed sufficiently strict, I am content not to
interfere with the verdict, though I think that the evidence would
have warranted the conclusion of negligence to a certain extent.
Judgment for the defendant.
cakbiek's liability. 395
FEIEND, ETC. V. WOODS.
6 Gratt. (Va.) 189. 1849.
Daniel, J. By the common law a carrier is treated as an insurer
against all damage to, or loss of, goods intrusted to him for trans-
portation, except such as may arise from the act of God, the act of
the enemies of the country, or the act of the owner of the goods.
In the case of Murphy, Brown & Co. v. Staton, 3 Munf. 239, it
was decided by this Court that the owners of boats engaged in the
upper navigation of James Eiver were subject to this rule, and
liable for losses arising from the dangers of that navigation. It was
also further decided in that case that if a loss happens, the onus lies
on the carrier to exempt himself from liability; and that his defence
is not sustained by showing that the navigation is attended with so
much danger that a loss may happen, notwithstanding the utmost
efforts to prevent it, and that the person conducting the boat pos-
sessed competent skill, used due diligence, and provided hands of
suflflcient strength and experience to assist him.
,The propriety of the decision it is believed has not been ques-
tioned. We have at least no report of any effort to disturb it. The
case may therefore be regarded as settling that the liabilities of
common carriers upon our navigable streams are fixed by the com-
mon-law rule, and that losses arising from the ordinary dangers of
navigation, however great and however carefully guarded against,
do not fall within the exception.
It is contended by the plaintiffs in error, that the evidence offered
by them in the Court below tended to show that the loss sustained
by the plaintiff was occasioned by such an extraordinary peril as
negatived all legal inference of negligence on the part of the carrier,
and made the loss ref errible to the act of God ; and that the instruc-
tion given by the Court at the instance of the plaintiff was erroneous
and prejudicial to them.
It appears from the bill of exceptions, that the plaintiff, having
proved that he delivered at the Kanawha Salines, in the county of
Kanawha, on board of a steamboat in the charge of the defendants,
who were the owners thereof, and common carriers, a quantity of
salt, to be carried on the said boat to Nashville, in the State of
Tennessee, for the transportation of which the defendants were to
receive a stipulated freight per barrel; and that the said boat
freighted with said salt proceeded on her voyage as far as to the
confluence of the Elk Eiver with the Kanawha, when she stranded,
sprung a leak, and filled with water, whereby a portion of the salt
was wholly lost, and the balance much damaged and impaired in
value; and the defendants having then introduced evidence tending
396 CAKEIEKS OF GOODS.
to prove that the water in the river was in good navigable condition;
that the boat was conducted through the ordinary channel for steam-
boat navigation; that some eight or ten days before the boat pro-
ceeded on her voyage there was a rise of Elk Eiver, a tributary of
the Kanawha, and the ice gorged at its mouth, and a bar of sand
and gravel formed in the channel along which the boat had to pass,
and that the ofBcers and crew of the boat were ignorant of the for-
mation of the bar when the boat stranded upon it, and that the
officers and crew used their efforts to save the salt after the boat
had so stranded ; the plaintiff moved the Court to instruct the jury
upon the law governing the case : Whereupon the Court instructed the
jury that if they believed from the evidence that the boat was stranded
by running upon a bar previously formed in the ordinary channel of
the river, but that the existence of the bar might by human fore-
sight and diligence have been ascertained and avoided, although the
navigators or those in charge of the boat were ignorant of its exist-
ence at the time the boat ran upon it, the defendants were liable for
the loss (if any) of the salt freighted by them on the boat occa-
sioned by its stranding; although the jury might be satisfied that
the defendants, after the boat stranded, used all the means within
their power and control to preserve the freight on board the boat
from being lost or injured.
Among the strongest authorities cited in behalf of the plaintiffs
in error are the cases of Smyrl v. Niolon, 2 Bailey's E. 421, and
Williams v. Grant, 1 Conn. E. 487. In the former it was held that
a loss occasioned by a boat's running on an unknown " snag " in the
usual channel of the river, is referrible to the act of God, and that
the carrier will be excused ; and in the latter it was said that strik-
ing upon a rock in the sea not generally known to navigators, and
actually not known to the master of the ship, is the act of God.
And other authorities go so far as to assert that if an obstruction
be secretly sunk in the stream, and, not being known to the carrier,
his boat founder, he would be excused. The last proposition stands
condemned by the leading cases, both English and American. In
the case of Forward v. Pittard, 1 T. R. 27 [385] Lord Mansfield
says, that "to prevent litigation, collusion, and the necessity of
going into circumstances impossible to be unravelled, the law pre-
sumes against the carrier, unless he shows it was done by the king's
enemies, or by such an accident as could not happen by the inter-
vention of man, as storms, lightning, and tempests." The same
doctrine is strongly stated in M'Arthur v. Sears, 21 Wend. E. 196,
where it is said that " no matter what degree of prudence may be
exercised by the carrier and his servants ; although the delusion by
which it is baflled, or the force by which it is overcome, be inevi-
table; yet if it be the result of human means, the carrier is
responsible."
These cases clearly restrict the excuse of the carrier, for losses
caueiee's liability. 397
occasioned by obstructions in the stream, to such obstructions as are
wholly the result of natural causes. And the cases in which the
carriers have been exonerated from losses occasioned by such obstruc-
tions as Smyrl v. Niolon, and Williams v. Grant, before mentioned,
will, I think, upon examination, be found to be cases in which
either the bills of lading contained the exception " of the perils of
the river," or in which that exception has been confounded with the
exception of the "act of God." In the case of M' Arthur v. Sears,
a distinction between the two phrases is pointed out. It is shown
that the exception " of dangers of perils of the sea or river, " often
contained in bills of lading, are of much broader compass than the
words "act of God;" and the case of Gordon v. Buchanan, 5 Yerg.
E. 71, is cited with approbation, in which it is said that "many of
the disasters which would not come within the definition of the act
of God would fall within the former exception ; such, for instance,
as losses occasioned by hidden obstructions in the river newly
placed there, and of a character that human skill and foresight
could not have discovered and avoided."
In a note to the case of Coggs v. Barnard, in the American edition
of Smith's Leading Cases, 43 Law Lib. 180, the American decisions
are collated and reviewed, and a definition is given to the expression
"act of God," which expresses, I think, with precision, its true
meaning. The true notion of the exception is there held to be
"those losses that are occasioned exclusively by the violence of
nature ; by that kind of force of the elements which human ability
could not have foreseen or prevented; such as lightning, tornadoes,
sudden squalls of wind." "The principle that all human agency
is to be excluded from creating or entering into the cause of mis-
chief, in order that it may be deemed the act of God, shuts out those
cases where the natural object in question made a cause of mischief,
solely by the act of the captain in bringing his vessel into that
particular position where alone the natural object could cause mis-
chief: rocks, shoals, currents, etc., are not, by their own nature
and inherently, agents of mischief and causes of danger, as tempests,
lightning, etc., are."
The act of God which excuses the carrier must therefore, I think,
be a direct and violent act of nature.
The rule, it is insisted, is a harSh one upon the carrier, and it is
argued that the Court should be slow to extend it further than it is
fully sustained by the cases. However harsh the rule may at first
appear to be, it has been long established, and is well founded on
maxims of public policy and convenience; and, viewing the carrier
in the Ught of an insurer, it is of the utmost importance to him, as
well as to the public who deal with him, that the acts for which he
is to be excused should have a plain and well-defined meaning.
When it is understood that no act is within the exception, except
such a violent act of nature as implies the entire exclusion of all
o9o CAEEIEES OF GOODS.
human agency, the liabilities of the carrier are plainly marked out,
and a standard is fixed by which the extent of the compensation to
indemnify him for his risks can be readily measured and ascertained.
The rule, too, when so understood, puts to rest many perplexing
questions of fact, in the litigation of which the advantage is always
on the side of the carrier. Under this rule the carrier is not per-
mitted to go into proofs of care or diligence, and the owner of the
goods is not required to adduce evidence of negligence till the loss
in question is shown to be the immediate result of an extraordinary
convulsion of nature, or of a direct visitation of the elements,
against which the aids of science and skill are of no avail.
So understanding the law, I do not perceive how the defendants
in error could have been prejudiced by the instruction complained
of, and am of opinion to affirm the judgment.
Judgment affirmed.^
EAILEOAD CO. v. EEEVES.
10 Wall. 176. 1869.
In error to the Circuit Court for the Western District of Ten-
nessee, the case being this: —
Eeeves sued the Memphis and Charleston Eailroad Company as a
common carrier for damage to a quantity of tobacco received by it
for carriage, the allegation being negligence and want of due care.
The tobacco came by rail from Salisbury, North Carolina, to Chat-
tanooga, Tennessee, reaching the latter place on the 5th of March,
1867. At Chattanooga it was received by the Memphis and Charles-
ton Eailroad Company on the 5th of March, and reloaded into two
of its cars, about five o'clock in the afternoon.
The Memphis and Charleston Eailroad track extends from
1 In Gordon v. Little, 8 Serg. & Rawle, 533, it was held that a general usage,
softening the responsibility of carriers on the western waters, was admissible in their
defence. This was the case of a keel-boat sailing from Pittsburg, in Pennsylvania, to
Hopkinsville, Kentucky. But no offer of that kind was made in the case at bar ; and
it may be very questionable, since the late cases in this court denying all restriction
even by notice, whether such a custom, which must arise from the management of
carriers, would be sustainable in true policy, owing to the opening which it gives for
fraud and collusion, etc. In Aymar u. Astoi-, before cited, and The Schooner Reeside,
2 Sumn. 567, 560, a general commercial custom enlarging the phrase "perils or dangers
of the seas, " in a bill of lading, so as to comprehend causes of loss beyond their legal
import, was denied. Mr. Justice Story, in the last case, very properly expresses a
general reluctance to the reception of such proof in cases where it has not heretofore
been applied. He finally rejected it, because it worked a contradiction of the written
agreement. Tumey v. Wilson, 7 Yerg. 340, S. P. But see CheiTy v. Holly, 14
Wendell, 26, and Barber v. Brace, 3 Conn. R. 9. Also Lawrence v. M'Gregor, 1
Wright, 193. Per Cowen, J., in McArthur v. Sears, 21 AVend. 190.
caeeier's liability. 399
Memphis to Stevenson, Alabama, a point west of Chattanooga, on
the Nashville and Chattanooga Eailroad. Between Chattanooga
and Stevenson, by a contract between the two companies , the trains
of the Memphis and Charleston road were drawn by engines belong-
ing to the last-named road, an agent of the road being at Chattanooga
and receiving freight and passengers there for Memphis.
One Price, who as agent of Reeves was attending and looking
after the tobacco along the route, testified (though his testimony on
this point was contradicted) that the agent of the company at Chat-
tanoog-a promised that, if the bills were brought over in time, the
tobacco should go forward at six o'clock that evening; and shortly
before that time informed him that the bills had come over, and
assured him that the tobacco would go off at that hour. It did not
do so, though he. Price, the agent, supposing that it would, went
on by a passenger train and so could no longer look after the
tobacco. By the time-tables which governed at the time the for -
warding of freight, goods received during one day were forwarded
the next mornipg at 5.45 a.m., and at that time the train on which
the tobacco in question was placed went off. This train, however,
found the road obstructed by rocks that had fallen during the night
and had to return, and, in consequence of information of the washing
away of a bridge on the road, had to remain at Chattanooga. Chat-
tanooga is built on low ground, on the Tennessee River, which, a
short distance west of it, runs along the base of Lookout Mountain.
On the 5th of March there had been heavy rains for some weeks,
and the river had been rising and was very high. Freshets of the
years 1826 and 1847, the highest ever remembered previous to one
now to be spoken of, or of which there was any tradition, had not
risen by within three feet as high as the level of the railroad track
in the station where the cars containing the tobacco were placed, on
their coming back to Chattanooga,_ after their unsuccessful attempt
to go forward.
The river rose gradually until the evening of the Ith {Thursday),
at which time dt reached the high-water mark of 1847. That night
it rose an average of four inches an hour from 7 p. m. to 6.30 a. m.
of the 8th of March, and it continued to rise until about 2 p. m., of
Sunday, the 10th of March. On Friday, at 1 p. m., the engines
istanding on the tracks were submerged so that their lower fire-
boxes were covered. On Saturday, at 8 p. m., the engines and cars
were submerged ten feet or more, and the freight in question was
thus damaged. Had it gone off on the evening of the 5th it would
not have been damaged. A freight train did leave Chattanooga
going towards Memphis on that evening, but it 'carried freight of
the Nashville and Chattanooga road only, and none for the road of
the defendant. Four or five days elapsed from the time when the
water began to come up into the town, before it was so high as to
submerge the cars and injure the freight. No one expected the
400 OAEEIERS OF GOODS.
water would rise as it did, because it rose full fifteen feet higher
than had ever before been known. The rise was at first gradual,
and from the direction of Lookout Mountain, by backing ; but after-
wards it came suddenly from the direction of the Western and
Atlantic road, opposite to its former direction, and then rose very
rapidly. Although on the 6th the river was getting out of its-
banks, there was no apprehension, up to the night of the 7th, that
the water would submerge the town. During the night of the 7th
merchants removed their goods, and one Phillips, who that night
removed his to the second story of a building standing on ground
no higher than the depot, saved them. The water rose into his
building on the morning of the 8th. The people finally fled to the
Mils, and there was a universal destruction of property as well of
individuals as of railroads parsing through the city. The waters
indeed were so high and the flood finally so unexpected that the
mayor broke open railroad cars and took provisions which were in
process of transportation, to feed the famishing population. The
cars in which the tobacco was, were standing on the highest ground
in the region of the station. There were roads in other directions,
beside the road over which the rock had fallen, physically travers-
able by the cars which had the tobacco; but there were difficulties
of various kinds in going on them, which the agents considered
amounted to a bar to try to use them.
Mr. Justice Miller
We are of opinion, then, that both the refusal to charge as re-
quested and the charge actually given are properly before us
for examination. As regards the first, we will only notice one
of the rejected instructions, the fourth. It was prayed in these
words : —
" When the damage is shown to have resulted from the immediate
act of God, such as a sudden and extraordinary flood, the carrier
would be exempt from liability, unless the plaintiff shall prove that
the defendant was guilty of some negligence in not providing for
the safety of the goods. That he could do so must be proven by
the plaintiff, or must appear in the facts of the case."
It is hard to see how the soundness of this proposition can be
made clearer than by its bare statement. A common carrier assumes
all risks except those caused by the act of God and the public enemy.
One of the instances always mentioned by the elementary 'writers
of loss by the act of God is the case of loss by flood and storm.
Now, when it is shown that the damage resulted from this cause
immediately, he is excused.
What is to make him liable after this ? No question of his negli-
gence arises unless it is made by the other party. It is not neces-
sary for him to prove that the cause was such as releases him, and
then to prove affirmatively that he did not contribute to it. If,
after he has excused himself by showing the presence of the over-
carrier's liability. 401
powering cause, it is charged that his negligence contributed to the
loss, the proof of this must Come from those who assert or rely
on it.
The testimony in the case, wholly uncontradicted, shows one ox
the most sudden, violent, and extraordinary floods ever known in
that part of the country. The tobacco was being transported from
Salisbury, North Carolina, to Memphis, on a contract through and
by several railroad companies, of which defendant was one. At
Chattanooga it was received by defendant, and fifteen miles out the
train was arrested, blocked by a land-slide and broken bridges, and
returned to Chattanooga, when the water came over the track into
the car and injured the tobacco.
The second instruction given by the court says that if, while the
cars were so standing at Chattanooga, they were submerged by a
freshet which no human care, skill, and prudence could have
avoided, then the defendant would not be liable; but if the cars
were brought within the influence of the freshet by the act of
defendant, and if the defendant or his agent had not so acted, the
loss would not have occurred, then it was not the act of God, and
defendant would be liable. The fifth instruction given also tells
the jury that if the damage could have been prevented by any
means within the power of the defendant or his agents, and such
means were not resorted to, then the jury must find for the plaintiff.
In contrast with the stringent ruling here stated, and as expres-
sive of our view of the law on this point, we cite two decisions by
courts of the first respectability in this country.
In Morrison v. Davis & Co., 20 Pennsylvania State, 171, goods
being transported on a canal were injured by the wrecking of the
boat, caused by an extraordinary flood. It was shown that a lame
horse used by defendants delayed the boat, which would otherwise
have passed the place where the accident occurred in time to avoid
the injury. The court held that the proximate cause of the disaster
was the flood, and the delay caused by the lame horse the remote
cause, and that the maxim, causa proxima, non remota spectatur,
applied as well to contracts of common carriers as to others. The
court further held, that when carriers discover themselves in peril
by inevitable accident, the law requires of them ordinary care, skill,
and foresight, which it defines to be the common prudence which
men of business and heads of families usually exhibit in matters
that are interesting to them.
In Denny V. New York Central Eailroad Co., 13 Gray, 481, the
defendants were guilty of a negligent delay of six days in trans-
porting wool from Suspension Bridge to Albany, and while in their
depot at the latter place a few days after, it was submerged by a
sudden and violent flood in the Hudson Eiver. The court says that
the flood was the proximate cause of the injury, and the delay in
transportation the remote one ; that the doctrine we have just stated
402 CAKRIEES OF GOODS.
governs the liabilities of common carriers as it does other occupations
and pursuits, and it cites with approval the case of Morrison v.
Davis & Co.
Of the soundness of this principle we are entirely convinced, and
it is at variance with the general groundwork of the court's charge
in this case.
As the case must go back for a new trial, there is another error
which we must notice, as it might otherwise be repeated. It is the
third instruction given by the court, to the effect that if the defend-
ant had contracted to start with the tobacco the evening before, and
the jury believe if he had done so the train would have escaped
injury, then the defendant was liable. Even if there had been such
a contract, the failure to comply would have been only the remote
cause of the loss
Judgment reversed and a new trial ordered.^
b. Act of Public Enemy.
MOESE V. SLUE.2
: King's Bench. 1 Vent. 238. 1672.
The case was argued two several terms at the bar, by Mr. Holt
for the plaintiff, and Sir Francis Winnington for the defendant, and
Mr. Molloy for the plaintiff, and Mr. Wallop for the defendant; and
by the opinion of the whole Court, judgment was given this term
for the plaintiff.
Hale delivered the reasons as followeth.
First, by the Admiral Civil Law the master is not chargeable pro
damnofatali, as in case of pirates, storm, etc., but where there is
any negligence in him he is.
Secondly, This case is not to be measured by the rules of the
Admiral Law, because the ship was infra corpus comitatus.
Then the first reason whei'efore the master is liable is, because hei
takes a reward ; and the usage is, that half wages is paid him before
he goes out of the country.
Secondly, If the master would, he might have made a caution
for himself, which he omitting and taking in the goods generally,
1 Ace. : Fox V. Boston &c. R. Co., 148 Mass. 220 ; Rodgers v. Missouri Pao. R.
Co., 76 Kan. 222, 88 Pao. R. 885, 121 Am. St. R. 416. ConVra : Condiot v. Grand
Trunk R. Co., 64 N. T. 600 ; Green- Wlieeler Slioe Co. v. Chicago, R. I. & P. R,
Co., 130 Iowa, 123, 106 N. W. R. 499, 5 L. R. A. N. S. 882.
" Elsewhere reported : 1 Vent. 190 ; 1 Mod. 85 ; 2 Lev. 69 ; T. Raym. 220 ;
2 Keb. 866 ; 3 Keb. 72, 112, 135.
carrier's liability. 403
he shall answer for what happens. There was a case (not long
since) when one brought a box to a carrier, in which there was a
great sum of money, and the carrier demanded, of the owner what
was in it; who answered, that it was filled with silks and such like
goods of mean value; upon which the carrier took it, and was
robbed. And resolved that he was liable. But if the carrier had
told the owner that it was a dangerous time, and if there were
money in it, he durst not take charge of it; and the owner had
answered as before, this matter would have excused the carrier.
Thirdly, He which would take ofE the master in this case from the
action must assign a difference between it and the case of a hoy-
man, common carrier or innholder.
'T is objected, That the master is but a servant to the owners.
Answer, The law takes notice of him as no more than a servant.
'T is known, that he may impawn the ship if occasion be, and sell
bona peritura ; he is rather an officer than a servant. In an escape
the jailer may be charged, though the sheriff is also liable, for
respondeat, superior. But the turnkey cannot be sued, for he is but
a mere servant ; by the civil law the master or owner is chargeable
at the election of the merchant.
'T is further objected. That he receives wages from the owners.
Answer, In effect the merchant pays him, for he pays the owners
freight, so that 'tis but handed over by them to the master; if the
freight be lost, the wages are lost too, for the rule is freight, is
the mother of wages: therefore, though the declaration is, that the
master received wages of the merchant, and the verdict is, that
the owners pay it, 't is no material variance.
Objection, 'T is found, that there were the usual number of men
to guard the ship ?
Answer, True, for the ship, but not with reference to the goods,
for the number ought to be more or less as the port is dangerous,
and the goods of value, 33 H. 6, 1. If rebels break a jail, so that the
prisoner escape, the jailer is liable ; but is otherwise of enemies ; so
the master is not chargeable where the ship is spoiled by pirates.
And if a carrier be robbed by a hundred men, he is never the more
excused. Ante.
SOUTHERN EXPRESS CO. v. WOMACK.
1 Heisk. (Tenn.), 256. 1870.
E. McEabland, S. J., delivered the opinion of the Court.
^ This is an action brought by defendant in error against the plain-
tiff in error as a common carrier, for failing to carry and deliver a
quantity of household goods, notes, bonds, checks, etc., according
404 CAEKIEES OF GOODS.
to contract, from Prospect Depot, in Virginia, to Bristol, Tennessee;
and in another count for failing to deliver said goods at Lynchburg,
Virginia.
The plaintiff recovered in the Court below, and a new trial being
refused the defendant, an appeal in error has been presented to this
Court.
A number of pleas were filed. Upon some of these there was
issue, and to others a demurrer was sustained. We do not deem it
necessary to consider the questions raised by these pleadings, for
in our opinion, all the defences therein indicated, so far as they are
good in law, might have been made under the first plea, which is
non assumpsit. We will, therefore, proceed to inquire whether the
plaintifl: in error had the full benefit of all the defences to which he
was entitled under the general issue.
The proof tends to show the following state of facts : The plain-
tifE in error was a common carrier, in the full, legal sense of the
term, from Eichmond, in Virginia, to Bristol, Tennessee, by way of
Lynchburg. Their mode of transportation was by railway. Pros-
pect Depot was a way station between Eichmond and Lynchburg.
About the middle of March, 1865, the boxes containing the goods
in question were delivered to E. V. Davis, the agent of the Com-
pany at Prospect Depot, for transportation to Bristol, the boxes
being properly marked. Davies gave Mrs. Womack, the wife of
the defendant in error, a receipt simply acknowledging the receipt
of the goods for transportation, and received from her the amount
of charges for transporting the goods to Lynchburg, in Confed-
erate money, he not being authorized to collect the charges any
further.
The proof further shows that the railway trains upon which the
plaintiffs in error carried freights, continued to pass daily in the
direction of Lynchburg, with, perhaps, some occasional interrup-
tion, until near the 7th of April. That, for the first four days after
the goods were received, Davis carried them to the track of the
railroad, as the train passed, and tendered them to the "messenger,"
as he is called, who was the agent of the company, and whose duty
it was to receive the goods upon the train, and forward them. That
the messenger declined to take the goods on, alleging that he had
no room for them, but would try to take them next day. After this,
Davis continued each day for some weeks to apply to the messenger
to take the goods, but was " put off " from day to day, with substan-
tially the same reply. That towards the 7th of April, one Thomas
Agee, who had hauled the goods to the de'pot, and who was the
friend of the defendant in error, finding that the goods were still in
the depot, and that hostile armies were approaching, proposed to
Davis to take charge of the goods, and haul them away, and take
care of them, but this proposal was refused by Davis. On the 7th
of April the depot was captured by the United States forces, and
cakeiee's liability. 405
the goods captured or destroyed, except a small quantity that were
afterwards recovered by the defendants in error.
The proof for the plaintiff in error shows that, at the time the
goods w«re received, Prospect Depot was inside the military lines of
the Confederate forces, and so remained until the 7th of April.
That the line of railroad referred to was not owned by them, but
that they hired from the railroad company a car which they used
on each trip for the transportation of their freight. The proof
further shows thatbetween the 16th of March and the 17th of April,
large quantities of freight were sent from Eichmond and other
points in the direction of Lynchburg ; that the Confederate military
forces had the preference upon the road, and on some occasions the
"Express car" was taken from the plaintiff in error, for the use of
the military, and the proof renders it probable that the express cars,
during the period, were loaded to their capacity, when going in the
direction of Lynchburg, before they reached Prospect Depot.
It was further proven by the plaintiff in error, that they gener-
ally used a printed form of receipt which they gave when goods
were delivered to them, but at the time of this transaction, the
agent, Davis, had none of these blanks on hand.
It was also proved by them, that when Mrs. Womack was asked
what the boxes contained, she replied that they contained "beds,
bed-clothing, wearing apparel," etc., but did not disclose that they
contained bonds, notes, or anything of that character, the question
being pressed upon her no further.
Upon this, various questions are made and argued as to the action
of the Court below.
4. Are the United States troops, who, it is alleged, destroyed
these goods, to be regarded as "the public enemies," or "the ene-
mies' of the country," in the sense of the law, so as to excuse the
plaintiff in error for the loss of the goods caused by these acts,
without fault on the part of the agents of the company? His Honor,
the Circuit Judge, decided this proposition in the negative, and
said : " The United States army or troops were not enemies to the
Government, or public enemies; they were public friends and
friends to the Government; there was but one Government in the
United States, and that was the United States Government." Con-
sequently the United States troops, under General Stoneman, a
United States General, and commanding for the United States,
were not the enemies of the United States Government. His
Honor further told the jury "that the Confederate States never were
recognized by any Government as a Government dejure or de facto.
Our Supreme Court recognized them as belligerents so as to regulate
criminal intent in robbery and some other felonies, but no further.
The army of the so-called Confederate States was an unlawful com-
bination, nothing but a mob, however huge its proportions may
406 CAEEIEES OP GOODS.
have been; consequently if the goods were destroyed by the United
States troops, that would not exonerate the company."
We are of opinion that the definition, as above given by his
Honor, of the character of the late war, and as to the status of the
Confederate Government, is not correct or accurate; but the only
question of practical importance, is, was he correct in holding that
the United States troops were not to be regarded as the public
enemy, against whose acts the plaintifE in error did not insure. If
he was in error in this, it was an error affecting the merits, and a
new trial should be granted. If, on the other hand, he answered
this question correctly, then the error which followed in giving a
definition of the character of the rebellion — a definition which was
unnecessary — was immaterial, and could not have prejudiced the
plaintifE in error. The term "public enemy," or the "enemy of
the country, has, in general, a technical legal meaning. It is under-
stood to apply to foreign nations, with whom there is open, war, and
to pirates, who are considered at war with all mankind; but it does
not include robbers, thieves, or rioters or insurgents, whatever be
their violence." Story on Contr., 762.
In England, the term "public enemies," or "the king's enemies,"
as applied to the law of treason, has been held not to apply to insur-
gents or rebels, they not being enemies. Hawkins' Pleas of the
Crown, 55.
It has been held by the Supreme Court of the United States, in
a number of cases known as the Prize Cases, that the late rebellion
was " a war " in the legal sense, as contra-distinguished from a mere
insurrection, and that as a consequence of this in the conduct of
the war during its pendency, the persons living upon either side of
the line dividing the contending forces were to be regarded as
enemies of the other, to the extent to authorize the forfeiture of the
property of either captured by the other upon the high seas.
In the case of Thorington v. Smith, 9 Wallace, 1, Chief Justice
Chase classes the Confederate Government among that class of cases
where a foreign government, at war with our own, for instance,
obtains temporary possession of a portion of our country, and estab-
lishes their authority over it, and enforces the same by military
power; and, referring to the Confederate Government, says: "Bel-
ligerent rights were conceded to it, and thereafter its territory held
to be enemy's territory, and, for most purposes, its inhabitants held
to be enemies."
It is clear that, during the war, the parties upon each side treated
each other as enemies, and this was justified by the laws and usages
of war.
As an abstract proposition, it cannot be doubted that the United
States Government was the rightful government, and that the war
was rightfully prosecuted for the enforcement of its laws ; and the
attempted revolution being unsuccessful, no portion of the citizens
caeriek's liability. 407
were at any time released from their allegiance to the rightful
government, however they may be excused or justified in rendering
obedience to the usurped government, in civil matters, so long as
this obedience might have been enforced by actual military power;
and we are not to be understood as announcing the proposition that,
in reality, the United States Government or troops were the public
enemy of its own citizens duripg the progress of the war.
But in construing this contract, and determining the rights and
liabilities of the parties themselves, we must give to the term
"public enemy," or "enemy of the country," the meaning that
attached to it at the time and place the contract was made. We
have seen that at the date of this transaction both parties resided
within the military lines of the "Confederate States." We have
also seen that at that time, "for most purposes," the people upon
each side of the dividing line were treated as the enemies of the
other. So that the term " public enemy," or " enemy of the country,"
as understood and applied by the contracting parties at the time,
included the troops of the United States Government, and that the
plaintiffs in error are not, under the circumstances, to be held as
insurers against loss that might occur by the act of the United
States troops.
Such was not the legal import of the contract they made, or its
meaning as they then understood it.
It follows, therefore, that while in one sense the proposition of
his Honor was correct, it was not the proper instruction applicable
to the facts of the case. For this error alone we reverse the judg-
ment, and remand the cause for a new trial.
There is evidence in the record, upon which the plaintiff in error
might well have been heldliable for their failure to carry the goods
or return them before the time they are alleged to have been
destroyed by the United States troops; but as this was a question of
fact, they were entitled to have the case submitted to the jury upon
a correct charge. Eeverse the judgment.
c. Act of Shipper,
CONGAR V. CHICAGO, etc. R. CO.
24 Wis. 154. 1869.
Thb plaintiffs shipped, by defendant's road, trees and other
nursery stock from Whitewater, in this State, directed to "luka,
Iowa," the consignees being resident in a village of that name in
Tama County, Iowa. At Chicago, the goods were shipped by de-
fendant's agents, by the Chicago, Burlington & Quincy Railroad Com-
408 CAKEIEES OF GOODS.
pany, and at Quincy were transferred to the Quincy & Missouri Eail-
way, by which they were transported to luka, in Keokuk County,
Iowa. In consequence of this mistake, they are alleged to have
become worthless, and this action was brought to recover damages.
Certain averments of the complaint and answer will be found recited
in the second paragraph of the opinion, infra. A demurrer to the
answer was sustained, and defendant appealed.
Dixon, Ch. J. The decision of the court below, as shown by the
written opinion of the learned judge found in the printed case,
turned upon the point that, for the purpose of charging the company
with negligence in shipping the goods over the wrong road, notice
to any of its agents was notice to the company. In other words, the
court held, that the knowledge of the agents residing in the State
of Iowa, and transacting the business of the company there, of a
place in that State named luka, and that goods destined for that
place were to be deposited at the nearest station on the line of the
company's road, called Toledo, was the knowledge of the company,
so as to make the company responsible for any injury resulting from
the mistake of its agents residing and transacting its business at
the city of Chicago, in the State of Illinois, in forwarding the goods
from the latter place by another railroad, instead of over the com-
pany's own road, although such mistake occurred without any negli-
gence whatever on the part of the agents making it, but after they
had taken reasonable and proper care to ascertain the route by which
the goods should be forwarded, and had forwarded them in accord-
ance with the information so obtained. This, we think, was an
erroneous application of the doctrine that notice to the agent is
notice to the principal. Such notice, to be binding upon the prin-
cipal, must be notice to the agent when acting within the scope of
his agency, and must relate to the business, or, as most of the
authoribies have it, the mry business, in which he is engaged, or is
represented as being engaged, by authority of his principal. It
must be the knowledge of the agent coming to him while he is con-
cerned for the principal, and in the course of the very transaction
which is the subject of the suit, or so near before it that the agent
must be presumed to recollect it. Story on Agency, § 40, and 2
Kent's Com. 630,. and note, and cases cited. Notice, therefore, to
the agents in Iowa, distant some two or three hundred miles from
the city of Chicago, who have distinct duties to perform, and were
not at all concerned in the business of forwarding the goods from
Chicago, was not such notice as will bind the company in relation
to that business, the same having been transacted by other agents,
who had no such notice. This seems very clear when we consider
the reason and ground upon which this doctrine of constructive
notice rests. The principal is chargeable with the knowledge of his
agent, because the agent is substituted in his place, and represents
him in the particular transaction; and it would seem to be an
caeeiee's liability. 409
abvious perversion of tlie doctrine, and to lead to most injurious
results, if, in the same transaction, the principal were likewise to
be charged with the knowledge of other agents, not engaged in it,
and to whom he had delegated no authority with respect to it, but
who were employed by him in other and wholly different departments
of his business.
The complaint charges that the place called luka, in Tama County,
Iowa, to which the goods were intended to be sent, was known to
the agents of the company residing and doing business along the
line of its road in the State of Iowa, and that the station where such
goods were to be deposited was Toledo. The answer alleges that
the same place was unknown to the officers and agents of the com-
pany at Chicago ; that they were informed that said luka was situ-
ated in Keokuk County, in the State of Iowa, and near the line of
the Burlington & Missouri Railroad ; that they examined a map of
Iowa used by shippers, and kept in the office of defendant, for the
purpose of ascertaining where said luka was situated; and that said
map represented said luka as being in Keokuk County aforesaid.
The answer further alleges that the goods were directed to "C. E.
Cox, luka, Iowa," without giving the name of the county, or other
directions to indicate to what part of the State, or to what railroad
station in the State, the same were consigned, or by what line of
railroad the same were to be forwarded. It appears to this court,
therefore, upon the pleadings that no cause of action for negligence
is stated against the company, but that, if there was negligence on
the part of any one, it was upon the part of the plaintiff in not hav-
ing marked the goods with the name of the county, or otherwise
with that of the railway station, or with the line of road by which
they were to be sent. The demurrer to the answer should, there-
fore, have been overruled; and the order sustaining it must be
reversed, and the cause remanded for further proceedings, according
to law.
MILTIMOEB V. CHICAGO, etc. R. CO.
37 Wis. 190. 1875.
AcTioK for damages alleged to have been caused by the negligence
of the defendant company in transporting a wagon for the plaintiffs,
on its cars from Janes ville to Chicago. The answer denied negli-
gence, and alleged a special contract that the wagon should be trans-
ported wholly at the owners' risk in respect to the cause from which
the damage resulted.
The evidence showed the facts to be, that the plaintiffs, by one
Eipley, their agent, applied for transportation of the wagon in an
open or platform car, as they desired it shipped without taking it
410 CAKEIEES OF GOODS.
apart; that the price was agreed upon, and the company agreed that
it should be sent on the train which was to leave the same evening
at 9.15 o'clock, provided it was received in time, and that, if there
was a flat car in the yard, it should be placed where he could rua
it on ; that Eipley applied to the employee of the company, whose
duty was to make up trains, for a car, who informed him that they
would have a car placed for him, and, if he got the wagon there
before 5 o'clock, they would help him load the wagon upon the car;
that he took the wagon up to be loaded a little after 5 o'clock. The
employees of the plaintiff loaded it upon the car. Two of the
employees of the company went back, at Eipley's request, after
hours, and helped load it; and one suggested that he take off the
wheels, but Ripley said he could fasten them so they would not roll,
and tied the wheels, and nailed down blocks upon, the floor to keep
it from rolling. The company gave a receipt for the wagon which
contained the agreement that the company should not be "respon-
sible for loss or damage to any . . . article whose bulk rendered it
necessary to transport in open cars, . . . unless it can be shown
that such damage or loss occurred through negligence or default of
the agents of the company." The train, with the car containing the
wagon, left for Chicago that evening while a high wind was prevail-
ing. The wagon, being in the condition in which the plaintiif's
agent had left it, was blown off from the car in transit, and injured.
The issue was tried by the court, who found that the defendant
was negligent in removing the wagon, during the prevalence of the
high wind,' without taking precaution to secure it to the car, so as
to prevent it from being blown off; and that by reason of such
negligence the injury occurred. From judgment on the finding the
defendant appealed.
Cole, J. The learned circuit judge found from the evidence that
the defendant company was guilty of negligence in removing the
wagon from Janesville, the place of shipment, and in carrying it
forward toward Chipago, its point of destination, without taking
the precaution to secure it to the car, so as to prevent it from being
thrown from the car by the violence of the wind prevailing at the
time. Upon this ground the company was held liable for the injury
to the wagon upon being blown off the car.
We feel constrained to dissent from this view of the case. The
evidence shows, beyond all doubt or question, that the plaintiffs
themselves chose an open or platform car upon which to transport
the wagon to Chicago. They did not wish to have the wagon taken
apart so that it could be transported in a box caf, but chose the
platform car, upon which the wagon could be carried standing, as
the cheaper mode of conveyance. The company certainly was not
at fault for this manner of transporting the wagon. The evidence
clearly shows that the plaintiffs assumed the labor' and responsibility
of loading the wagon. Ripley was told when he bargained for the
cakriek's liability. 411
car, by the agents of the company, that if he got the wagon to the
cars before five o'clock, they would help him load it, but if he got
there after that time, he would find his car by the freight-house
platform, upon which to place the wagon. He got to the freight
depot late, but met a couple of the workmen coming away, who
went back and aided him in loading the wagon. But Ripley him-
self took the entire charge and responsibility of loading the wagon,
as it was understood he would do, and of securing it to the car.
Whatever means and appliances he deemed necessary and proper to
be used to secure the property while in transit, he used, or might
have used, without the control or interference of any one. The state
of the weather, the nature of the property, its exposure to violent
winds, he should have considered and provided for. It seems to us
there is no reason for saying that the company was guilty of negli-
gence, and did not take due precautions to secure the wagon, in
view of the established fact that the plaintiffs undertook to attend
to these matters themselves. The company received the property
for transportation, loaded and secured as the plaintiffs saw fit to
load and secure it ; and why should negligence be imputed to it for
not taking precautions to guard against the plaintiffs' want of care?
It is said the company was exceedingly careless and negligent in
attempting to carry this covered wagon at the time and in the man-
ner it did, without making any effort to attach the same more firmly
to the car. But the obvious answer to this argument is, that the
plaintiffs themselves assumed the risk and responsibility of loading
and securing the wagon, and the company was not called upon to
see that they had properly performed their duty in that regard.
The plaintiffs had ordered that the wagon should be sent by the
night train, and the agents of the company had agreed to take it, if
loaded. According to the testimony of Carter, one of the plaintiffs,
the wind blew very hard between eight and nine, while ■ the train
on which the wagon was to go did not leave Janes ville until 9.15.
There was ample time to countermand the order to ship the wagon
that night, or to see that it was so secured that it could not be
blown from the car by the violence of the wind. It seems to us
that whatever negligence there was in securing the wagon must be
imputed to the plaintiffs. The case is not distinguishable in prin-
ciple from Betts v. The Farmers' Loan & Trust Company, 21 Wis.
81, and the decision there made is controlling here. There the
owner of cattle shipped by railroad, who had undertaken to put
them in the car, knew that the door of the car was in an unsafe
condition, but neglected to inform the station agent, who was igno-
rant of the fact; and it was held that he could not recover for
injuries received by the cattle in escaping from the car in conse-
quence of such defect. So, under the circumstances of this case, it
seems to us, the company was not obliged to take further precau-
tions to fasten or secure the wagon on the car. The plaintiffs had
412 CAEKIEES OF GOODS.
taken upon themselves tliat care and responsibility, and if they
failed properly to secure it against the violence of the wind, and it
was injured, the loss is attributable to their fault.
It follows from these views that the judgment of the Circuit Court
must be reversed, and the case remanded with directions to dismiss
the complaint.
WHITE V. WINNISIMMET CO.
7 Cush. (Mass.) 155. 1851.
This was an action on the case against the proprietors of a ferry
for an injury to the plaintiff's property, occasioned by his horse and
loaded wagon falling overboard from one of the defendants' boats,
while passing from Boston to Chelsea.
Dewey, J. To a certain extent, persons keeping and maintaining
a ferry are common carriers, and subject to the liabilities attaching
to common carriers. It would be so, if a bale of goods or an article
of merchandise was delivered by the owner to the agent of a ferry
company, to be carried from one place to another for hire. Upon
receiving such goods for transportation, the ferry company stipulate
to carry them safely, and subject themselves to strict liability for
the safe carriage and delivery of such goods ; being only exempted
for losses occasioned by those acts, which are denominated " acts of
God, or of a public enemy." The principle above stated would
embrace the case of a horse and wagon received by a ferryman to
be transported by him on a ferry-boat, the ferryman accepting the
exclusive custody of the same for such purpose, and the owner
having, for the time being, surrendered the possession to the
ferryman.
But the traveller uses the ferry-boat as. he would a toll bridge,
personally driving his horse upon the boat, selecting his position on
the same, and himself remaining on the boat; neither putting his
horse into the care and custody of the ferryman, nor signifying to
him or his servants any wish or purpose to do so; and the only
possession and custody, by the ferryman, of the horse and vehicle
to which he is attached, is that which necessarily results from the
traveller's driving his horse and wagon, or other vehicle, on board
the boat, and paying the ordinary toll for a passage; in such ease,
the ferry company would not be chargeable with the full liabilities
of common carriers of merchandise. The liability in this ease would
be one of a different character; and if the proprietors of the ferry
were chargeable for loss or " damage to the property, it would be
upon different principles. In reference to persons thus using the
ferry, the company have responsible duties to perform; the neglect
of which may charge them for the loss of goods and property placed
carrier's liability. 413
on board their boat, wben the loss has been occasioned by their
default. It is the duty of a ferry company to provide a good and
safe boat, suitable for the business in which they are engaged; and
they are required to have all suitable and requisite accommodations
for the entry upon, and safe transportation while on board, and the
departure from the boat, of all horses and vehicles passing over
such ferry. They are required to be provided with all proper and
necessary servants and agents requisite for the safe and proper con-
ducting of the business of the ferry, and with all proper and suit-
able guards and barriers on the boat, for the security of the property
thus carried on the boat, and to prevent damage from such casualties
as it would naturally be exposed to, though there was ordinary care
on the part of the traveller. For neglect of duty in these respects
they may be charged, but the liability is different from that of com-
mon carriers. The case of such a traveller, though not entirely
similar, much more resembles that of a traveller upon a toll bridge
or turnpike road; who, while he uses the easement of another, yet
retains the possession and custody of his horse and wagon. The
party, thus driving his own horse upon the boat, and retaining the
custody of him, is bound, like the traveller on the toll bridge or
the turnpike road, to use ordinary care and oversight in respect to
his horse while on the boat, and if he does not use such ordinary
care and oversight in respect to him, and for want thereof the horse
leaps overboard, or receives on the boat some injury, all which
might and would have been avoided, if the party had used proper
care and diligence, such party must himself bear the loss which has
thus been occasioned by his own neglect.
In deciding upon the nature and extent of the liability of ferry-
men, and how far they are to be charged as common carriers, regard
is to be had to the nature of the employment, and especially to the
thing to be transported. This principle is practically applied in
the well-known distinction relating to the liability of the proprietors
of stagecoaches and other vehicles, as to the carriage of persons.
No person thus carried in a public vehicle can recover damages for
an injury to his person, if his own want of ordinary care contributed
to the injury. Such carriers are not common carriers, with all the
liabilities as such. One reason for the distinction is, that persons
thus carried are not and cannot be placed under the same custody
and control as bales of goods. Being intelligent beings, and having
the power of locomotion, and having the opportunity on the one
hand by their own voluntary acts, of exposing themselves to greater
hazard, and on the other of guarding to some extent against perils,
the law properly requires a person thus carried to exercise ordinary
care and vigilance to avoid exposure to danger; and if this is not
exercised, and an injury is sustained, the carrier is not liable
therefoi-i
■ Thfe same principle is also further illustrated in the various
414 CAEKIEES OF GOODS.
decisions of the courts, in cases of actions instituted for the purpose
of charging the carriers of slaves as common carriers of merchandise.
It was successfully, and certainly most properly contended, as to
the carriage of slaves, that in those States where slavery is allowed
by law, and where slaves are to some purposes treated as chattels,
yet as they are human beings, and cannot and ought not to be stored
away and confined like bales of goods, and placed under the abso-
lute control of the carrier, the principle of the common law appli-
cable to common carriers of merchandise could not be applied to the
carriers of slaves. This was so held in Boyce v. Anderson, 2 Pet.
150; Clark v. McDonald, 4 McCord, 223.
As having some bearing also on this question, we may allude to
the modification of the principle of general liability as common
carriers, in those cases where the owner of goods accompanies them
in their transit, retaining a certain control over them, as in Brind
V. Dale, 8 Car. & P. 207, where it was held, that if the owner of
goods accompanies them to take care of them, and is himself guilty
of negligence, he is not entitled to recover. This case also affirms,
as a rule of law, a principle ofteii found elsewhere, and which bears
directly, as we think, upon the case before us, " that a party cannot
recover, if his own negligence was as much the cause of the loss as
that of the defendant."
Thus we perceive that a modification of the liability attached to
common carriers occurs, as the nature of the thing to be carried, and
the extent of the custody and control over it, by the carrier, varies.
We think that the propriety of such a modification of what is cer-
tainly a very stringent rule of liability, in reference to cases where
the entire custody and control of the property is not with the
carrier, is quite obvious.
The case of a traveller conveyed by means of a ferry-boat, where
the traveller enters upon the boat driving his horse attached to a
wagon, or other vehicle, selecting his own place upon the boat, and
continuing to retain under his own custody his horse and wagon,
neither committing it to the care of the ferryman or his servants,
or signifying any wish or purpose so to do, presents another instance
where the liability of the carrier must be considered as of a restricted
character; and, as in the case of a carrier of persons, duties devolve
upon the traveller, and he is bound to use ordinary care and dili-
gence in respect to his horse and vehicle, in order to prevent, as far
as he can, by such care, any injury occurring from fright, or from
other cause immediately resulting from the movements of the horse.
When such horse or other animal is not surrendered into the custody
of the ferryman, the driver is bound to do all that can be effected by
reasonable diligence' and supervision, to prevent a loss of his prop-
erty occasioned by his horse becoming restless or affrighted. If the
traveller wholly neglects his duty in this respect, leaving his horse
without any oversight, and the horse, without the fault of the ferry-
caeeiee's liability. 415
man, becomes affrighted and throws himself and the vehicle to
which he is attached overboard, when, by proper care and attention
of the driver, this casualty would in all reasonable probability have
been avoided, the loss must fall upon the traveller.
This case is to be decided by the application of these principles to
the agreed facts stated by the parties.
These, briefly stated, are as follows: The defendants keep and
maintain a ferry between Boston and Chelsea, and the plaintiff,
travelling with his horse and wagon loaded with merchandise, drove
the horse and wagon upon the ferry-boat of the defendants, paying
the usual toll for his horse and wagon. The plaintiif did not occupy
the place assigned him by the agent, but selected his own position;
no further objection being made after he had taken it. He did not
commit the charge of the horse and wagon to the particular custody
of the servant of the defendants, or express any wish or purpose to
do so. The horse had not. been accustomed to pass over upon this
ferry-boat. The plaintiff remained on board the boat, but left his
horse and was at some distance from him with no one to have an
oversight over him, or to restrain him, if frightened. In this state
of things, the horse became frightened at the ringing of the bell, as
the boat approached the shore, and sprang forward, struck the chain
throwil across the forward end of the boat, with such force as to
cause the hook connected with it to give way, and thereupon the
horse and wagon went overboard. The horse was drowned, and the
merchandise in the wagon greatly injured.
The facts, as stated, also show that the iron hook, by which the
chain was fastened, was defective and insufficient in strength for
the purposes it was designed to answer ; though the defendants and
their agent had no knowledge of that fact. This defect was one
for which the defendants were answerable, and which, under other
circumstances, might have charged them with the loss. But, unfor-
tunately for the plaintiff, the facts also show a want of ordinary
care and diligence on his part, in the oversight and care of his
horse, and that, by want of such care and oversight, this loss was
in all probability occasioned.
Every person is bound to use reasonable care to prevent damage
to his property, and if the injury is attributable to himself in part,
he cannot recover, although there may have been negligence on the
part of the other party also. This doctrine is fully sustained by
the case of Smith v. Smith, 2 Pick. 621, and by 2 Greenl. on Ev.
§§ 220, 473, and cases there cited. The court are of opinion that,
upon this ground, there must be
Judgment for the defendants.
416 CAKKIERS OF GOODSb
HAET V. CHICAGO, etc. E. CO.
69 Iowa, 485. 1886.
On the eighteenth day of April, 1883, plaintiff delivered to
defendant, at the city of Des Moines, one car-load of property,
which the latter undertook to transport to the town of Miller, in
Dakota Territory. The property shipped ia the car consisted of
six horses, two wagons, three sets of harness, a quantity of grain, a
lot of household and kitchen furniture, and personal effects. ■ The
contract under which the shipment was made provided that the
horses should be loaded, fed, watered, and cared for by the shipper
at his own expense, and that one man in charge of them would
be passed free on the train that carried the car. It also provided
that no liability would be assumed by the defendant on the horses
for more than $100 each, unless by special agreement noted on the
contract, and no such special agreement was noted on the contract.
Plaintiff placed a man in charge of the horses, and he was permitted
to, and did, ride in the car with them. When the train reached
Bancroft, in this State, it was discovered that the hay which was
carried in the car to be fed to the horses on the trip was on fire.
The car was broken open, and the man in charge of the horses was
found asleep. The train men and others present attempted to ex-
tinguish the fire, but before they succeeded in putting it out the
horses were killed, and the other property destroyed. This action
was brought to recover the value of the property. There was a
verdict and judgment for plaintiff, and defendant appeals.
Ebed , J. 1. There was evidence which tended to prove that the
fire was communicated to the car from a lantern which the man in
charge of the horses had taken into the car. This lantern was fur-
nished by plaintiff, and was taken into the car by his direction.
Defendant asked the Circuit Court to instruct the jury that if the fire
which destroyed the property was caused by a lighted lantern in the
sole use and control of plaintiff's servant, who was in the car in
charge of the property, plaintiff could not recover. The court
refused to give this instruction, but told the jury that, if the fire
was occasioned by the fault or negligence of plaintiff's servant, who
was in charge of the property, there could be no recovery. The jury
might have found from the evidence that the fire was communicated
to the hay from the lantern, but that plaintiff's servant was not
guilty of any negligence in the matter. The question presented by
this assignment of error, then, is whether a common carrier is
responsible for the injury or destruction of property while it is in
the course of transportation, when the injury is caused by some act
cakeiee's liability. 417
of the owner, but -which .is unattended with any negligence on the
part of the owner.
The carrier is held to be an insurer of the safety of the prop-
erty while he has it in possession as a carrier. His undertaking
for the care and safety of the property arises by the implication
of law out of the contract for its carriage. The rule which holds
him to be an insurer of the property is founded upon considera-
tion of public policy. The reason of the rule is that, as the car-
rier ordinarily has the absolute possession and control of the
property while it is in the course of shipment, he has the most
tempting opportunities for embezzlement or for fraudulent collusion
with others. Therefore, if it is lost or destroyed while in his cus-
tody, the policy of the law imposes the loss upon him. Coggs v,
Bernard, 2 Ld. Raym. 909; Forward v. Pittard, 1 Durn. & E. 27
[385] ; Riley v. Home, 5 Ring. 217 [461] ; Thomas v. Railway Co.,
10 Mete. 472 ; Roberts v. Turner, 12 Johns. 232 [320] ; Moses v.
Railway Co., 24 N. H. 71; Rixford v. Smith, 52 id. 355. His
undertaking for the safety of the property, however, is not absolute.
He has never been held to be an insurer against injuries occasioned
by the act of God, or the public enemy, and there is no reason why
he should be; and it is equally clear, we think, that there is no
consideration of policy which demands that he should be held to
account to the owner for an injury which is occasioned by the
owner's own act; and whether the act of the owner by which the
injury was caused amounted to negligence is immaterial also. If
the immediate cause of the loss was the act of the owner, as between
the parties, absolute justice demands that the loss should fall upon
him, rather than upon the one who has been guilty of no wrong;
and it can make no difference that the act cannot be said to be either
wrongful or negligent. If, then, the fire which occasioned the loss
in question was ignited by the lantern which plaintiff's servant, by
his direction, took into the car, and which, at the time, was in the
exclusive control and care of the servant, defendant is not liable,
and the question whether the servant handled it carefully or other-
wise is not material. This view is abundantly sustained by the
authorities. See Hutch. Carr., § 216, and eases cited in the note;
also Lawson Carr. §§ 19, 23.
[The other paragraphs of the opinion relate to the validity of a
contract purporting to limit defendant's liability. The Court holds
that in this respect there was no error.]
The judgment of the Circuit Court will be Reversed.
418 CAEEIEES OF GOODS.
d. Nature of goods.
CLAEKE V. ROCHESTER, etc. R. CO.
14 N. Y. 571. 1856.
The action was brought in the Supreme Court, to recover damages
for the loss of a horse, by means of the alleged negligence of the de-
fendants as common carriers. On the trial before W. F. Allen, J.,
at the Oneida Circuit, in October, 1853, it appeared that the plaintiffs
embarked four horses on one of the defendants' cars, at Rochester,
to be carried, for hire, eastward the whole length of the defendants'
road, and beyond, and that when the train arrived at Auburn it was
found that one of them was dead. This horse had a halter around
his head and nose, which was tied to a staple driven into the side of
the car. When found, he was lying upon his side, his head still
held up by the halter, and blood was running from his nostrils.
On the part of the defence it was shown that one of the plaintiffs
was present when the horses were put into the car, and assisted in
fastening the one which was killed. It appeared that one of the
plaintiffs was allowed, in the bargain for the carriage, a passage for
himself on the train which carried the horses, there being a passen-
ger car attached to that train, but that he in fact took passage in a
passenger train of the defendants, which started at a later hour, and
which passed the cattle train before it reached Auburn. There was
evidence pro and con, as to whether this car was a suitable one for
the transportation of horses ; the plaintiffs' witnesses testify that it
was too low, and those of the defendants that it was one of the kind
commonly used for carrying horses.
The defendants' counsel moved for a nonsuit, on the ground that
the defendants were not responsible for the class of injuries which
result, wholly or in part, from the conduct of animals intrusted to
them to carry. They also contended that it was the duty of the
plaintiff, under the facts proved, to have gone in the train with the
horses and to have taken care of them, and that the defendants' duty
was limited to transporting the car which contained them in safety.
The motion was denied, and the defendants excepted.
The judge left it to the jury to determine whether, by the con-
tract, the plaintiff was to go with the horses and take care of them,
stating that in that case the defendants were not responsible. He
charged that, if such was not the contract, the defendants were
responsible, unless the injury was received by a danger incident to
this mode of carriage of this species of property, and which the
defendants could not, by the exercise of diligence and care, prevent,
or by inevitable accident; that, in the absence of any agreement to
caeeier's liability. 419
the contrary, it was the business of the defendants to provide a per-
son to look after the horses on their passage, if their safety required
such oversight. The defendants' counsel excepted, and there was
a verdict for the plaintiffs. The judgment having been affirmed at
a general term in the fifth district, the defendants appealed.
Dbnio, C. J. The fact that the plaintiff was allowed a passage
for himself on the train in which his horses were carried did not
prove conclusively, if at all, that he was to attend to their safety
during the journey. It may very well be that he desired to be
present at the time and place of delivery in order to take care of
them there, and that the privilege of taking passage in the same
train was allowed him for that purpose. The charge which per-
mitted the jury to find an agreement which would relieve the
defendants from the obligation to keep an oversight of the animals
was as favorable to them as they could require.
As to the carrier's liability respecting the transportation of this
sort of property, several theories have been suggested on the argu-
ment and in our consultations upon this case.
The plaintiffs contend for the rule that the carrier is bound to
transport in safety and deliver at all events, save only the known
cases in which a carrier of ordinary chattels is excused, while the
defendants maintain that they are not insurers at all against the
class of accidents which arise from the vitality of the freight. We
are of opinion that neither of these positions is well taken. A bale
of goods or other inanimate chattel may be so stowed as that abso-
lute safety may be attained, except in transportation by water,
where the carrier usually excepts the perils of the navigation, and
except in cases of ilievitable accident. The rule, established from
motives of policy, which charges the carrier in almost all cases, is
not therefore unreasonable in its application to such property. But
the carrier of animals, by a mode of conveyance opposed to their
habits and instincts, has no such means of securing absolute safety.
They may die of fright, or by refusing to eat, or they may, notwith-
standing every precaution, destroy themselves in attempting to
break away from the fastenings by which they are secured in the
vehicle used to transport them, or they may kill each other. In
such cases, supposing all proper care and foresight to have been
exercised by the carrier, it would be unreasonable in a high degree
to charge him with the loss. The reasons sta,ted by Chief Justice
Marshall, in pronouncing the judgment of the Supreme Court of the
United States, in Boyce v. Anderson, 2 Peters, 150, have consider-
able application to this case. It was there held that the carrier of
slaves was not an insurer of their safety, but was liable only for
ordinary neglect; and this was put mainly upon the ground that he
could not have the same absolute control over them that he has over
inanimate matter. Where, however, the cause of the damage for
which recompense is sought is unconnected with the conduct or pro-
420 CAEEIEES OF GOODS.
pensities of the animal undertaken to be carried, the ordinary re-
sponsibilities of the carrier should attach. Palmer v. The Grand
Junction Eailway Company, 4 Mess. & Wels. 749, was the case of
an action against the railway company for negligence in carrying
horses, by which one was killed and others injured; but the damage
was occasioned by the carriages running off the track of the road
down an embankment, and the case did not turn at all on the pecu-
liarity of the freight, but mainly on the question whether the
defendants had limited their responsibility by a notice. The jury
found that notice had not been given and that the defendants had
been guilty of gross negligence. Mr. Baron Parke, in giving the
opinion of the court, declared that the common-law duty of carriers
was cast upon the defendants. The precise question now before us
was not discussed, but it was assumed that the law of carriers
applied to the case. There is no reason why it should not, in all
cases of accident unconnected with the conduct of the animals. But
the rule which would exempt the carrier altogether from accidents
arising out of the peculiar character of the freight, irrespective of
the question of negligence, would be equally unreasonable. It
would relieve the carrier altogether from those necessary precau-
tions which any person becoming the bailee, for hire, of animals is
bound to exercise, and the owner, where he did not himself assume
the duty of seeing to them, would be wholly at the mercy of the
carrier. The nature of the case does not call for any such relaxa-
tion of the rule, and, considering the law of carriers to be estab-
lished upon considerations of sound policy, we would not depart
from it, except where the reason upon which it is based wholly fails,
and then no further than the cause for the exception requires.
We cannot, therefore, assent to the position of the counsel for
either of the parties in this case. The learned judge who tried this
case gave to the jury the true principle of liability in such cases.
Laying out of view the idea of inevitable accident, which it was not
pretended had occurred, he instructed them that the defendants were
responsible, unless the damage was caused by an occurrence incident
to the carriage of animals in a railroad car, and which the defendants
could not, by the exercise of diligence and care, have prevented.
This accords with our understanding of the law.
There was sufficient evidence of negligence to be submitted to the
jury. Besides what was said by the witness as to the size of the
car, it was quite probable that if a proper watch had been kept,
the horse would have been saved from strangulation. It was for
the jury to say whether prudence did not require that a servant of
the defendants should have been stationed in or about the horse-car,
so as to observe the conduct and condition of the animals constantly
or at short intervals.
We think no error was committed on the trial to the prejudice of
the defendants, and that the judgment should be affirmed.
carrier's liability. 421
EVANS V. FITCHBUKG E. CO.
Ill Mass. 142. 18.72.
Tort against common carriers to recover for injuries to the
plaintifi's horse.
Ames, J. According to the established, rule as to the liability of
a common carrier, he is understood to guarantee that (with the well-
known exception of the act of God and of public enemies) the goods
intrusted to him shall seasonably reach their destination, and that'
they shall receive no injury from the manner in which their trans-
portation is accomplished. But he is not, necessarily and under all
circumstances, responsible for the condition in which they may be
found upon their arrival. The ordinary and natural decay of fruit,
vegetables, and other perishable articles; the fermentation, evapora-
tion, or unavoidable leakage of liquids; the spontaneous combustion
of some kinds of goods, — are matters to which the implied obligation
of the carrier, as an insurer, does not extend. Story on Bailments,
§§ 492 a, 576. He is liable for all accidents and mismanagement
incident to the transportation and to the means and appliances by
which it is effected; but not for injuries produced by, or resulting
from, the inherent defects or essential qualities of the articles which
he undertakes to transport. The extent of his duty in this respect
is to take all reasonable care and use all proper precautions to pre-
vent such injuries, or to diminish their effect, as far as he can; but
his liability, in such cases, is by no means that of an insurer.
Upon receiving these horses for transportation, without any special
contract limiting their liability, the defendants incurred the general
obligation of common carriers. They thereby became responsible
for the safe treatment of the animals, from the moment they received
them until the carriages in which they were conveyed were unloaded.
Moffat V. Great Western Railway Co., 15 Law T. n. s. 630. They
would be unconditionally liable for all injuries occasioned by the
improper construction or unsafe condition of the carriage in which
the horses were conveyed, or by its improper position in the train,
or by the want of reasonable equipment, or by any mismanagement,
or want of due care, or by any other accident (not within the well-
known exception) affecting either the train generally or that partic-
ular carriage. But the transportation of horses and other domestic
animals is not subject to precisely the same rules as that of pack-
ages and inanimate chattels. Living animals have excitabilities
and volitions of their own which greatly increase the risks and
difficulties of management. They are carried in a mode entirely
opposed to their instincts and habits; they may be made uncon-
trollable by fright, or, notwithstanding every precaution, may
422 OAERIEES OF GOODS.
destroy themselves in attempting to break loose, or may kill each
other. If the injury in tliis case was produced by the fright, res-
tiveness, or viciousness of the animals, and if the defendants exer-
cised all proper care and foresight to prevent it, it would be
unreasonable to hold them responsible for the loss. Clark v.
Rochester & Syracuse Eailroad Co., 4 Kern. 570. Thus it has been
held that if horses or other animals are transported by water, and
in consequence of a storm they break down the partition between
them, and by kicking each other some of them are killed, the carrier
will not be held responsible. Laurence v. Aberdein, 5 B. & Aid.
107. Story on Bailments, § 576. Angell on Carriers, 214 a. The
carrier of cattle is not responsible for injuries resulting from their
viciousness of disposition, and the question what was the cause of
the injury is one of fact for the jury. Hall v. Eenfro, 3 Met. (Ky.)
51 [313]. And in a New York case. Conger v. Hudson Eiver Eail-
road Co., 6 Duer, 375, Mr. Justice Woodruff says, in behalf of the
court : " We are not able to perceive any reason upon which the
shrinkage of the plaintiff's cattle, their disposition to become res-
tive, and their trampling upon each other when some of them lie
down from fatigue, is not to be deemed an injury arising from the
nature and inherent character of the property carried, as truly as if
the property had been of any description of perishable goods."
It appears to uS, therefore, that the first instruction which the
defendants requested the court to give should have been given. If
the jury found that the defendants provided a suitable car, and took
all proper and reasonable precaution to prevent the occurrence of
such an accident, and that the damage was caused by the kicking of
one horse by another, the defendant was entitled to a verdict. That
is to say, they might be held to great vigilance, foresight, and care,
but they were not absolutely liable as insurers against injuries of
that kind. As there was evidence also tending to show that the
halter was attached by the plaintiff to the jaw of one of the horses
in a manner which might cause or increase restiveness and bad tem-
per, and also evidence that their shoes were not taken off, the
defendants were entitled to the instruction that if the injuries were
caused by the fault or neglect of the plaintiff in these particulars,
he could not recover. This court has recently decided that for
unavoidable injuries done by cattle to themselves or each other, in
their passage, the common carrier is not liable. Smith v. New
Haven & Northampton Eailroad Co., 12 Allen, 531. This is another
mode of saying that a railroad corporation, in undertaking the trans-
portation of cattle, does not insure their safety against injuries occa-
sioned by their viciousness and unruly conduct. Kendall v. London
& Southwestern Eailway Co., L. E. 7 Ex. 373. The jury should
therefore have been instructed that if the injury happened in that
way, and if the defendants exercised proper care and foresight in
placing and securing the horses while under their charge, they are
CAllRIER'S LIABILITY.
423
not to be held liable iu tbis action. Upon this point tbe burden of
proof may be upon the defendants, but they should have been per-
mitted to go to the jury upon the question whether there had been
reasonable care on their part.
Exceptions sustained.
KINNICK BKOS. v. CHICAGO, etc. E. CO.
69 Iowa, 665. 1886.
Plaintiff delivered a ri&iir^^ ^ -feOg^ *° defendant at Drakeville,
in this State, for transportation to the Union stock-yards at Chicago.
A passenger train on defendant's road was thrown from the track
near Ottawa, Illinois, and the obstruction caused by the accident
delayed the tralnoii whif^i ^p v}''^^']^^'\,}',9S,^ ^,fT'>,fb^]iJ"^d ffv
^welye ^piiTi^ Wlien ttje tr^n jg;riYgtL at^hjcagg,. gighjieen
Ihe hogs were dead, and others were so injured as to depreciate
their value m market. Plaintiff brpugljt this action to jLecoverJiie
da
_^ ges_Qccasioned by the "irijury, alleging that defendant had vio-
lated its undertaking as a common carrier to deliver the hogs in
Chicago within a reasonable time and in good order; also, that the
injury was caused by defendant's negligence. The de:^en(^ani}^in ^ iljs
answer denied tjiat the delay in dt^livering- , theJjjOgs j|n Chicago was
fifi-Hpipj^ hy anyjiepfligence on its part, and averred that the train was
delayed by unavoidable accident ; and averred that the hogs were
loaded on the car by plaintiffs; that they had full charge of the
work of loading them ; that, without defendant's knowledge or con-
sent, they overloaded the car; and that the injury to the hogs while
being transported was occasioned by such overloading. Tl}e_,veTdict
_and^ iudgmgnt-yere^^foi;jlaintiffe, a motion for a new trial being
denied, pefendant appealed.
Eeed, J. T. Deifl{iagjit-[ ofEar^i^ jyijence on the^ trial to pr^ve
that^i^wreck which obstructed the track, and delayed the trainon
which the hogs were being transported, occur£ed jg,itIioii^fa(Ult-pq i^g {
forward ag^soon after the accident^ as practicable ; but tlie evidence
ed_by the court on the plaintiff's obiectTon. Defendant
sought to prove these^fe^ts in excuse of the delay in delivering the-
hogs at Chicago. ThHs^was no express undertaking by the defend-i
ant to transport^e property to its destination within any speciiied
time. The la;Q^owever, implies an a^dertaking by it to deliver it
there within a reasonable time. Bu^Wth reference to the time to
be occupied in transporting the property, the carrier is not held to
the extraordinary liability to which he is held for its safety while
it is in his custody and he may excuse delay in its delivery by proof
424
CAEKIEES OF GOODS.
of misfortune or accident, although, not inevitable or produced by
act of God (Hutch. Carr., § 330; Parsons v. Hardy, 14 Wend. 215);
so that, if plaintiffs had sought to recover merely on the ground that
there was delay in the transportation of the property, there would
be no doubt, perhaps, but defendant would have been entitled to
show the facts which the excluded evidence would have tended to
prove as an excuse for the delay. But that is not the substance of
their complaint.
It is true, they allege that there was delay, but they do not claim
that they were damaged by the mere fact of the delay, and the
ground upon which they seek to recover is that the property was in
bad condition when it reached its destination. It was not disputed
that the property was in bad condition when it arrived in Chicago.
The burden was therefore on defendant to establish facts which
would relieve it from liability because of its bad condition. It was
an insurer of the safety of the property while in its charge for trans-
portation, and it was not released from that extraordinary liability
for its care by the accident which caused the delay, even though it
offered an excuse for the delay. Itwa.^Jiojiiii^nni^ithHtp.T^^ing,.^"
g,ciAienii, t|Q->uap-t2;9 ^'f;1ip-%li cl^ffseQ "^"S^g cl'^llj'Ft^^q ^^ai^L'^'fJI ft"
offer to show that it had unloaded them f ropi the cars, or that it was
impossible to unload them, or that it was not necessary for their
safety to unload them, or that the injury did not occur in con-
sequence of its failure to give them such personal attention as was
essential to their safety. But the extent of its offer was to show
facts which tended merely to excuse the delay in their transporta-
tion. We are very clear that those facts do not afford an excuse for
the bad condition of the property at the time of its delivery. The
evidence was immaterial, and was rightly excluded.
II. It was shown on the trial that it is the disposition of hogs,
when being transported on cars, to struggle to get near to the doors
when the train is standing, if the weather is hot, and to crowd away
from them if it is cold, and that in doing this they are apt to
"pile up," and that when this occurs those beneath are liable to be
smothered, unless they receive immediate attention. The court
instructed the jury, in effect, that, when the defendant contracted
to carry the hogs to their destination, the law imposed upon it the
obligation to carry them in a proper manner, and deliver them in
good condition, considering the ordinary perils of the road, and
that, if it failed to deliver them in such condition, it was respon-
sible in damages for such failure. The instruction holds that
defendant was an insurer of the safety of t"he property, and that its
cakkiek's liability.
425
liability extended to all injuries to the property during its trans-
portation, except such as may have resulted from the ordinary perils
of the road, such as the usual shrinkage in weight, and such loss
from death as would ordinarily occur on the trip with good care and
management. Counsel for appellant contend that, as the cause
of the injury in question was connected with the natural propen-
sities and characteristics of the property, it was one against which
the carrier is held not to be an insurer, and that the instruction is
erroneous on that ground.
It was held in effect, by this court in McCoy v. Keokuk & D. M.
E'y Co., 44 Iowa, 424, that, -akgfl^the cause q^ ^,?iSliS&\^\^^'i^
yafinrnnRnHfi is .^QjTtyljt^^i H pqflnfia|gd w^jji th^nha:^a,c^:R|; or p]ropi;in§itJfta
^nimals underjaken tc
of thfiTcarrier dj^s noji'altg.ch^/^ The reasons for the exception to the
general rule as to the liabilityVf the carrier, which arises when he
undertakes to transport live-stpck, are very apparent. There are
dangers incident to the transpottation of that character of property
which are created entirely by the disposition and propensities of the
animals, and against which it is often impossible for the carrier to
make adequate provision. But the rule of the common law is modi-
fied only so far as is reiylered necessary by the character of the
carrier is held
the
which provision could not be made. Th^y-ii^rvniight have been
■Prevented eijAer Jby unloading the hogs_pr giyiQS.4iheni_persQnal
^^n^W^Jt^lsJ^I, tIi&^rZ!"!^hereri^^ cpuld_not
fave" been_^done,,.aQd :a^think^"defenda^wa"sIbound to do^'ilEr'^s
the?5was nothing shown" whichTen'ded to take'the case out of the
general rule, the court was right in instructing that defendant was
bound by that rule.
III. Plaintiffs loaded the hogs on to the car without assistance or
direction from defendant's agents or employees. Defendant claimed
that the car was overloaded, and that the injury was caused by such
overloading. The court instructed the jury that, if defendant had
knowledge of the number of hogs in the car, and of the condition of
the car as to the loading when it received it, or if it might have
known these facts, it could not escape liability for the damage on
the ground that the car was overloaded. Exception is taken to this
instruction. But we think it correct. It is not claimed that there
was any deceit or misrepresentation by plaintiff as to the condition
426 CAERIEES OF GOODS.
of the car or to its loading. Defendant's agent, who made the con-
tract for it, went to the car after the loading was done, and closed
and sealed it. There was nothing to prevent him from seeing the
manner in which it was loaded. As defendant received the property
under these circumstances, and undertook to transport it to its des-
tination, it should be held to have assumed all the liabilities of a
common carrier with reference to it.
The judgment of the District Court will be
Affirmed.
WILKE V. ILLINOIS CENTEAL E, CO.
153 Iowa, 695; 133 N. W. R. 746. 1912.
McClain, J. Plaintiff shipped two car loads of hogs over defend-
ant's road, one from Webster City, and the other from Wilke, to
Chicago, the two ears being contained in the same train ; and, when
the cars reached their destination, some of the hogs were found to have
died, according to plaintiff's allegations, as the result of excessive
heat. [The specific charges of negligence alleged to have occasioned
the loss for which plaintiff claimed damages were that defendant left
the train containing the two cars standing for several hours during
transit in a deep cut where no breeze could reach the hogs in such
cars, disregarding notification by the person in charge of the animals
that they were suffering from heat and the request that the train be
moved to some place where the breeze could reach the animals so as
to prevent injury to them from the excessive heat.]
The principal complaint on behalf of appellant is as to the giving of
instructions in which it was assumed that the amendment to plaintiff's
petition alleging that the hogs were alive and in good, sound, healthy
condition when delivered to defendant for shipment, and that, when
they arrived at their destination, some of them were dead, and the
others greatly shrunk in weight and sick and in bad .condition, such
loss and damages occurring while the hogs were in defendant's care
during transportation, stated an independent cause of action, with
reference to which the jurors were instructed that proof of the fact
alleged by a preponderance of the evidence would require a verdict in
favor of plaintiff unless the jury should " find that the defendant has
established, by a preponderance of the evidence, its second defense, in
which event your verdict should be in favor of the defendant ; " th?
second defense being that the plaintiff was in charge of the stock
during shipment, and that any loss during said shipment, by reason
of sudden rise in temperature and excessive heat, was chargeable to
plaintiff, and, further, that such loss was due to the contributory
CABEIEB'S lilABILITT. 427
negligence of plaintiff, and not to the negligence of the defendant.
And, in this connection, the court further charged, that the verdict
should be in favor of the defendant if it had been shown by a pre-
ponderance of the evidence that with respect to the stock defendant
"exercised the highest possible degree of foresight, pains, and care
reasonably to be expected of it." In another instruction the jurors
were told that, if plaintifE had proved that the stock " was in good
condition when delivered to the carrier, but was in bad condition
when it arrived at destination, the burden of proof is on the carrier to
show by a preponderance of the evidence, in order to avoid liability,
that it exercised with respect to said stock the highest possible degree
of foresight, pains, and care reasonably to be expected of it."
In the case of Colsch v. Chicago, M. & St. P. E. Co., 149 Iowa, 176,
finally decided in this court after the trial of the present action in the
lower court, it was held that for injuries resulting to live stock during
transportation, by reason of changes in temperature, the common
carrier is not liable as an insurer, but only for negligence ; and that if
the owner or his agent accompanies the stock, the burden is on him
to show that negligence of defendant occasioned the injury, and that
in such cases no presumption of negligence arises merely from proof
of the fact of loss or damage, the shipper in charge of the stock
during transit being presumed to know the cause of such loss or
damage as well as the carrier. On the other hand, the rule is recog-
nized in that case that, if the shipper or his agent does not accompany
the stock in charge of it, the burden rests upon the carrier, which
alone is presumed under such circumstances to have knowledge of the
fact, to prove by a preponderance of the evidence that the loss or
damage did not result from any cause attributable to defendant's
negligence. The reasons for these rules are fully stated in that
opinion, and need not be elaborated here. See Hosteller v. Iowa
Central R. Co., 153 Iowa, 390, (decided at present term). In
view of these rules, we have no difficulty in reaching the conclusion
that the instructions above referred to were erroneous to defendant's
prejudice.
In the first place, it appears beyond question that the agent of the
plaintijS did accompany the stock during at least a portion of the
transportation for the purpose of caring for it, and that the only
undue exposure to heat which the evidence tended to establish
occurred during the time when the stock was accompanied by and in
charge of defendant's said agent. To this extent at least the burden
was on the plaintiff to show by a preponderance of the evidence that
such exposure was the result of, or was contributed to by, defendant's
negligence without the fault or neglect of the agent of plaintiff.
In the second place, the instructions would have been erroneous
even in the absence of any evidence that plaintiff or his agent accom-
panied the stock, in requiring defendant to show by a preponderance
of the evidence that with respect to the stock, defendant exercised the
428 CAERIEES OF GOODS.
highest possible degree of foresight, pains, and care reasonably to be
expected of it. The measure of care required of the carrier to avoid
injury to the stock in transport from changes in temperature is
reasonable care, and not the highest possible degree of care. Colsch
V. Chicago, M. & St. P. E. Co., supra.
The trial court did not in any of its instructions refer specifically
to the fact that plaintiff's agent accompanied the stock as having any
bearing on the sufB.ciency of the evidence as to defendant's negligence.
Something was said ■with reference to the burden of proof resting on
plaintiff, under the issue raised by its original petition and the answer
thereto relating to the specific negligence charged in stopping the
train on a very hot day in a deep cut, and keeping the stock in that
situation for a long period of time, resulting, as alleged, in loss of and
damages to plaintiff's hogs, to show by a preponderance of the evi-
dence that plaintiff was himself free from any negligence contribut-
ing to such injury; but this did not give to the defendant the full
benefit to which it was entitled under the issue raised under the
amendment to the petition of the fact that plaintiff's agent did accom-
pany the stock during the period of this specifically alleged negligent
conduct of the defendant. The court seems to have assumed that
without the amendment to its answer offered by the defendant at the
conclusion of the evidence, which the court refused to entertain, relat-
ing to the contract of shipment, there was nothing in the case to
render the fact that plaintiff's agent accompanied the stock in any way
material. As will appear from an examination of the opinion in the
Colsch case, supra, it is evident that the fact was material, not as
affecting the degree of care, but as affecting the burden with reference
to proof of defendant's negligence, and that for this purpose it is the
fact rather than the specific contract which is controlling. If, in fact,
the shipper or his agent, with the carrier's consent, accompanies the
stock during transportation for the purpose of caring for it so far as
practicable, then the shipper is in as good a position as the carrier to
know what was the cause of the loss or injury, and whether such loss
or injury was the result of the carrier's negligence, and the burden
of proving the carrier's negligence therefore remains in the nature of
things with the plaintiff to show that as to matters reasonably within
his knowledge while accompanying the stock the fault occasioning the
injury was not his but that of the carrier. Grieve v. Illinois Central
E. Co., 104 Iowa, 659 ; Terre Haute, etc., E. Co. v. Sherwood, 132 Ind.
129 (31 N. E. 781, 17 L. E. A. 339, 32 Am. St. Eep. 239 and note) ;
St. Louis & S. P. E. Co. V. Wells, 81 Ark. 469 (99 S. W. 534) ; Libby
V. St. Louis, I. M. & S. E. Co., 137 Mo. App. 276 (117 S. W. 659);
Cleve V. Chicago, B. & Q. E. Co., 77 Neb. 166 (108 N. W. 982, 124 Am.
St. Eep. 837) ; 15 Am. & Eng. Ann. Gas., 33, and note.
The judgment must be reversed.
caeriee's liability/ 429
FAUCHER V. WILSON.
68 N. H. 338 ; 38 Atl. R. 1002 ; 39 L. R. A. 431. 1895.
Case, against the defendant as a common carrier of goods, for the
loss of a hogshead of molasses. Facts found by the court.
The defendant was engaged in the business of trucking goods for
hire from the railway freight station in Manchester to different stores
in the city. On one of the warmest days in the summer of 1891, he
transported a hogshead of molasses from the freight station to the
plaintiff's store on Elm street, a distance of a little over half a mile.
By reason of the fermentation of the molasses, the hogshead burst
while being unloaded. The plaintiff's loss was not caused by any
want of ordinary care on the part of the defendant. Each party
moved for judgment in his favor.
Chase, J. It is not found that the defendant was a common car-
rier. The finding, that he was engaged in the business of trucking
goods for hire from the railway freight station to different stores in
the city, lacks the distinguishing characteristic of a common carrier,
namely, the holding of oneself out as ready " to carry at reasonable
rates such commodities as are in his line of business, for all persons
who offer them, as early as his means will allow." Sheldon v. Eobin-
son, 7 N. H. 157, 163 ; Elkins v. Railroad, 23 N. H. 275 ; Moses v.
Railroad, 24 N. H. 71, 80, 88, 89 ; McDuffee v. Railroad, 52 N. H.
430, 448;. State v. Express Co., 60 N. H. 219, 261 ; 2 Kent 597, 598 ;
Sto. Bailm., ss. 495, 508 ; Brind v. Dale, 8 C. & P. 207 ; Liver Alkali
Co. V. Johnson, L. R. 9 Exch. 338, 343 ; Scaife v. Farrant, L. R. 10
Exch. 358, 365; Nugent v. Smith, 1 C. P. Div. 423 ; Fish v. Chapman,
2 Kelly (Ga.) 349 ; Allen v. Sackrider, 37 N. Y. 341 [299] ; Lough v.
Outerbridge, 143 N, Y. 271, 278. The inference from this finding is
as strong, to say the least, that the defendant's business was limited
to trucking for particular customers, at prices fixed in each case by
special contract, as it is that he held himself out as ready to truck for
the public indiscriminately at reasonable prices. If such was the
character of his business, he was not an insurer of the plaintiff's
goods, — there being no special contract of insurance, — and was only
bound to exercise ordinary care in respect to them.
If the defendant was a common carrier, he is not liable for the
plaintiff's loss, since it happened from the operation of natural laws,
which a common carrier does not insure against. Hudson v. Baxen-
dale, 2 H. & N. 575 ; Great Western Railway Co. v. Blower, 20 W. R.
776 ; Nugent v. Smith, 1 C. P. Div. 423 ; Nelson v. Woodruff, 1 Black,
156; Smith v. Railroad, 12 Allen, 531, 533; Swetland v. Railroad,
102 Mass. 276, 282; Dow v. Packet Co., 84 Me. 490; Coupland v.
Railroad, 61 Conn. 531 ; Rixford v. Smith, 52 N. H. 355. In Farrar
V. Adams, 1 Bull. N. P. 69, it is said that " if an action were "brought
430 . CAEEIERS OF GOODS.
against a carrier for negligently driving his cart so that a pipe of wine
was burst and was lost, it would be good evidence for the defendant
that the wine was upon the ferment, and when the pipe burst he was
driving gently."
It being found that the plaintiff's loss was not due to any want of
ordinary care on the part of the defendant, there must be
judgment for the defendant.
e. Carrier's Fault or Negligence.
SCOVILL V. GEIFFITH.
12 N. Y. 509. 1855.
Action commenced in the Supreme Court in 1849 against the
defendant as a common carrier to recover for his omission to trans-
port to and deliver at Albany merchandise, shipped by the plaintiffs
on board the defendant's boat at New York, consigned to Albany,
whereby, as the plaintiffs alleged, the property, being of the value
of three hundred and twenty-four dollars, became lost to them, and
they also lost the benefit of the sale of the same to one Greenman,
to their damage of one hundred dollars; the plaintiffs demanded
judgment for four hundred and twenty-four dollars, being the amount
of the value of the merchandise and the damages alleged to have
been sustained by not selling it.
The cause was tried in the city of New York, before Mr. Justice
Edwards and a jury. It appeared that on and prior to the 24th of
May, 1849, the defendant was the owner of a line of barges, known
as "Griffith's New York and Troy Line," employed in transporting
goods and merchandise on the Hudson River; that the plaintiffs were
merchants in the city of New York; that prior to the delivery of
the property in question on board the defendant's boat, the plaintiffs
had contracted to sell it to one Greenman, they to deliver it at the
store of Ainsworth & Northrop, in Albany, when it was to become
his. A witness on the part of the plaintiffs testified that on the
23d of May, the defendant agreed with the plaintiffs to transport all
the merchandise they might desire to send to Troy or Albany at six
cents a package; that the defendant, on this occasion, informed the
plaintiffs that his boats did not go to Albany, but that when they
wished the goods to go to Albany, to send the carman with them to
his office, and he would give directions as to the boat they should be
delivered upon. White, a carman, sworn on behalf of the plain-
tiffs, testified that on the 24th of May he, at the plaintiff's request,
caekiee's liability. 431
delivered nine packages of medicine on board the barge "McCoun,"
then lying at one of the piers in New York, she being one of the
boats belonging to the defendant's line, to be transported and
delivered at Albany; that when he received the packages he took
with him the plaintiff's receipt book with the receipt hereinafter
set out written therein, except the name of the boat and the signa-
ture thereto; that he called with the goods at the office of the
defendant's line to get directions as to the boat upon which they
should be delivered; that he showed the receipt written in the book
to a person in the office, who directed him to deliver the packages
on board the "MoGoun;" that on going to the boat the captain,
Wilson, when he saw the goods were marked for Albany, refused
to receive them, saying the boat did not go there; but upon being
informed by the witness that there was an understanding with the
defendant that they should be taken on the boat, he received them,
inserted the name of the boat in the receipt, and signed it. The
receipt wa^s as follows : —
" New York, May 24, 1849.
"Eeceived from A. L. Scovill & Co., in good order, on board the
Griffith's line, bound for Albany, marked S., S. H. Greenman.
" Care of Ainsworth & Northrop, \ McCoun,
"No. 15 State street, Albany. ) 9 boxes Mdse.
"Wilson."
This witness further testified: That when the captain saw the
packages marked as stated in the above receipt, he said they should
be marked Troy instead of Albany, and that he, the witness, replied
that they were correctly marked, and showed him the above receipt
prepared for signature, and also informed him that he was directed
at the office to deliver them on that boat; that the captain still
declining to receive and receipt them, he commenced reloading them
on his cart, when the captain told him that his boat did not go to
Albany, but to leave the goods and he would take them ; that there-
upon they were delivered on board and the receipt signed. The
plaintiffs further proved, that the usual time for transporting mer-
chandise from New York to Albany was twenty-four hours; that
Greenman, who resided in the western part of the State, advised
Ainsworth & Northrop that the property would be delivered there
for him about the 26th of May, and that he called and sent there for
it several times soon after that date, and that, it not arriving, he
gave them no further directions in reference to it. The plaintiffs
further proved that the packages were taken by the boat to Troy,
where they remained in the defendant's warehouse until the 7th of
July, 1849, when they were delivered by the defendant to a carrier
to be taken to Albany and delivered to Ainsworth & Northrop; and
that the carrier on that day took them to the latter firm at Albany
and offered to deliver them, subject to the payment of five shillings,
432 CARRIERS OF GOODS.
his charge for bringing them from Troy ; but the latter firm refused
to receive the goods because, as they stated, the time for delivery
had passed and they had orders not to receive the property; and
that thereupon the carrier stored the packages in Albany, where they
remained at the time of the trial. The plaintiff proved the value of
the property to be $324.
The court, among other things, charged the jury that if, from the
testimony, they should find that there was an agreement by the
defendant, or those whose acts would bind him, to carry the prop-
erty in question to Albany, then a question arose as to the rule of
damages. That mere delay, although unreasonable, did not make
the defendant -chargeable for the value of the goods. That in this
case there was no claim that the property was injured or deteriorated
hy the delay. That if they had been materially injured or deteri-
orated, this might authorize an abandonment of them by the owner,
and give the plaintiffs a right to charge the defendant for their
value ; but as it was, the rule would be the difference between the
highest market price of the goods, when or after they should have
been delivered, and when they were actually tendered, and the
expense the plaintiffs were put to by the delay. To this portion of
the charge there was no exception.
The plaintiffs' counsel requested the judge to charge, that if there
was an agreement to carry the goods to Albany, that unreasonable
delay in the delivery of goods made the defendant liable to account
for their full value ; that the law imposed this liability upon com-
mon carriers, as a penalty for delay, although it might not be so
with other bailees. The court refused to so charge, and the counsel
for the plaintiffs excepted. The jury rendered a verdict in favor
of the plaintiff for $10; and judgment was rendered in favor of the
defendants for the amount of their costs, less the $10. This judg-
ment was affirmed by the Supreme Court at a general term in the 1st
district. The plaintiffs appealed to this court.
Hand, J. The jury have found the contract of bailment in this
case, and assessed the damages for its violation by the defendant.
As to the time in which his contract is to be performed, a common
carrier is bound to use all reasonable diligence. That was not done
in this case ; and on the question of damages, the jury probably took
a view of the circumstances _ very favorable to the defendant. But
their verdict cannot be disturbed solely upon that ground. Nor did
the judge err in the admission of evidence as to the circumstances
under which the receipt was given. The proposition was not to
vary or explain the terms of the receipt; and the defendant had a
right to show, if such was the fact, that it was obtained from his
agent or servant under such circumstances as did not bind him.
There was no exception to the charge as given ; and the only ques-
tion really arising on this bill of exceptions is, whether the judge
should have told the jury that, if there was a contract to carry the
oareiek's liability. 433
goods to Albany, tlie plaintiffs were entitled, as a matter of law, to
recover the full value of the goods on 'account of the delay. The
plaintiffs asked for an unqualified charge on this point, without
reference to the motives of the defendant, or any circumstances that
might be supposed to explain the transaction. I think the judge
could not have charged as requested. The plaintiffs state in their
complaint that the property was wholly lost to them, and that they
lost the sale to Greenman. But the testimony does not sustain that
allegation; not in a legal sense;
Before the Code, a good way of ascertaining legal obligations was
by considering the remedies by which they were enforced. A sup-
posed uniform and universal remedy in all cases has, in a measure,
deprived us of these aids ; but still some light may be obtained from
analogy. This property was, from some cause, detained in Troy,
some half dozen miles from Albany, about six weeks; and the
defendant, during that time, made no effort to send it to its desti-
nation. This was inexcusable delay, and undoubtedly entitled the
plaintiffs to all real damages sustained by them which were the
natural consequence of the neglect. But it does not follow that
the plaintiffs had a right to refuse and abandon the property and
recover its full value. There is no evidence of a refusal to deliver,
nor, indeed, that the plaintiffs ever demanded the property or gave
the defendant notice that it had not been received. They were not
bound to do either to give them a right of action. But the judge
could not say to the jury, as matter of law, that there had been a
conversion ; nor does it appear that the property had deteriorated in
condition or had seriously depreciated in value, nor was it lost.
Where there has been a deterioration and loss, the carrier is liable.
Davis V. Garrett, 6 Bing. 716 [439] ; Ellis v. Turner, 8 T. E. 531 ; Story
on Bail. § 508. In Ellis v. Turner, which was an action on the
case, the carrier conveyed the goods beyond the place of destina-
tion, intending to deliver them on his return, but they were greatly
daraaged by the sinking of the vessel without any want of ordinary
care or attention of the master or crew, and the carrier was held
liable to make good the loss. Under the former system, to main-
tain trover against a carrier, there must have been an unjustifiable
refusal to deliver, or delivery to a wrong person, or sale or destruc-
tion, or some actual wrong or injurious conversion ; something more
than mere omission. Packard v. Getman, 4 Wend. 613; Hawkins
V. Hoffman, 6 Hill, 586; 2 Saund. E. 49. i. k. m. It was not
necessary that the wrong should be intentional; but, as a general
rule, a mere nonfeasance did not and does not work a conversion.
And indeed every unauthorized intermeddling with the property of
another is not a conversion. It was held by the Court of Exchequer
in England that the act of the ferryman in putting the horses of
the plaintiff on shore-out of his ferry-boat, though the jury should
find it was done wrongfully, was not a conversion of the property,
434 CAEEIEES OF GOODS.
unless done with the intent to convert it to his own use or that of
some third person, or unless the act had the eifect to destroy it or
change its quality. Fouldes v. Willoughby, 8 M. & W. 540. If it
had appeared in this case that the defendant, from gross negligence,
evincing a disregard of his contract and the rights of the plaintiffs,
had carried the property by and on to another' port, and had, with
actual knowledge of all the facts, kept it several weeks, I am not
prepared to say the jury might not have found that there was some-
thing more than omission, or that the evidence would not have sus-
tained a verdict that ' the defendant was guilty of Conversion, if
rendered under a proper charge from the court. However, that
point need not be decided here, for it was not raised upon the trial ;
plaintiffs putting this part of their case upon the ground of mere
delay, insisting that the defendant should pay for the property as
a penalty for that delay, and thus, as it were, impliedly treating
the case as a continuing bailment, rather than one of loss or actual
conversion to the use of the defendant. If the facts of the case
would not have sustained trover, the remedy would naturally have
been an action of assumpsit or case; and the plaintiffs have not
shown that they would have been entitled to recover for the full
value of the property in either of those actions. . . .
The judgment should be affirmed.
BLACKSTOCK v. NEW YOEK, etc. E. CO.
20 N. Y. 48. 1859.
Appeal from the Superior Court of the city of New York. The
action was brought against the defendant as a common carrier, for a
delay in the carriage of a large quantity of potatoes in barrels and
sacks, from Hornellsville in Steuben County, to the city of New
York. They were received by the defendant on different days in
June, 1854, and would have been delivered, according to the usual
course of business, within five days, but they were detained about
seventeen days, and when delivered were found to have become
unmerchantable, and were nearly worthless on account of the delay
in their transportation.
The delay was occasioned by the refusal of a large number of the
defendant's engineers (140 out of a total number of 168) to work,
under the following circumstances: On the 15th of May, 1854, the
defendant adopted a new rule for the government of its engineers,
to the effect that they were respectively to be accountable for run-
ning the train off the track at a switch, at any station where the
train should stop. This rule was a substitute for a former one upon
caeeiee's liability. 435
the same general subject, wlncli had been found impracticable, and
which had not therefore been enforced. The referee before whom
the case was tried, found, in substance, that the new rule was a
reasonable and proper one, which ought to have been submitted to
by the engineers. They did perform their duties under it for a
time, but when it was ascertained that it would be steadily enforced,
a combination, which is called in the case "a strike," w^s entered
into, and they gave notice that they should stop work unless the
regulation should be rescinded in two days. That not being done,
they refused to perform any further services, and persisted for four-
teen days ; at the expiration of which peri,od they returned to their
duties, and have since served under the new rule. The defendant
used diligent efforts to procure other engineers to run its trains,
but was not successful. The delay in transporting the potatoes
was owing to the circumstances mentioned. The potatoes were
owned by, and the cause of action (if any) accrued in favor of, one
Eosbotham, who had assigned it to the plaintiff. The referee found
that the conduct of the defendant's engineers did not furnish a
defence, and reported in favor of the plaintiff for $800 damages, for
which judgment was entered and affirmed at a general term. The
case was submijited on printed briefs.
Denio, J. The position that the defendants are not responsible,
because the misconduct of their servants was wilful and not negli-
gent, cannot be sustained. The action is not brought on account of
any injury done to the property by the engineers, but for an alleged
non-performance of a duty which the defendants owed to the owner
of the property. If their inability to perform was occasioned by
the default of persons for whose conduct they are responsible, they
must answer for the consequences without regard to the motives of
those persons. In the common case of a contract for services, as
for building a house,, which the builder had been unable to perform
because his workmen had abandoned his service, proof that their
conduct was wilful and every way unjustifiable would not give the
party injured an action against them, nor would it excuse the party
who had made the contract. A similar point was taken in Weed v.
The Panama Eailroad Company, 17 ¥. Y. 362, where the miscon-
duct of the defendants' servants in detaining a train of cars was
active, but it was held not to furnish any answer to the action for
the detention. The cases in which it has been held that if a ser-
vant, while generally engaged in his master's business, wilfully
commit a trespass, as by intentionally driving his master's carriage
against the carriage of another person, the master is not liable, have
no application to the present case.
It has been repeatedly held, and may be taken as settled law, that
a carrier is not under the same absolute obligation to carry the goods
intrusted to him in the usual time which he is to deliver them
ultimately at their destination. Conger v. The Hudson River E. E,
436 OAEEIEES OF GOODS.
Co., 6 Duer, 375; Wibert v. The N. Y. & Erie E. E. Co., 2 Kern.
245. But in tlie absence of a legal excuse, lie is answerable for
any delay to forward tbem in the time which is ordinarily required
for transportation, by the kind of conveyance which he uses. In
the case referred to from Kernan's Eeports, we held that where a
railroad was fully equipped with engines and freight carriages, but
more property was offered at a particular point than could be sent
forward at once, the delay was justifiable, provided no unfair prefer-
ence was given to other freight over that of the plaintiff. In the
present case, the excuse arises wholly out of the misconduct of the
defendants' servants who wrongfully refused to perform their duty,
and thus deprived the defendants, for the time, of the ability to
send forward the property ; and the question is whether the defend-
ants' case can be separated from that of the engineers, so that it can
be held that though the latter were culpable, their employers, the
defendants , were without fault, and consequently not responsible to
the plaintiff. This involves a consideration of the legal effect of
the relations which exist between these several parties. In the first
place, there was no privity between the plaintiff and the engineers.
The latter owed no duty to the former which the law can recognize.
If they had committed a positive tort or trespass upon the property,
the owner might pass by the employers and hold them responsible,
but for a nonfeasance, or simple neglect of duty, they were only
answerable to their employers. The maxim in such cases is respon-
deat superior. Story on Agency, § 309; Denny w. The Manhattan Co.,
2 Denio, 115; s. c. in error, 5 id. 639. Although the nature of
the contract between the railroad company and the engineers is not
disclosed in the finding, it is quite improbable that it was such that
the latter might throw up their employment upon two days' notice
without any legal cause. If it were of that character, the liability,
mgral as well as legal, would rest upon the defendants, for in that
case they would have neglected a most ordinary precaution for secur-
ing the continuous running of their trains. Assuming then that
abandoning their work was a breach of contract on the part of the
engineers, they by that act became responsible to the defendants for
all its direct consequences. The case therefore is one in which the
actual delinquents, through whose fault the injury was sustained,
were responsible to the defendants, but were not responsible to the
plaintiff. This shows the equity of the rule, which holds the mas-
ter or employer answerable in such cases. Its policy is not less
apparent. Those who intrust their goods to carriers have no means
of ascertaining the character or disposition of their subordinate
agents or servants ; they have no agency in their selection, and no
control over their actions. In the case of a loss by the misconduct
of a servant, the party injured has no means of ascertaining whether
due caution was exercised by the master in employing him, or pru-
dence in retaining him; and in the case of a controversy between
CARRIERS LIABILITY. 437
the master and the servant as to which was the real delinquent, the
owner of the property must generally be without the necessary evi-
dence to charge the liability upon the master. The rule which the
law has adopted, by which the master is held responsible for the
acts of his servants, is the one best calculated to secure the observ-
ance of good faith on the part of persons intrusted with the property
of others. The motive of self-interest is the only one adequate to
secure the highest degree of caution and vigilance by the master.
The principle itself is extremely well settled. Story on Agency,
§ 452; 2 Kent Com. 259; Harlow v. Humiston, 6 Cow. 189; Ellis
V. Turner, 8 Term E. 531.
I cannot see anything in the circumstances of the defendants to
take the case out of the rule. Being a corporation, all their business
must necessarily be conducted by agents, and if they are not liable
for their acts and omissions, parties dealing with them have no
remedy at all. A railroad corporation is no doubt peculiarly ex-
posed to loss from the misconduct of its engineers ; and in the present
case it does not appear that the slightest blame can attach to any of
the superior officers of the company. Still the property intrusted
to the defendants to carry has been lost from a failure on their part
to perform the duty with which they were charged, and the only
answer which they are able to make to the demand for compensa-
tion is that the failure was caused by the misconduct of their ser-
vants. This we have seen cannot avail them as a defence. I have
looked into the exceptions to the rulings of the judge upon the trial,
and think those rulings were in both the instances where exceptions
were taken entirely correct.
The judgment of the Supreme Court must be affirmed.
GEISMER V. LAKE SHOEE, etc. K. CO., Appellant.
102 N. Y. 563. 1886.
Appeal from judgment of the General Term of the Supreme Court,
in the fifth judicial department, entered upon an order made at the
October Term, 1884, which overruled defendant's exceptions and
directed judgment for plaintiff on a verdict (reported below, 34
Hun, 50).
This action was brought to recover damages for alleged negligence
on the part of defendant in the performance of a contract for trans-
portation of livestock.
Eakl, J. We are of opinion that the learned trial judge fell into
error as to rules of law of vital and controlling importance in the
disposition of this case.
438 CAEEIEKS OF GOODS.
A railroad carrier stands upon the same footing as other carriers,
and may excuse delay in the delivery of goods by accident or mis-
fortune not inevitable or produced by the act of God. All that can
be required of it in any emergency is that it shall exercise due care
and diligence to guard against delay and to forward the goods to
their destination ; and so it has been uniformly decided. Wibert v.
N. Y. & Erie Eailroad Co., 12 N. Y. 245; Blaekstock v. N. Y. &
Erie Eailroad Co., 20 id. 48 [434].
In the absence of special contract there is no absolute duty resting
upon a railroad carrier to deliver the goods intrusted to it within
what, under ordinary circumstances, would be a reasonable time.
Not only storms and floods and other natural causes may excuse
delay, but the conduct of men may also do so. An incendiary may
burn down a bridge, a mob may tear up the tracks or disable the
rolling stock or interpose irresistible force or overpowering intimi-
dation, and the only duty resting upon the carrier, not otherwise in
fault, is to use reasonable efforts and due diligence to overcome
the obstacles thus interposed and to forward the goods to their
destination.
While the court below conceded this to be the general rule; it did
not give the defendant the benefit of it because it held that the men
engaged in the violent and riotous resistance to the defendant were
its employees for whose conduct it was responsible, and in that hold-
ing was the fundamental error committed by it. It is true that
these men had been in the employment of the defendant. But they
left and abandoned that employment. They ceased to be in its ser-
vice or in any sense its agents, for whose conduct it was responsible.
They not only refused to obey its orders or to render it any service,
but they wilfully arrayed themselves in positive hostility against it,
and intimidated and defeated the efforts of employees who were will-
ing to serve it. They became a mob of vicious law-breakers to be
dealt with by the government, whose duty it was, by the use of
adequate force, to restore order, enforce proper respect for private
property and private rights and obedience to law. If they had
burned down bridges, torn up tracks, or gone into passenger cars
and assaulted passengers, upon what principle could it be held that
as to such acts they were the employees of the defendant for whom
it was responsible? If they had sued the defendant for wages for
the eleven days when they were thus engaged in blocking its busi-
ness, no one will claim that they could have recovered.
It matters not, if it be true, that the strike was conceived and
organized while the strikers were in the employment of the defend-
ant. In doing that, they were not in its service or seeking to pro-
mote its interests or to discharge any duty they owed it; but they were
engaged in a matter entirely outside of their employment and seek-
ing their own ends and not the interests of the defpndant. The
mischief did not come from the strike — from the refusal of the
caeriee's liability. 439
employees to work, but from their violent and unlawful conduct
after they had abandoned the service of the defendant.
Here upon the facts, which we must assume to be true, there was
no default on the part of the defendant. It had employees who were
ready and willing to manage its train and carry forward the stock,
and thus perform its contract and discharge its duty; but they were
prevented by mob violence which the defendant could not by reason-
able efforts overcome. That under such circumstances the delay
was excused has been held in several cases quite analogous to this;
which are entitled to much respect as authorities. Pittsburg & C.
E. E. Co. V. Hogen, 84 111. 36; Pittsburg, C. W. L. E. Co. »..
Hallowell, 65 Ind. 188; Bennett v. L. S. & M. S. E, E. Co., 6 Am.
& Eng. E. Cas. 391; I. & W. L. E. E. Co. v. Juntzen, 10 Bardwell,
295.
The cases of Weed v. Panama E. E. Co., 17 N. Y. 362, and
Blackstock v. N. Y. &Erie E. E. Co., IBosw. 77; affirmed, 20 N. Y.
48 [434], do not sustain the plaintiff's contention here. If in this
case the employees of the defendant had simply refused to dis-
charge their duties, or to work, or had suddenly abandoned its ser-
vice, offering no violence, and causing no forcible obstruction to its
business, those authorities could have been cited for the maintenance
of an action upon principles stated in the opinions of those cases.
Judgment reversed.^
DAVIS V. GAEEETT.
Common Pleas. 6 Bing. 716. 1830.
The declaration stated, that theretofore, to wit, on 22d of Jan-
uary, 1829, at London, in the parish of St. Mary-le-Bow, in the
ward of Cheap, the plaintiff, at the special instance and request of
the defendant, delivered to the defendant on board a certain barge
or vessel of the defendant called the "Safety," and the defendant
then and there had and received in and on board of the said barge
or vessel from the plaintiff a large quantity, to wit, 114J tons of
lime of the plaintiff of great value, to wit, of the value of £100, to
1 Where employees suddenly refuse to work, and are discharged, and delay results
from the failure of the carrier to supply promptly their places, such delay is attrib-
utable to the misconduct of the employees in refusing to do their duty, and this
misconduct in such case is justly considered the proximate cause of the delay ; but
when the places of the recusant employees are promptly supplied by other competent
men, and the " strikers " then prevent the new employees from doing duty by lawless
and irresistible violence, the delay resulting solely from this cause is not attributable
to the misconduct of employees, but arises from the misconduct of persons for whose
acts the carrier .is in no manner responsible. Per Dickey, J., in Pittsburg &c. K. Co.
V. Hazeu, 84 111. 36.
440 CAEKIERS OF GOODS.
be by the defendant carried and conveyed in and on board the said
barge or vessel from a certain place, to wit, Bewly Cliff in the county
of Kent, to the Eegent's Canal in the county of Middlesex, the act
of God, the king's enemies, fire, and all and every other dangers
and accidents of the seas, rivers, and navigation, of what nature or
kind soever excepted, for certain reasonable reward to be therefore
paid by the plaintiff to the defendant : that the said barge or vessel
afterwards, to wit, on, etc., at, etc., departed and set sail on the
intended voyage, then and there having the said lime on board of
the same to be carried and conveyed as aforesaid, except as afore-
said, and it thereby then and there became and was the duty of the
defendant to have carried and conveyed the said lime on board of
the said barge or vessel from Bewly Cliff to the Eegent's Canal, the
act of God, and such other matters and things excepted as were
above mentioned to have been excepted by and according to the
direct, usual, and customary way, course, and passage, without any
voluntary and unnecessary deviation or departure from, or delay or
hindrance in the same; but the defendant, not regarding his duty in
that behalf, but contriving and wrongfully intending to injure and
prejudice the plaintiff in that respect, did not carry or convey the
said lime on board of the barge or vessel from Bewly Cliff aforesaid
to the Eegent's Canal, although not prevented by the acts, matters,
or things excepted as aforesaid, or any of them, by and according to
the direct, usual, customary way and passage, without any volun-
tary and unnecessary deviation or departure from, or delay or hin-
drance in the same, but on the contrary thereof, afterwards, and
before the arrival of the said barge or vessel as aforesaid at the
Eegent's Canal, the defendant by one John Town, the master of the
said barge or vessel, and the agent of the defendant in the behalf,
to wit, at, etc., without the knowledge and against the will of the
plaintiff', voluntarily and unnecessarily deviated and departed from
and out of such usual and customary way, course, and passage, with
the said barge or vessel so having the said lime on board of the
same, to certain parts out of such usual and customary course and
passage, to wit, to a certain place called the East Swale, and to a
certain place called Whitstable Bay, and did then and there volun-
tarily and unnecessarily carry and navigate the said barge or vessel
with the lime on board thereof as aforesaid to the said parts out of
such usual and customary course and passage as aforesaid, and delay
and detain the said last-mentioned barge or vessel with the lime on
board thereof, for a long space of time, to wit, for the space of
twenty-four hours then next following : and the said barge or vessel
so having the said lime on board of the same, was by reason of such
deviation and departure, and delay and detention out of such usual
and customary course and passage, and before her arrival at the
Eegent's Canal aforesaid, to wit, on, etc., at, etc., exposed to and
assailed by a great storm and great and heavy sea, and was thereby
carrier's liability. 441
then and there wrecked, shattered, and broken, and by means thereof
the said lime of the plaintiff so on board the said barge or vessel as
aforesaid, became and was injured, burned, destroyed, and wholly
lost to the plaintiff, to wit, at, etc., whereby the plaintiff lost divers
great gains, profits, and emoluments, amounting to a large sum of
money, to wit, the sum of £50, which he might and otherwise would
have made thereby, to wit, at, etc.
At the trial before Tindal, C. J., London sittings after Michael-
mas Term last, it appeared that the masterof the defendant's barge
had deviated from the usual and customary course of the voyage
mentioned in the declaration, without any justifiable cause; and
that afterwards, and whilst such barge was out of her course, in
consequence of violent and tempestuous weather, the sea communi-
cated with the lime, which thereby became heated, and the barge
caught fire; and the master was compelled, for the preservation of
himself and the crew, to run the barge on shore, where both the
■lime and the barge were entirely lost.
A verdict having been found for the plaintiff,
Taddy, Sergt., obtained a rule nisi for a new trial, or to arrest the
judgment.
Tindal, C. J. There are two points for the determination of the
-court upon this rule : first, whether the damage sustained by the
plaintiff was so proximate to the wrongful act of the defendant as
to form the subject of an action ; and, secondly, whether the decla-
ration is suflBcient to support the judgment of the court for the
plaintiff.
As to the first point it appeared upon the evidence that the
master of the defendant's barge had deviated from the usual and
•customary course of the voyage mentioned in the declaration with-
out any justifiable cause; and that afterwards, and whilst such barge
■was out of her course, in consequence of stormy and tempestuous
■weather, the sea communicated with the lime, which thereby became
heated, and the barge caught fire, and the master was compelled for
the preservation of himself and the crew to run the barge on shore,
where both the lime and the barge were entirely lost.
Now the first objection on the part of the defendant is not rested,
as indeed it could not be rested, on the particular circumstances
which accompanied the destruction of the barge ; for it is obvious
that the legal consequences must be the same, whether the loss was
immediately, by the sinking of the barge at once by a heavy sea,
when she was out of her direct and usual course, or whether it hap-
pened at the same place, not in consequence of an immediate death's
-wound, but by a connected chain of causes producing the same ulti-
mate event. It is only a variation in the precise mode by which the i
vessel was destroyed, which variation will necessarily occur in each j
individual case. i
But the objection taken is, that there is no natural or necessary
442 CARKIERS OF GOODS.
connection between the wrong of the master in taking the barge out
of its proper course, and the loss itself; for that the same loss might
have been occasioned by the very same tempest, if the barge had
proceeded in her direct course.
But if this argument were to prevail, the deviation of the master,
which is undoubtedly a ground of action against the owner, would
never, or only under very peculiar circumstances, entitle the plain-
tiff to recover. For if a ship is captured in the course of deviation,
no one can be certain that she might not have been captured if in
her proper course. And yet, in Parker v. James, 4 Campb. 112,
where the ship was captured whilst in the act of deviation, no such
ground of defence was even suggested. Or, again, if the ship strikes
against a rock, or perishes by storm in the one course, no one can
predicate that she might not equally have struck upon another rock,
or met with the same or another storm if pursuing her right and
ordinary voyage.
The same answer might be attempted to an action against a
defendant who had, by mistake, forwarded a parcel by the wrong
conveyance, and a loss had thereby ensued ; and yet the defendant
in that case would undoubtedly be liable.
But we think the real answer to the objection is, that no wrong-
doer can be allowed to apportion or qualify his own wrong; and that
as a loss has actually happened whilst his wrongful act was in oper-
ation and force, and which is attributable to his wrongful act, he
cannot set up as an answer to the action the bare possibility of a
loss, if his wrongful act had never been done. It might admit of a
different construction if he could show, not only that the same loss-
might have happened, but that it must have happened if the act
complained of had not been done ; but there is no evidence to that
extent in the present case.
Upon the objection taken in arrest of judgment, the defendant
relies on the authority of the case of Max v. Eoberts. The first
ground of objection upon which the judgment for the defendant in
that case was affirmed is entirely removed in the present case. For
in this declaration it is distinctly alleged that the defendant had
and received the lime in and on board of his barge, to be by him
carried and conveyed on the voyage in question.
As to the second objection mentioned by the learned Lord, in
giving the judgment in that case, viz., that there is no allegation
in the declaration that there was an undertaking to carry directly to-
Waterford, it is to be observed, that this is mentioned as an addi-
tional ground for the judgment of the Court, after one in which it
may fairly be inferred from the language of the Chief Justice that
all the judges had agreed; and which first objection appears to us
amply sufficient to support the judgment of the Court. We cannot,
therefore, give to that second reason the same weight as if it were
the only ground of the judgment of the Court. And, at all events^
cakriek's LIAKILITY. 443
we think there is a distinction between the language of this record
and that of the case referred to. In the case cited, the allegation
was, that it was the duty of the defendant to carry the goods directly
toWaterford; but here the allegation is, "that it was his duty to
carry the lime by and according to the direct, usual, and customary
way, course, and passage, without any voluntary and unnecessary
deviation and departure."
The words usual and customary being added to the word direct,
more particularly when the breach is alleged in "unnecessarily
deviating from the usual and customary way," must be held to
qualify the meaning of the word direct, and substantially to signify
that the vessel should proceed in the course usually and customarily
observed in that her voyage.
And we cannot but think that the law does imply a duty in the
owner of a vessel, whether a general ship or hired for the special
purpose of the voyage, to proceed without unnecessary deviation in
the usual and customary course.
We therefore think the rule should be discharged, and that judg-
ment should be given for the plaintiff.
Rule discharged.
CONSTABLE v. NATIONAL STEAMSHIP CO.
154 U. S. 51. 1894.
Mr. Justice Brown. This case involves the liability of a steam-
ship company for the loss by fire of a consignment of goods unloaded
without personal notice to the consignee upon the wharf of a com-
pany other than the one owning the vessel.
By the Limited Liability Act, Eev. Stat. 4282, no ship-owner is
liable to answer for the loss of any merchandise shipped upon his
vessel by reason of any fire " happening to or on board the vessel,
unless such fire is caused by the design or neglect of such owner,"
and in the ease of The Scotland, 105 U. S. 24, the exemptions and
limitations of this act were held to apply to foreign as well as
domestic vessels. A similar exemption from fire happening with-
out the "fault or privity" of the owner is contained in the British
Merchants' Shipping Act of 18.54, 17 and 18 Vict. c. 104, sec. 503.
The bill of lading in this case also contains exemptions of liability
from loss caused by fire " before loading in the ship or after unload-
ing." There is no comma after the word "loading" or "ship," but
obviously it should be read as if there were. In view of the fact
that, under no aspect of the case, would the owner of the vessel be
liable for the consequence of any fire occurring on board of such a
vessel without his fault, and that an attempt is made in this case
444 CARRIERS OF GOODS.
to impose the liability, not of a wareliousemaii, but of a common
carrier and insurer against fire, after the contract of carriage has
been fully performed, it would seem that such liability ought not
to be raised out of the contract in this case except upon clear evi-
dence, and for the most cogent reasons. The liability of the com-
pany for the goods while upon the wharf is a mere incident to its
liability for them while upon the ship ; and if the liability is more
extensive under the incidental contract of storage than it was under
the principal contract of carriage it is an exception to the general
rule that the incidental liability of a contracting party is not broader
than his liability upon the principal contract.
It is claimed, however, that the berthing of this ship at a pier
other than her own was in legal effect a deviation, which rendered
the company an insurer of the cargo discharged at such pier without
notice, until its actual delivery to the consignee. In the law mari-
time a deviation is defined as a " voluntary departure without neces-
sity, or any reasonable cause, from the regular and usual course of
the ship insured." 1 Bouvier's Law Diet. 417; Hostetter v. Park,
137 U. S. 30, 40 ; Davis v. Garrett, 6 Bing. 716 [439] ; Williams v. Grant,
1 Conn. 487 ; as, for instance, where a ship bound from New York
to Norwich, Conn., went outside of Long Island, and lost her cargo
in a storm, Crosby v. Fitch, 12 Conn. 410; or where a carrier is
guilty of unnecessary delay in pursuing a voyage or in the transpor-
tation of goods by rail. Michaels v. N. Y. Central Eailroad, 30
N. Y. 564. But, if such deviation be a custdmary incident of the
voyage, and according to the known usage of trade, it neither avoids
a policy of insurance, nor subjects the carrier to the responsibility
of an insurer. Oliver v. Maryland Ins. Co., 7 Cranch, 487; Colum-
bian Ins. Co. V. Catlett, 12 Wheat. 383. In Hostetter v. Park, 137
U. S. 30, it was held to be no deviation, in the Pittsburg and New
Orleans barge-trade, to land and tie up a tow of barges, and detach
from the tow such barge or barges as were designated to take on
cargo en route, and to tow the same to the several points where the
cargo might be stored, it having been shown that such delays were
within the general and established usage of the trade. So, in
Gracie v. Marine Ins. Co., 8 Cranch, 75, it was held to be no devia-
tion to land goods at a lazaretto or quarantine station, if the usage
of the trade permitted it, though by the bill of lading the goods
were "to be safely landed at Leghorn." See also Phelps v. Hill,
1 Q. B. D. (1891), 605.
Upon the whole case we are of opinion : —
1. That the stipulation in the bill of lading that respondent
should not be liable for a tire happening after unloading the cargo
was reasonable and valid.
2. That the discharge of the cargo at the Inman pier was not, in
caeeiee's liability. 445
the eye of the law, a deviation such as to render the carrier an
insurer of the goods so unladen.
The decree of the Circuit Court is therefore affirmed.
STEAMBOAT LYNX v. KING.
12 Mo. 272. 1848.
King and Fisher brought their action against the "S. B. Lynx,"
on a contract of afEreightment. A parcel of wheat (880 sacks) , was
shipped on board the " Lynx " and her barges, from a place in Illinois,
above the lower rapids, consigned to K. & E. at St. Louis. The
barge that contained the wheat was brought down in tow by the
"Lynx," to the head of the rapids. The water was too low for the
boat to descend the rapids with her barges in tow, and therefore
the barge which contained the wheat (and other wheat belonging to
others) , after being lightened by putting 200 sacks of wheat on board
of the "Lynx," was taken down to the foot of the rapids at Keokuk
in safety, and in the manner accustomed there, and was moored there
in the accustomed place, and was stanch and well manned. In the
after part of the same day, while the barge was waiting for the
" Lynx " to descend the rapids, a violent storm arose, and forced a
great quantity of the water of the river over the gunwale and into
the barge, by which a portion of the wheat was wet. Every effort
was made by the crew to protect the barge and its cargo from the
storm and wetting. The hands worked all night, and part of the
next day, to free the boat from water. The storm and wetting of
the wheat occurred in the evening and night of Tuesday, and in the
afternoon of Wednesday, the " Lynx " descended the rapids, and tak-
ing the barge in tow, ran down to St. Louis in thirty hours, arriv-
ing there on Thursday evening, and delivered the freight on the
levee next day, Friday.
The time was the latter part of May, and the weather was very
■warm and damp, with frequent rains.
The defendant moved the court for the following instruction :
" If the jury believe from the evidence that the wheat in question
was damaged by an unavoidable accident of the river, and not by the
negligence of the oificers and crew of the 'Lynx,' they ought to lind
for the defendant, as to the wheat."
Which instruction the court refused to give, but gave to the jury,
at the instance of the plaintiffs, the following : —
" It was the duty of the defendant to use all the means in his
power to cause the wheat to be dried after it was wet by the storm ;
446 CAIiKIEKS OF GOODS.
and if the jury believe from the evidence that the wheat might have
been dried by the defendant, and he did not do it, then the defend-
ant is liable for all damage to the wheat by reason thereof."
Under this instruction, there was a verdict for the plaintiffs, and
a motion for a new trial, which was overruled; and the defendant
brings the case here by a writ of error.
Napton, Judge, delivered the opinion of the court.
The only question presented by this record arises out of the
refusal of the court to give an instruction asked on behalf of the
boat, and the giving an instruction for the plaintiffs King & Fisher.
The instruction given was this : " It was the duty of the defendant
to use all the means in his power to cause the wheat to be dried
after it was wet by the storm ; and if the jury believe :?rom the evi-
dence that the wheat might have been dried by the defendant, and
he did not do it, then the defendant is liable for all damages to the
wheat by reason thereof." The instruction refused was as follows:
" If the jury believe that the wheat in question was damaged by an
unavoidable accident of the river, and not by the negligence of
the officers and the crew of the ' Lynx, ' they ought to find for the
defendants."
The doctrine that a common carrier is responsible for all losses,
except those occasioned by the act of God, or the public enemy, or
such others as are expressly excepted in the bill of lading, has been
uniformly maintained in this State. Dagget v. Price & Shaw, 3
Mo. K. 264. Experience has shown the general results of this
principle to be highly beneficial in the main, although perhaps its
application in particular cases may have been harsh, and we should
regret to see any departure from it. But when the carrier is held
responsible, not only for every damage not occasioned by inevitable
accident, but also for the consequences of such accidents themselves,
in cases where any possible skill or labor could restore the value of
the property injured, either in whole or in part, the doctrine, it
strikes us, is carried to an extent not warranted by the law, and not
justified by reason or principle of public policy.
In order to view this matter in a proper light, we must recur to
the original and well-settled principle, — a carrier is responsible for
all losses brought about by his own acts, or want of action, for every
loss which could have been prevented by human exertion, with the
exceptions heretofore stated. If a tempest springs up, or damage
from any other quarter threatens , he is certainly to use all proper
exertions to prevent loss, and when an injury has been sustained by
a cause beyond his power to prevent, to use every means to prevent
further injury. A damage may result to the bailment after an
injury received from inevitable accident, which, although it would
not have happened had not the accident occurred, yet was not neces-
sarily the result of that accident . but might have been avoided by
proper efforts on the part of the carrier. For such damage he is
cakrier's liability. 447
undoubtedly responsible, and he cannot charge it to the inevitable
accident. It is the result of his own negligence. In the case of
Charleston and Col, S. B. v. Bason, 1 Harper, 262, a boat grounded
on an inland passage to Charleston, from a reflux of the tide,
and fell over, when the bilge-water ran into the cabin and injured
a box of books belonging to the plaintiff. Eichardson, J., said:
" Admitting the grounding to have been accidental and unavoidable,
and the carrier in no fault, yet the moment the boat heeled, the
bilge- water was returned towards the stern; and this the carrier
was bound to know, and remove the cargo there stored. The books
in question, being in the cabin, could easily have been removed.
The carrier is liable for bad storage and default in good keeping.
The injury therefore was through negligence, and does not come
within the exception of the bill of lading."
The true question then, in such cases, must be — is the damage
the result of the accident; or is it, or any portion of it, attributable
to the negligence of the carrier? The defendant was certainly not
responsible for the damage the wheat received by the storm ; but if,
after the storm passed, tlie wheat, or any portion of it, was suffered
to remain in the water, which could have been baled out, or when
it could have been removed to another part of the boat, without
interference with the rights of other shippers or passengers, a loss
happening for want of such removal of the wheat or the water is
properly chargeable to the boat. The loss thus produced is not the
effect of the accident, but is attributable to the negligence of the
oificers and crew of the boat. It is the duty of the carrier to take
all possible care of the freight intrusted to him. His employment
is to transport goods and passengers with speed and care. But to
impose upon him the burden of repairing the effects of accidents for
which he is not responsible, is requiring of him a task he has never
undertaken, and for which, we may presume, he has no special
skill. The instruction given by the Court of Common Pleas
imposed upon the carrier this additional task. The officers of the
■'Lynx" were required to dry the wheat which had been wet by a
storm, and to use all possible means to effect this object. It will
be seen at once that the task of drying several thousand bushels of
wheat is not a light one, and if all the means which skill and
science and labor can bestow are to be used in this process; the
business of the common carrier is lost sight of.
Is the master of the boat to withdraw his crew from their ordinary
employments in the prosecution of the voyage, and employ them in
this onerous and tedious business, totally foreign to his general
duty, and utterly destructive it may be of the interests of the
owners, insurers, and other shippers? Would it not be most bene-
iicial to all parties concerned, that he should proceed to his port of
destination with all possible despatch, where the owners or con-
signees of the wheat could take the necessary measures for restor-
448 CARRIERS OF GOODS.
ing it to a sound condition? In the case we have cited from South
Carolina, it was not hinted in the opinion that it was any part o£
the duty of the master of the steamboat to dry the books after they
had been wet by the bilge-water; but he was held responsible for
not removing them before the water reached them. Suppose the
case of a large assortment of dry goods shipped on one of our west-
ern boats. The boat is snagged, and the goods are damaged by the
water. Shall the master and crew be obliged to open the boxes,
unfold the packages and pieces, and by means of artificial or natural
heat undertake the tedious process of drying the goods?
The case of Bird v. Cromwell, 1 Mo. E. 81, certainly goes very
far to sustain the instruction given in this case. That case was
decided in 1821, and the accident which gave rise to the suit
occurred on a barge navigating the Mississippi between New Orleans
and St. Louis. A quantity of coffee, how much is not stated, was
shipped on this barge at New Orleans, and became wet and damaged
by an inevitable accident. The court held that it was the duty of
the master of the barge to use all possible exertions to dry the
coffee. It is impossible to conjecture, from the opinion, what
character and degree of exertions the court had in view in giving
this instruction. The facts of the case may have authorized a ver-
dict against the boat or her owners, but the instruction approved
by the court in its unqualified sense was certainly imposing an
extraordinary duty upon common carriers. Much consideration is
no doubt due to the character of the navigation in which the carrier
is engaged. Whilst the general principles which govern the con-
duct of common carriers in ocean navigation have been applied to
the navigation of our western waters, there are cases and circum-
stances in which the duties of these respective classes of carriers
obviously vary. So, also, the navigation of the Mississippi by keels
and barges in 1820 may have been attended with different duties
from those devolving on the owners and officers of steamboats at the
present day. "When it required from six weeks to two months to
make the voyage from New Orleans to St. Louis, the oflScers and
crew of the barge thus slowly impelled by human power, and having
no intermediate points of trade, may have been subjected by the
custom of the trade to a greater variety of duties than would now
be held to devolve upon the class of navigators which has succeeded
them. The abstract principle, however, avowed in this opinion of
Bird V. Cromwell, we cannot consider as applicable to the circum-
stances of the present case.
The other judges concurring, the judgment is reversed, and tha
cause remanded.
caeeiee's liability. 449
BEENNISEN v. PENNSYLVANIA E. CO.
100 Minn. 102 ; 110 N. W. 862. 1907.
Elliott, J. Action to recover damages -which the plaintiffs sus-
tained by reason of the alleged negligence of the defendant in the
transportation of a carload of strawberries. The case was tried by
the court without a jury, and judgment ordered for the plaintiffs. The
defendant appealed from an order denying the motion for a new trial.
The court found that on May 8, 1905, the plaintiffs delivered to
the Atlantic Coast Eailway Company, a common carrier, at Mt. Olive,
North Carolina, a ,carload of strawberries, all then in good, sound,
merchantable order and shipping condition, and consigned for trans-
portation over the line of the said company as the initial carrier and
succeeding lines, including that of the defendant, the Pennsylvania
Eailroad Company, to the city of Buffalo, New York, for delivery to
the plaintiffs at that point. The Atlantic Coast Eailway Company
and other connecting lines extended to Sunbury, Pennsylvania, and
there connected with the Pennsylvania Eailroad Company, which
extended from there to Buffalo. The car of strawberries in question
was, in the usual course of business between common carriers by rail,
transported with ordinary care over the line of the initial carrier. and
connecting carriers to Sunbury, where it was delivered to defendant
in good condition and by it accepted for carriage to Buffalo. The
defendant, in transporting the berries from Sunbury to Buffalo, care-
lessly and negligently conducted itself as a common carrier, and the
berries, by reason thereof and while in the possession and under the
control of the defendant as such common carrier, became overheated
and mouldy, and were thereby damaged in the sum of $349.16.
The assignments of error challenge the correctness of the findings
(a) that the berries were delivered to the defendant in good condition ;
(6) that the defendant, in transporting the berries, negligently and
carelessly conducted itself as a common carrier ; (c) that the berries
became overheated and mouldy while in the possession of the de-
fendant; and (d) that the berries decayed and were damaged by
reason of the negligence of the defendant, and in handling and caring
for the same while on the way from Sunbury to Buffalo.
The findings to which the appellant objects are really the ultimate
conclusions to which the court arrived from the consideration of the
undisputed facts, and the question is whether these conclusions are
justifiable. It appeared that the berries were delivered to the initial
carrier at Mt. Olive, N. C, in good condition on May 8, 1905 ; that
they were placed in a refrigerator car, which was attached to the
train which left Mt. Olive at 4 : 53 p.m. of that day, and that after
passing through the hands of various connecting carriers the car was
delivered to and accepted by the defendant and carried to Buffalo,
where the berries were delivered to the respondent in bad condition.
450 CAKEIERS OF GOODS.
This made a prima facie case against the defendant and cast the
burden upon it to show that the damages did not result from any
cause for which it was legally responsible. The rule is settled in
this state and requires no further discussion. Fockens v. U. S. Ex-
press Co., 99 Minn. 404, 109 N. W. 834, and cases there cited. That
this is the prevailing rule in other states, see Chicago v. Moss, 60
Mass. 1003, 45 Am. 428 ; Jones v. St. Louis, 115 Mo. App. 232, 91
S. W. 158 ; Walter v. Alabama, 142 Ala. 474, 39 South. 87; Hutchin-
son, Car. (3d Ed.) sec. 1354, where the authorities are fully cited.
The appellant contends that there is no presumption of negligence
when the damage results from the natural process of decay, and that
the evidence showed that it did all that could be demanded of it in
the care of the fruit.
The rule which throws upon the last carrier the burden of freeing
itself from responsibility rests upon grounds of general convenience
and public policy, and places no unreasonable burden upon it. It is
true that the presumption, which arises out of common experience
and observation, that things once shown to exist in a particular state
are presumed to continue in that condition, has little weight when
applied to perishable goods, which are known to be subject to in-
evitable decay. The time element here becomes of primary impor-
tance. But the process of decay may be retarded or hastened by the
acts of the carrier, and there is no reason why the burden should not
rest upon it to show that it exercised due care under all the circum-
stances. The methods of handling and transporting fruit are well
understood, and carriers accept freight for transportation with the
understanding and expectation that they will observe proper care, as
that is understood by the shippers and carriers of such articles. Ex-
perience shows that perishable fruit, when properly handled, can be
carried from the southern states to the northern markets in good
condition. The carriers assert their ability to do this, and fix their
freight charges at rates which enable them to provide proper modern
cars and expedite their progress, in order that the fruit may reach
its destination before the process of decay has injured or destroyed
its value. Carriers are not insurers in such cases ; but each one is
charged with the duty of exercising ordinary care to protect the fruit
from injury while it is in its charge, and this duty requires the carrier
to use such care in order to prevent the fruit from decaying, as well
as from being damaged by other means. What that duty requires in
any particular case must be determined from the circumstances and
conditions, the nature of the goods, the obligations imposed by the
customs and usages of the particular business, and the terms of the
contract of shipment.
The appellant contends that the carrier is not under an absolute
duty to ice cars. It depends upon the circumstances. It is required
to use proper care for the protection and preservation of the property
which it accepts for transportation, and, when a failure to ice the cars
cabeiee's liability. 451
•would amount to want of such care, it would be an act of negligence.
As said in Merchants v. Comforth, 3 Colo. 280, 25 Am. 757: "When
a common carrier accepts for transportation in the winter season to
ship half across the continent delicate fruits, the character of his em-
ployment, independent of any contract, clearly implies that he will
ship them in such cars and exercise such diligence as may be reason-
ably necessary for their safe passage to their destination. Having
failed to do this, he cannot escape liability." There can be no ques-
tion but that, under the circumstances of this case, a failure to prop-
erly ice the cars would render the carrier liable for damages resulting
thereby to the fruit. See New York v. Cromwell, 98 Va. 227, 35 S. E.
444, 49 L. E. A. 462, 81 Am. St. 722 ; Popham v. Barnard, 77 Mo.
App. 619 ; Wing v. New York, 1 Hilt. 235 ; Beard V. Illinois, 79 Iowa
518, 44 N. W. 800, 7 L. E. A. 280, 18 Am. St. 381 [452]. "Undoubt^
edly, under modern methods, in the case of carriers by rail, the rule
would extend to proper refrigeration according to the established cus-
tom.'' Hutchinson, Car. (3d Ed.) sec. 505. The law thus throws
upon the carrier the burden of showing a state of circumstances which
accounts for the damage to the merchandise and frees it from lia-
bility. The trial court found that the appellant had not shown that
the damage to the strawberries in question was not caused by some
act of negligence on its part.
It appeared that a daily " berry train " left Mt. Olive each day for
the North, and that the car in question was attached to the "berry
train" which left that station at 4 : 53 p. m. on May 8. In the usual
course of events this car would have been delivered to the Pennsyl-
vania Eailroad Company at Sunbury some time on May 10. The
appellant's witness testified that " fast freight on the berry train from
the South arrived at Sunbury on May 11 at 10 : 43 p. m., and at that
time the North Central delivered it at Sunbury to the Pennsylvania
Eailroad Co." .... There is some force in the suggestion that the wit-
ness may have told the exact truth with reference to the arrival of the
berry train on May 11, and yet the car in question may have arrived on
the corresponding train which arrived at Sunbury about the same hour
on the previous day. The conductor who took the train at Sunbury tes-
tified that his train left the station on the early morning of May 12,
and that it contained the car in question. The evidence certainly
does not preclude the possibility that the car a;rrived at Sunbury on
May 10, when it was due in the regular course of transportation, and
through accident or design was held there until it was started north
in the early morning of May 12. The appellant should have shown
by clear and satisfactory evidence just when the car came into its
possession, and not left the matter to inference from such general
statements. The car arrived at Buffalo the evening of May 12, and
was delivered to the consignees the next morning. It does not appear
how much, if any, ice was in the bunkers when the car reached Buf-
falo, or when it was delivered. It is possible that the damage to the
452 CAKEIEES OF GOODS.
berries may have resulted from the neglect of the appellant to keep
the car properly iced after its arrival at Buffalo while awaiting deliv-
ery to the respondent. It may have resulted from the defective con-
dition of the ventilators, doors, traps, pipes, or other openings in the
car during the time it was in the possession of the appellant. The
appellant should have shown the condition of the car with reference
to such matters, and thus precluded the inference which the court
drew from the absence of such evidence. In this state of the record,
we cannot say that the court erred in finding that the defendant had
not sustained the burden of showing a state of circumstances which
accounted for the damages on some other theory than that of its negli-
gence.
The order is therefore affirmed.^
1 In the case of Beard v. Illinois Central B. Co., 79 Iowa, 678 (cited in this
case), Beck, J., uses this language : " A carrier's duty is not limited to the trans-
portation of goods delivered for carriage. He must exercise such diligence as is
required hy law to protect the goods from destruction and injury resulting from
conditions which, in the exercise of due care, may he averted or counteracted.
He must guard the goods from destruction or injury by the elements ; from the
effects of delays ; indeed, from every source of injury which he may avert, and
which, in the exercise of care and ordinary intelligence, may be known or antici-
pated. Unknown causes, or those which are inherent in the nature of the goods,
and cannot be, in the exercise of diligence, averted, will not render the carrier
liable. The nature of the goods must be considered in determining the carrier's
duty. Some metals may be transported in open cars. Many articles of commerce,
when transported, must be protected from rain, sunshine, and heat, and must
have oars fitted for their safe transportation. Live animals must have food and
water, when the distance of transportation demands it. Fruit, and some other
perishable articles, must be carried with expedition and protection from frost.
So the carrier must attend to the character of the goods he transports. He is
informed thereof by inspection of the freight-biUs, or by other papers accompany-
ing the shipment."
5. LIMITATION OF LIABILITY.
a. What valid.
GIBBON V. PAYNTON.
King's Bench. 4 Burr. 2298. 1769.
This was an action against the Birmingham stagecoachman, for
£100 in money sent from Birmingham to London by his coach, and
lost. It was hid in hay, in an old nail-bag. The bag and the hay
arrived safe ; but the money was gone. The coachman had inserted
an advertisement in a Birmingham newspaper, with a nota bene,
"that the coachman would not be answerable for money or jewels
LIMITATION OF LIABILITY. 453
or other valuable goods, unless he had notice that it was money or
jewels or valuable goods that was delivered to him to be carried."
He had also distributed hand-bills of the same import. It was
notorious in that country that the price of carrying money from
Birmingham to London was threepence in the pound. The plain-
tiff was a dealer at Birmingham, and had frequently sent goods
from thence. It was proved that he had been used, for a year and
a half, to read the newspaper in which this advertisement was pub-
lished; though it could not be proved that he had ever actually read
or seen the individual paper wherein it was inserted. A letter of
the plaintiff's was also produced, from whence it manifestly appeared
that he knew the course of this trade, and that money was not car-
ried from that place to London at the common and ordinary price of
the carriage of other goods. And it likewise appeared from this
letter that he was conscious that he could not recover, by reason of
this concealment. The jury found a verdict for the defendant.
Mr. Wallace, on behalf of the plaintiff, moved (on Thursday, 26th
January, 1769) for a new trial, and obtained a rule to show cause :
which rule he now enforced, and was supported by Mr. Hotham.
They insisted that the coachman was answerable, though he did not
know that it was money. A carrier is always answerable, unless
he accepts the goods specially; but the circumstances of this case,
they said, do not amount to a special acceptance. He made no
inquiry or objection; therefore he is answerable. It is incumbent
upon him to see that he is not cheated. He is bound to receive the
goods, and must run the risk. If the goods are lost by negligence,
or even if he is robbed, he is liable to answer for them. If the
trader deceives him, he may have an action against the trader, for
this deceit. In proof of their arguments and assertions, they cited
the following cases. Aleyn, 93 ; Kenrig v. Eggleston, 1 Ventr. 238, a
like case cited by Hale, in delivering the reasons of the resolution in
the case of Morse v. Slue [402] ; Coggs v. Barnard [4], in 1 Salk. 26 ; 3
Salk. 11, 268, and Holt, 13, 131, 528 ; Carthew, 486. Sir Joseph Tyly
et al. V. Morrice, 2 Shower, 81 ; Bastard v. Bastard, 1 Stra., 145 [376] ;
Titchburne v. White, at Guildhall ; where Lord Chief Justice King
held " that if a box is delivered generally to a carrier, and he accepts
it, he is answerable, though the party did not tell him there is money
in it."
Mr. Dunning (Solicitor General) and Mr. Mansfield argued on
behalf of the defendant, against a new trial. They treated this
conduct of the plaintiff as a fraud and deception upon the defendant.
A carrier may accept specially: this man has done so. The adver-
tisement is explicit against being answerable for money, without
notice. This money was never fairly and properly intrusted to the
defendant ; and a carrier shall not be liable, where he is imposed
upon ; which is the present case.
Lord Mansfield distinguished between the ease of a common
454 CAEBIEKS OF GOODS.
carrier and that of a bailee. The latter is only obliged to keep the
goods with as much diligence and caution as he would keep his own ;
but a common carrier, in respect of the premium he is to receive, runs
the risk of them, and must make good the loss, though it happen
without any fault in him; the reward making him answerable for
their safe delivery.
This action is brought against the defendant upon the foot of
being a common carrier. His warranty and insurance is in respect
of the reward he is to receive ; and the reward ought to be propor-
tionable to the risk. If he makes a greater warranty and insurance,
he will take greater care, use more caution, and be at the expense of
more guards or other methods of security; and therefore he ought,
in reason and justice, to have a greater reward. Consequently, if
the owner of the goods has been guilty of a fraud upon the carrier,
such fraud ought to excuse the carrier. And here the owner was
guilty of a fraud upon him : the proof of it is over abundant. The
plaintiff is a dealer at Birmingham. The price of the carriage of
money from thence is notorious in that place : it is the rule of every
carrier there. It is fairly presumed that a man conversant in a
trade knows the terms of it. Therefore the jury were in the right,
in presuming that this man knew it. The advertisement and hand-
bills were circumstances proper to be left to the jury. The plain-
tiff's having been used, for a year and a half, to read this newspaper
is a strong circumstance for the jury to ground a presumption that
he knew of the advertisement. Then his own letter strongly infers
his consciousness of his own fraud, and that he meant to cheat the
carrier of his hire. Therefore I entirely agree with the jury in
their verdict. And if he has been guilty of a fraud, how can he
recover? Ex dolo malo non oritur actio.
As to cases cited — that of Kenrig v. Eggleston, in Aleyn, 93, was
£100, in a box delivered to a carrier ; the plaintiff telling him only
" that there was a book and tobacco in the box ; " and Roll directed
that although the plaintiff did tell him of some things in the box
only, and not of the money, yet he must answer for it; for he need
not tell the carrier all the particulars in the box ; but it must come
on tjie carrier's part to make special acceptance. But in respect of
the intended cheat to the carrier, he told the jury they might con-
sider him in damages: notwithstanding which, the jury gave £97
against the. carrier, for the money only (the other things being of
no considerable value), abating £3 only for carriage. Quod durum
videbatur oircumstantiJms. Now I own that I should have thought
this a fraud ; and I should have agreed in opinion with the circum-
stantibus; which seems to have been also the opinion of the reporter.
So in the ease cited by Hale, in 1 Ventris, 238, of a box brought
to a carrier, with a great sum of money in it; and upon the carrier's
demanding of the owner "what was in it," he answered "that it was
filled, with silks and such like goods of mean value ; " upon which.
LIMITATION OF LIABILITY. 455
the carrier took it, and was robbed; and resolved "that he was
liable." But (says the case) if the carrier had told the owner "that
it was a dangerous time ; and if there were money in it, he durst not
take charge of it; " and the owner had answered as before; this
matter would have excused the carrier. In this case also, I own
that I should have thought the carrier excused, although he had not
expressly proposed a caution against being answerable for money :
for it was artfully concealed from him that there was any money
in the box.
The case of Sir Joseph Tyly and Others against Morrice, in
Carthew, 485, was determined upon the true principles — " that the
carrier was liable only for what he was fairly told of." Two bags
were delivered to him, sealed up, said to contain £200, and a
receipt taken accordingly, with a promise "to deliver them to T.
Davis; he to pay 10s. per cent for carriage and risk." The carrier
was robbed. The Chief Justice was of opinion that he should answer
for no more than £200, " because there was a particular undertaking
by the carrier for the carriage of £200 only ; and his reward was to
extend no further than that sum ; and 't is the reward that makes the
carrier answerable : and since the plaintiffs had taken this course to
defraud the carrier of his reward, they had thereby barred them-
selves of that remedy which is founded only on the reward." So
the jury were (in that case) directed to find for the defendant.
For these reasons, his Lordship was of opinion, in the present
case, that the plaintiff ought not to recover.
Mr. Justice Yates held that a carrier may make a special accept-
ance ; and that this was a special acceptance.
By the general custom of the realm, a common carrier insures the
goods, at all events ; and it is right and reasonable that he should
do so ; but he may make a special contract, or he may refuse to con-
tract, in extraordinary cases, but upon extraordinary terms. And
certainly, the party undertaking ought to be apprised what it is that
he undertakes ; and then he will or at least may take proper care.
But he ought not to be answerable where he is deceived. Here he
was deceived: the money was hid in an old nail-bag; and it was
concealed from him that it was money. The plaintiff's own letter
shows that he knew the course of this trade, and that money was
not in that place carried at the common ordinary price of carrying
other things. And if he was apprised of the defendant's advertise-
ment, that might be equivalent to personal communication of the
carrier's refusal to be answerable for money not notified to him ; and
this was left to the jury.
Mr. Justice Aston, who tried the cause, said he had no doubt
about the justice of the case : his difficulty had only arisen from the
cases and authorities which had been now mentioned; which put
Mm upon more caution in admitting the evidence. But it appeared
to be notorious in the country where this transaction happened, that
456 CAEBIERS OF GOODS.
the price of carrying money from thence to London was threepence
in the pound ; and it manifestly appeared that this was money sent
under a concealment of its being money. The true principle of
carrier's being answerable is the reward. And a higher price ought,
in conscience, to be paid him for the insurance of money, jewels,
and valuable things, than for insuring common goods of small value.
And here, though it was not directly and strictly brought home to
the plaintiff that he had a clear certain knowledge of the defendant's
advertisements and hand-bills, yet it was highly probable that he
must have known of them; and his own letter showed his being
conscious that he could not recover, by reason of the concealment.
Therefore I think the verdict against him ought to stand.
Mr. Justice Willis concurred in the same opinion.
Per Cur', unanimously — Rule discharged,.
HAEEIS V. PACKWOOD.
Common Pleas. 3 Taunt. 264. 1810.
This was an action brought against the defendants, who were
common carriers, to recover the value of forty-six pounds of silk,
delivered to them in London, to be carried from thence by their
wagon to Coventry, and never received there by the consignees.
Upon the trial, at Guildhall, at the sittings after the last Trinity
Term, before Lawrence, J., it was proved that the goods were
delivered and booked at the warehouse in London, from whence the
wagon set out, and that they were seen safe at Market Street, in
the road to Coventry, but that they never arrived at Coventry; that
their value was £126; that the wagon by which they were carried
formerly was built with bows, and when the bows were closed, it
was very difficult to take a large parcel out of the loaded wagon, but
that for some time past these bows had been taken off and discon-
tinued, in order to make it more easy to load the wagon, and to
enable it to receive a larger load, but that this alteration rendered
it an easier matter to take out a parcel. The wagon had also for-
merly been guarded, but there had been no guard to attend it for
the last two years. The wagon usually arrived at Towcester at two
o'clock in the morning, and remained there until twelve at noon, in
a yard, under the wall. It was the wagoner's practice on his arrival
there to call up the innkeeper, and to go to bed himself. The
defendant relied upon his having published an advertisement, in
November, 1808, which he had sent round to all the silk-traders who
then used his wagon, and amongst others to the plaintiff, announ-
cing that he would not be accountable for any package whatsoever,
LIMITATION OF LIABILITY. 457
above the value of £20, unless entered, and an insurance paid, over
and above the price charged for carriage, according to their value,
and that no Such insurance had been paid in this case; the plaintiff
answered this by proving a former advertisement circulated by the
defendant containing special terms for the carriage of silk, viz. , 9s.
4d. per cwt. , while for ordinary bulky articles he charged 6s. only,
and he contended that the higher price of 9s. 4d. per cwt. included
the premium of insurance. It was admitted that if the goods had
been delivered, the plaintiff would have paid for them at the rate of
9s. id. per cwt. Some other persons paid a halfpenny per lb. of
silk, besides the price of carriage, for insurance.
Shepherd, Sergt. , for the defendant, contended that the claim for
insurance meant the same thing as if the defendants had said, if
goods are of a certain value, we must receive a halfpenny more in
every pound of their value for carrying them; and as the plaintiff
had not engaged to pay that, he could not make the defendant in
any wise responsible for the loss.
Laweence, J., thought, that as a specific sum was paid for the
carriage, and something was to be paid over and above the carriage
for insurance, the word insurance must be applied to those risks
against which a carrier is bound by law to insure, qua insurer, as
fire, robbers, armed force, and the like, and that the sum required
for insurance must be received as the price of guarding against those
accidents ; but that without the payment of any such insurance, he
was still bound to guard against loss by exposure, carelessness,
driving into the river, or the like ; otherwise a carrier might receive
the price of carrying the goods, and nevertheless be as careless as
he pleased : in this case it did not appear that the parcel was not
lost through mere negligence ; there was good reason why a carrier
should be made acquainted with the value of the goods committed
to him, that he might take the greater precaution against fire, or
take greater force to resist felons; but here the defendant was
satisfied with the price of the carriage, and undertook to carry for
that price, but claimed something further for insurance : what does
that mean? surely not for insurance against his own default of duty I
It was incumbent, therefore, on the defendant to show that he took
reasonable care of them , not on the plaintiff to prove a negative , and
that the defendant took no care of them. The jury, under his direc-
tion, found a verdict for the plaintiff, for £126 damages, with liberty
reserved to the defendants to move for a new trial, or nonsuit, as
they might be advised.
Shepherd, Sergt., having, accordingly, in the present term, obtained
a rule nisi to enter a nonsuit,
Best and Vaughan, Sergts. , on this day, showed cause; when
Lawebncb, J., upon reporting the evidence, said, that at the time
of the trial he had not read the case of Nicholson v. Willan, 5 East,
507. In that case there was no distinction in the advertisement
458 CARRIERS OF GOODS.
between the price of carriage, and the price of insurance, but the
distinction was taken in argument, and relied on; the court, how-
ever, held the defendant not liable. Best contended that this differ-
ence in the two advertisements materially distinguished the present
case from that of Nicholson v. Willan; here the contract is, that a
certain price shall be paid for carriage, and an insurance over and
above that: therefore, inasmuch as the contract is to be taken most
strongly against the party who words it, the price of carriage is the
compensation for the labor and diligence to be bestowed, and the
price of insurance is the price for covering those risks which are
purely accidental. [Lawebnqe, J. In Nicholson v. Willan it was
very doubtful whether the goods had gone by any carriage.] By the
statutes 3 & 4 W. & M. c. 12, and 21 G. II. c. 28, the price of car-
riage is to be fixed by the magistrates at their quarter sessions, and
the latter statute inflicts a penalty of £5 upon carriers who bring
goods to London, for taking a higher price thau is allowed by the
sessions of the county from which they set out; and this statute is
not, as it has been supposed, repealed by any subsequent act; but if
these statutes be now in force, it is impossible that a carrier can
refuse to carry goods for the price which the sessions fix. [Heath, J.
It does not appear that any order of sessions has been made in the
present case.] The case of Oppenheim v. Eussell, 3 Bos. & Pull.
42, contradicts the position, that though a carrier cannot get rid of
his whole responsibility, he may vary it in any shape that he pleases.
All four of the judges there held, that a carrier could not create a
lien upon the goods delivered to him for his general balance, because
he was bound by the law of the country to receive and carry goods
for a reasonable reward. [Lawkence, J. That was a lien as against
the owner of the goods to whom they were consigned : the court did
not say that the carrier could not have a general lien against the
party sending the goods, if he were also the owner.] But as the
law binds the carrier equally to 'insure as to carry, if he cannot
prescribe the terms on which he will carry, so neither can he pre-
scribe the terms on which he will insure; or, if he may, yet it is
not competent to him to require payment for an insurance against
his own negligence, by which, so far as appeared, this loss was
occasioned. Nay, more, it was the effect of his own cupidity; for
the wagon formerly was advertised as going with a light and a guard,
and inasmuch as the defendant had never publicly countermanded
that advertisement, the plaintiff had a right to suppose that it was
still lighted and guarded; he was also bound to have a wagon secure
from theft, to which he has rendered it more liable by taking off the
bows; yet without giving any notice of the alteration he continued
to receive the same rate of carriage as he did when the bows were
there, and the wagon guarded, which is a gross fraud. The non-
payment of the price of insurance cannot exonerate the carrier from
thb duty of ordinary diligence and care; if he wishes to avail him-
LIMITATION OF LIABILITY. 459
self of his renunciation of the character of insurer, he must show-
that the loss happened by an insurable accident, and not by that
degree of negligence against which every man who undertakes to do
anything for hire, is bound to guard. The case of Tyly v. Morrice,
Garth. 485, and all the old cases, are cases where a deceit is put upon
the carrier as to the value of the goods, and he is relieved against it,
Lane v. Cotton, Salk. 18 [261], Lord Holt, Ch. J., says, "It is a hard
thing to charge a carrier; but if he should not be charged, he might
keep a correspondence with thieves, and cheat the owner of his
goods, and he should never be able to prove it." This is not only
sound law, but excellent sense, as well as great authority. Lyon v.
Mells,6 East, 430. The carrier had given notice "that he would
not be liable for any damage which should happen to a cargo,
unless it were occasioned by the want of ordinary care in the master
or crew of the vessel, and in such case, he would pay £10 per cent
upon the loss, provided it did not exceed the value of the vessel and
freight; and that persons desirous of having their goods carried free
of any risk might have the same so carried by entering into an
agreement for the payment of extra freight, proportionable to the
accepted responsibility.'' Yet where a loss happened by the vessel
not being seaworthy, the owner was very properly held liable to the
whole extent of the loss, though it was not one of the events in
which he consented to be in any case nor to any amount liable. Ellis
V. Turner, 8 Term Eep. 632. The defendant endeavored to avail
himself of a similar notice, but the master of the vessel having car-
ried the goods beyond the place where they were to be delivered,
and at which she touched and delivered a part, and the ship being
lost on the ulterior voyage, it was held that the owner was liable
beyond the £10 per cent for the full amount of the loss. It would
be carrying the matter much further than the cases have hitherto
gone, to say that because a person does not insure, therefore he shall
have no remedy for a loss which is not occasioned by insurable
perils. The contract in this case is not very explicit, but it is to
be expounded with at least as much liberality towards the public as
towards the carrier. If, then, it had been expressly worded that
the defendant would not be liable for any loss incurred by the neg-
ligence of himself or his servants, unless an insurance over and
above the charge for carriage were paid, would not the court reject
those words, and say that he should not require a premium for
insurance against losses which might happen for the want of that
care which is paid for in the price of carriage?
Shepherd, contra. The cases of Lyon, v. Mells, and Ellis v.
Turner, are not applicable; the first was decided on the ground of
gross negligence in the carrier, who had accepted the goods to carry,
not upon the ground that he might not limit his responsibility. In
the second ease the goods were not lost in the course of the carriage
which the defendant had undertaken, but he had gone beyond the
460 CAEKIEliS OF GOODS.
point where they were to be delivered. If the law that carriers
may limit their responsibility be wrong, the legislature alone can
alter it; but it probably is the wisest policy to leave things to find
their own level; if the law fixed the same price for goods of the
highest as of the least value, no one would be a carrier. To show
that the law had long been so established, he cited Kenriek v.
Eggleston, Aleyn , 93 ; Tyly v. Morrice ; Gibbon v. Paynton, 4 Burr.
2298 [452]; Clay v. Willan, 1 H. Bl. 298; Izet v. Mountain, 4 East,
371. A warehouse-keeper may be answerable for a loss by fire, if
the loss happens by his especial gross negligence; but in general, a
warehouseman is not answerable for that species of loss. So a car-
rier, like any other person, may be liable for gross negligence, but
if he makes an especial acceptance of the goods, he is not liable
unless the plaintiff shows that he is guilty of this gross negligence.
It would be impossible for the defendant ever to prove the negative,
that he was not guilty of gross negligence. Rothwell v. Davis, B. E..
sittings after the last Easter Term, before Bayley, J., the carrier
gave notice that he would not be answerable "unless the goods were
entered, and properly paid for." Nothing was paid but the booking,
and it was held that the plaintiff could not recover. So, in this
case, the carriers require the goods to be "entered according to their
value," which is not done; so that even if all that relates to the
insurance be laid out of the question, still the plaintiff cannot
recover. [Lawbence, J. No; the' words are "will not be answer-
able unless entered;" he does not say "entered according to the
value," but that the insurance shall be according to the value.]
Clay V. Willan is in point, where the words were, that he would not
be answerable for goods above five pounds' value unless entered as
such, and a penny insurance paid for each pound value. If the car-
rier were to say he would not be accountable for any of his acts,
commissive or emissive, although they amount to gross negligence,
that would be an exception of the very thing, and the court would
not permit such a contract; but that is not this case.
Mansfield, Ch. J. These cases, so decided, seem to have decided
the present. However we may wish the law to be, we cannot make
it different than as we find it. In looking into the books, we find
the special acceptance much older than I had supposed it to be. And
it leads to great frauds, for on account of the number of persons
always attending about these open wagon-yards and offices, every
person standing around is apprised that this or that parcel contains
watches or jewels to the amount of many hundred pounds; this is a
great inconvenience, but however inconvenient it is, it seems that
from the days of Aleyn down to this hour, the cases have again and
again decided that the liability of a carrier may be so restrained;
then the question is, whether this loss is within the contract that
has been made, and it seems, according to one or two of the cases,
that it is not; for the losses have been of a very suspicious
LIMITATION OF LIABILITY. 461
nature; in one case, the parcel seems to have been lost before it left
the yard; but, however, as there was no proof here of express negli-
gence, it seems that there must be a rule absolute for a nonsuit. It
would, however, be useless to pass any such statutes to limit the
price of carriage if a carrier be at liberty to charge what he pleases :
the price must be reasonable.
Heath, J., was of the same opinion. In some wagons there are
particular safe places in the very centre, to deposit jewels and
articles of superior value, when they are known to be such.
Lawrence, J. I was not aware of the cases which have been made
use of, for the word " insurance." It is a very foolish word, and if
the defendants had said, we will not in any case be liable for the
goods, unless a certain sum is paid, according to the value, it would
have been clear and intelligible; and there is nothing unreasonable
in a carrier requiring a greater sum, when he carries goods of greater
value, for he is to be paid not only for his labor in carrying, but for
the risk which he runs, which is greater in proportion to the value
of the goods. I would not, however, have it understood that carriers
are at liberty by law to charge whatever they please; a carrier is
liable by law to carry everything which is brought to him for a rea-
sonable sum to be paid for the same carriage, and not to extort what
he will.
Chambbe, J. I am of the same opinion. The defendants say
they will not be insurers, we will not enter into that situation at all,
unless we are paid according to the value. Therefore there must
be a nonsuit. Sule absolute.
EILEY V. HORNE.
Common Pleas. 5 Bing. 217. 1828.
Case against the defendants as common carriers, for negligence in
losing goods intrusted to them, to be safely conveyed by them from
Kettering to London, and there to be delivered to the plaintiffs for
reward to the defendants in that behalf. Plea, not guilty.
At the trial, before Best, C. J., London sittings after Hilary
Term, 1828, it appeared that the plaintiffs were silk-weavers residing
in London, and carrying on business there and at Kettering; that
the defendants' coach ran from the George and Blue Boar, London,
to Kettering and back; that at the George and Blue Boar there was
a notice, that the proprietors of coaches which set out from that
office would not be responsible for goods above the value of £5,
unless entered as such, and paid for accordingly; that the plaintiffs
were aware of this notice, and in the habit of sending goods up and
down by the defendants' coach; that the goods in question, silks
462 CAERIEES OF GOODS.
to the value of £46, were delivered to the defendants by the plain-
tiffs' servant, at the defendants' office at Kettering, to be conveyed
to London, and that the servant saw no such notice in the office at
Kettering; that the goods were never delivered to the plaintiffs.
The learned Chief Justice, thinking the notice in the office at the
George and Blue Boar, of which the plaintiffs were cognizant,
applied only to the journey out to Kettering, and not to the journey
back, a verdict was found for the plaintiffs with leave for the
defendants to move to set it aside.
Best, C. J. In a state of society such as that we live in, — in
which we are supplied with the necessaries and conveniences of life
by an interchange of the produce of the soil and industry of every
part of the world, — so much property must be intrusted to carriers
that it is of great importance that the laws relating to the carriage
of goods should be rendered simple and intelligible; and that they
should be such as to provide for the safe conveyance of property,
and at the same time protect the carrier against risks, the extent of
which be cannot know, and, therefore, cannot determine what pre-
cautions are proper for his security.
When goods are delivered to a carrier, they are usually no longer
under the eye of the owner; he seldom follows or sends any servant
with them to the place of their destination. If they should be lost
or injured by the grossest negligence of the carrier or his servants,
or stolen by them, or by thieves in collusion with them, the owner
would be unable to prove either of these causes of loss ; his witnesses
must be the carrier's servants, and they, knowing that they could
not be contradicted, would excuse their masters and themselves.
To give due security to property, the law has added to that respon-
sibility of a carrier which immediately rises out of his contract to
carry for a reward — namely, that of taking all reasonable care of
it — the responsibility of an insurer.
Trom his liability as an insurer, the carrier is only to be relieved
by two things, both so well known to all the country when they
happen, that no person would be so rash as to attempt to prove that
they had happened when they had not, — namely, the act of God
and the king's enemies.
As the law makes the carrier an insurer, and as the goods he
carries may be injured or destroyed by many accidents, against
which no care on the part of the carrier can protect them, he is as
much entitled to be paid a premium for his insurance of their
delivery at the place of their destination, as for the labor and
expense of carrying them there. Indeed, besides the risk that he
runs, his attention becomes more anxious, and his journey is more
expensive, in proportion to the value of his load. If he has things
of great value contained in such small packages as to be objects
of theft or embezzlement, a stronger and more vigilant guard is
LIMITATION OF LIABILITY. 463
required than when he carries articles not easily removed, and which
offer less temptation to dishonesty. He must take what is offered
to him to carry to the place to which he undertakes to convey goods,
if he has room for it in his carriage. The loss of one single package
might ruin him.
By means of negotiable bills, immense value is now compressed
into a very small compass. Parcels containing these bills are con-
tinually seat by common carriers. As the law compels carriers to
undertake for the security of what they carry, it would be most
unjust if it did not afford them the means of knowing the extent of
their risk. Other insurers (whether they divide the risk, which
they generally do, amongst several different persons, or one
insurer undertakes for the insurance of the whole) always have
the amount of what they are to answer for specified in the policy
of insurance.
If the extent of risk is ascertained in cases in which persons are
not obliged to insure , and if they do insure may fix their own rate
of premium, there is greater reason for ascertaining it where one is
compelled to become an insurer, and can only charge what the
magistrates in sessions, if they think proper to settle the rates of
carriage, will allow under the statute of William and Mary, and
where no such rates are made, what a jury shall think reasonable.
It would be inconvenient, perhaps impossible, to have a formal
contract made for the carriage of every parcel in which the value of
the parcel should be specified, as well as the price to be paid for the
carriage. But it would add very little to the labor of the book-
keeper if he entered the value of each package, and gave the person
who brought it a written memorandum of such entry, like the slips
now made on an agreement for a policy of insurance.
The giving of such memorandums will entirely put an end to the
litigation which the notices of carriers now give occasion to, and
would make the practice of carriers, as nearly as circumstances will
permit, conformable to that of all other insurers. Perhaps such
memoranda might bring the parties within the reach of the stamp
laws; and the apprehension of this may have prevented carriers
from adopting a practice so effectual for their security, and have
driven them to the expedient of giving notices that they will not be
answerable beyond a certain sum, unless the parcels are entered and
paid for as parcels of value.
In Batson v. Donovan, 4 B. & A. 21, the Court of King's Bench
considered a notice of this sort, the knowledge of which was brought
home to the party sending goods, as equivalent to a request on the
part of the carrier to know the value, and that it made it the duty j
of the owner of the goods to apprise the carrier that the parcel was
of value.
The legislature would probably think, if its attention were called
to the subject, that a stamp duty on contracts relative to inland
464 CAERIEES OF GOODS.
carriage would be a very heavy and very inconvenient tax, and
would remove tlie objection to written evidence of such contracts.
A carrier has a right to know the value and quality of what he is
required to carry. If the owner of the goods will not tell him what
his goods are and what they are worth, the carrier may refuse to
take charge of them; but if he does take charge of them, he waives
his right to know their contents and value. It is the interest of the
owner of goods to give a true account of their value to a carrier, as
in the event of a loss he cannot recover more than the amount of
what he has told the carrier they were worth ; and he cannot recover
more than their real worth, whatever value he may have put on
them when he delivered them to the carrier.
It was decided in Gibbon v. Paynton, 4 Burr. 2298 [452] that
any artifice made use of to induce a carrier to think that a parcel of
jewelry contained only things of small value, would prevent the
owner from recovering for the loss of his parcel.
In Kenrig v. Eggleston, Al. 93, it was held that the owner was
not required to state all the contents of the parcel, but it was for
the carriers to make a special acceptance. In Tyly and Others v.
Morrice, Garth. 485, in which the preceding case is recognized and
confirmed, it is said that the true principle is, that the carrier is
only liable for what he is fairly told of. In Titchburne v. White,
Str. 145, it was determined that a carrier is answerable for money,
although he was not told that the box delivered to him contained
any money, unless he was told that the box did not contain money,
or he accepted it on the condition that it did not contain money.
It may be collected from these authorities, that it is the duty of
the carrier to inquire of the owner as to the value of his goods, and
if he neglects to make such inquiry, or to make a special acceptance,
and cannot prove knowledge of a notice limiting his responsibility,
he is responsible for the full value of the goods, however great it
may be. This is a convenient rule ; it imposes no difficulty on the
carrier. He knows his own business, and the laws relative to it.
Many persons, who have occasion to send their goods by carriers,
are entirely ignorant of what they ought to do to insure their goods.
Justice and policy require that the carriers should be obliged to tell
them what they should do.
Although a carrier may prove that the owner of goods knew that
the carrier had limited his responsibility by a sufficient notice, yet
if a loss be occasioned by gross negligence, the notice will not pro-
tect him. Every man that undertakes for a reward to do any ser-
vice obliges himself to use due diligence in the performance of that
service. Independently of his responsibility as an insurer, a carrier
is liable for gross negligence. This point is settled by Sleat v.
Flagg, 5 B. & A. 342; Wright v. Snell, id. 350; Birkett v. Willan,
2 B. & A. 356; Beck v. Evans, 16 East, 244; and Bodenham v.
Bennett, 4 Price, 31.
LIMITATION OF LIABILITY. 465
The jury are to decide what is gross negligence. We may, how-
ever, observe that the most anxiously-attentive person may slip
into inadvertence or want of caution. Such a slip would be negli-
gence, but not such a degree of negligence as would deprive a carrier
of the protection of his notice. The notice will protect him, unless
the jury think that no prudent person, having the care of an impor-
tant concern of his own, would have conducted himself with so
much inattention or want of prudence as the carrier has been guilty
of.
If a notice touching the responsibility of the carrier be given, it
matters not by whom it is given, or in what form, if it tells the
owner of the goods that the carrier by whom he proposes to send
them will not undertake for their safe conveyance, unless paid a
premium proportioned to their value.
We have established these points, — that a carrier is an insurer of
the goods which he carries; that he is obliged, for a reasonable
reward, to carry any goods to the place to which he professes to
carry goods that are offered him, if his carriage will hold them, and
he is informed of their quality and value ; that he is not obliged to
take a package, the owner of which will not inform him what are
its contents, and of what value they are ; and if he does not ask this
information, or if, when he asks, and is not answered, he takes the
goods, he is answerable for their amount, whatever that may be;
that he may limit his responsibility, as an insurer, by notice ; but
that a notice will not protect him against the consecLuences of a loss
by gross negligence.^ . . .
HOLLISTEE v. NOWLEN.
19 Wend. (N. Y. Sup. Ct.) 234. 1838.
This was an action against the defendant as a common carrier for
the loss of the plaintiff's trunk and contents. A case was agreed on
between the parties stating the following facts : the defendant was
a member of a company, the proprietors of the three daily lines of
stagecoaches running between Canandaigua and Buffalo, one of
which was called the Telegraph line. The defendant resided at
Avon, and with his teams and coaches ran that paTt of the route
lying between Avon and Le Eoy, East of Canandaigua the line
was owned by other proprietors. The plaintiff resided at TJtica,
and at that place entered as a passenger in the Telegraph line for
Buffalo. His baggage consisted of a trunk, containing clothing to
1 The judge discusses the sufficiency of certain notices, but that portion of the
opinion is not deemed important, and is omitted. — [Ed.]
466 CAERIEES OF GOODS.
the value of 1116.75. The fare was duly paid. On the 20th July,
1833, before, daylight in the morning, the plaintiff left Avon in the
defendant's coach on his way to Buffalo. The trunk was placed in
the boot behind the coach, which was carefully secured by strong
leather covering, fastened with strong leather straps, and buckles,
and was made secure against any loss except by violence. After
proceeding about three miles it was discovered that the straps con-
fining the cover of the boot had been cut, and the plaintiff's trunk
with its contents had been feloniously stolen and carried ofE. There
was no negligence on the part of the defendant or his servants in
relation to the trunk, further than may be implied from the facts
above stated. The plaintiff left the stage, went back to Avon, and
reported his loss ; and the defendant offered a reward, and made all
proper efforts for the recovery of the property, but without success.
The Telegraph line was established in 1828. A public notice
that baggage sent or carried in the Telegraph line would be at the
risk of the owner thereof, printed on a large sheet, had been uni-
formly kept placarded in most of the stage offices and public houses
from Albany to Buffalo; and particularly such notice had been
continually affixed up in the stage office and principal public houses
at Utica, where the plaintiff had resided for the last three years
before the trunk was lost. It was stipulated that should the court
be of opinion that the plaintiff was entitled to recover, judgment
should be entered in his favor for $116.75, and interest from July
20, 1833, besides costs.
Bkonson, J. Stagecoach proprietors, and other carriers by land
and water, incur a Very different responsibility in relation to the
passenger and his baggage. For an injury to the passenger they
are answerable only where there has been a want of proper care,
diligence, or skill ; but in relation to baggage they are regarded as
insurers, and must answer for any loss not occasioned by inevitable
accident or public enemies. As the point, though made, was not
discussed by the defendant's counsel, I shall content myself with
referring to a few cases to prove that they are liable as common
carriers, for the loss or injury of the property of the passenger.
Orange Co. Bank v. Brown, 9 Wendell, 85 [322] ; Camden Company
V. Burke, 13 id. 611; Brooke v. Pickwick, 4 Bing. 218; 4 Esp. E.
177; 2 Kent, 601. The fact that the owner is present, or sends his
servant to look after the property, does not alter the case. Robin-
son V. Dunmore, 2 Bos. &. Pull. 418. Chambre, J., said: "It has
been determined, that if a man travel in a stagecoach and take his
portmanteau with him, though he has his eye upon the portmanteau,
yet the carrier is not absolved from his responsibility, but will be
liable if the portmanteau be lost." The liability of a carrier is like
that of an innkeeper ; and it was said in Cayle's case, 8 Co. 63 [163],
that " it is no excuse for the innkeeper to say that he delivered the
guest the key of the chamber in which he lodged, and that he left
LIMITATION OF LIABILITY. 467
the door open; but he ought to keep the goods and chattels of his
guest there in safety." When there is no fraud, the fact that 'the
owner accompanies the property cannot affect the principle on which
the carrier is charged in case of loss.
The principal question in the cause arises out of the notice given
by the coach proprietors, that baggage carried by the Telegraph line
would be at the risk of the owner ; and the first inquiry is, whether
there was sufficient evidence to charge the plaintiff with a knowl-
edge of the notice. If we are to follow the current of modern Eng-
lish decisions on this subject, it cannot be denied that there was
evidence to be left to a jury, and upon which they might find that
the plaintiff had seen the notice. But I think the carrier, if he can
by any means restrict his liability, can only do so by proving actual
notice to the owner of the property. I agree to the rule laid down
by Best, C. J., in Brooke v. Pickwick, 4 Bing. 218, decided in
1827, when the courts of Westminster Hall had commenced retra-
cing their steps in relation to the liability of carriers, and were
endeavoring to get back on to the firm foundation of the common
law. He said : " If coach proprietors wish honestly to limit their
responsibility, they ought to announce their terms to every individ-
ual who applies at their oflBce, and at the same time to place in his
hands a printed paper, specifying the precise extent of their engage-
ment. If they omit to do this, they attract customers under the
confidence inspired by the extensive liability which the common law
imposes upon carriers, and then endeavor to elude that liability by
some limitation which they have not been at the pains to make
known to the individual who has trusted them."
I should be content to place my opinion upon the single ground
that if a notice can be of any avail, it must be directly brought
home to the owner of the property, and that there was no evidence
in this case which could properly be submitted to a jury to draw the
inference that the plaintiff knew on what terms the coach proprietor
intended to transact his business. But other questions have been
discussed; and there is another case before the court where the
judge at the circuit thought the evidence sufficient to charge the
plaintiff with notice. It will therefore be proper to consider
the other questions which have been made by the counsel.
Can a common carrier restrict his liability by a general notice,
in any form, brought home to the opposite party? Without intend-
ing to go much at large into this vexed question, it will be necessary
to state some leading principles relating to the duties and liabilities
of the carrier, and the ground upon which his responsibility rests.
The rules of the common law in relation to common carriers are
simple, well defined, and, what is no less important, well under-
stood. The carrier is liable for all los&es except those occasioned
by the act of God or the public enemies. He is regarded as an
insurer of the property committed to his charge, and neither destruc-
468 CABRIEES OF GOODS.
tion by fire, nor robbery by armed men, will discharge him from
liability. Holt, C. J., in pronouncing his celebrated judgment in
the case of Coggs v. Barnard, 2 Ld. Eaym. 918 [4], said : " This is a
politic establishment, contrived by the policy of the law for the
safety of all persons, the necessity of whose affairs obliges them to
trust these sorts of persons, that they may be safe in their ways of
dealing." In Forward v. Pittard, 1 T. E. 27 [385], where the
carrier was held liable for a loss by fire. Lord Mansfield said, that
"to prevent litigation, collusion, and the necessity of going into
circumstances impossible to be unravelled, the law presumes against
the carrier, unless he shows it was done by the king's enemies, or
by such act as could not happen by the intervention of man, as
storms, lightnings, and tempests." And in relation to a loss by
robbery he said, " The true reason is, for fear it may give room for
collusion, that the master may contrive to be robbed on purpose, and
share the spoil." The rule has been fully recognized in this State.
Colt V. McMechen, 6 Johns. E. 160 [392] ; Elliot v. Eossell, 10 Johns.
E. 1; Kemp v. Coughtry, 11 Johns. E. 107. In Eoberts v. Turner,
12 Johns. E. 232 [320], Spencer, J., said, the carrier "is held
responsible as an insurer of the goods, to prevent combinations,
chicanery, and fraud."
A common carrier exercises a public employment, and conse-
quently has public duties to perform. He cannot, like the trades-
man or mechanic, receive or reject a customer at pleasure, or charge
any price that he chooses to demand. If he refuse to receive a
passenger or carry goods according to the course of his particular
employment, without a sufficient excuse, he will be liable to an
action ; and he can only demand a reasonable compensation for his
services and the hazard which he incurs. 2 Ld. Eay. 917; Bac.
Ab., Carriers (B.) Skin. 279; 1 Salk. 249, 50; 6 Bing. 217; 3 Taunt.
272, per Lawrence, J.; 2 Kent, 599; Story on Bailments, 328 j
Jeremy on Carriers, 59.
It has been said that the carrier is liable in respect of his reward.
Lane v. Cotton^ 1 Salk. 143 [261]. Lord Coke says, "He hath his
hire, and thereby implicitly undertaketh the safe delivery of the goods
delivered to him." Co. Litt. 89 [a.]. The carrier may no doubt
demand a reward proportioned to the services he renders and the
risk he incurs; and, having taken it, he is treated as an insurer, and
bound to the safe delivery of the property. But the extent of his
liability does not depend on the terms of his contract; it is declared
by law. His undertaking, when reduced to form, does not differ
from that of any other person who may agree to carry goods from
one place to another; and yet one who does not usually exercise
this public employment will incur no responsibility beyond that of
an ordinary bailee for hire ; he is not answerable for a loss by any
means against which he could not have guarded by ordinary dili-
gence. It is not the form of the contract, but the policy of the law.
LIMITATION OF LIABILITY. 469
which determines the extent of the carrier's liability. In Ansell v.
Waterhouse, 2 Chit. E. 1, which was an action on the case against
the proprietor of a stagecoach for an injury to the plaintiff's wife,
Holroyd, J., said: "This action is founded on what is quite eol-
lateral to the contract, if any; and the terms of the contract, unless
changing the duty of a common carrier, are in this case quite imma-
terial. The declaration states an obligation imposed upon Mtti by
the law. This is an action against a person, who, by an ancient
law, held as it were a publio office, and was bound to the public.
This action is founded on the general obligation of the law." In
Forward v. Pittard, 1 T. E. 27 [385], Lord Mansfield said: "It
appears from all the cases for 100 years back that there are events
for which the carrier is liable independent of his contract. By the
nature of his contract, he is liable for all due care and diligence ;
and for any negligence he is suable on his contract. But there is a
further degree of responsibility by the custom of the realm, that is,
hy the common law ; a carrier is in the nature of an insurer." See
also Hide v. Proprietors, etc., 1 Esp. E. 36.
The law in relation to carriers has in some instances operated
with severity, and they have been charged with losses against which
no degree of diligence could guard. But cases of this description
are comparatively of rare occurrence ; and the reason why they are
included in the rule of the common law is not because it is fit in
itself that any man should answer without a fault, but because there
are no means of effectually guarding the public against imposition
and fraud, without making the rule so broad that it will sometimes
operate harshly. It was well remarked by Best, C. J., in Eiley v.
Home, 5 Bing. 217 [461], that " when goods are delivered to the
carrier, they are usually no longer under the eye of the owner; he
seldom follows or sends any servant with them to their place of des-
tination. If they should be lost or injured by the grossest negli-
gence of the carrier or his servants, or stolen by them, or by thieves
in collusion with them, the owner would be unable to prove either
of these causes of loss. His witnesses must be the carrier's ser-
vants, and they, knowing that they could not be contradicted, would
excuse their masters and themselves." These remarks lose little of
their force when applied to the case of passengers in stages, steam-
boats, and railroad cars. For although they are in the neighbor-
hood of their property, it is neither under their eye, nor have they
any efficient means of protecting it against the consequences of negli-
gence and fraud. The traveller is usually among strangers; his
property is in the hands of men who are sometimes selected with
little regard to their diligence and fidelity; and if the remedy of the
owner in the case of loss depend on the question of actual negligence
or fraud, he must make out his right to recover by calling the very
men whose recklessness or frailty has occasioned the injury. It was
remarked by Best, C. J., in Brooke v. Pickwick, 4 Bing. 218, that.
470 CAKEIEKS OF GOODS.
" though coach proprietors of the present day are a respectable and
opulent class, many of the persons employed by them resemble
%ose whom the common law meant to guard against."
There is less of hardship in the case of the carrier than has
sometimes been supposed ; for while the law holds him to an extra-
ordinary degree of diligence, and treats him as au insurer of the
property, it allows him, like other insurers, to demand a premium
proportioned to the hazards of hi's employment. The rule is founded
upon a great principle of public policy ; it has been approved by
many generations of wise men; and if the courts were now at liberty
to make instead of declaring the law, it may well be questioned
whether they could devise a system which, on the whole, would
operate more beneficially. I feel the more confident in this remark
from the fact that in Great Britain, after the courts had been per-
plexed for thirty years with various modifications of the law in
relation to carriers, and when they had wandered too far to retrace
their steps, the legislature finally interfered, and in all its most
important features restored the salutary rule of the common law.
The doctrine that a carrier might limit his responsibility by a
general notice brought home to the employer, prevailed in England
for only a short period. In Smith v. Home, 8 Taunt. 144, Burrough,
J., said: "The doctrine of notice was never known until the case of
Forward v. Pittard, 1 T. E. 27 [385], which I argued many years
ago." That case was decided in 1785, and it is remarkable that it
does not contain one word on the subject of notice. If that question
was in any form before the court, it is not mentioned by the reporter;
and the decision was against the carrier, although the loss was
occasioned by fire, without his default. The doctrine was first
recognized in Westminster Hall in 1804, when the case of Nicholson
V. Willan, 5 East, 507, was decided. Lord Ellenborough said, the
practice of making a " special acceptance " had prevailed for a4ong
time, and that there was "no case to be met with in the books in
which the right of a carrier thus to limit by special contract his own
responsibility has ever been by express decision denied." What-
ever may be the rule where there is in fact a special contract, the
learned judge could not have intended to say, that a carrier had
for a long time been allowed to limit his liability by a general
notice, or that a special contract had been implied from such a
notice ; for he refers to no case in support of the position, and would
have searched in vain to find one. Only eleven years before (in
1793), Lord Kenyon had expressly laid down a different rule in Hide
V. Proprietors, etc. 1 Esp. E. 36. He said,. "There is a difference
where a man is chargeable by law generally, and where on his con-
tract. Where a man is bound to any duty and chargeable to a certain
extent by the operation of law, in such case , he cannot by any act of
his own discharge himself." And he put the case of common car-
riers, and said, they cannot discharge themselves "by any act of
LIMITATION OF LIABILITY. 471
their own, as hy giving notice, for example, to that effect." This
ease was afterwards before the K. B., but on another point (1 T. E.
389).
The doctrine in question was not received in Westminster Hall
without much doubt; and although it ultimately obtained something
like a firm footing, many of the English judges have expressed their
regret that it was ever sanctioned by the courts. Departing as it
did from the simplicity and certainty of the common-law rule, it
proved one of the most fruitful sources of legal controversy which
has existed in modern times. When it was once settled that a
carrier might restrict his liability by a notice brought home to his
employer, a multitude of questions sprung up in the courts which no
human foresight could have anticipated. Each carrier adopted such
a form of notice as he thought best calculated to shield himself from
responsibility without the loss of employment; and the legal effect
of each particular form of notice could only be settled by judicial
decision. Whether one who had given notice that he would not be
answerable for goods beyond a certain value unless specially entered
and paid for, was liable in case of loss to the extent of the value
mentioned in the notice, or was discharged altogether; whether,
notwithstanding the notice, he was liable for a loss by negligence,
and if so, what degree of negligence would charge him ; what should
be suificient evidence that the notice came to the knowledge of the
employer, whether it should be left to the jury to presume that he
saw it in a newspaper which he was accustomed to read, or observed
it posted up in the of&ce where the carrier transacted his business ;
and then whether it was painted in large or small letters, and
whether the owner went himself or sent his servant with "the goods,
and whether the servant could read, -^ these and many other ques-
tions were debated in the courts, while the public suffered an almost
incalculable injury in consequence of the doubt and uncertainty
which hung over this important branch of the law. See 1 Bell's
Com. 474. After years of litigation, parliament interfered in 1830
and relieved both the courts and the public, by substantially re-
asserting the rule of the common law. Stat. 1 Wm. 4, c. 68.
Without going into a particular examination of the English cases,
it is sufficient to say that the question has generally been presented,
on a notice by the carrier that he would not be responsible for any
loss beyond a certain sum, unless the goods were specially entered
and paid for ; and the decisions have for the most part only gone far
enough to say that if the owner do not comply with the notice by
stating the true value of the goods and having them properly
entered, the carrier will be discharged. In these cases, the carrier
had not attempted to exclude all responsibility. But there are two
nisiprius decisions which allow the carrier to cast off all liability
whatever. In Having v. Todd, 1 Starkr E. 72, the defendant had
given notice that he would not answer for a loss by iire, and such a
472 OAEKIEES OF GOODS.
loss having occurred, Lord Ellenborough thought that carriers might
exclude their liability altogether, and nonsuited the plaintiff. In
Leeson v. Holt, 1 Stark. E. 186, tried in 1816, he made a like
decision ; though he very justly remarked, that " if this action had
been brought twenty years ago, the defendant would have been
liable; since by the coTumon law a carrier is liable in all cases except
two." We have here, what will be found in many of the cases, a
very distinct admission that the courts had departed from the law
of the land, and allowed what Jeremy's Treatise on Carriers, 35, 6,
very properly terms "recent innovations."
Some of the cases which have arisen under a general notice have
proceeded on the ground of fraud (Batson v. Donovan, 4 B. & Aid.
21) ; others on the notion of a special acceptance or special contract
(Nicholson v. Willan, 5 East, 507; Harris v. Packwood, 3 Taunt.
271 [456]) ; while in some instances it is difficult to say what general
principle the court intended to establish.
So far as the cases have proceeded on the ground of fraud, and
can properly be referred to that head, they rest on a solid founda-
tion; for the common law abhors fraud, and will not fail to over-
throw it in all the forms, whether new or old, in which it may be
manifested. As the carrier incurs a heavy responsibility, he has a
right to demand from the employer such information as will enable
him to decide on the proper amount of compensation for his services
and risk, and the degree of care which he ought to bestow in dis-
charging his trust; and if thg owner giv° an answer which is false
in a material point, the carrier will be absolved from the conse-
quences of any loss not occasioned by negligence or misconduct.
The case of Kenrig v. Eggleston, Aleyn, 93, was decided in 1649.
The plaintiff delivered a box to the porter of the carrier, saying,
"there was a book and tobacco in the box," when in truth it con-
tained £100 in money, besides. EoU, J., thought the carrier was
nevertheless liable for a loss by robbery; "but in respect of the
intended cheat to the carrier, he told the jury they might consider
him in damages." The jury, however, found the whole sum (abat-
ing the carriage) for the plaintiff, quod durum videhatur eircumsfan-
tibus. In Gibbon v. Paynton, 4 Burr. 2298 [452] , Lord Mansfield
said, this was a case oi fraud, and he "should have agreed in opinion
with the circumstaniibus." In Tyly «. .Morrice, Carth. 485, two
bags of money sealed up were delivered to the carrier, saying they
contained £200, and he gave a receipt for the money. In truth the
bags contained £450, and the carrier, having been robbed, paid the
£200; and in this action brought to recover the balance, the Chief
Justice told the jury that " since the plaintiffs had taken this course
to defraud the carrier of his reward, they should find for the defend-
ant." And the same point was decided in another action against
the same carrier. In Gibbon v. Paynton, 4 Burr. 2298 [452], £100
in money was hid in hay in an old nail-bag, which fact the plaintiff
LIMITATION OF LIABILITY. 473
•concealed from the carrier ; and the money having been stolen, the
court held that this fraud would discharge the defendant. In the
case of the Orange Co. Bank v. Brown, 9 Wendell, 85 [322],
the agent of the plaintiffs put f 11,000 in bank bills in his trunk,
and delivered it to the captain of the steamboat as his baggage. The
court held that the term baggage would only include money for the
■expenses of travelling, and not a large sum, as in this case, taken
for the mere purpose of transportation; and it was said that the
conduct of the plaintiff's agent was a virtual concealment as to the
money, that "his representation of his trunk and the contents as
baggage was not a fair one, and was calculated to deceive the cap-
tain." The owner is not bound to disclose the nature or value of
the goods ; but if he is inquired of by the carrier, he must answer
-truly. Phillips v. Earle, 8 Pick. 182.
Fraud cannot, I think, be imputed to the owner, from the mere
fact that he delivers goods after having seen a general notice pub-
lished by the carrier, whatever may be its purport. If the carrier
wishes to ascertain the extent of his risk, he should inquire at the
time the goods are delivered ; and then if he is not answered truly,
he will have a defence. See 4 Bing. 218. A different rule prac-
tically changes the burden of proof. At the common law it is
enough that the owner prove the undertaking of the carrier, and
that the goods did not reach their destination. But this doctrine of
implying fraud from a notice requires him to go further, and show
that he complied with the terms of the advertisement. He may
have informed the carrier truly of the value of the goods : there may
Ije no fraud, but still he is required to prove himself innocent before
he can recover. Independent of a notice, the onus would rest
where, upon general principles, it ought to rest, on him who imputes
fraud; and the carrier could not discharge himself without showing
some actual misrepresentation or fraudulent concealment. It does
not lie on the employer to show how the loss was occasioned, or
that he has acted properly ; but the law presumes against the carrier,
until he proves that the loss happened by means or under circum-
stances for which he is not answerable. 1 T. E. 33; Murphy v.
Staton, 3 Munf. (Va.) 239; Story on Bail. 338.
But it is enough for this case , that the question of fraud can never
arise under such notice as was given by the defendant. He did not
say to the public that he would not be answerable for baggage
beyond a certain sum, unless the owner disclosed the value; he said
he would not be answerable in any event. It was, in effect, a notice
that he would not abide the liabilities which the law, upon prin-
ciples of public policy, had attached to his employment. If the
notice can aid the defendant in any form, it certainly does not go to
the question of fraud.
The only remaining ground of argument in favor of the carrier
' is, that a special contract may be inferred from the notice. Inde-
474 CAEKIERS OF GOODS.
•pendent of the modern English cases, it seems never to have been
directly adjudged that the liability of the carrier can be restricted
by a special contract. Noy (Maxims), 92, after speaking of a loss
by negligence, says: "If a carrier would refuse to carry, unless a
promise were made to him that he should not be charged with any
such miscarriage, that promise were void." If he cannot stipulate
for a partial, it is difficult to see how he can for a total, exemption
from liability. In Nicholson v. Willan, 5 East, 513, Lord Ellen-
borough found no direct adjudication in favor of the position that a
carrier may limit his responsibility by a special contract; but he
relied on the fact that such an exemption had never been "by
express decision denied." Although this mode of reasoning is not
the most conclusive, I shall not deny that the carrier may, by
express contract, restrict his liability; for, though the point has.
never been expressly adjudged, it has often been assumed as good
law. Aleyn, 93; 4 Co. 84, note to Southcote's case; 4 Burr. 2301,,
per Yates, J., 1 Vent. 190, 238; Peake, N, P. Cas. 150; 2 Taunt.
271; 1 Star^. E. 186. If the doctrine be well founded, it must, I
think, proceed on the ground that the person intrusted with the
goods, although he usually exercises that employment, does not in
the particular case act as a common carrier. The parties agree that
in relation to that transaction he shall throw off his public character,
and, like other bailees for hire, only be answerable for negligence-
or misconduct. If he act as a carrier, it is difficult to understand
how he can make a valid contract to be discharged from a duty or
liability imposed upon him by law.
But, conceding that there may be a special contract for restricted
liability, such a contract cannot, I think, be inferred from a general
notice brought home to the employer. The argument is, that where-
a party delivers goods to be carried after seeing a notice that the
carrier intends to limit his responsibility, his assent to the terms of
the notice may be implied. But this argument entirely overlooks a
very important consideration. Notwithstanding the notice, the
owner has a right to insist that the carrier shall receive the goods
subject to all the responsibilities incident to his employment. If
the delivery of goods under such circumstances authorizes an impli-
cation of any kind, the presumption is as strong, to say the least,
that the owner intended to insist on his legal rights, as it is that he
was willing to yield to the wishes of the carrier. If a coat be
ordered from a mechanic after he has given the customer notice that
he will not furnish the article at a less price than one hundred
dollars, the assent of the customer to pay that sum, though it be
double the value, may perhaps be implied; but if the mechanic had
been under a legal obligation not only to furnish the coat, but to do
so at a reasonable price, no such implication could arise. Now the
carrier is under a legal obligation to receive and convey the goods
safely, or answer for the loss. He has no right to prescribe any
LIMITATION OF LIABILITY. 475
other terms ; and a notice can at the most only amount to a proposal
for a special contract, which requires the assent of the other party.
Putting the matter in the most favorable light for the carrier, the
mere delivery of goods after seeing a notice cannot warrant a stronger
presumption that the owner intended to assent to a restricted liabil-
ity on the part of the carrier, than it does that he intended to insist
on the liabilities imposed by law ; and a special contract cannot be
implied where there is such an equipoise of probabilities.
Making a notice the foundation for presuming a special contract,
is subject to a further objection. It changes the burden of proof.
Independent of the notice, it would be sufficient for the owner to
prove the delivery and loss of the goods ; and it would then lie on
the carrier to discharge himself by showing a special contract for a
restricted liability. But giving effect to the notice makes it neces-
sary for the owner to go beyond the delivery and loss of the goods,
and prove that he did not assent to the proposal for a limited
responsibility. Instead of leaving the onus of showing assent on
him who sets up that affirmative fact, it is thrown upon the other
party, and he is required to prove a negative, that he did not
assent.
After all that has been or can be said in defence of these notices,
whether regarded either as a ground for presuming fraud or imply-
ing a special agreement, it is impossible to disguise the fact that
they are a mere contrivance to avoid the liability which the law has
attached to the employment of the carrier. If the law is too rigid,
it should be modified by the legislature, and not by the courts. It
has been admitted over and over again by the most eminent English
judges, that the effect given to these notices was a departure from
the common law; and they have often regretted their inability to
get back again to that firm foundation. The doctrine that a carrier
may limit his responsibility by a notice was wholly unknown to
the common law at the time of our revolution. It has never been
received in this, nor, so far as I have observed, in any of the other
States. The point has been raised, but not directly decided. Barney
V. Prentiss, 4 Har. & Johns. R. 317; Dwight v. Brewster, 1 Pick.
50 [304]. Should it now be received among us, it will be after it
has been tried, condemned, and abandoned in that country to which
we have been accustomed to look for light on questions of juris-
prudence.
The Act of Parliament already mentioned enumerates various
articles of great value in proportion to the bulk, and' others which
are peculiarly exposed to damage in transportation, and declares
that the carrier shall not be liable for the loss or injury of those
articles when the value exceeds £10, unless at the time of delivery
the owner shall declare the nature and value of the property, and
pay the increased charge which the carrier is allowed to make for
his risk and care. If the owner complies with this requirement,
476 CAEEIBES OF GOODS.
the carrier must give him a receipt for the goods, "acknowledging
the same to have been insured," and if he refuse to give the receipt,
he remains "liable and responsible as at the common law." The
provision extends to the proprietors of stagecoaches as well as all
other carriers, and to property which may "accompany the person
of any passenger," as well as other goods; and the statute declares
that after the first day of September, 1830, "no public notice or decla-
ration heretofore made, or hereafter to be made, shall be deemed
or construed to limit, or in any wise affect the liability at common law "
of any carriers; bub that all and every such carrier shall be "liable
as at the common law to answer " for the loss or injury of the prop-
erty, " any public notice or declaration by them made and givei^
contrary thereto, or in any wise limiting such liability, notwith-
standing." The only modification of the common-law rule in rela-
tion to carriers made by this statute, is that which requires the
owner, without a special request, to disclose the nature and value of
the package, when it contains articles of a particular description.
The premium for care and risk, the carrier might have required
before. In relation to all articles not enumerated, and in relation
to those also, if the owner comply with the requirements of the act,
the carrier is declared liable as an insurer, and must answer "as
at the common law." The whole doctrine which had sprung up
under notices is cut up by the roots, and in such language as
renders it apparent that the legislature deemed it an innovation on
the law of the land.
If after a trial of thirty years the people of Great Britain, whose
interests and pursuits are not very dissimilar to our own, have con-
demned the whole doctrine of limiting the carrier's liability by a
notice ; if after a long course of legal controversy they have retraced
their steps, and returned to the simplicity and certainty of the com-
mon-law rule, — we surely ought to profit by their experience, and
should hesitate long before we sanction a practice which not only
leads to doubt and uncertainty concerning the rights and duties of
the parties, but which encourages negligence, and opens a wide door
to fraud.
If the policy of the law in relation to carriers were more ques-
tionable than I think it is, it would be the business of the legis-
lature, and not of the courts, to apply the proper remedy. The
plaintiff is entitled to judgment in pursuance of the stipulation con-
tained in the case.*
1 A lengthy opinion by Cowen, J., on the same q^uestion was rendered at the sam»
term in Cole v. Goodwin, 19 Wend. 251.
LIMITATION OF LIABILITY. 477
JUDSON V. WESTEEN K. CO.
6 Allen (Mass.), 486. 1863.
Contract in which the plaintiff seeks to charge the defendants as
common carriers, for the loss of a quantity of dressed deer-skins,
which were in the defendants' freight depot at East Albany on the
evening of the 5th of July, 1861, when it with all its contents was
destroyed by an accidental fire.
At the second trial in the Superior Court, before Putnam, J., after
the decision reported ia 4 Allen, 520, there was evidence tending to
show, and it was found by the jury, that on the afternoon of the 5th
of July, 1861, two boxes, marked "G. C. Judson, Springfield,
Mass., by railroad," were delivered by the New York Central Eail-
road Company to the defendants at East Albany, for immediate
transportation, with the necessary vouchers and expense bills ; and
it further appeared that the defendants have for the past ten years
issued freight tariffs, which were in force in July, 1861, containing
among other provisions the following: "No risk assumed beyond
^200 on any one package except by special agreement. All goods
and merchandise will be at the risk of the owners while in the cor-
poration's storehouses, and no responsibility will be admitted for
any loss or injury except such as may arise by fire from the loco-
motive engines, or by negligence of the agents of the corporation;
nor for a greater amount than $200 on any one package, except by
special agreement." These tariffs were posted in all the freight-
houses of the corporation, and liberally distributed to the public,
and, before the 5th of July, 1861, a large number of these freight
"tariffs were delivered by the defendants to the freight agents of the
New York Central Railroad Company at Albany. A notice similar
to that contained in the freight tariffs was, and for many years had
been, inserted in the printed receipts given for goods delivered at
the several stations of the defendants for transportation, but the
defendants did not propose to bring these notices home to the plain-
tiff in any other way than as above stated ; and the plaintiff himself
testified that he had never seen them, and was ignorant of their
existence.
The New York Central Eailroad Company received the boxes
from the plaintiff's agent, at Eonda, in the State of New York, and
gave for them a shipping receipt which contained the following
stipulation, amongst others: "Goods or property consigned to any
place off the company's line of road, or to any point or place beyond
its termini, will be sent forward with as reasonable despatch as the
general business of the corporation at its warehouse within men-
tioned will admit, by a carrier or freight man, when there are such
478 CAKEIERS OF GOODS.
known to the station agent at said warelaouse willing to receive the
same, unconditionally, for transportation, the company acting, for
the purpose of delivery to such carrier or freight man, as the agents
of the consignor or consignee, and not as carriers."
The defendants requested the court to instruct the jury that the
limitations and conditions contained in their tariff and freight
receipts, brought home to the knowledge of the agents of the New
York Central Eailroad Company as above stated, would exempt
them from all liability for the loss of the goods, or in any event
would exempt them from liability beyond f 200 on each parcel. The
judge declined so to rule.
The jury returned a verdict for the plaintiff, with $1020.9.3
damages, and the case was reported for the consideration of this
court.
BiGELOW, C. J. It would not be profitable to enter upon a cita-
tion and discussion of the numerous and conflicting cases bearing
on the question of the rights of a common carrier, by a general notice,
to absolve himself entirely from his common-law liability for property
intrusted to his care, or to modify and limit his responsibility by a
mere constructive notice to those who may have occasion to place
goods, wares, and merchandise in his keeping for the purpose of
transportation. A careful examination of the authorities would not
lead to any very satisfactory result, or throw much light on the real
principles on which the respective rights and duties of carriers and
the public mainly depend. A very full and clear statement of the
results arrived at in the leading cases on the subject can be found
in the elementary writers, especially in Eedfield on Railways, 264;
Angell on Carriers, §§ 232-245; 1 Parsons on Con. 707.
There is, however, one conclusion which is fully supported by the
weight of authority in the American courts, concerning which no
serious doubt can be entertained; that is, that a public carrier may
enter into a special contract with his employer by which he may
stipulate for a partial or entire exoneration from his liability at
common law as an insurer of property committed to his custody, and
that such contract is not contrary to public policy, or invalid as
transcending the just limits of the right of parties to regulate their
dealings by special stipulations. As a necessary corollary of this
conclusion, it is also held in the best-considered cases and by the
most approved text-writers, that a notice by a carrier that he will
not assume the ordinary responsibilities imposed on him by law, if
brought home to the owner of goods delivered for transportation,
and assented to clearly and unequivocally by him, will be binding
and obligatory upon him, because it is tantamount to an express
contract that the goods shall be carried on the terms specified in
such notice. To this extent, the doctrine that a carrier may limit
or modify his liability seems to be most just and reasonable. Inas-
much as the rule of law which holds a carrier to the responsibility
LIMITATION OF LIABILITY. 479
•of an insurer, except in certain special cases, is founded in a policy
which is designed solely for the security and benefit of the owner of
goods, there can be no sufficient reason for regarding the rule as
absolutely inflexible or irrepealable, when the party, in whose favor
it will operate, directly or by necessary implication consents to
waive it, or agrees to an essential modification of his own rights
under it.
But it is a very different proposition to assert that a common car-
rier may escape his legal liability or materially change it by a general
notice to all persons that he will not be responsible for the loss or
injury of property intrusted to his custody, or only liable therefor
under such conditions and limitations as he may think proper to
impose. A common carrier is in a certain sense a public servant,
exercising an employment not merely for his own emolument and
advantage, but for the convenience and accommodation of the com-
munity in which he pursues his calling. The law imposes on him
certain duties and responsibilities different from and greater than
those which attach to an occupation of a purely private nature, in
regard to the conduct of which the public have no interest, and
which can be carried on at the option or according to the pleasure of
the person who is engaged in it. A common carrier cannot legally
refuse to transport property of a kind which comes within the class
which he usually carries in the course of his employment, if it is
tendered to him at a suitable time and place, with an offer of a
reasonable compensation. Like an innkeeper, he is obliged to
exercise his calling upon due request under proper circumstances,
and is liable to an action for damages if he wrongfully refuses to
do so. A legal obligation rests upon him to assume the duty which
he holds himself out as ready to perform, and a correlative right
belongs to the owner of goods to ask for and require their reception
and transportation upon the terms of liability fixed and defined by
the established rules of law. The carrier has not the option to
accept or refuse the carriage of the goods at his pleasure; but the
person seeking to have them transported can choose whether they
shall be carried without any restriction of the carrier's duty as
prescribed by law, or whether he will waive a portion of his rights,
and consent to a modification of the legal liability which attaches
to the carrier. Such being the legal relation which subsists between
a common carrier and his employer, it certainly would be inconsis-
tent with it to hold that a carrier, by a mere notice brought home to
the owner of goods intrusted to his care that he did not intend to
assume all the liabilities of his calling, could escape or materially
change the responsibility which the law annexes to the contract of
the parties. It would in effect put it in the power of the carrier to
abrogate the rules of law by which the exercise of his employment
is regulated and governed. Certainly such a notice, even if shown
to have been within the knowledge of the owner of goods, would, in
480 CARRIERS OF GOODS.
the absence of evidence of his direct assent to its terms, afford no
sufficient ground for the inference that he had voluntarily agreed
without any consideration to relinquish and give up the valuable
right of having his goods carried at the risk of the carrier. On the
contrary, it would be quite as reasonable to infer under such circum-
stances that the carrier did not intend to rely upon a notice upon
which he could not legally insist, as that the owner of goods meant
to surrender a right to which he was entitled by law. In such case,
mere silence cannot be said to amount to acquiescence. The leading
cases in the American courts in which these doctrines have been
recognized and established are New Jersey Steam Navigation Co. v.
Merchants' Bank, 6 How. (U. S.) 344; Farmers' & Mechanics' Bank
V. Champlain Transportation Co., 23 Verm. 186, 206; Kimball v.
Eutland & Burlington Railroad, 26 Verm. 247; Moses v. Boston &
Maine Hailroad, 4 Fost. (N. H.) 71. See also the recent English
case of Garton v. Bristol & Exeter Railway, 1 Best & Smith, 112,
161.
The application of these principles to the present case is decisive
against the right of the defendants to insist on the instructions for
which they asked at the trial. It is not contended that the plaintiff
had any actual knowledge of the notice issued by the defendants,
containing a limitation of their common-law liability as carriers.
If he had any knowledge at all, it was at most only constructive,
through the New York Central Railroad Company, who received
the goods for transmission over their own road, to be delivered to
the defendants to be forwarded over a portion of their route. There
is no fact in the case from which any assent by the plaintiff to the
terms of the notice can be inferred. One portion of the notice on
which the defendants rely goes to the extent of repudiating all lia-
bility for the loss or injury of goods delivered to the defendants and
in process of transportation, except such as might be caused by fire
from the locomotive engines or by the negligence of the agents of
the corporation. This certainly was not binding on the plaintiff.
Equally invalid was that portion of the notice which announced that
the defendants would not be liable for a greater amount than two
hundred dollars on any one package, except by special agreement.
This was equivalent to a notice that they would not be liable for a
greater amount than two hundred dollars on a single package, unless
they chose to assume a further liability. It was optional with them,
under this notice, whether they would make any such agreement or
not. If they refused or omitted to do so, the owner of goods had no
power to compel them to enter into any agreement. Nor, if the
notice of itself is binding on him, had he any means of obtaining
the safe transportation of his goods by the defendants above the
value of two hundred dollars, under the liabilities imposed by law
upon common carriers.
We do not mean to say that a general notice brought home to an
LIMITATION OF LIABILITY. 481
owner of gpods may not be available to qualify and limit tbe respon-
sibility of common carriers to a certain extent and witbin certain
limits. Doubtless they may by sucb a notice require that informa-
tion shall be given to them of the nature and value of the property
which they are required to carry, in order that they may exercise
a needful degree of care in its transportation, and may ascertain
and demand a reasonable sum for its carriage. So they may give
notice that property above a certain amount in value will not be
transported for ordinary rates of freight, but that the price for its
carriage will be regulated by the nature of the articles and the
aggregate value of each package. In like manner they may by a
general notice protect themselves against liability for loss or injury
of merchandise, unless it is properly packed or arranged for trans-
portation, so that it may with reasonable diligence and care be
safely and securely carried. These and other similar notices would
be reasonable and perfectly consistent with the nature of the employ-
ment of a common carrier, and the rules of law by which it is regu-
lated, and they would be valid and binding on all to whom they
were brought home, without any express assent. All that we mean
to decide is, that a common carrier cannot by a general notice exon-
erate himself entirely from his legal liability, nor limit it absolutely
to a certain amount beyond which he will not be held responsible in
case of injury or loss. This was the legal effect of the notice on
which the defendants rely in the present case, as is admitted by
their counsel, who puts his defence to this action on the ground that
they are not liable at all, or only for the sum of two hundred dollars
on each package. Such a notice, being invalid, was not binding
on the plaintiff, and he is therefore entitled to
Judgment on the verdict.
BOON V. STEAMBOAT BELFAST.
40 Ala. 184. 1866.
Appellants filed a libel in admiralty against the steamboat " Bel-
fast " to recover the value of some cotton which they shipped on this
boat at Columbus to be transported to Mobile, and which was never
delivered. The owners of the boat intervened, and in their answer
alleged that while the boat was proceeding down the river, it was
forcibly boarded and seized by a body of armed men, and without
any fault on the part of the officers and crew, and that the cotton
was thereby lost. The remaining facts appear from the opinion.
JuDfiE, J. The respondents, in their answer te the libel, made the
following averment, in substance, as one of their grounds of defence:
"That it is the universal practice and understanding amongst all
persons navigating the waters of the Tombigbee Eiver, and of all
482 CABRIEES OP GOODS.
persons shipping cotton to Mobile on said river, that where cotton is
received on board of a steamboat to be transported to Mobile, if the
boat is captured by armed men, and the cotton thereby lost to the
owner or owners, without any fault or neglect of the officers or crew
of the boat, neither the boat nor the owners of the boat are liable
for said loss ; that the said practice and understanding is general,
and universally known to all persons navigating said river to Mobile;
that is, that said custom is general, universal, and uniform, and
known to all persons navigating said river, and all persons shipping
cotton upon said river; that said custom existed at the time of the
contract of shipment, and before that time, and was known to all
persons who were engaged in shipping cotton on said river to Mobile,
and to all persons navigating said river."
This allegation was excepted to by the libellants as setting up a
custom in direct conflict with the law, and as being no bar to the
libel. The court overruled the exception, and on the trial permitted
parol evidence to be introduced by the respondents to sustain the
allegation, against the objection of libellants.
The bill of lading was in the usual form. It acknowledged the
receipt of a certain number of bales of cotton at Vienna, to be
delivered at Mobile, "dangers of the river excepted." As to this
cotton, the boat and its owner became answerable for accidents and
thefts, and even for a loss by robbery. They became answerable for
all losses which do not fall within the excepted cases of the act of
God and public enemies. This, as Chancellor Kent remarks in his
Commentaries, " has been the settled law of England for ages ; and
the rule is intended as a guard against fra\id and collusion, and ijb is
founded on the same broad principles of public policy and conven-
ience which govern the case of innkeepers." 2 Kent's Com. 598.
"The only exception expressed in the contract in this case is
' dangers of the river.' The only exceptions implied by law are the
act of God or of the public enemies." Cox, Brainard & Co. v.
Peterson, 30 Ala. 608.
Whilst in all contracts, " as to the subject-matter of which known
usages prevail, parties are found to proceed with the tacit assump-
tion of these usages," and whilst "parol evidence of custom and
usage is always admissible to enable us to arrive at the real meaning
of the parties, who are naturally presumed to have contracted in
conformity with the known and established usage, " yet " it is not
admitted to contradict, or substantially to vary, the legal import of
a written agreement. The usage of no class of men can be sus-
tained in opposition to the established principles of law." Addison
on Contracts, 853; Price v. White, 9 Ala. 563; McClure & Co. v.
Cox, Brainard & Co., 32 id. 617.
The true and appropriate office of a usage or custom is correctly
stated by Judge Story in the case of Schooner Eeeside, 2 Sum. 567.
In that case, it was attempted to vary the common bill of lading,
limitation' of liability. 483
by which goods were to be delivered in good order and condition,
"the danger of the seas only excepted," by establishing a custom
that the owners of packet vessels between New York and Boston
should be liable only for damages to goods occasioned by their own
neglect. In delivering the opinion of the court, Judge Story said :
" The true and appropriate office of a usage or custom is to interpret
the otherwise indeterminate intentions of parties, and to ascertain
the nature and extent of their contracts, arising not from express
stipulations, but from mere implications and presumptions and acts
of a doubtful or equivocal character. It may be also admitted to
ascertain the true meaning of a particular word, or of particular
words, in a given instrument, when the word or words have various
senses, some common, some qualified, and some technical, according
to the subject-matter to which they are applied. But I apprehend
that it can never be proper to resort to any usage or custom to con-
trol or vary the positive stipulations in a written contract, and a
fortiori not in order to contradict them. An express contract of the
parties is always admissible to supersede or vary or control a custom
or usage; for the latter may always be waived at the will of the
parties. But a written and express contract cannot be controlled or
■varied or contradicted by a usage or custom ; for that would not only
be to admit. parol evidence to control, vary, or contradict written
contracts, but it would be to allow mere presumptions and implica-
tions, properly arising in the absence of any positive expressions of
intention, to control, vary, or contradict the most formal and deliber-
ate written declarations of the parties." See also 2 Parsons on
Contracts, note on page 59, and authorities there cited; Hone v.
Mutual Safety Ins. Co., 1 Sand. 137.
" It may be difficult to draw the precise line of distinction between
cases in which evidence of usage and custom ought to be admitted,
and cases in which it ought not to be admitted." Upon this ques-
tion, "much confusion and inaccuracy have crept into the adjudged
cases, so that any attempt to reconcile them would necessarily prove
abortive." McClure & Co. v. Cox, Braiuard & Co., 32 Ala. 617;
Barlow v. Lambert, 28 id. 704. But we think it clearly settled by
the decided weight of authority that a general usage, the effect of
which is to control rules of law, is inadmissible ; and that the clear
and explicit language of a contract cannot be enlarged or restricted
by proof of a custom or usage.
The decisions of this court upon the question have generally been
in accordance with this view. Andrews v. Eoach and Caffey, 3 Ala.
590; Price v. White, 9 id. 563; West, Oliver & Co. v. Ball, 12 id.
540; Ivey v. Phifer, 13 id. 821; Petty v. Gayle, 25 id. 472; Barlow
V. Lambert, 28 id. 704; Alabama and Tennessee Elvers E. E. Co. v.
Kidd, 29 id. 221; Smith v. Mobile Nav. Ins. Co., .30 id. 167; Cox,
Brainerd & Co. v. Peterson, 30 id. 608; McClure & Co. v. Cox,
Brainard & Co., 32 id. 617; Jones v. Fort, 36 id. 422.
484 ' CAEEIEES Of GOODS.
The decision in Steele v. McTyer's Adm'r, 31 Ala. 677, lays down
a contrary principle; and so much of that decision as holds that
parol evidence is admissible to show that by a custom existing on a
particular river flatboatmen were not responsible for a loss caused
by dangers of the river, although the bill of lading contained no
such exception, being in opposition to the principle announced in
this opinion on that question, is overruled.
In Sampson v. G-azzam, 6 Port. 123, it was held to be permissible
for the owner of a steamboat, when sued for the loss of goods by
fire, to show by parol that the exceptive words "dangers of the
river," in a bill of lading, by custom and usage, includes dangers by
fire. This decision has been so often recognized and followed by
this court in cases involving the identical question that the principle
established by it must now be regarded as the settled law of the
State in its application only to cases of the particular class to which
it specially relates ; we are unwilling to extend its application beyond
this limit. See Hibler v. McCartney, 31 Ala. 601.
The rule which makes the common carrier in the nature of an
insurer, and answerable for every loss not attributable to the act. of
God or the public enemies, according to Lord Holt, "was a politic
establishment, contrived by the policy of the law for the safety of
all persons the necessity of whose affairs obliged them to trust those
sorts of persons;" "it was introduced to prevent the necessity of
going into circumstances impossible to be unravelled." "If it were
not for such a rule, the common carrier might contrive by means not
to be detected to be robbed of his goods in order to share the spoil."
2 Kent's Com. 603.
The same public policy which established this rule, and which
has continued it in existence for ages, forbids its destruction at this
day in any locality, by any pretended custom, especially when the
business of common carriers has so much increased, and the necessity
for the rule, instead of being diminished, is also increased. The
custom, then, sought to be established in this case is contrary to
law, in contravention of a sound public policy, and cannot receive
our sanction.
It follows that the court below erred in overruling the designated
exceptions to the answer of respondents, and in admitting parol evi-
dence to establish the custom relied on; and its decree must be
reversed and the cause remanded.
LIMITATION OF LIABILITY. 485
BLOSSOM V. DODD.
43 N. Y. 264. 1870.
Appeal from an order of the General Term of the Supreme Court,
in the second judicial district, setting aside a judgment entered upon
the report of a referee and granting a new trial.
This action was brought to recover for baggage of the plaintiff lost
by the defendant.
The defendant was the president of Dodd's Express, a joint stock
company, doing business in the city of New York and its vicinity.
On the 17th of October, 1866, the plaintiff was a passenger on a
train of ears, which was proceeding to New York on the New Jersey
Central Railroad. When the train was nearly at the end of its route,
and between the hours of ten and eleven o'clock in the evening, a
messenger of Dodd's Express entered the car and inquired of him if
he had any baggage to be delivered.
The plaintiff thereupon handed to the messenger two railroad
baggage-checks , one of which was for a gun-case containing a gun,
and the other was a valise containing wearing apparel and other
articles. The messenger entered the numbers of the checks in
pencil upon a card or receipt of which the following is a copy, omit-
ting the advertisement in large type at the top of the paper.
H
Dodd's Express.
N. J. R. R. Depot, Pier 13 N. R., )
No. 944 Beoadway, N. Y. j
00 {> CO
|i I
P4 ^
M
as fi
Hi « o
OH Q
«a" It is mutually agreed, and is part of the consideration of the contract,
that Dodd's Express shall not be liable for merchandise or jewelry contained
in baggage, nor for loss by fire, nor for an amount exceeding One Hundred
Dollars upon any article unless specially agreed for in writing on the re-
ceipt and the extra risk paid therefor, nor for baggage to railroad, steamboat,
or steamship lines after the same has been left at the usual place of delivery
to such lines, and the owner hereby agrees that Dodd's Express shall be liable
only as above ; and it is further agreed that said express shall not be liable
for loss or damage unless the claim therefor be made in writing at their prin-
cipal oflBce, with this receipt annexed, within thirty days thereafter.
486 CAEEIEES OF GOODS.
At the time the cars were running rapidly, the lights were mostly
out, and the car in which the plaintiff was, was nearly dark, but there
was one light at the end.
This light was insufficient to enable the plaintiff to read the printed
matter at the place where he sat, and he did not read it.
The said Dodd's Express received the valise and gun-case from the
railroad company, and on the following day delivered the gun-case,
but neglected to deliver the valise or any of its contents to the
plaintiff. Evidence tending to show it was stolen, or fell from one
of the plaintiff's wagons, was given.
The valise and its contents were worth about $260. The referee
found that the valise was stolen from the defendant's wagon.
The answer put in issue the negligence and the value of the prop-
erty lost, and set up a special contract restricting the liability of
the defendant.
The case was tried before a referee, who found, as conclusions of
law : —
1. The said baggage was received by the said Dodd's Express, to
be transported to plaintiff's residence, under and subject to the con-
ditions expressed in said receipt, and not otherwise.
2. That, by delivery to the plaintiff, and his acceptance of the said
card or receipt, under the circumstances, he consented and agreed
that said Dodd's Express should not be liable for the loss of the said
valise to an amount exceeding one hundred dollars.
3. That the plaintiff is entitled to recover from defendant only
the sum of one hundred dollars and interest from October 17, 1866.
To all of which conclusions of law the plaintiff excepted.
Erom the judgment entered upon this report, an appeal was taken
to the G-eneral Term, where the judgment was set aside and a new
trial ordered; and from such order an appeal was taken to this
court.
Church, Ch. J. The common-law liability of common carriers
cannot be limited by a notice, even though such notice be brought to
the knowledge of the persons whose property they carry. Dorr v.
N. J. Steam Navigation Co., 1 Kern. 485. But such liabilities
may be limited by express contract. Id. ; Bissell v. N. Y. Central
E. E. Co., 442; French v. Buffalo, N. Y. & Erie E. E. Co., 4
Keyes, 108.
The principal question in this case is, whether there was a eon-
tract made between the parties limiting the liability of the defend-
ants to a loss of $100 for the valise and its contents, which the
plaintiff intrusted to their care. A facsimile of the card upon which
the alleged contract was printed has been furnished in the papers.
It does not appear, on examination, like a contract, and would not,
from its general appearance, be taken for anything more than a
token or check denoting the numbers of the checks received, to be
used for identification upon the delivery of the baggage. The larger
LIMITATION OF LIABILITY. 487
portion of the printed matter is an advertisement, in large type.
The alleged contract is printed in very small type, and is illegible
in the night by the ordinary lights in a railroad car, and is riot at
all attractive, while other parts of the paper are quite so.
Considerable stress is laid upon the fact that the words , " Kead
this receipt," were printed on the card in legible type.
The receipt reads : " Eeoeived of M articles or checks numbered
as below: 368—319." "For Dodd's Express." The blank is not
filled, nor is the receipt signed by any one. The invitation is not
to read the contract, but the receipt. In order to read it, the paper
must be turned sideways; and no one, thus reading the receipt,
would suspect that it had any connection with the alleged contract,
which is printed in different and very small type across the bottom
of the paper. It is no part of the receipt, is not connected with it,
and is not referred to in any other part of the paper. The defend-
ants are dealing with all classes of the community; and public policy,
as well as established principles, demand that the utmost fairness
should be observed.
This paper is subject to the criticism made by Lord Ellenborough,
in Butler v. Heane, Camp. 415, in which he said, that "it called
attention to everything that was attractive, and concealed what was
calculated to repel customers ; " and added : " If a common carrier is
to be allowed to limit his liability, he must take care that any one
who deals with him is fully informed of the limits to which he con-
fines it." Nor did the nature of the business necessarily convey
the idea of a contract to the traveller in such a manner as to raise
the presumption that he knew it was a contract, expressive of the
terms upon which the property was carried, or limiting the liability
of the carrier. Baggage is usually identified by means of checks or
tokens. And such a card does not necessarily import anything else.
At all events, to have the effect claimed, the limitation should be as
conspicuous and legible as other portions of the paper. In Brown
V. E. E. E. Co., 11 Cush., 97, where the limitation was printed
upon the back of a passenger ticket, the court say: "The party
receiving it might well suppose that it was a mere check, signifying
that the party had paid his passa,ge to the place indicated on the
ticket." In the cases of Prentice v. Decker, 49 Barb. 21, and
Limburger v. Wescott, id. 283, limitations were claimed upon the
delivery of similar cards of another express company, and the court
held, in both cases, that such delivery did not charge the persons
receiving them with knowledge that they contained contracts.
A different construction was put upon the delivery of a similar
card, in Hopkins v. "Wescott, 6 Blatchf. E. 64; but I infer that
the learned judge who delivered the opinion intended to decide that
something short of an express contract will suffice to screen the
carrier from his common-law liability, and that a notice, personally
served, which coiild be read, would have that effect. The attention
488 Caheiees of goods.
of the court does not seem to have been directed to the distinction
between such a notice and a contract. The delivery and acceptance
of a paper containing the contract may be binding, though not read,
provided the business is of such a nature and the delivery is under
such circumstances as to raise the presumption that the person
receiving it knows that it is a contract, containing the terms and
conditions upon which the property is received to be carried. In
such a case it is presumed that the person assents to the terms,
whatever they may be. This is the utmost extent to which the rule
can be carried, without abandoning the principle that a contract is
indispensable. The recent case of Grace v. Adams, 100 Mass. 560
[548], relied upon by the defendant's counsel, was decided upon
this principle. The plaintiff delivered a package of money to an
express company, and took a receipt containing a provision exempt-
ing the company from liability for loss by fire ; and the court held
that he knew that the paper contained the conditions upon which
the money was to be carried, and was therefore presumed to have
assented to them, although he did not read the paper. The court
say: "It is not claimed that he did not know, when he took it, that
it was a shipping contract, or bill of lading." So, in Van Goll v.
The S. E. 'E. Co., 104 Eng. Com. Law E. 75, the same principle
was decided. Willes, J., said: "Assuming that the plaintiff did
not read the terms of the condition , it is evident she knew they were
there." Keating, J., said: "It was incumbent on the company to
show that such was the contract." . . . "I think there was evidence
that the plaintiff assented to those terms."
As to bills of lading and other commercial instruments of like
character, it has been held that persons receiving them are pre-
sumed to know , from their uniform character and the nature of the
business, that they contain the terms upon which the property is to
be carried. But checks for baggage are not of that character, nor is
such a card as was delivered in this instance. It was, at least,
equivocal in its character. In such a case a person is not presumed
to know its contents, or to assent to them.
The circumstances under which the paper was received repel the
idea of a contract. No such intimation was made to the plaintiff.
He did not, and could not, if he had tried, read it in his seat. It
is found that he might have read it at the end of the car, or by the
lights on the pier or in the ferry-boat ; and it is claimed that he
should have done so, and, if dissatisfied, should have expressed his
dissent. If he had done so, and in the bustle and confusion inci-
dent to such occasions, could have found the messenger and demanded
his baggage, the latter might have claimed, upon the theory of this
defence, that the contract was completed at the delivery of the
paper, and that he had a right to perform it and receive the
compensation.
It is impossible to maintain this defence without violating estab-
LIMITATION OF LIABILITY. 489
lished legal principles in relation to contracts. It was suggested on
the argument, that the stipulation to charge according to the value
of the property is just and proper. This may be true; but the
traveller should have something to say about it. The contract
cannot be made by one party. If the traveller is informed of the
charges graduated by value, he can have a voice in the bargain ; but
in this case he had none. Whilst the carrier should be protected
in his legal right to limit his responsibility, the public should also
be protected against imposition and fraud. The carrier must deal
with the public upon terms of equality; and, if he desires to limit
his liability, he must secure the assent of those with whom he
transacts business.
My conclusion is, that no contract was proved.
1. Because it was obscurely printed.
2. Because the nature of the transaction was not such as neces-
sarily charged the plaintiff with knowledge that the paper contained
the contract.
3. Because the circumstances attending the delivery of the card
repel the idea that the plaintiff had such knowledge, or assented in
fact to the terms of the alleged contract.
The order granting a new trial must be aifirmed, and judgment
absolute ordered for the plaintiff, with costs.
All the judges concurring, upon the ground that no contract limit-
ing the liability of defendants was proved.
Order affirmed and judgment absolute for the plaintiff ordered.
b. In case of negligence.
LIVEEPOOL STEAM CO. v. PHENIX INS. CO.
129 U. S. 397. 1889.
Mk. Justice Gray. This is an appeal by a steamship company
from a decree rendered against it upon a libel in admiralty, " in a
cause of action arising from breach of contract," brought by an insur-
ance company, claiming to be subrogated to the rights of the owners
of goods shipped on board the "Montana," one of the appellant's
steamships, at New York, to be carried to Liverpool, and lost or
damaged by her stranding, because of the negligence of her master
and officers, in Holyhead Bay, on the coast of Wales, before reaching
her destination.
In behalf of the appellant, it was contended that the loss was
caused by perils of the sea, without any negligence on the part of
master and officers; that the appellant was not a common carrier;
that it was exempt from liability by the terms of the bills of lading;
490 CABEIEES OF GOODS.
and that the libellant had not been subrogated to the rights of the
owners of the goods.
It is to be remembered that the jurisdiction of this court to review
the decree below is limited to questions of law, and does not extend
to questions of fact. Act of February 16, 1875, c. 77, sec. 1 ; 18 Stat.
316; The Gazelle, 128 U. S. 474, 484, and cases there cited.
"On the foregoing facts," the only conclusion of law stated by the
Circuit Court (except those affecting, the right of subrogation and
the amount to be recovered) is in these words : " The stranding of
the ' Montana ' and the consequent damage to her cargo having been
the direct result of the negligence of the master and officers of the
steamer, the respondent is liable therefor." Negligence is not here
stated as a conclusion of law, but assumed as a fact already found.
The conclusion of law is, in effect, that, such being the fact, the re-
spondent is liable, notwithstanding any clause in the bills of lading.
We are then brought to the consideration of the principal ques-
tion in the case; namely, the validity and effect of that clause in
each bill of lading by which the appellant undertook to exempt
itself from all responsibility for loss or damage by perils of the sea,
arising from negligence of the master and crew of the ship.
The question appears to us to be substantially determined by the
judgment of this court in Eailroad Co. v. Lockwood, 17 Wall. .367.
That case, indeed, differed in its facts from the case at bar. It
was an action brought against a railroad corporation by a drover,
who, while being carried with his cattle on one of its trains under
an agreement which it had required him to sign, and by which he
was to pay certain rates for the carriage of the cattle, to pass free
himself, and to take the risks of all injuries to himself or to them ,
was injured by the negligence of the defendant or its servants.
The judgment for the plaintiff, however, was not rested upon the
form of the agreement, or upon any difference between railroad
corporations and other carriers, or between carriers by land and
carriers by sea, or between carriers of passengers and carriers of
goods, but upon the broad ground that no public carrier is permitted
by law to stipulate f«r an exemption from the consequence of the
negligence of himself or his servants.
The very question there at issue, defined at the beginning of the
opinion as "whether a railroad company, carrying passengers for
hire, can lawfully stipulate not to be answerable for their own or
their servants' negligence in reference to such carriage," was stated
a little further on in more general terms as "the question before
propounded; namely, whether common carriers may excuse them-
selves from liability for negligence ; " and a negative answer to the
question thus stated was a necessary link in the logical chain of
conclusions announced at the end of the opinion as constituting the
ratio decidendi. 17 Wall. 359, 363, 384.
LIMITATION OF LIABILITY, 491
The course of reasoning, supported by elaborate argument and
illustration, and by copious references to authorities, by which
those conclusions were reached, may be summed up as follows :
By the common law of England and America before the Declara-
tion of Independence, recognized by the weight of English authority
for half a century afterwards, and upheld by decisions of the
highest courts of many States of the Union, common carriers could
not stipulate for immunity for their own or their servants' negli-
gence. The English Railway and Canal Traffic A.ct of 1854, declar-
ing void all notices and conditions made by those classes of common
carriers, except such as should be held by the courts or judge before
whom the case should be tried to be just and reasonable, was sub-
stantially a return to the rule of the common law.
The only important modification by the Congress of the United
States of the previously existing law on this subject is the Act of
1851, to limit the liability of ship-owners (Act of March 3, 1851,
c. 43; 9 Stat. 635; Eev. Stat. sec. 4282-4289, and that act leaves them
liable without limit for their own negligence, and liable to the extent
of the ship and freight for -the negligence or misconduct of their
master and crew.
The employment of a common carrier is a public one, charging
him with the duty of accommodating the public in the line of his
employment. A common carrier is such by virtue of his occupation,
not by virtue of the responsibilities under which he rests. Even if
the extent of these responsibilities is restricted by law or by con-
tract, the nature of his occupation makes him a common carrier
still. A common carrier may become a private carrier, or a bailee
for hire, when, as a matter of accommodation or special engagement,
he undertakes to carry something which it is not his business to
carry. But when a carrier has a regularly established business for
carrying all or certain articles, and especially if that carrier is a
corporation created for the purpose of the carrying trade, and the
carriage of the articles is embraced within the scope of its chartered
powers, it is a common carrier, and a special contract about its
responsibility does not divest it of that character.
The fundamental principle, upon which the law of common
carriers was established, was to secure the utmost care and dili-
gence in the performance of their duties. That end was effected in
regard to goods, by charging the common carrier as an insurer, and
in regard to passengers by exacting the highest degree of carefulness
and diligence. A carrier who stipulates not to be bound to the
exercise of care and diligence seeks to put off the essential duties
of his employment.
Nor can those duties be waived in respect to his agents or servants,
especially where the carrier is an artificial being, incapable of acting
except by agents and servants. The law demands of the carrier
492 • CAEEIEES OF GOODS.
carefulness and diligence in performing the service; not merely an
abstract carefiilness and diligence in proprietors and stockholders
who take no active part in the business. To admit such a distinc-
tion in the law of common carriers, as the business is now carried
on, would be subversive of the very object of the law.
The carrier and his customer do not stand upon a footing of
equality. The individual customer has no real freedom of choice.
He cannot afford to higgle or stand out, and seek redress in the
courts. He prefers rather to accept any bill of lading, or to sign
any paper, that the carrier presents; and in most cases he has no
alternative but to do this, or to abandon his business.
Special contracts between the carrier or the customer, the terms
of which are just and reasonable and not contrary to public policy,
are upheld; such as those exempting the carrier from responsibility
for losses happening from accident, or from dangers of navigation
that no human skill or diligence can guard against; or for money
or other valuable articles, liable to be stolen or damaged — unless
informed of their character or value; or for perishable articles or
live animals, when injured without default or negligence of the
carrier. But the law does not allow a public carrier to abandon
altogether his obligations to the public, and to stipulate for exemp-
tions which are unreasonable and improper, amounting to an abne-
gation of the essential duties of his employment.
It being against the policy of the law to allow stipulations which
will relieve the railroad company from the exercise of care and dili-
gence, or which, in other words, will excuse it for negligence in the
performance of its duty, the company remains liable for such
negligence.
This analysis of the opinion in Eailroad Co. v. Lockwood show-s
that it afllrms and rests upon the doctrine that an express stipulation
by any common carrier for hire, in a contract of carriage, that he
shall be exempt from liability for losses caused by the negligence
of himself or his servants, is unreasonable and contrary to the public
policy, and consequently void. And such has always been the
understanding of this court, expressed in several later cases.
Express Co. v. Caldwell, 21 Wall. 264, 268 [536]) ; Railroad Co. v.
Pi'att, 22 Wall. 123, 134 ; Bank of Kentucky v. Adams Express Co.,
93 U. S. 174, 183 ; Railway Co. v. Stevens, 95 U. S. 655 [1010] ; Hart
V. Pennsylvania Railroad, 112 U. S. 331, 338; Phoenix Ins. Co. v.
Erie Transportation Co., 117 U. S. 312, 322; Inman v. South Carolina
Railway, ante [129 U. S.J, 128.
It was argued for the appellant, that the law of New York, the
lex loci contractus, was settled by recent decisions of the Court of
Appeals of that State in favor of the right of a carrier of goods or
passengers, by land or water, to stipulate for exemption from all
LIMITATION OF LIABILITY. 493
liability for his own negligence. Mynard v. Syracuse Railroad, 77
N. Y. 180.1 Spinette v. Atlas Steamship Co., 80 N. Y. 71.
I MYNARD V. SYRACUSE, etc. R. CO.
71 N. Y. 180. 1877.
This action was brought to recover damages for the loss of a steer, while being
transported on defendant's road from Syracuse to Binghamton.
Church, Ch. J. The parties stipulated that the animal was lost by reason of the
negligence of some of the employees of the defendant without the fault of the plaintiff.
The defence rested solely upon exemption from liability contained in the contract
of shipment, by which, for the consideration of a reduced rate, the plaintiff agreed to
"release and discharge the said company from all claims, demands, and liabilities of
every kind whatsoever for, or on account of, or connected with any damage or injury
to or the loss of said stock, or any portion thereof, from whatsoever cause arising."
The question depends upon the construction to be given to this contract, whether
the exemption "from whatever cause arising" should be taken to include a loss
accruing by the negligence of the defendant or its servants. The language is general
and broad. Taken literally it would include the loss in question, and it would also
include a loss accruing from an intentional or wilful act on the part of servants.
It is conceded that the latter is not included. We must look at the language in
connection with the circumstances and determine what was intended and whether the
exemption claimed was within the contemplation of the parties.
The defendant was a common carrier, and as such was absolutely liable for the safe
carriage and delivery of property intrusted to its care, except for loss or injury
occasioned by the acts of God or public enemies. The obligations are imposed by law,
and not by contract. A common carrier is subject to two distinct classes of liabilities,
— one where he is liable as an insurer without fault on his part ; the other, as an
ordinary bailee for hire, when he is liable for default in not exercising proper care and
diligence ; or, in other words, for negligence. General words from whatever cause
arising may well be satisfied by limiting them to such ordinarj' liabilities as carriers
are under without fault or negligence on their part.
When general words may operate without including the negligence of the carrier or
his servants, it will not be presumed that it was intended to include it. Every
presumption is against an intention to contract for immunity for not exercising
ordinary diligence in the transaction of any business, and hence the general rule is
that contracts will not be so construed, unless expressed in unequivocal terras. In
New Jersey Steam Navigation Company v. Merchants' Bank, 6 How. [U. S. R.], 344,
a contract that the earners are not responsible in any event for loss or damages was
held not intended to exonerate them from liability for want of ordinary care. Nelson,
J., said : " The language is general and broad, and might very well comprehend every
description of risk incident to the shipment. But we think it would be going further
than the intent of the parties upon any fair and reasonable construction of the agree-
ment, were we to regard it as stipulating for. wilful misconduct, gross negligence, or
want of ordinary care, either in the seaworthiness of the vessel, her proper equipments
and furniture, or in her management by the master and hands." ....
These authorities are directly in point, and they accord with the wise public policy
by which courts should be guided in the construction of contracts designed to relieve
common earners from obligation to exercise care and diligence in the prosecution of
their business, which the law imposes upon ordinary bailees for hire engaged in private
business. In the recent ease of Lockwood v. Railroad Co., 17 Wall. 357, the Supreme
Court of the United States decided that a common carrier cannot lawfully stipulate
for exemption from responsibility for the negligence of himself or his servants. If we
felt at liberty to review the question, the reasoning of Justice Bradley in that case
494 CARRIERS OF GOODS.
But on this subject, as on any question depending upon mercantile
law and not upon local statute or usage, it is well settled that the
courts of the United States are not bound by decisions ot the courts
of the State, but will exercise their own judgment, even when their
jurisdiction attaches only by reason of the citizenship of the parties,
in an action at law of which the courts of the State have concurrent
jurisdiction, and upon a contract made and to be performed within
the State. Railroad Co. v. Lockwood, 17 Wall. 357, 368; Myrick v.
^Michigan Central Railroad, 107 U. S. 102; Carpenter v. Washington
Ins. Co., 16 Pet. 496, 511; Swift v. Tyson, 16 Pet. 1; Railroad Co.
V. National Bank, 102 U. 8. 14; Burgess v. Seligman, 107 U. S.
20, 33; Smith v. Alabama, 124 U. S. 365, 478; Bucher v. Cheshire
Railroad, 125 U. S. 555, 583. The decision of the State courts
certainly cannot be allowed any greater weight in the Federal courts
when exercising the admiralty and maritime jurisdiction exclusively
vested in them by the Constitution of the United States.
It was also argued in behalf of the appellant that the validity
_ and effect of this contract, to be performed principally upon the
high seas, should be governed by the general maritime law, and
that by that law such stipulations are valid. To this argument
there are two answers.
First. There is not shown to be any such general maritime law.
The industry of the learned counsel for the appellant has collected
articles of codes, decisions of courts, and opinions of commentators
in France, Italy, Germany, and Holland, tending to show that, by
the law administered in those countries, such a stipulation would
be valid. But those decisions and opinions do not appear to have
been based on general maritime law, but largely, if not wholly,
upon provisions or omissions in the codes of the particular country;
and it has been said by many jurists that the law of France, at
least, was otherwise. See 2 Pardessus Droit Commercial, no. 542;
4 Goujet & Meyer Diet. Droit Commercial (2d ed.) 2 Voiturier,
nos. 1, 81; 2 Tropling Droit Civil, nos. 894, 910, 942, and other
books cited in Peninsular & Oriental Co. v. Shand, 3 Moore P. C.
(n. s.) 272, 278, 285, 286; 25 Laurent Droit Civil Franqais, no.
532; Mellish, L. J., in Cohen v. Southeastern Railway, 2 Ex. D.
253, 267.
Second. The general maritime law is in force in this country, or
in any other, so far only as it has been adopted by the laws or usage
thereof; and no rule of the general maritime law (if any exists)
concerning the validity of such a stipulation as that now before us
has ever been adopted in the United States or England, or recog-
would be entitled to serious consideration ; but the right thus to stipulate has been so
repeatedly affirmed by this court that the question cannot with propriety be regarded
as an open one in this State. 8 N. Y. 375 ; 11 id. 485 ; 24 id. 181-196 ; 25 id.
442 ; 42 id. 212 ; 49 id. 263 ; 51 id. 61.
LIMITATION OF LIABILITY. 495
nized in tlie admiralty courts of either. The Lottawanna, 21 Wall.
658; The Scotland, 105 U. S. 24, 29, 33; The Belganland, 114
U. S. 355, 369; The Harrisburg, 119 U. S. 199; The Hamburg, 2
Moore P. C. (n. s.) 289, 319; s. c. Brown & Lush, 253, 272;
Lloyd V. Guibert, L. K. 1 Q. B. 115, 123, 124; s. c. 6 B. & S. 100,
134, 136; The Gaetano & Maria, 7 P. D. 137, 143.
It was argued in this court, as it had been below, that as the con-
tract was to be chiefly performed on board of a British vessel and to
be finally completed in Great Britain, and the damage occurred in
Great Britain , the case should be determined by the British law, and
that by that law the clause exempting the appellant from liability
for losses occasioned by the negligence of its servants was valid.
It appears by the cases cited in behalf of the appellant, and is
hardly denied by the appellee, that under the existing law of Great
Britain, as declared by the latest decisions of her courts, common
carriers, by land or sea, except so far as they are controlled by the
provisions of the Railway and Canal Traffic Act of 1854, are per-
mitted to exempt themselves by express contract from responsibility
for losses occasioned by negligence of their servants. The Duero,
L. E. 2 Ad. & Ec. 393; Taubman v. Pacific Co., 26 Law Times
(n. s.) 704; Steel v. State Line Steamship Co., 3 App. Cas. 72;
Manchester, etc. K. v. Brown, 8 App. Cas. 703. It may therefore
be assumed that the stipulation now in question, though invalid by
our law, would be valid according to the law of Great Britain.
The general rule as to what law should prevail, in case of a con-
flict of laws concerning a private contract, was concisely and exactly
stated before the Declaration of Independence by Lord Mansfield
(as reported by Sir William Blackstone, who had been of counsel in
the case) as follows : " The general rule, established ex comitate et
jure gentium is that the place where the contract is made, and not
where the action is brought, is to be considered in expounding and
enforcing the contract. But the rule admits of an exception, when
the parties (at the time of making the contract) had a view to a
■different kingdom." Eobinson v. Bland, 1 W. Bl. 234, 266, 258;
s. c. 2 Bur. 1077, 1078.
This court has not heretofore had occasion to consider by what
law contracts like those now before us should be expounded. But it
has often affirmed and acted on the general rule that contracts are
to be governed as to their nature, their validity, and their interpre-
tation, by the law of the place where they were made, unless the
contracting parties clearly appear to have had some' other law in
view. Cox V. United States, 6 Pet. 172; Scudder v. Union Bank,
91 U. S. 406; Pritchard v. Norton, 106 U. S. 124; Lamar v. Micou,
114 U. S. 218; Watts v. Camors, 116 U. S. 353, 362.
496 CARRIERS OF GOODS.
This review of the principal cases demonstrates that according to
the great preponderance, if not the uniform concurrence, of author-
ity, the general rule that the nature, the obligation, and the inter-
pretation of a contract are to be governed by the law of the place
where it is made, unless the parties at the time of making it have
some other law in view, requires a contract of affreightment, made
in one country between citizens or residents thereof, and the per-
formance of which begins there, to be governed by the law of that
country, unless the parties, when entering into the contract, clearly
manifest a mutual intention that it shall be governed by the law of
some other country.
There does not appear to us to be anything in either of the bills
of lading in the present case tending to show that the contracting
parties looked to the law of England, or to any other law than to
that of the place where the contract was made.
The bill of lading for the bacon and hams was made and dated at
New York, and signed by the ship's agent there. It acknowledges
that the goods have been shipped " in and upon the steamship called
Montana, now lying in the port of New York and bound for the port
of Liverpool." It contains no indication that the owners of the
steamship are English, or that their principal place of business is in
England, rather than in this country. On the contrary, the only
description of the line of steamships or of the place of business of
their owners, is in a memorandum in the margin, as follows : " Guion
Line. United States Mail Steamers. New York: 29 Broadway.
Liverpool: 11 Rumford St." No distinction is made between the
places of business at New York and at Liverpool, except that the
former is named first. The reservation of liberty, in case of an
interruption of the voyage, "to transship the goods by any other
steamer, " would permit transshipment into a vessel of any other line,
English or American. And general average is to be computed,
not by any local law or usage, but "according to York- Antwerp
rules," which are the rules drawn up in 1864 at York in England,
and adopted in 1877 at Antwerp in Belgium, at international con-
ferences of representatives of the more important mercantile associa-
tions of the IJnited States, as well as of the maritime countries of
Europe. Lowndes on General Average (3d ed.). Appendix Q.
The contract being made at New York, the shipowner having a
place of business there, and the shipper being an American, both
parties must be presumed to have submitted themselves to the law
there prevailing, and to have agreed to its action upon their con-
tract. The contract is a single one, and its principal object, the
transportation of the goods, is one continuous act, to begin in the
port of New York, to be chiefly performed on the high seas, and to
end at the port of Liverpool. The facts that the goods are to be
delivered at Liverpool, and the freight and primage, therefore, pay-
able there in sterling currency, do not make the contract an English
LIMITATION OF LIABILITY. 497
contract, or refer to the English law the question of the liability of
the carrier for the negligence of the master and crew in the course
of the voyage. Peninsular & Oriental Co. v. Shand,^ Lloyd v.
Guibert; ^ and Chartered Bank of India v. Netherlands Steam Navi-
gation Co.,' before cited.
There is even less ground for holding the three bills of lading of
the cotton to be English contracts. Each of them is made and dated
at Nashville, an inland city, and is a through bill of lading, over
be Louisville and Nashville Railroad and its connections, and by
he Williams and Guion Steamship Company, from Nashville to
Liverpool ; and the whole freight from Nashville to Liverpool is to
be "at the rate of fifty -four pence sterling per 100 lbs. gross weight."
It is stipulated that the liability of the Louisville and Nashville
Eailroad and its connections as common carriers "terminates on
delivery of the goods or property to the steamship company at New
York, when the liability of the steamship commences, and not
before ; " and that " the property shall be transported from the port
of New York to the port of Liverpool by the said steamship com-
pany, with liberty to ship by any other steamship or steamship
line." And in the margin is this significant reference to a provision
of the statutes of the United States, applicable to the ocean trans-
portation only: "Attention of shippers is called to the Act of Con-
gress of 1851 : ' Any person or persons shipping oil of vitriol, un-
slacked lime, inflammable matches (or) gunpowder, in a ship or vessel
taking cargo for divers persons on freight, without delivering at the
time of shipment a note in writing, expressing the nature and char-
acter of such merchandise, to the master, mate, or officer, or person
in charge of the loading of the ship or vessel, shall forfeit to the
United States One Thousand Dollars.'" Act of March 3, 1851, c.
43, sec. 7; 9 Stat. 636; Eev. Stat. see. 4288.
It was argued that as each bill of lading, drawn up and signed by
the carrier and assented to by the shipper, contained a stipulation
that the carrier should not be liable for losses by perils of the sea
arising from the negligence of its servants, both parties must be
presumed to have intended to be bound by that stipulation, and must,
therefore, the stipulation being void by our law and valid by the
law of England, have intended that their contract should be governed
by the English law ; and one passage in the judgment in Peninsular
& Oriental Co. v. Shand gives some color to the argument. 3
Moore P. C. (n. s. ) 291. But the facts of the two cases are quite
different in this respect. In that case, effect was given to the law
of England, where the contract was made; and both parties were
English, and must be held to have known the law of their own
1 3 Moore P. C. (n. s.) 272.
" 6 B. & S. 100 ; s. c. L. R. 1 Q. B. 115.
» 9 Q. B. D. 118, and 10 Q. B. D. 521.
498 CAKBIEKS OF GOODS.
country. In this case, the contract was made in this country,
between parties one residing and the other doing business here ; and
the law of England is a foreign law, which the American shipper is
not presumed to know. Both parties or either of them may have
supposed the stipulation to be valid; or both or either may have
known that by our law, as declared by this court, it was void. In
either aspect, there is no ground for inferring that the shipper, at
least, had any intention, for the purpose of securing its validity,
to be governed by a foreign law, which he is not shown, and oanno'
be presumed, to have had any knowledge of.
Our conclusion on the principal question in the case may be
summed up thus. Each of the bills of lading is an American and not
an English contract, and, so far as concerns the obligation to carry
the goods in safety, is to be governed by the American law, and not
by the law, municipal or maritime, of any other country. By our
law, as declared by this court, the stipulation by which the appel-
lant undertook to exempt itself from liability for the negligence of
its servants is contrary to public policy and therefore void; and the
loss of the goods was a breach of the contract, for which the shipper
might maintain a suit against the carrier. This being so, the fact
that the place where the vessel went ashore, in consequence of the
negligence of the master and officers in the prosecution of the voy-
age, was upon the coast of Great Britain, is quite immaterial.
THE MAIN V. WILLIAMS.
152 U. S. 122 ; 14 S. C. Rep. 486. 1894.
This was an appeal from a decree entered in a proceeding taken to
limit the liability of the owners of the steamship Main for a collision
with the steamship Montana, in respect to her " freight pending."
The proceedings were begun by a petition filed by the Nord
Deutscher Lloyd, owner of the Main, setting forth the filing of a
libel against the steamship for a collision with the steamship Montana,
which occurred in the Patapsco Kiver on January 6, 1889, wherein
was claimed a sum largely in excess of the value of the Main and her
freight then pending, and praying for the appointment of appraisers
of the interest of petitioner in the ship and her freight for the voyage.
The value of the vessel was subsequently fixed by stipulation at
$70,000. The appraisers returned the amount of freight pending
at $1677.38, which was disputed. The decree of the District Court
subsequently fixed the gross amount of freight upon the cargo on
board at the time of the collision, prepaid at Bremen, as well as col-
lectable at Baltimore, at $1870.10, and added thereto $5200 gross
LIMITATION OF LIABILITY. 499
passage money prepaid at Bremen for the transportation of emigrant
passengers for Baltimore, making in all $7070.10.
On appeal to the Circuit Court this decree was affirmed, and the
owners of the Main appealed to this court.
Mk. Justice Bkowst, after stating the case, delivered the opinion
of the court.
This case raises two questions : (1) as to whether, under Revised
Statutes, sec. 4283, the liability of a ship owner for the " freight then
pending " extends to passage money ; and, (2) whether it extends to
freight prepaid at the port of departure.
1. By the common law, as administered both in England and
America, the personal liability of the owner of a vessel for damages
by collision is the same as in other cases of negligence, and is limited
only by the amount of the loss and by his ability to respond. Wilson
V. Dickson, 2 B. & Aid. 2; The Dundee, 1 Hagg. 109, 120; The Aline,
1 W. Rob. Ill ; The Mellona, 3 W. Rob. 16, 20 ; The Wild Ranger,
Lush. 558, 564 ; Cope v. Doherty, 4 K. & J. 367, 378. The civil law, too,
as well as the general law maritime, made no distinction in this par-
ticular in favor of ship owners. (Emerigon, Contrats a la grosse, c. 4,
sec. 11.) Nor did the ancient laws of Oleron or Wisby or the Hanse
towns suggest any restriction upon such liability. Indeed, it is diffi-
cult, if not impossible, to say when and where the restrictions of the
modern law originated. They are found in the Consolato del Mare,
which, in two separate chapters, expressly limits the liability of the
part owner to the value of his share in the ship. Vinnius, an early
Continental writer, states that by the law of the land the owners
were not chargeable beyond the value of the ship and the things that
were in it. The Hanseatic Ordinance of 1644 also pronounced the
goods of the owner discharged from claims for damages by the sale
of the ship to pay them. But however the practice originated, it
appears, by the end of the seventeenth century, to have become firmly
established among the leading maritime nations of Europe, since the
French Ordinance of 1681, which has served as a model for most of
the modern maritime codes, declares that the owners of the ship shall
be answerable for the acts of the master, but shall be discharged
therefrom upon^ relinquishing the ship and freight. (Bk. II, Tit.
VIII, Art. 2.) A similar provision in the Ordinance of Rotterdam
of 1721 declared that the owners should not be answerable for any
act of the master done without their order, any further than their
part of the ship amounted to ; and by other articles of the same ordi-
nance it was provided that each part-owner should be liable for the
value of his own share. The French Ordinance of 1681 was carried,
with slight change of phraseology, into the commercial code of
France, and all the other maritime nations whose jurisprudence is
founded upon the civil law. (Code de Commerce (French), Art. 216 ;
German Mar. Code, Art. 462; Code of the Netherlands, Art. 321;
Belgian Code, Art. 216; Italian Code, Art. 311; Russian Code, Arti
500 CARRIERS OF GOODS.
649; Spanish Code, Art. 621, 622; Portuguese Code, Art. 1345 j
Brazilian Code, Art. 494; Argentine Code, Art. 1039; Chilian Code,
Art. 879.)
The earliest legislation in England upon the subject is found in the
act of 7 Geo. 2, o. 15, passed in 1734, which enacted that no ship
owner should be responsible for loss or damage to goods on board the
ship by embezzlement of the master or mariners, or for any damage
occasioned by them without the privity or knowledge of such owner,
further than the value of the ship and her appurtenances, and the
freight due or to grow due for the voyage, and if greater damage
occurred it should be averaged among those who sustained it. By
subsequent acts this limitation of liability was extended to losses in
which the master and mariners had no part, to losses by their negli-
gence, and to damage done by collision, while there was an entire
exemption of liability for loss or damage by fire or for loss of gold
and jewelry, unless its nature and value were disclosed. In all these
statutes the liability of the owner was limited to his interest in the
ship and freight for the voyage.
By section 505 of the Merchants' Shipping Act of 1854, 16 and
17 Vict. c. 131, freight was deemed to include the value of the carriage
of goods, and passage money. Owing, probably, to some difficulties
encountered in determining at what point of time the value of the ship
should be taken, and to establish a more uniform and equitable method
of limiting the liability of the owner, the Merchant Shipping Act
Amendment Act of 1862 extended the provisions of the prior acts to
foreign as well as British ships, and to cases of loss of life or personal
injury, as well as damage or loss to the cargo, and provided that the
owners should not be liable in damages in respect of loss of life or
personal injury, " to an aggregate amount exceeding fifteen pounds for
each ton of their ship's tonnage," nor in respect of loss or damage to
ships or theiT cargoes to an amount exceeding eight pounds per ton.
The earliest American legislation upon this subject is found in the
statute of Massachusetts passed in 1818, and revised in 1836. This
was taken substantially from the statute of George II. It was
followed by an act of legislature of Maine in 1831, copied from the
statute of Massachusetts.
The attention of Congress does not seem to have been called to the
necessity for similar legislation until 1848, when the case of The
Lexington, reported under the name of the New Jersey Steam
Navigation Co. v. Merchants' Bank, 6 How. 344, was decided by this
court. In this case the owners of a steamboat, which was burnt on
Long Island Sound, were held liable for about $18,000 in coin, which
had been shipped upon the steamer and lost. In consequence of the
uneasiness produced among ship owners by this decision, and for the
purpose of putting American shipping upon an equality with that of
other maritime nations. Congress, in 1851, enacted what is commonly
known as the Limited Liability Act, which has been incorporated
LIMITATION OF LIABILITY. 501
into tlie Revised Statutes, sections 4282 to 4290, and amended in
certain particulars not material to this case, in two subsequent acts.
Act of June 26, 1884, c. 121, sec. 18, 23 Stat. 53, 57; Act of June 19,
1886, c. 421, sec. 4, 24 Stat. 79, 80.
By section 4283, upon the construction of which this case depends,
" the liability of the owner of any vessel, for any embezzlement, loss,
or destruction, by any person, of any property, goods, or merchandise,
shipped or put on board of such vessel, or for any loss, damage, or
injury by collision, or for any act, matter, or thing lost, damage, or
forfeiture done, occasioned, or incurred, without the privity, or knowl-
edge of such owner or owners, shall in no case exceed the amount or
value of the interest of such owner in such vessel, and her freight
then pending."
By the law maritime the word " freight " is used to denote, not the
thing carried, but the compensation for the carriage of it. Prior to
the era of steam navigation, travel by sea was comparatively of such
little magnitude that " freight " was commonly used to denote com-
pensation for the carriage of goods ; yet, in Les Bones Costumes de la
Mar, (Black Book, 3 Twiss' ed. 60, App. Pt. Ill,) it is said " the term
passenger includes all those who ought to pay freight for their persons
apart from their merchandise," and " every man is called a passenger
who pays freight for his own person, and for goods which are not
merchandise. And every person who carries legs than two quintals
ought to pay freight for his own person ; " and in this, one of the most
ancient books upon the maritime law, (at least as old as the fourteenth
century,) it is also said : " And in this same manner with regard to
any person who may come on board the ship without the consent of
the managing owner or of the ship's clerk, it is in the power of the
managing owner to take what freight he pleases." (Ibid. pp. 173-5.)
That passengers' fares were regarded as the substantial equivalent of
freight is evident from the case of MuUoy v. Backer, 5 East, 316, 321,
in which Lawrence, Judge, remarks that "foreign writers consider
passage money the same as freight;" and Lord Ellenborough adds,
" except for the purposes of lien, it seems the same thing." In this
country, as early as 1801, it was said by Judge Peters in the case of
the Brig Cynthia, 1 Pet. Adm. 203, 206 : "I think the force and true
meaning of 'freight' has been misconceived. It is a technical expres-
sion. It does not always imply that it is the naulum, merces, or fare,
for the transportation of goods. It is applied to all rewards, hire, or
compensation, paid for the use of [ships ; either for an entire voyage,
one divided into sections, or engaged by the month, or any period. It
is also called freight (and it is to be determined on the like legal prin-
ciples) in the case of passengers, transported in vessels, for compensa-
tion. In Saxon, from which much of the English language is derived,
it is called fracM, whether it be a compensation for transportation in
ships by sea, or carriage^by land, either of goods or persons, in gross,
or detail."
602 CARRIERS OF GOODS.
With tlie introduction of steam vessels, however, the carriage of
passengers became at once a most important branch of maritime in-
dustry, and modern authorities have generally placed the fare or com-
pensation for the carriage of such passengers upon the same footing
as freight for the transportation of goods. While many of the lexi-
cographers, such as Webster, Worcester, and the Imperial Dictionary,
still define freight as the sum paid by a party hiring a ship or part of
a ship, or for the carriage of goods, in the Century Dictionary it is
said to be, in a more general sense, the price paid for the use of a
ship, including the transportation of passengers. Similar definitions
are given in the law dictionaries of Burrill, Bouvier, and Anderson.
See also Benedict's Admiralty, sections 283, 286, and 288.
Our attention has not been called to any express adjudications upon
the question involved here, but, so far as the courts have been called
upon to consider the subject, they have usually given to the word
freight the same definition. Thus in Flint v. Flemyng, 1 B. & Ad. 45,
which was an action upon an insurance policy upon freight, it was
held that plaintiff could recover freight upon his own goods, Lord
Tenterden holding that the word " freight," as used in policies of in-
surance, imported the benefit derived from the employment of a ship.
So, in Brown v. Harris, 2 Gray, 359, the Supreme Court of Massachu-
setts, holding that passage money, paid in advance, might be recovered
back, upon the breaking up of the voyage, observed that the rule was
well settled as to freight for the carriage of goods ; that if freight be
paid in advance, and the goods not carried for any event, not impu-
table to the shipper, it is to be repaid, unless there be a special agree-
ment to the contrary. The court further observed : " Passage money
and freight are governed by the same rules. Indeed, freight, in its
more extensive sense, is applied to all compensation for the use of
ships, including transportation of passengers." See also 3 Kent Com.
219.
It is true that in the case of Lewis- v. Marshall, 7 Man. & Gr. 729,
it was said that freight was a term applicable to goods only, but this
was said with reference to a contract which made a distinction be-
tween freight upon a cargo and the fare of steerage passengers. The
same remark may be made of the case of Denoon v. Home and Colonial
Insurance Co., L. R. 7 C. P. 341, in which it was held that the ques-
tion whether the term " freight " in a marine policy includes passage
money, must depend upon the circumstances of each particular case,
and the context of the particular policy ; and, in that case, under the
particular terms of the policy, which made a different rate of insurance
upon freight and the transportation of coolies, it was held that the
insurance did not cover the price to be paid for their transportation.
The real object of the act in question was to limit the liability of
vessel owners to their interest in the adventure; hence, in assessing
the value of the ship, the custom has been to include all that belongs
to the ship, and may be presumed to be the property of the owner.
LIMITATION OF LIABILITY. 503
not merely the hull, together with the boats, tackle, apparel, and fur-
niture, but all the appurtenances, comprising whatever is on board for
the object of the voyage, belonging to the owners, whether such object
be warfare, the conveyance of passengers, goods, or the fisheries. The
Dundee, 1 Hagg. 109 ; Gale v. Laurie, 5 B. & C. 166, 164. It does not,
however, include the cargo, which, presumptively at least, does not
belong to the owner of the ship. i
There is no reason, however, for giving to the word "freight" a
narrow or technical definition. The fares of the passengers are as
much within the reason of the rule as the freight upon the cargo. It
would be creating a distinction without a real difference to say that a
transatlantic steamer laden with passengers should be wholly exempt
from the payment of freight, while another, solely engaged in the
carriage of merchandise, should be obliged to pay the entire proceeds
of her voyage. The words " freight pending," in section 4283, or
" freight for the voyage," section 4284, were copied from the English
statute of George II, which, in turn, had taken them from the Marine
Ordinance of 1681, and the prior Continental codes ; but in both cases
they were evidently intended to represent the earnings of the voyage,
whether from the carriage of passengers or merchandise. If these
words were used instead of the words "freight for the voyage," it
would probably more accurately express the intent of the legislature.
2. 'Nov by the use of the word " pending " was it intended to limit
the recovery to the uncollected freight, or such as had not been com-
pletely earned at the time of the disaster. As the object of the statute
was to curtail the amount that would otherwise be recoverable, it
should not be construed to abridge the rights of the owner of the
injured vessel to a greater extent than its language will fairly warrant.
This is the view taken in Wilson v. Dickson, 2 B. & Aid. 2, 10, in
which the court held the words "freight due or to grow due" included
all the freight for the voyage, whether paid in advance or not.
It is worthy of remark in this connection that the codes of the
Netherlands, of Chili, and of the Argentine Eepublic, in the sections
above quoted, extend the liability for freight to such as is earned and
yet to be earned.
The English courts have held, very properly we think, that these
statutes should be strictly construed. As observed by Abbott, C. J.,
in Gale v. Laurie, 5 B. & C. 156, 164 : " Their effect, however, is to
take away or abridge the right of recovering damages, enjoyed by the
subjects of this country at the common law, and there is nothing to
require a construction more favorable to the ship owner than the plain
meaning of the word imports." To the same effect are the remarks
of Sir Robert Phillimore in The Andalusian, 3 P. D. 182, 190, and in
The Northumbria, L. R. 3 Ad. & Ec. 6, 13. Speaking of this statute.
Lord Justice Brett, in Chapman v. Royal Netherlands Nav. Co., 4
P. D. 167, 184, remarked : " A statute for the purposes of public policy,
derogating to the extent of injustice, from the legal rights of individual.
504 CAKEIERS OF GOODS.
parties, should be so construed as to do the least possible injustice.
This statute, whenever applied, must derogate from the direct right
of the ship owner against the other ship owner, ... It should be so
construed as to derogate as little as is possible consistently with its
phraseology, from the otherwise legal rights of the parties."
While, from the universal habit of insuring vessels, the application
of the statute probably results but rarely in an actual injustice to the
owner of the injured vessel, yet, being in derogation of the common
law, we think the court should not limit the right of the injured party
to a recovery beyond what is necessary to effectuate the purposes of
Congress.
We are satisfied with the conclusions of the court below upon both
of the points involved, and its decree is, therefore,
Affirmed.
CALDEEON v. ATLAS STEAMSHIP COMPANY.
170 U. S. 272 ; 18 S. C. Kep. 588. 1898.
This was a suit instituted in the District Court for the Southern
District of New York, in admiralty, by the libellant, Calderon, who
was at that time consul general for the United States of Colombia at
New York, to recover from the respondent, the Atlas Steamship
Company, the sum of $6413.18, the value of a consignment of goods
shipped from New York to Savanilla by the libellant on the steamer
Ailsa, which goods the master failed to deliver at the port of destina-
tion, and thereafter brought back to New York, where they were re-
shipped by the respondent on the steamer Alvo. The goods were lost
by the sinking of this ship through a peril of the sea.
It seems the respondent owned both the Ailsa and the Alvo, and
ran them between New York, Kingston, Savanilla, Carthagena and
Port Limon, from which last-named port they sailed direct to New
York, usually carrying a cargo of fruit. Libellant had frequently
shipped goods by this line and over the same route, and on July 19,
1893, about two hours before the Ailsa sailed on its regular voyage
from New York, delivered to the company on its pier, under authority
of a special permit from the company, the consignment of goods in
question, which consisted of twenty-six bales and three crates of duck
government uniforms, for transportation to the port of Savanilla, and
from thence to Baranquilla in the United States of Colombia. The
receipt given by the company to the truckman who delivered the
goods stated that they had been received " at the shipper's risk from
fire, and subject to the conditions expressed in the company's form of
bill of lading."
The bill of lading, subsequently obtained in lieu of the receipt, and
a copy of which was sent by mail to the consignee by the same steamer,
LIMITATION OF LIABILITY. 505
contained on its face tlie provision : " And finally, in accepting this
bill of lading, the shipper, owner and consignee of the goodsj and the
holder of the bill of lading, agree to be bound by all of its stipulations,
exceptions and conditions, as printed on the back hereof, whether
written or printed, as fully as if they were signed by such shipper,
owner, consignee, or holder."
Of the stipulations, exceptions and conditions printed on the back,
only the following are material :
" 1. It is also mutually agreed that the carrier shall not be liable
for gold, silver, bullion, specie, documents, jewellery, pictures, em-
broideries, works of art, silks, furs, china, porcelain, watches, clocks
or for goods of any description which are above the value of $100
per package, unless bills of lading are signed therefor^ with the value
therein expressed, and a special agreement is made."
" 9. Also, in case any part of the goods cannot be found for delivery
during the steamer's stay at the port of destination, they are to be
forwarded by the first opportunity, when found, at the company's
expense, the steamer not to be held liable for any claim for delay or
otherwise."
"14. This agreement is made with reference to, and subject to the
provisions of U. S. carriers' act, approved February 13, 1893."
It appeared from the testimony taken that these goods were the
last to be loaded, and that instead of being stowed with other freight
for Savanilla, the port of destination, they were placed in another
hold of the ship and in the " last tier to come out " of the Carthagena
freight. It also appeared that the consignment was not discharged at
Savanilla, and that it was not discovered to be on board until the
ship was well on its way to Carthagena. The ship, however, proceeded
on its voyage without attempting to make the delivery of the goods,
and upon receiving a cargo of fruit at Port Limon sailed for New York,
where the consignment was reshipped, August 16, 1893, on the steamer
Alvo. No notice was given to libellant of the return of the goods or
of their reshipment. The Alvo was caught in a hurricane and lost at
sea with her entire cargo.
The District Court held that there was a " failure in the proper
delivery" of the goods at Savanilla, but that inasmuch as bills of
lading were not signed specially designating the value of each of the
twenty-nine packages, as provided by clause one on the back of the
bill of lading, the liability of the company was limited to $100 for
«aeh of the twenty-nine packages, or $2900 in all. Calderon v. Atlas
Steamship Co., 64 Fed. Eep. 874
Erom this decree the libellant alone appealed, and upon the hear-
ing the Circuit Court of Appeals for the Second Circuit, by a majority
opinion, sustained the decree of the court below. 35 TJ. S. App. 587.
Me. Justice Brown, after stating the case, delivered the opinion
■of the court.
Two questions are presented by the record in this case: First,
506 CAREIEES OP GOODS.
■whether the steamship company was liable at all under its bill of
lading for the non-delivery of the goods at Savanilla ; second, -whether
such liability was limited to the sum of f 100 for each package.
1. Both the District Court and the Court of Appeals held the com-
pany to be liable under section 1 of the Harter Act, of February 13,,
1893, c. 105, 27 Stat. 445, which provides "that it shall not be lawful
for the manager, agent, master or owner of any vessel transporting-
merchandise or property from or between ports of the United States
and foreign ports to insert in any bill of lading or shipping document
any clause, covenant or agreement whereby it, he or they shall be re-
lieved from liability for loss or damage arising from negligence, fault
or failure in proper loading, stowage, custody, care or proper delivery
of any and all lawful merchandise or property committed to its or
their charge. Any and all words or clauses of such import inserted
in bills of lading or shipping receipts shall be null and void and of no-
effect," and this, notwithstanding the provision in the bill of lading
that " in case any part of the goods cannot be found for delivery dur-
ing the steamer's stay at the port of destination, they are to be for-
warded by first opportunity, when found, at the company's expense,,
the steamer not to be held liable for any claim for delay or otherwise."
As the company did not appeal from this decree it must be regarded
as acquiescing in the justice of such decree to the amount therein
awarded to the libellant ; but as we should not make a further decree
against the company for the amount now claimed by the libellant in
excess of $100 per package, if we were satisfied that the company was
not liable at all, we have thought it best to consider whether th&
courts below were correct in their construction of the Harter Act.
It may well be questioned whether the provision " that in case any
part of the goods cannot be found for delivery during the steamer's
stay at the port of destination " has any application to a case where
the goods were not placed in the proper compartment when stowed
on board the vessel, and for which it appears no search was made
upon the arrival at Savanilla, notwithstanding the fact that a bill of
lading had been given for them and their shipment had been entered
upon the manifest or other " cargo books" of the steamer. It appears
that after leaving Savanilla the purser discovered that these goods had
not been " tallied out " on the cargo books for that port, and he at
once made search for them, and found them stowed with the Carthagena
cargo.
It was clearly the duty of the master of the vessel before leaving
Savanilla to examine the manifests or other memoranda of the vessel
to ascertain whether the portion of the cargo consigned to that place
had been delivered, and if not, to search for the missing consignment
before leaving the port. His failure to do this was obviously a breach
of his general obligation to deliver his cargo to its consignee, and it is
exceedingly doubtful whether, even in the absence of the Harter Act,
the provision in the bill of lading would have excused him. But as-
LIMITATION OF LIABILITY. 507
the stipulation in the bill of lading was one which the Harter Act
prohibited, it is only necessary to refer to this act to hold the com-
pany chargeable with negligence. Regard may doubtless be had to
the custom of the port as to what shall be termed a proper delivery
with respect to the time and manner of such delivery, but a failure to
deliver at all was negligence. No such want of delivery can be ex-
cused under the terms either of the first or second section of the
Harter Act. Not only was there negligence in failing to examine the
ship's papers to ascertain what goods were consigned to Savanilla, but
there was also negligence in stowing such goods under that portion of
the cargo destined for Carthagena, and thus concealing them from
observation. If these goods were the last received by the vessel be-
fore her departure from New York, they would naturally have occupied
a position which would have called attention to them upon arrival at
the first port of destination, but they were so concealed beneath the
goods consigned to another port that they were not discovered until
after the vessel had left Savanilla.
The words "cannot be found" would seem to apply to a case where
the goods had been misplaced, and an effort had been made to find
them which had proven unsuccessful, and not to a case where no attempt
whatever was made to deliver them. But however this may be, we
are clearly of opinion that the provisions of section one of the Harter
Act supersede and override this stipulation in the bill of lading, par-
ticularly as it is expressly provided that the agreement was " made
with reference to, and subject to the provisions of the United States
carriers' act, approved February 13, 1893," (Harter Act.) The first
section of the act is cited above, but the second section further pro-
vides " that it shall not be lawful for any vessel transporting mer-
chandise or property from or between ports of the United States of
America and foreign ports, her owner, master, agent or manager, to
insert in any bill of lading or shipping document any covenant or
agreement . . . whereby the obligations of the master, oflScers, agents
or servants to carefully handle and stow her cargo, and to care for
and properly deliver the game, shall in anywise be lessened, weakened
or avoided."
It is to be noticed that by the first section the carrier shall not be
" relieved from liability " for loss or damage arising from negligence
in the proper stowage or proper delivery of the goods, while by the
second section the carrier shall not insert any covenant or agreement
in the bill of lading whereby the obligations of the carrier to carefully
stow and properly deliver the cargo shall be " lessened, weakened or
avoided." These two sections, in their general purport, so far as re-
spects the care and delivery of the cargo, are not essentially different,
although it is possible that a somewhat ampler measure of liability
was intended under the second section, which denounces any cove-
nant whereby the obligations of the ship to properly deliver the cargo
shall in anywise be lessened, weakened or avoided. As the negli-
508 CAEHIEES or GOODS.
gence of the respondent in this connection was clearly proven, there
can be no doubt of its liability under either of these sections of the
Harter Act.
2. The alleged limitation of respondent's liability to the sum of
f 100 per package depends upon that clause of the bill of lading which
declares " that the carrier shall not be liable for gold, silver, bullion,
specie, documents, jewellery, pictures, embroideries, works of art, silks,
furs, china, porcelain, watches, clocks or goods of any description
which are above the value of $100 per package, unless bills of lading
are signed therefor, with the value therein expressed, and a special
agreement is made." Respondent insists that the words of this clause,
" which are above the value of $100 per package," should be read as
limiting its liability to $100 per package, and should be construed as
if the words used were " beyond the sum or value of $100 per pack-
age." The courts below agreed in putting this interpretation upon it.
Acting upon this view, it was held that the liability of the respondent
was limited to $100 per package, following in this particular the
rulings of this court in Railroad Company v. Praloff, 100 U. S. 24, 27
[329], and Hart v. Pennsylvania Railroad, 112 U. S. 331, and the
principle announced in Magnin v. Dinsmore, 56 N. Y. 168 ; S. C. 62
N. Y. 36 ; 70 N. Y. 410 ; Westcott v. Fargo, 61 N. Y. 542, and Graves
V. Lake Shore & Mich. Southern Railroad, 137 Mass. 33 [516]. In
this last case the rule obtaining in this court is adopted to its full
extent by the Supreme Judicial Court of Massachusetts. In these
cases it was held to be competent for carriers of passengers or goods,
by specific regulations brought distinctly to the notice of the passenger
or shipper, to agree upon the valuation of the property carried, with
a rate of freight based on the condition that the carrier assumes liar
bility only to the extent of the agreed valuation, even in case of loss
or damage by the negligence of the carrier, and that such contracts
will be upheld as a lawful method of securing a due proportion be-
tween the amount for which the carrier may be responsible and the
freight he receives, and of protecting himself against extravagant and
fanciful valuations. See also Ballon v. Earle, 17 R. I. 441 ; Richmond
& Danville Railroad v. Payne, 86 Virginia, 481 ; J. J. Douglas Com-
pany V. Minnesota Transportation Co., 62 Minnesota, 288.
We are, however, not content with the construction put upon the
contract by the courts below. Whether the limitation of liability to
goods above the value of $100 per package applies to "gold, silver,
bullion, specie, documents, jewellery, pictures, embroideries, works of
art, silks, furs, china, porcelain, watches, clocks," as well as to goods
of other descriptions, may admit of some doubt, in view of the fact
that by Rev. Stat. sec. 4281 the vessel and her owners would not be
liable for such articles at all, unless specifically mentioned at a valuar
tion agreed upon. This stipulation in the bill of lading having been
inserted by the ship owner for its own benefit, could scarcely have
been intended to enlarge its statutory liability, and the more reason-
LIMITATION OF LIABILITY. 509
able interpretation would seem to be that the company was not in-
tended to be held liable at all for these articles. But whether this be
so or n'ot, the stipulation may be read as if those words were omitted,
namely, that the carrier shall not be liable for goods of any descrip-
tion "which are above the value of $100 per package." The plain
and unequivocal meaning of these words is that the carrier shall not
be liable to any amount for goods exceeding in value $100 per pack-
age. It is true that contracts for the carriage of goods by water, as
well as by land, frequently contain a provision limiting the liability
of the carrier to a certain amount, usually $100 per package, and it
was apparently in view of this custom that the courts below gave
a like interpretation to the words of this stipulation. But this cer-
tainly does violence to its language. If it had been intended to so
limit the respondent's liability, it would have been easy to say so, and
the very fact that different language was used from that ordinarily
employed indicates a desire on the part of the carrier to limit his lia-
bility to goods which are of less value than $100 per package.
It is true that in cases of ambiguity in contracts, as well as in
statutes, courts will lean toward the presumed intention of the parties
or the legislature, and will so construe such contract or statute as to
effectuate such intention ; but where the language is clear and explicit
there is no call for construction, and this principle does not apply.
Parties are presumed to know the force and effect of the language in
which they have chosen to embody their contracts, and to refuse to
give effect to such language might result in artfully misleading others
who had relied upon the words being used in their ordinary sense. In
construing contracts words are to receive their plain and literal mean-
ing, even though the intention of the party drawing the contract may
have been different from that expressed. A party to a contract is re-
sponsible for ambiguity in his own expressions, and has no right to
induce another to contract with him on the supposition that his words
mean one thing while he hopes the court will adopt a construction by
which they would mean another thing more to his advantage. Clark
on Contracts, p. 593.
In this case the contract is one prepared by the respondent itself
for the general purposes of its business. With every opportunity for
a choice of language, it used a form of expression which clearly
indicated a desire to exempt itself altogether from liability for goods
exceeding $100 in value per package, and it has no right to complain
if the courts hold it to have intended what it so plainly expressed. If
the language had been ambiguous we might have given it the construc-
tion contended for, which probably conforms more nearly to the clause
ordinarily inserted in such cases, but such language is too clear to
admit of a doubt of the real meaning. The clause in question seems
to have been taken from the English carriers' act, 11 Geo. IV, and
510 CAEEIEKS OF GOODS.
1 Wm. IV, c. 68, which received a construction similar to that we
have given, to it in Morritt v. Northeastern Eailway Co., 1 Q. B. D.
302.
Under this interpretation there is a clear attempt on the part of the
carrier to exonerate itself from all responsibility for goods exceeding
the value of $100 per package. Such exemption is not only pro-
hibited by the Harter Act, but is held to be invalid in a series of cases
in this court, culminating in Chicago, Milwaukee &c. Eailway v. Solan,
169 U. S. 133, 135, wherein it was said that " any contract by which
a common carrier of goods or passengers undertakes to exempt himself
from all responsibility for loss or damage arising from the negligence
of himself or servants, is void as against public policy, as attempting
to put off the essential duties resting upon every public carrier by
virtue of his employment, and as tending to defeat the fundamental
principle upon which the law of common carriers was established."
The difficulty is not removed by the fact that the carrier may render
itself liable for these goods, if "bills of lading are signed therefor,
with the value therein expressed and a special agreement is made."
This would enable the carrier to do, as was done in this ease — give a
bill of lading in which no value was expressed, under which it would
not be liable at all for the safe transportation and propef delivery of
the property. This would be in direct contravention of the Harter Act.
Indeed, we understand it to be practically coiiceded that under the
construction we have given to this clause of the contract the exemp-
tion would be unreasonable and invalid.
The decree of the District Court is therefore reversed, and the case re-
manded to that court with directions to assess the value of the libellant's
goods, and to enter a decree in conformity with the opinion of this
court.
Mb. Justice White concurred in the result.
Me. Justice Bkewek dissented. ^
KNOTT V. BOTANY MILLS.
179 U. S. 69 ; 21 S. C. Kep. 30. 1900.
Mb. Justice Geay delivered the opinion of the court.
The Botany Worsted Mills, a corporation of New Jersey, and Win-
ter and Smillie, a firm of merchants in the city of New York, respec-
tive owners of two separate lots of bales of wool, shipped at Buenos
Ayres for New York on board the steamship Portuguese Prince,
severally filed libels in admiralty in personam in the District Court of
LIMITATION OF LIABILITY. 511
the United States for the Southern District of New York, against
James Knott, the owner of the vessel, to recover for damage caused to
the wool by contact with drainage from wet sugar which also formed
part of her cargo.
The Portuguese Prince was a British vessel, belonging to a line
trading between New York and ports in the Kiver Plata, Brazil, and
the West Indies, loading and discharging cargo and having a resident
agent at each port. The bills of lading of the wool, signed at Buenos
Ayres, December 21, 1894, gave her liberty to call at any port or ports
to receive and discharge cargo, and for any other purpose whatever ;
and purported to exempt the carrier from liability for " negligence of
masters or mariners ; " " sweating, rust, natural decay, leakage or
breakage, and all damage arising from the goods by stowage, or con-
tact with, or by sweating, leakage, smell or evaporation from them ; "
" or any other peril of the seas, rivers, navigation, or of land transit
of whatsoever nature or kind ; and whether any of the perils, causes or
things above mentioned, or the loss or injury arising therefrom, be oc-
casioned by the wrongful act, default, negligence, or error in judgment
of the owners, masters, officers, mariners, crew, stevedores, engineers
and others persons whomsoever in the service of the ship, whether
employed on the said steamer or otherwise, and whether before, or
after, or during the voyage, or for whose acts the shipowner would
otherwise be liable ; or by unseaworthiness of the ship at the beginning,
or at any period of the voyage, provided all reasonable means have
been taken to provide against 'such unseaworthiness." Each bill of
lading also contained the following clause : " This contract shall be
governed by the law of the flag of the ship carrying the goods, except
that general average shall be adjusted according to York-Antwerp
Eules, 1890."
The facts of the cases are substantially undisputed. The bales of
wool of the libellants were taken on board at Buenos Ayres, Decem-
ber 21-24, 1894, and were stowed on end, with proper dunnage, between
decks near the bow, and forward of a temporary wooden bulkhead,
which was not tight. The vessel, after touching at other ports, touched
on February 19, 1895, at Pernambuco, and there took on board two
hundred tons of wet sugar, (from which there is always drainage,) which
was stowed, with proper dunnage, between decks, aft of the wooden
bulkhead. At that time the vessel was trimmed by the stern, and all
drainage from the sugar, flowing aft, was carried off by the scuppers,
which were sufiicient for the purpose when the vessel was down by the
stern, or on even keel in calm weather. There was no provision for
carrying off the drainage in case it ran forward. She discharged other
cargo at Para ; and on March 10, when she left that port, she was two
feet down by the head. She continued in. this trim until she took on
additional cargo at Port of Spain, where the error in trim was corrected,
and she left that port on March 18, loaded one foot by the stern. It
was agreed by the parties that there was no damage to the wool by
512 CAEEIERS OF GOODS.
sugar drainage until she was trimmed by the head at Para ; that the
wool was damaged, by sugar drainage finding its way through the bulk-
head and reaching the wool, at Para, or between Para and Port of
Spain, and not afterwards ; that, after she was again trimmed by the
stern at Port of Spain, none of the drainage from the sugar found
its way forward; and that the court might draw inferences.
The District Court entered a decree for the libellauts. 76 Fed.
Eep. 682. That decree was affirmed by the Circuit Court of Appeals.
51 U. S. App. 467. The appellant then obtained a writ of certiorari
from this court. 168 TJ. S. 711.
Before the act of Congress of February 13, 1893, g. 105, (27 Stat.
445,) known as the Harter Act, it was the settled law of this country,
as declared by this court, that the common carriers, by land or sea, could
not by any form of contract exempt themselves from responsibility for
loss or damage arising from negligence of their servants, and that any
stipulation for such exemption was void as against public policy; al-
though the courts in England and in some of the States held otherwise.
Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. v.
Phoenix Ins. Co., 129 U. S. 397 ; Compania La Flecha v. Brauer, 168
U. S. 104, 117, 118. In many lower courts of the United States it has
been held, independently of the Harter Act, that a stipulation that a,
contract should be governed by the law of England in this respect
was void, and could not be enforced in a court of the United States ;
but the point has not been decided by this court. Nor is it necessary
for us now to decide that point, because these bills of lading were
issued since the Harter Act, and we are of the opinion that the case
is governed by the express provisions of that act.
Upon the facts of this case, there can be no doubt that the ship was
seaworthy, and that the damage to the wool was caused by drainage
from the wet sugar through negligence of those in charge of the ship
and cargo. The questions upon which the decision of the case turns
are two :
First. Whether this damage to the wool was "loss or damage
arising from negligence, fault or failure in proper loading, stowage,
custody, care or proper delivery" of cargo, within the first section of
the Harter Act; or was "damage or loss resulting from faults or
errors in navigation or in the management of said vessel," within the
third section of that act ?
Second. Do the words, in the first section, " any vessel transporting
merchandise or property from or between ports of the United States
and foreign ports," include a foreign vessel transporting merchandise
from a foreign port to a port of the United States ?
• Section 1 of that act is as follows : " It shall not be lawful for the
manager, agent, master or owner of any vessel transporting merchan-
dise or property from or between ports of the United States and for-
eign ports to insert in any bill of lading or shipping document any
clause, covenant or agreement whereby it, he or they shall be relieved
LIMITATION OF LIABILITY. 513
from liability for loss or damage arising from negligence, fault or
failure in proper loading, stowage, custody, care or proper delivery of
any and all lawful merchandise or property committed to its or their
charge. Any and all words or clauses of such import, inserted in
bills of lading or shipping receipts, shall be null and void and of no
effect." This section, in all cases coming within its provisions over-
rides and nullifies any such stipulations in a bill of lading. Calderon
V. Atlas Steamship Co., 170 U. S. 272 [504].
By section 3, on the other hand, " if the owner of any vessel trans-
porting merchandise or property to or from any port in the United
States " shall exercise due diligence to make her in all respects sea-
worthy and properly manned, equipped and supplied, neither the
vessel nor her owner, agent or charterer " shall become or be held
responsible for damage or loss resulting from faults or errors in navi-
gation or in the management "of said vessel," etc. This section does
but relax the warranty of seaworthiness in the particulars specified in
the section. The Carib Prince, 170 TJ. S. 655 ; The Irrawaddy, 171
U. S. 187.
We fully concur with the courts below that the damage in question
arose from negligence in loading or stowage of the cargo, and not
from fault or error in the navigation or management of the ship —
for the reasons stated by the District Judge, and approved by the
Circuit Court of Appeals, as follows :
" The primary cause of the damage was negligence and inattention
in the loading or stowage of the cargo, either regarded as a whole, or
as respects the juxtaposition of wet sugar and wool bales placed far
forward. The wool should not have been stowed forward of the wet
sugar, unless care was taken in the other loading, and in all subse-
quent changes in the loading, to see that the ship should not get down
by the head. There was no fault or defect in the vessel herself.
She was constnicted in the usual way, and was sufficient. But on
sailing from Para she was a little down by the head, through inatten-
tion, during the changes in the loading, to the effect these changes
made in the trim of the ship and in the flow of the sugar drainage.
She was not down by the head more than frequently happens. It in
no way affected her sea^going qualities; nor did the vessel herself
cause any damage to the wool. The damage was caused by the drain-
age of the wet sugar alone. So that no question of the unseaworthi-
ness of the ship arises. The ship herself was as seaworthy when she
left Para, as when she sailed from Pernambuco. The negligence con-
sisted in stowing the wool far forward, without taking care subse-
quently that no changes of loading should bring the ship down by the
head. I must, therefore, regard the question as solely a question of
negligence in the stowage and disposition of cargo, and of damage
consequent thereon, though brought about by the effect of these negli-
gent changes in loading on the trim of the ship." " The change of
trim was merely incidental, the mere negligent result of the changes
514 CABEIEKS OF GOODS.
in the loading, no attention being given to the effect on the ship's
trim, or on the sugar drainage." " Since this damage arose through
negligence in the particular mode of stowing and changing the load-
ing of cargo, as the primary cause, though that cause became opera-
tive through its effect on the trim of the ship, this negligence in
loading falls within the first section. The ship and owner must, there-
fore, answer for this damage, and the third section is inapplicable."
76 Fed. Rep. 683-585 ; 51 U. S. App. 473.
In The Glenochil (1896) Prob. 10, on which the appellant much
relied, the negligence which was held to be within the third section
of the Harter Act was, as said by Sir Francis Jeune, " a mismanage-
ment of part of the appliances of the ship, and mismanagement which
arose because it was intended to do something for the benefit of the
ship, namely, to stiffen her, the necessity for stiffening arising because
part of her cargo had been taken out of her." He pointed out that the
first and third sections of the act might be reconciled by the construc-
tion, " first, that the act prevents exemptions in the case of direct want
of care in respect of the cargo, and secondly, the exemption permitted
is in respect of a fault primarily connected with the navigation or
management of the vessel and not with the cargo." And he added
that the court had had the same sort of question before it in the case
of The Ferro, (1893) Prob. 38, and he adhered to what he there said,
" that mere stowage is an altogether different matter from the manage-
ment of the vessel." And Sir Gorell Barnes delivered a concurring
opinion to the same effect.
The like distinction was recognized by this court in the recent case
of The Silvia, 171 U. S. 462, 466.
The remaining question is whether the first section of the Harter
Act applies to a foreign vessel on a voyage from a foreign port to a
port in the United States.
The power of Congress to include such cases in this enactment can-
not be denied in a court of the United States. The point in contro-
versy is whether, upon the proper construction of the act, Congress
has done so. That the third section does extend to such a vessel on
such a voyage has been already decided by this court. The Silvia,
above cited ; The Chattahoochee, 173 U. S. 540, 560, 661.
It is true that the words of that section are not exactly the same
in this respect, being "any vessel transporting merchandise or property
to or from any port in the United States," whereas the corresponding
words in the first section are " any vessel transporting merchandise or
property from or between ports of the United States and foreign
ports."
But the two phrases, as applied to the subject-matter, are precisely
equivalent, and are both equally applicable to a foreign voyage that
ends, and to one that begins, in this country. In their usual and
natural meaning, the words "from any port in the United States"
include all voyages, whether domestic or foreign, which begin in this
LIMITATION OF LIABILITY. 515
country ; the words " to any port in the United States " include all
voyages, whether domestic or foreign, which end in this country ; and
the words " between ports of the United States and foreign ports " in-
clude all foreign voyages which either begin or end here. The words
of the third section, "to or from any port in the United States"
express in the simplest and most direct form the intention to include
voyages hither as well as voyages hence. And we find insuperable
difficulty in the way of giving a different meaning to the words of
the first section, "from or between ports of the United States and
foreign ports." The words " from ports of the United States " would
of themselves be sufficient to cover all voyages which begin here,
whether they end in a domestic or in a foreign port ; and the words
"between ports of the United States and foreign ports" no more
appropriately designate foreign voyages beginning here, than such i
voyages beginning abroad. The phrase of the first section is slightly
elliptical ; but it appears to us to have exactly the same meaning as if
the ellipsis had been supplied by repeating the words " ports of the
United States," so as to read " any vessel transporting merchandise or
property from ports of the United States, or between ports -of the
United States and foreign ports." And no reason has been suggested
why a foreign vessel should come within the benefit of the third sec-
tion relaxing the warranty of seaworthiness, and not come within the
prohibition of the first section affirming the unlawfulness of stipula-
tions against liability for negligence.
Attention was called at the bar to the fact that in the act, as
originally passed by the House of Representatives, the words of the
third section were " any vessel transporting merchandise or property
between ports in the United States of America and foreign ports,"
and that for those words the Senate substituted the words as they now
stand in the act ; and it was argued that the change in this section,
leaving unchanged the corresponding clauses in the first and other
sections of the act, showed that those sections were not supposed or
intended to include vessels bound from foreign ports to ports of the
United States. But the argument fails to notice that the third section,
as it originally stood, did not contain the words " from or," but covered
only voyages " between ports in the United States and foreign ports ; "
and the more reasonable inference is that the change was made for the
purpose of bringing domestic voyages within this section. See 24
Congr. Eec. 147-149, 173, 1181, 1291, 1292.
Attention was also called to the fourth section of the act, which
makes it the duty of the owner, master or agent of " any vessel trans-
porting merchandise or property from or between ports of the United
States " to issue to shippers bills of lading containing a certain descrip-
tion of the goods ; and to the fifth section, which provides that, " for
a violation of any of the provisions of this act, the agent, owner or
master of the vessel guilty of such violation, and who refuses to issue
on demand the bill of lading herein provided" for, shall be liable to a
516 CABRIEKS OF GOODS.
fine not exceeding two thousand dollars," and the amount of the fine
and costs shall be a lien upon the vessel, and she may be libelled
therefor in any District Court of the United States within whose
jurisdiction she may be found. It was argued that this provision
imposing a penalty would cover a refusal to give a bill of lading with-
out the clauses prohibited by the first section ; and could not extend
to acts done in a foreign port out of the jurisdiction of the United
States. But whether that be so or not, (which we are not required in
this case to decide,) it affords no sufficient reason for refusing to give
full effect, according to what appears to us to be their manifest mean-
ing, to the positive words of the first section, which enact, as to " any
vessel " transporting merchandise or property " between ports of the
United States and foreign ports," that all stipulations relieving the
carrier from liability for loss or damage arising from negligence in
the loading or stowage of the cargo shall not Only be unlawful, but
" shall be null and void and of no effect."
This express provision of the act of Congress overrides and nullifies
the stipulations of the bill of lading that the carrier shall be exempt
from liability for such negligence, and that the contract shall be
governed by the law of the ship's flag.
Decree affirmed.
c. Agreed Valuation.
GEAVES V. LAKE SHOEE, etc. E. CO.
137 Mass. 33. 1884.
Morton, C. J. The defendant, as a common carrier, received at
Peoria, Illinois, seventy-five barrels of high wines, and agreed to
deliver them to the plaintiffs at Boston, in this Commonwealth.
The bill of lading contained the stipulation that the goods wer&
"shipped at an agreed valuation of f20 per bbl., owner's risk of
leakage." It also contained the agreement that, "in the event of
the loss of any property for which responsibility attaches under this
bill of lading to the carriers, the value or cost of the same at the
time and point of shipment is to govern the settlement, except the
value of the articles has been agreed upon with the shipper, or is
determined by the classification upon which the rates are based."
The defendant had no knowledge of the value of the goods except
that furnished by the statement of the shippers, and the charge for
transportation was based upon this statement and valuation. The
LIMITATION OF LIABILITY. 517
goods were destroyed during the transit by a collision of two trains,
occasioned by the negligence of the servants of the defendant. The
only question presented is whether the plaintifEs can recover any
more than the agreed valuation of the goods.
The question whether a carrier can, by a special contract, exempt
himself from liability for a loss arising from the negligence of him-
self or his servants, is one which has been much discussed, and
upon which the adjudications are conflicting. If we adopt the
general rule, that a carrier cannot thus exempt himself from respon-
sibility, we are of the opinion that it does not cover the case before
us, which must be governed by other considerations. The defend-
ant has not attempted to exempt itself from liability for the negli-
gence of its servants. It has made no contract for that purpose,
but admits its responsilDility ; its claim is, that the plaintiffs,
having represented and agreed that the goods are of a specified
value, and having thus obtained the benefit of a diminished rate
of transportation, are now estopped to claim, in contradiction of
their representation and agreement, that the goods are of a greater
value.
It is the right of the carrier to require good faith on the part of
those persons who deliver goods to be carried, or enter into con-
tracts with him. The care to be exercised in transporting property,
and the reasonable compensation for its carriage, depend largely on
its nature and value, and such persons are bound to use no fraud or
deception which would mislead him as to the extent of the duties
or the risks which he assumes. It is just and reasonable that
a carrier should base his rate of compensation, to some extent, upon
the value of the, goods carried; this measures his risks, and is an
important element in fixing his compensation. If a person volun-
tarily represents and agrees that the goods delivered to a carrier are
of a certain value, and the carrier is thereby induced to grant him
a reduced rate of compensation for the carriage, such person ought
to be barred by his representation and agreement. Otherwise, he
imposes upon the carrier the obligations of a contract different from
that into which he has entered. Dunlap v. International Steam-
boat Co., 98 Mass. 371; Judson v. Western Eailroad, 6 Allen,
486 [477].
The plaintiffs admit that their valuation of the goods would be
conclusive against them in case of a loss from any other cause than
the negligence of the carrier or its servants ; but contend that the
contract does not fairly import a stipulation of exemption from
responsibility for such negligence. We cannot see the justice of
this distinction. Looking at the matter practically, everybody
knows that the charges of a carrier must be fixed with reference to
all the risks of the carriage, including the risk of loss from the
negligence of servants. In the course of time, such negligence is
inevitable, and the business of a carrier could not be carried on unless
518 CAEEIEES OF GOODS.
he includes this risk in fixing his rates of compensation. When the
parties in this case made their contract, it is fair to assume that
both had in mind all the usual risks of the carriage. It savors of
refinement to suppose that they understood that the valuation of the
goods was to be deemed to be fixed if a loss occurred from some
causes, but not fixed if it occurred from the negligence of the ser-
vants of the carrier. Such does not seem to us to be the fair con-
struction of the contract.
The plaintiffs voluntarily entered into the contract wi^h the
defendant; no advantage was taken of them; they deliberately
represented the value of the goods to be $20 per barrel. The com-
pensation for carriage was fixed upon this value; the defendant is
injured and the plaintiffs are benefited by this valuation, if it can
now be denied. We are of opinion that the plaintiffs are estopped
to show that it was of greater value than that represented. The
plaintiffs cannot recover a larger sum without violating their own
agreement. Although one of the indirect effects of such a contract
is to limit the extent of the responsibility of the carrier for the
negligence of his servants, this was not the purpose of the contract.
We cannot see that any considerations of a sound public policy
require that such contracts should be held invalid, or that a person,
who in such contract fixes a value upon his goods which he intrusts
to the carrier, should not be bound by his valuation. M'Cance v.
London & North Western Eailway, 7 H. & N. 437; s. c. 3 H. & C.
343; Eailroad v. Fraloff, 100 U. S. 24 [329], Muser v. Holland, 17
Blatchf. C. C. 412; s. c. 1 Fed. Rep. 382; Hart v. Pennsylvania
Eailroad, 2 McCrary, 333; s. c. 7 Fed. Eep. 630; Magnin v. Dins-
more, 70 N. Y. 410.
We are therefore of opinion, upon the facts of this case, that it
was not competent for the plaintiffs to show that the value of the
goods lost was greater than $20 per barrel. ^
Judgment affirmed.
I Ace. : Hart ». Penn'a, R. Co., 112 U. S. 331 ; Ballou v. TSarle, 17 R. I. 441.
With great deference for those who may differ with us, we think it entirely
illogical and unreasonable to say that the carrier may not absolve itself from liability
for the whole value of property lost or destroyed through its negligence, but that
it may absolve itself from responsibility for cue-half, three-fourths, seven-eighths,
nine-tenths, or ninety-hundredths of the loss so occasioned. With great unanimity
the authorities say it cannot do the fonner. If allowed to do the latter, it may thereby
substantially evade and nullify the law which says it shall not do the former, and in
that way do indirectly what it is forbidden to do directly. We hold that it can do
neither. The requirement of the law has ever been, and is now, that the common
carrier shall be diligent and careful in the transportation of its freight, and public
policy forbids that it shall throw off that obligation, whether by stipulation for
exemption in whole or in part from the consequences of its negligent acts. This view
is sustained by sound reason, and also by the weight of authority. Coward -v. Eail-
road Company, 16 Lea, 225 ; Moulton v. St. P., M. and M. Railway Company, 31
Minn. 85 ; Eailroad Company v. Simpson, 30 Kan. 645 ; Railroad Company v. Abies,
go Miss. 1017 ; U. S. Express Company v. Blackman, 28 Ohio St. 144 ; Black v. G.
LIMITATION OF LIABILITY. 519
McFADDEN v. MISSOUEI PACIFIC R. CO,
92 Mo. 343. 1887.
Eay, J. . '
But the stipulation in the contract of shipment, most relied on for
a reversal of the judgment, is the one declaring the company should
not be liable for more than one hundred dollars per head for the
mules. Such a stipulation, it is claimed, is valid and binding, and
does not contravene the rule which forbids the carrier to stipulate
against his own negligence. Numerous decisions sustain such stipu-
lations , when fairly made , and when the parties agree on a fixed
valuation of the property, and a special and reduced rate of freight
is given and received, based upon the condition that the carrier
assumes liability only to the extent of the agreed value of the prop-
erty. Hart V. Railroad, 112 U. S. 331, and cases cited.
Other decisions deny the validity of such provisions, and hold
them void, as releasing the carrier from the full and proper liability
for the consequences of his negligence. Black v. Trans. Co., 55
Wis. 319; Moulton v. Railroad, 31 Minn. 85; U. S. Express Co. v.
Backman, 28 Ohio St. 144. Hutchinson on Carriers says, in sub-
stance, that the cases cited by him as recognizing the right of the
carrier to thus limit the liability as to value occur in States in which
the law permits the carrier, by special and express contract, to
relieve himself of the consequences of his negligence in the carriage
of goods, and that these cases must not be considered controlling
authority in those States in which such claim to exemption is not
permitted to be made. Sees. 247, 250.
But, even under the rule declared in the former class of decisions,
these provisions, thus employed and resorted to by common carriers
to restrict their liability, are to be tested by their fairness, justice,
and reasonableness. We will consider the case before us briefly
under this view. The answer charges that defendant agreed to
transport the mules for plaintiff, between said points, at the rate of
T. Company, 55 Wi-s. 319 ; A. G. S. Railroad w. Little, 71 Ala. 611. See also
Eosenfield v. Railway Company, 103 Ind. 121 ; M. P. Railroad Company v. Fagan', 35
Am. and Eng. Railroad Cases, 666 ; 97 111. 525 ; s. c. 34 Am. E. 197.
The rule is the same now, except that in this day of special contracts it has heen
relaxed so that the carrier may exonerate itself from responsibility by either showing
that the case falls within one of the exceptions of the common law or within one of
the stipulations of the special contract. 2 Greenleaf Evi., sec. 219 ; 52 Ala. 606 ;
71 Ala. 611 ; 7 Yer. 340 ; 8 Hum. 498 ; 9 Bax. 188 ; 2 Lea, 296 ; 2 Pickle, 393 ;
63 Pa. St. 14; 36 Minn. 539 ; s. c. 1 Am. St. R. 692 ; 60 Miss. 1017 ; 28 Ohio St.
144 ; 55 Wis. 319 ; Lawson ou Con. of Car., sees. 245, 246, 247, and 248 ; Hutchin-
son on Car. sec. 764 ; Schonler on Bail, and Car., sec. 439. ....
Caldwell, J., in Eailway Co. u. Wynn, 88 Tenn. 320. 1889.
520 OAKEIERS OF GOODS.
thirty-one dollars per car, whicli was charged to be a special and
reduced rate, lower than the regular rate. The written contract,
read in evidence, recited that the said rate was a reduced rate, made
in consideration of agreement, etc
The reduced rate, if such it was, was the consideration for the
exemption from liability beyond the one hundred dollars, even in
case of injury and loss from defendant's negligence, and parol evi-
dence in that behalf is, we think, competent and admissible for the
purpose indicated. The consideration clause in bills of lading, con-
tracts, deeds, and obher instruments, ordinarily, has only the force
and effect of a receipt, and is open to explanation and contradiction
by parol evidence. Hutchinson on Carriers, sees. 122, 123; Fontaine
V. Boatman's Sav. Inst., 67 Mo. 652; Hollocher v. Hollocher, 62
Mo. 267; Edwards v. Smith, 63 Mo. 119.
If, in the one case, it is competent for the carrier to show that
the real value of the property was concealed, and the lower rate thus
secured by the fraud or deceit of the shipper, why may not the
shipper be permitted to show that the alleged reduced rate, in con-
sideration of which he surrendered obligation imposed by law upon
the carrier, as an insurer of the property, was false and in fact no
reduced rate at all? It may be that plaintiff was not deceived by it,
at the time, as he did not ask for, or suppose he was getting a reduced
rate, but if the pretended lower rate was the usual rate, and known
to be such to both parties, it would work a fraud upon the rights of
plaintiff, under the law, if the defendant were permitted to treat it
as a lower rate, and to thus deprive plaintiff of important rights,
and thus secure release of part of its liability, by reason thereof.
ADAMS EXPRESS COMPANY v. CEONHSTGER.
226 U. S. 491 ; 33 S. C. Rep. 148. 1913.
This was an action in the Circuit Court of Kenton County, Ken-
tucky, against the Express Company to recover the full market
value of a small package containing a diamond ring which was
delivered by the plaintiff below to the Express Company at its
office in Cincinnati, Ohio, consigned to J. W. Clendenning at
Augusta, Georgia. The package was never delivered.
The Express Company made defense by answer. The plaintiff
demurred to the answer as not containing a defense, which demurrer
was sustained. The company declined to further plead, whereupon
the Circuit Court gave judgment for the sum of $137.62, being the
LIMITATION OF LIABILITY. 521
full value of the ring and interest. A -writ of error was sued out
from this court to the Circuit Court of Kenton County, that being the
highest court of the State in which a decision could be had.
The answer and accompanying exhibit were in substance as
follows :
That the defendant was an express company engaged in interstate
commerce within the provisions of the act of Congress of June 29,
1906; that in obedience to that act it had duly filed with the
Interstate Commerce Commission schedules showing its rates and
charges from Cincinnati to Augusta, Georgia, which schedules showed
that its rates and charges, when the value of the property to be
carried was in excess of fifty dollars, were graduated reasonably,
according to the value, and that the lawful rate upon the package
of the plaintiff from Cincinnati to Augusta was twenty-five cents if
its value was fifty dollars or less, and was fifty-five cents if its value
was one hundred and twenty-five dollars.
It is averred that the plaintiff knew that the charges upon the
package shipped were based upon the value of the shipment, and"
that it (the defendant) required that the value should be declared
by the shipper, and that if he did not disclose and declare the value
when he delivered the shipment to it at Cincinnati for transporta-
tion to Augusta, the rate charged would be based upon a valuation of
fifty dollars. It is then alleged that the package so delivered was
sealed and that defendant did not know the contents or value, and
that if it had it would not have received it for carriage for less than
the lawful published rate of fifty-five cents. The receipt or bill of
lading issued shows no value, but contains a stipulation in these
words :
" In consideration of the rate charged for carrying said property,
which is regulated by the value thereof and is based upon a valuation
of not exceeding fifty dollars unless a greater value is declared, the
shipper agrees that the value of said property is not more than fifty
dollars, unless a greater value is stated herein, and that the company
shall not be liable in any event for more than the value so stated,
nor for more than fifty dollars if no value is stated herein."
Mk. Justice Lueton, after making the foregoing statement,
delivered the opinion of the court.
The answer relies upon the act of Congress of June 29, 1906, being
an act to amend the Interstate Commerce Act of 1887, as the only
regulation applicable to an interstate shipment; and avers that the lim-
itation of value, declared in its bill of lading, was valid and obligatory
under that act. This defense was denied. This constitutes the
Federal question and gives this court jurisdiction.
Under the law of Kentucky this contract, limiting the 'plaintiff's
recovery to the agreed or declared value, was invalid, and the shipper
was entitled to recover the actual value, " unless," as said in Adams
Express Company v. Walker, 119 Kentucky, 121, 129, and afiirmed in
522 CAKEIEK3 OF GOODS.
Southern Express Company v. Fox and Logan, 131 Kentucky, 257,
"sufficient facts are shown, independently of the special contract,
to avoid the contract for fraud or to create an estoppel at common
law."
The question upon which the case must turn, is, whether the
operation and effect of the contract for an interstate shipment, as
shown by the receipt or bill of lading, is governed by the local law
of the state, or by the acts of Congress regulating interstate commerce.
That the constitutional power of Congress to regulate commerce
among the States and with foreign nations comprehends power to
regulate contracts between the shipper and the carrier of an interstate
shipment by defining the liability of the carrier for loss, delay, injury
or damage to such property, needs neither argument nor citation of
authority.
But it is equally well settled that until Congress has legislated
upon the subject, the liability of such a carrier, exercising its calling
within a particular state, although engaged in the business of inter-
state commerce, for loss or damage to such property, may be regulated
by the law of the State. Such regulations would fall within that
large class of regulations which it is competent for a State to make in
the absence of legislation by Congress, growing out of the territorial
jurisdiction of the State over such carriers and its duty and power to
safeguard the general public against acts of misfeasance and non-
feasance committed within its limits, although interstate commerce
may be indirectly affected : Smith v. Alabama, 124 U. S. 465 ; New
York &c. Kailroad v. New York, 165 U. S. 628; Chicago, Milwaukee
& St. P. Ey. V. Solan, 169 U. S. 133, 137; Eichmond &c. Ey. v. Pat-
terson Co., 169 U. S. 311 ; Cleveland &c. Ey. v. Illinois, 177 U. S. 514 ;
Pennsylvania Eailroad v. Hughes, 191 U. S. 477. In the Solan Case,
cited above, it was said of such state legislation :
" They are not, in themselves, regulations of interstate commerce,
although they control, in some degree, the conduct and the liability of
those engaged in such commerce. So long as Congress has not legis-
lated upon the particular subject, they are rather to be regarded as
legislation in aid of such commerce, and as a rightful exercise of the
police power of the state to regulate the relative rights and duties of
all persons and corporations within its limits."
In that case the court upheld the validity of an Iowa statute which
made void every "contract, receipt, rule or regulation, which shall
exempt any railway from liability as a common carrier, which would
exist had no contract, receipt, rule, or regulation been made or en-
tered into."
The contract there involved was for transportation of cattle with a
drover in charge, and the shipper had signed a contract limiting the
liability to himself or the drover to $500 for injury to the person of
the drover. Proof was offered that this limitation was the considera-
tion for a reduced rate of transportation.
LIMITATION OF LIABILITY. 523
In Pennsylvania Eailroad v. Hughes, 191 U. S. 477, 487, 491, there
was involved a bill of lading in all essentials identical with the one
here concerned, whereby it was stipulated that in consideration of a
reduced rate of freight, the shipper should receive, in case of negligent
loss, the agreed value declared in the receipt. The shipment was
made in New York, where the stipulation was valid, to a point in
Pennsylvania, where such a limitation was invalid. The loss occurred
in the latter State, and .the Supreme Court of the State upheld a judg-
ment for the full value, declaring the limitation invalid as forbidden
by the public policy of that State. That case came to this court upon
the contention that the Pennsylvania court in refusing to limit the
recovery to the valuation agreed upon had denied to the railroad com-
pany a right or privilege secured to it by the Interstate Commerce
Law. But this court as to that said (p. 487) :
" It may be assumed that under the broad power conferred upon
Congress over interstate commerce as defined in repeated decisions of
this court, it would be lawful for that body to make provision as
to contracts for interstate carriage, permitting the carrier to limit its
liability to a particular sum in consideration of lower freight rates for
transportation. But upon examination of the terms of the law relied
upon we fail to find any such provision therein. The sections of the
interstate commerce law relied upon by the learned counsel for plaintiff
in error, 24 Stat. 379, 382 ; 25 U. S: Stat. 855, provide for equal facil-
ities to shippers for the interchange of traific ; for non-discrimination
in freight rates ; for keeping schedules of rates open to public inspec-
tion ; for posting the same in public places, with certain particulars
as to charges, rules and regulations; for the publication of joint tariff
rates for continuous transportation over one or more lines, to be made
public when directed by the Interstate Commerce Commission ; against
advances in joint tariff rates except after ten days' notice to the com-
mission ; against reduction of joint tariff rates except after three days'
like notice; making it unlawful for any party to a joint tariff to
receive or demand a greater or less compensation for the transportar
tion of property between points as to which a joint tariff is made dif-
ferent than is specified in the schedule filed with the commission;
giving remedies for the enforcement of the foregoing provisions, and
providing penalties for their violation ; making it unlawful to prevent
continuous carriage, and providing that no break of bulk, stoppage or
interruption by the carrier, unless made in good faith for some neces-
sary purpose without intention to evade the act, shall prevent the
carriage of freights from being treated as one continuous carriage from
the place of shipment to the place of destination.
" While under these provisions it may be said that Congress has
made it obligatory to provide proper facilities for interstate carriage
of freight, and has prevented carriers from obstructing continuous
shipments on interstate lines, we look in vain for any regulation of
the matter here in controversy. There is no sanction of agreements
524
of this character limiting liability to stipulated valuations, and, until
Congress shall legislate upon it, is there any valid objection to the
State enforcing its 0"wn regulations upon the subject, although it may
to this extent indirectly affect interstate commerce contracts of
carriage ? "
In view of the decisions of this court in the two cases last referred
to, we shall assume that this case is governed by them, unless the
subsequent legislation of Congress is such as to indicate a purpose
to bring contracts for interstate shipments under one uniform rule of
law not subject to the varying policies and legislation of particular
states. ,
The original Interstate Commerce. Act of February 4,. 1887, 24
Stat. 379, c. 104, was extensively amended by the act of June 29,
1906, 34 Stat. 584, c. 3591. We may pass by many of the changes
and amendments made by the latter act as not decisive, and come at
once to the far more important amendment made in § 20, an amend-
ment bearing directly upon the carrier's liability or obligation under
interstate contracts of shipment, and generally referred to as the
Carmack amendment. For convenience of reference, it is set out in
the margin.'
This amendment came under consideration in Atlantic Coast Line
V. Eiverside Mills, 219 U. S. 186, but the opinion and judgment was
confined to that provision of the act which made the initial carrier
liable for a loss upon the line of a connecting carrier, the property hav-
ing been received under a bill of lading which confined the liability
of the initial carrier to loss occurring upon its own line.
The significant and dominating features of that amendment are
these :
First : It af&rmatively requires the initial carrier to issue " a re-
ceipt or bill of lading therefor," when it receives " property for trans-
portation from a point in one state to a point in another."
Second : Such initial carrier is made " liable to the lawful holder
thereof for any loss, damage, or injury to such property caused by it."
1 That any common carrier, railroad or transportation company receiving prop-
erty for transportation from a point in one state to a point in another state shall
issue a receipt or bill of lading therefor and shall be liable to the lawful holder
thereof for any loss, damage, or injury to such property caused by it or by any
common carrier, railroad, or transportation company to which such property may
be delivered, or over whose line or lines such property may pass, and no contract,
receipt, rule, or regulation shall exempt such common carrier, railroad, or trans-
portation company from the liability hereby imposed : JProvided, That nothing in
this section shall deprive any holder of such receipt or bill of lading of any remedy
or right of action which he has under existing law.
That the common carrier, railroad or transportation company issuing such re-
ceipt or bill of lading shall be entitled to recover from the common carrier, rail-
road or transportation company on whose line the loss, damage, or injury shall
have been sustained, the amount of such loss, damage, or injury, as it may be re-
quired to pay to the owners of such property, as may be evidenced by any receipt,
judgment, or transcript thereof.
LIMITATION OF LIABILITT. 525
Third : It is also made liable for any loss, damage, or injury to
such property caused by " any common carrier, railroad or transpor-
tation company to which such property may be delivered or over
whose line or lines such property may pass."
Fourth : It affirmatively declares that " no contract, receipt, rule or
regulation shall exempt such common carrier, railroad, or transporta-
tion company from the liability hereby imposed."
Prior to that amendment the rule of carrier's liability, for an in-
terstate shipment of property, as enforced in both Federal and state
courts, was either that of the general common law as declared by this
court and enforced in the Federal courts throughout the United
States, Hart v. Pennsylvania Eailroad, 112 U. S. 331 ; or that deter-
mined by the supposed public policy of a particular state, Pennsyl-
vania Eailroad v. Hughes, 191 U. S. 477; or that prescribed by
statute law of a particular state, Chicago &c., Eailroad v. Solan, 169
U. S. 133.
Neither uniformity of obligation nor of liability was possible until
Congress should deal with the subject. The situation was well de-
picted by the Supreme Court of Georgia in Southern Pacific Co. v.
Crenshaw, 5 Ga. App. 675, 687, 63 S. E. Eep. 865, where that court
said : '
" Some states allowed carriers to exempt themselves from all or a
part of the common law liability, by rule, regulation, or contract;
others did not ; the Federal courts sitting in the various states were
following the local rule, a carrier being held liable in one court when
under the same state of facts he would be exempt from liability in
another; hence this branch of interstate commerce was being sub-
jected to such a diversity of legislative and judicial holding that it
was practically impossible for a shipper engaged in a business that
extended beyond the confines of his own State, or for a carrier whose
lines were extensive, to know without considerable investigation and
trouble, and even then oftentimes with but little certainty, what
would be the carrier's actual responsibility as to goods delivered to
it for transportation from one State to another. The congressional
action has made an end to this diversity; for the national law is
paramount and supersedes all state laws as to the rights and liabil-
ities and exemptions created by such transaction. This was doubtless
the purpose of the law ; and this purpose will be effectuated; and not
impaired or destroyed by the state court's obeying and enforcing the
provisions of the Federal statute where applicable to the fact in such
cases as shall come before them."
That the legislation supersedes all the regulations and policies of a
particular State upon the same subject results from its general char-
acter-. It embraces the subject of the liability of the carrier under a
bill of lading which he must issue and limits his power to exempt
himself by rule, regulation or contract. Almost every detail of the
subject is covered so completely that there can be no rational doubt
526 CAREIEBS OF GOODS.
but that Congress intended to take possession of tlie subject and
supersede all state regulation with reference to it. Only the silence
of Congress authorized the exercise of the police power of the State
upon the subject of such contracts. But when Congress acted in such
a way as to manifest a purpose to exercise its conceded authority, the
regulating power of the State ceased to exist. Northern Pacific
Ey. V. State of "Washington, 222 U. S. 370; Southern Eailway v.
Eeid, 222 IT. S. 424 ; Mondou v. Eailroad, 223 U. S. 1.
To hold that the liability therein declared may be increased or
diminished by local regulation or local views of public policy will
either make the provision less than supreme or indicate that Congress
has not shown a purpose to take possession of the subject. The first
would be unthinkable and the latter would be to revert to the un-
certainties and diversities of rulings which led to the amendment.
The duty to issue a bill of lading and the liability thereby assumed
are covered in full, and though there is no reference to the effect upon
state regulation, it is evident that Congress intended to adopt a uni-
form rule and relieve such contracts from the diverse regulation to
which they had been theretofore subject.
What is the liability imposed upon the carrier ? It is a liability to
any holder of the bill of lading which the primary carrier is required
to issue " for any loss, damage or injury to such property caused by
it," or by any connecting carrier to whom the goods are delivered.
The suggestion that an absolute liability exists for every loss, damage
or injury from any and every cause, would be to make such a carrier
an absolute insurer and liable for unavoidable loss or damage though
due to uncontrollable forces. That this was the intent of Congress is
not conceivable. To give such emphasis to the words, " any loss or
damage," would be to ignore the qualifying words, " caused by it."
The liability thus imposed is limited to " any loss, injury or damage
caused by it or a succeeding carrier to whom the property may be de-
livered," and plainly implies a liability for some default in its com-
mon law duty as a common carrier.
But it has been argued that the non-exclusive character of this
regulation is manifested by the proviso of the section, and that state
legislation upon the same subject is not superseded, and that the
holder of any such bill of lading may resort to any right of action
against such a carrier conferred by existing state law. This view is
untenable. It would result in the nullification of the regulation of a
national subject and operate to maintain the confusion of the diverse
regulation which it was the purpose of Congress to put an end to.
What this court said of § 22 of this act of 1906 in the case of
Texas & Pac. Ey. v. Abilene Cotton Mills, 204 U. S. 426, is applicable
to this contention. It was claimed that that section continued in.
force all rights and remedies under the common law or other statutes.
But this court said of that contention what must be said of the proviso
in § 20, that it was " evidently only intended to continue in existence
LIMITATIOK OF LIABILITY. 527
such other rights or remedies for the redress of some specific wrong
or injury, whether given by the Interstate Commerce Act, or by state
statute, or common law, not inconsistent with the rules and regulations
prescribed by the provisions of this act." Again, it was said, of the
same clause, in the same case, that it could " not in reason be construed
as continuing in a shipper a common law right the existence of which
would be inconsistent with the provisions of the act. In other words,
the act cannot be said to destroy itself."
To construe this proviso as preserving to the holder of any such bill
of lading any right or remedy which he may have had under existing
Federal law at the time of his action, gives to it a more rational inter-
pretation than one which would preserve rights and remedies under
existing state laws, for the latter view would cause the proviso to
destroy the act itself. One illustration would be a right to a remedy
against a succeeding carrier, in preference to proceeding against the
primary carrier, for a loss or damage incurred upon the line of the
former. The liability of such succeeding carrier in the route would
be that imposed by this statute, and for which the first carrier might
have been made liable.
We come now to the question of the validity of the provision in the
receipt or bill X)f lading limiting liability to the agreed value of fifty
dollars, as shown therein. This limiting clause is in these words :
" In consideration of the rate charged for carrying said property,
which is regulated by the value thereof and is based upon a valuation
of not exceeding fifty dollars unless a greater value is declared, the
shipper agrees that the value of said property is not more than fifty
dollars, unless a greater value is stated herein, and that the company
shall not be liable in any event for more than the value so stated, nor
for more than fifty dollars if no value is stated herein."
The answer states that the schedules which the express company
had filed with the Interstate Commerce Commission showed rates
based upon valuations ; and that the lawful and established rate for
such a shipment as that made by the plaintiff from Cincinnati to
Augusta, having a value not in excess of fifty dollars, was twenty-five
cents, while for the same package, if its value had been declared to be
one hundred and twenty-five dollars, the amount for which the plain-
tiff sues as the actual value, the lawful charge according to the rate
Sled, and published would have been fifty-five cents. It is further
averred that the package was sealed, and its contents and actual value
unknown to the defendant's agent.
That no inquiry was made as to the actual value is not vital to the
fairness of the agreement in this case. The receipt which was
accepted showed that the charge made was based upon a valuation of
fifty dollars unless a greater value should be stated therein. The
knowledge of the shipper that the rate was based upon the value is to
be presumed from the terms of the bill of lading and of the published
schedules filed with the Commission. That presumption is strength-
528 CARRIERS OF GOODS.
ened by the fact that across the top of this bill of lading there was
this statement in bold type, " This Company's charge is based upon,
the value of the property, which must be declared by the shipper."
That a common carrier cannot exempt himself from liability for his
own negligence or that of his servants is elementary. York Mfg. Co.
V. Illinois Central Eailroad, 3 Wall. 107; Eailroad Company v. Lock-
wood, 17 Wall. 357 ; Bank of Kentucky v. Adams Express Company,
93 U. S. 174; Hart v. Pennsylvania Eailroad, 112 U. S. 331, 338.
The rule of the common law did not limit his liability to loss and
damage due to his own negligence, or that of his servants. That rule
went beyond this and he was liable for any loss or damage which
resulted from human agency, or any cause not the act of God or the
public enemy. But the rigor of this liability might be modified
through any fair, reasonable and just agreement with the shipper
which did not include exemption against the negligence of the carrier
or his servants. The inherent right to receive a compensation com-
mensurate with the risk involved the right to protect himself from
fraud and imposition by reasonable rules and regulations, and the
right to agree upon a rate proportionate to the value of the property
transported.
It has therefore become an established rule of the common law as
declared by this court in many cases that such a carrier may by a
fair, open, just and reasonable agreement limit the amount recoverable
by a shipper in case of loss or damage to an agreed value made for
the purpose of obtaining the lower of two or more rates of charges
proportioned to the amount of the risk. York Mfg. Co. v. Eailroad,
3 Wall. 107 ; Eailroad v. Lockwood, 17 Wall. 357 ; Hart v. Pennsyl-
vania Eailroad, cited above ; Phoenix Ins. Co. v. Erie & W. Trans.
Co., 117 U. S. 312, 322 ; Steam Co. v. Phenix Ins. Co., 129 U. S. 397,
442; New York, L. E. & W. Ey. v. Estill, 147 U. S. 591, 619 ; Prim-
rose V. W. U. Tel. Co., 154 U. S. 1, 16 ; Chicago &c. Ey. v. Solan,
169 U. S. 133, 135 ; Calderon v. Atlas Steamship Company, 170 XJ. S.
272, 278 [504] ; Pennsylvania Eailroad v. Hughes, 191 U. S. 477, 485.
That such a carrier might fix his charges somewhat in proportion
to the value of the property is quite as reasonable and just as a rate
measured by the character of the shipment. The principle is that
the charge should bear some reasonable relation to the responsibility,
and that the care to be exercised shall be in some degree measured by
the bulk, weight, character and value of the property carried.
Neither is it conformable to plain principles of justice that the
shipper may understate the value of his property for the purpose of
reducing the rate, and then recover a larger value in case of loss.
Nor does a limitation based upon an agreed value for the purpose of
adjusting the rate conflict with any sound principle of public policy.
The reason for the legality of such agreements is well stated in Hart
V. Pennsylvania Eailroad, cited above, where it is said (p. 340) :
"The limitation as to value has no tendency to exempt from.
LIMITATION OF LIABILITY. 529
liability for negligence. It does not induce want of care. It exacts
from the carrier the measure of care due to the value agreed on. The
carrier is bound to respond in that value for negligence. The com-
pensation for carriage is based on that value. The shipper is estopped
from saying that the value is greater. The articles have no greater
value, for the purposes of the contract of transportation, between the.
parties to that contract. The carrier must respond for negligence up
to that value. It is just and reasonable that such a contract, fairly
entered into, and where there is no deceit practiced on the shipper,
should be upheld. There is no violation of public policy. On the
contrary, it would be unjust and unreasonable, and would be repug-
nant to the soundest principles of fair dealing and of the freedom of
contracting, and thus in conflict with public policy, if a shipper should
be allowed to reap the benefit of the contract if there is no loss, and
to repudiate it in case of loss."
The statutory liability, aside from responsibility for the default of
a connecting carrier in the route, is not beyond the liability imposed
by the common law as that body of law applicable to carriers has
been interpreted by this court as well as many courts of the States.
Greenwald v. Barrett, 199 N. Y. 170, 176 ; Bernard v. Adams Express
Co., 205 Massachusetts, 254, 259. The exemption forbidden is, as
stated in the case last cited, " a statutory declaration that a contract
of exemption from liability for negligence is against public policy
and void.'' This is no more than this court, as well as other courts
administering the same general common law, have many times de-
clared. In the same case, just such a stipulation as that here involved
was upheld, the court saying (p. 259) :
" But such a contract as we are considering in this case is not an
exemption from liability for negligence in the management of prop-
erty, within the meaning of the statute. It is a contract as to what
the property is, in reference-to its value. The purpose of it is not to
change the nature of the undertaking of the common carrier, or limit
his obligation in the care and management of that which is entrusted
to him. It is to describe and define the subject matter of the con-
tract, so far as the parties care to define it, for the purpose of showing
of what value that is which comes into the carrier's possession, and
for which he must account in the performance of his duty as a car-
rier. It is not in any proper sense a contract exempting him from
liability for the loss, damage or injury to the property, as the shipper
describes it in stating its value for the purpose of determining for
what the carrier shall be accountable upon his undertaking, and what
price the shipper shall pay for the service and for the risk of loss
which the carrier assumes."
In Greenwald v. Barrett, cited above, the same conclusion was
reached as to the nature of the liability imposed and the purport of
the exemption forbidden, the court, among other things, saying :
" The language of the enactment does not disclose any intent to
530 CABRIEKS OF GOODS.
abrogate th.e right of common carriers to regulate their charges for
carriage by the value of the goods or to agree with the shipper upon a
valuation of the property carried. It has been the uniform practice
of transportation companies in this country to make their charges de-
pendent upon the value of the property carried and the propriety of
this practice and the legality of contracts signed by the shipper agree-
ing upon a valuation of the property were distinctly upheld by the
Supreme Court of the United States in Hart v. Penn. K. E. Co.,
112 U. S. 331, 341."
To the same effect are the cases of Travis v. Wells, Fargo Co., 79
N. J. L. 83; Fielder v. Adams Express Co., 69 W. Va., 138; S. C, 71
S. E. Eep. 99 ; Larsen v. Oregon Short Line, 38 Utah, 130 ; S. C, 110
Pac. Eep. 983. See also, Atkinson v. New York Transfer Co., 76
N. J. L. 608, as to the general rule.
That a carrier rate may be graduated by value and that a stipula-
tion limiting recovery to an agreed value made to adjust the rate is
recognized by the Interstate Commerce Commission, see 13 I. C. C.
Eep. 650.
We therefore reach the conclusion that the provision of the act for-
bidding exemptions from liability imposed by the act is not violated
by the contract here in question.
The demurrer to the answer of the defendant below should have
been overruled.
For this reason the judgment is reversed, with direction to overrule
the demurrer, and for such further proceedings as are not incon-
sistent with this opinion.
MISSOUEI, KANSAS & TEXAS EAILWAY COMPANY v.
HAEEIMAN.
227 U. S. 657 ; 33 S. C. Eep. 397. 1913.
The facts, which involve the validity under the Carmack Amend-
meut of a contract for interstate shipment of live stock and a provision-
therein fixing the valuation of the shipment in case of loss in con-
sideration of a lower rate, are stated in the opinion.
Me. Justice Lukton delivered the opinion of the court.
This was an action in a state court of Texas by a shipper of cattle,
under a special live-stock transportation contract for a shipment from
a point in Missouri to a point in Oklahoma, to recover the value
of cattle killed by a negligent derailment occurring in the former
State. The shipment consisted of four bulls and thirteen cows,
claimed to have been very valuable "show cattle." They were all
killed, and plaintiffs recovered their full value, $10,640, and this
judgment was affirmed by the court below.
LIMITATION OF LIABILITY. 531
As the transaction was an interstate shipment the case comes here
upon questions which involve the validity of certain provisions in the
contract of shipment when tested by the twentieth section of the Act
to Eegulate Commerce, as amended by the act of June 29, 1906 (34
Stat. 684, e. 3591).
Aside from the question of negligence, which we assume to be closed
by the verdict and judgment in the state court, the defenses pressed
here are, first, that the limitation of value in case of loss or damage to
thirty dollars for each bull and twenty dollars for each cow, was a
valid declaration of the valuation upon which the rate was based ; and,
second, that the action was not brought within ninety days after
damage sustained, both being stipulations found in the shipping con-
tract.
Those provisions in the contract which directly relate to the ques-
tions stated are as follows :
The title at the head of the contract is, —
Rules and Eegulations foe the Tkan-spoktation of Live Stock.
NOTICE.
This Company has two rates on live stoct.
Then follows a paragraph in these words :
"Ordinary Live Stock transported under this special contract is
accepted and hauled at rate named below at owner's risk, as per con-
ditions herein, set forth, with the distinct understanding that said rate
is a special rate, which is hereby agreed to, accepted and understood
to be at less than published tariff rate applying thereon when trans-
ported at carrier's risk.
" All Kinds of Live Stock, Carrier's Eisk, will be taken under the
provisions and at rates provided for by existing tariffs and classifica-
tion."
Then follows the Contract described as "Special Live Stock Con-
tract No. 4. Executed at Pilot Qrove Station, 1-30-1907."
Passing over a number of provisions concerning the agreement upon
the part of the carrier, and a number of things which the shipper as-
sumes to do, we come to § 8, which is in these words :
" 8. The carrier does not ship live stock or Emigrant Outfit under
this contract or at the rate hereon given upon which its liability in
case of any loss or injury, shall exceed the following prices per head :
The provision of the published tariff sheet referred to in the con-
tract is set out in the margin, preceded by the offer of counsel to file
it in evidence.^ By a clause in the ninth section of the contract under
1 Mr. Head : We offer the following portions of I. C. C. tariff No. A-1636,
M. K. & T. Local Distance Tariff No. 2548 applying on classes and commodities :
Missouri, Kansas & Texas Railway Co.
The ' Katy ' Route.
532 CABEIEES OF GOODS.
which the cattle were shipped it is stipulated that "no suit shall be
brought against any carrier, and only against the carrier on whose line
the injuries occur, after the lapse of 90 days from the happening
thereof, any statute or liruitation to the contrary notwithstanding."
In respect of the two stipulations just referred to, the trial judge
charged the jury as follows :
" The contract of shipment in this case contains among other things,
a stipulation that suit for any damages growing out of this shipment
must be commenced within ninety days. You are instructed that
such stipulation is void and not binding upon the plaintiffs herein.
" Said contract also contains a stipulation to the effect that if the
cattle in the shipment are lost or killed, that their owners can only
recover a certain fixed amount, which amount is named in said con-
tract. 'You are instructed that such stipulation is void and not bind-
ing upon plaintiffs in this case, and if you should find for plaintiffs,
you will fix the amount of their damages under instructions hereinafter
given you."
This charge was approved upon appeal and the judgment aflBrmed.
The ground upon which the charge in respect to the limitation of
recovery in case of loss was based was first, that every such contract,
where the loss was due to negligence, was null and void under the
law and public policy of the state ; and, second, that it was a contract
of exemption forbidden by the Hepburn Act of June 29, 1906, being
Local Distance Tariff No. 2548.
(cancels No. 737.)
Applying on classes and commodities between stations on the Missouri, Kansas
& Texas Ey. as follows :
Between Stations in And Stations in
Indian Territory Oklahoma Territory
Missouri or Kansas Indian Territory
Missouri or Kansas Oklahoma Territory
And locally between Stations in the Indian or Oklahoma Territories.
Eates in Cents Per 100 lbs.
Cattle (See Rule 3.)
Distance Commodities Carloads
380 miles and over 370 26J
EULE 3.
Live Stock — Continued.
Limitation of Liability. — Rates provided on Live Stock will apply only on
shipments made at Owner's Risk, with limitation of liability on the part of the
railroad company as common carrier under the terms and conditions of the
current Live Stock contract provided by this company, the contract to be first
duly executed in manner and form provided therein.
120 per cent of the rates named in this tariff will be charged on shipments
made without limitations of carrier's liability at common law, and under this
status shippers will have the choice of executing and accepting contracts for ship-
ments of Live Stock with or without limitation of liability, the rates to be made as
provided for herein.
LIMITATION OF LIABILITY. 533
the Carmaok Amendment of the twentieth section of the general act
to regulate commerce of February 4, 1887. (24 Stat. 379, c. 104.)
That the shipper had the choice of two rates, one twenty per cent,
higher than the other, upon this shipment, is shown by the provisions
of the shipping contract and the tariff sheets referred to therein.
That the difference between the two rates was not unreasonable, the
one when the cattle were not valued and the other when their value
was declared, is to be assumed from the acceptance of the rates as
filed with the Commission. That the " portion " of the rate sheets in
evidence does not include the " Current Live Stock Contract " referred
to in the part filed, is of no vital significance. The objection was not
made below. The case was proceeded with in the state court upon
the hypothesis that the " Current Live Stock Contract," referred to in
the " portion " of the rate sheets actually in evidence, was the live
stock contract executed by the parties, and had been duly filed as
part of the rate sheets. It is too late to make an objection here which,
if made below, might have been remedied by filing all instead of a
« portion " of the filed tariff. Texas & P. Eailway v. Abilene Oil Co.,
204 U. S. 426. In any event the rate sheets do provide for a choice
between two rates, one with and one without a declared valuation.
In one case the carrier is liable for whatever loss or damage the shipper
sustains and in the other its liability is limited to the valuation upon
which the rate was based. The ground upon which the shipper is
limited to the valuation declared is that of estoppel, and presupposes
the valuation to be one made for the purpose of applying the lower of
two rates based upon the value of the cattle. This whole matter has
been so fully considered in Adams Express Company v. Croninger,
226 U. S. 491 [520], and Kansas City Southern Eailway v. Carl, just
decided [227 U. S. 639], that we only need to refer to the opinions in
those cases without further elaboration.
That the trial court and the Court of Civil Appeals erred in holding
this stipulation null and void because forbidden by either the law or
policy of the State of Texas, or by the twentieth section of the act of
June 29, 1906, is no longer an open question since the decisions of
this court in the cases just referred to.
Nor is there anything upon the face of this contract, when read in
connection with the rate sheets referred to therein, (of which the
defendants in error were compelled to take notice not only because
referred to in the contract signed by them, but because they had been
lawfully filed and published), which offends against the provisions of
the twentieth section of the act of June 29, 1906.
Neither is the valuation of cattle at thirty and twenty dollars per
head subject to impeachment as upon its face arbitrary and unreason-
able. The valuation in this case was made by the consignor himself.
The contract upon this point reads, "And said shipper represents and
agrees that his said live stock . . . do not exceed in value those prices,"
referring to the schedule set out immediately above that declaration.
534 CAEEIEES OF GOODS.
That the cattle were not other than- average or ordinary cattle of no
peculiar value as "show cattle," or otherwise, is indicated by the
character of the printed form of contract signed by the consignor.
After reciting that the company had two rates on live stock, it
proceeds, — " Ordinary live stock transported under this special
contract," etc.
The contract here involved is substantially identical with the con-
tract and schedule upheld in Hart v. Pennsylvania Eailroad, 112 U. S.
331, where the transportation was " on the condition that the carrier
assumes a liability on the stock to the extent of the following agreed
valuation : ' If horses or mules, not exceeding two hundred dollars each.
If cattle or cows, not exceeding seventy-five dollars each.' "
In the case at bar it has been said that the shipper was not asked to
state the value, but only signed the contract handed to him and made
no declaration. But the same point was made in the Hart Case, when
the court said (p. 337) :
" A distinction is sought to be drawn between a case where a ship-
per, on requirement, states the value of the property, and a rate of
freight is fixed accordingly, and the present case. It is said, that,
while in the former case the shipper may be confined to the value he so
fixed, in the event of a loss by negligence, the same rule does not
apply to a case where the valuation inserted in the contract is not a
valuation previously named by the shipper. But we see no sound
reason for this distinction. The valuation named was the 'agreed
valuation,' the one on which the minds of the parties met, however it
came to be fixed, and the rate of freight was based on that valuation,
and was fixed on condition that such was the valuation, and that the
liability should go to that extent and no further."
It is said that the contract in the case at bar includes a valuation of
all bulls and all cows at the same sum, and that this is arbitrary and
not the result of any real effort to value the particular bulls and cows
to be transported. But the same objection applied to the contract in
the Hart Case, where horses were valued at the same maximum value
and other cattle at the same fixed sum. But here,, as there, it is plain
that all animals, horses and other cattle, have not a fixed value, and so,
the contract fixes " a graduated value according to the nature of the
animal."
It is not unreasonable for the purpose of graduating freight accord-
ing to value to divide the particular subject of transportation into two
classes, those above and those below a fixed maximum amount. No
other method is practicable, and this is a method administratively ap-
proved by the Commerce Commission.
That the value of the cattle shipped under this valuation did greatly
exceed the valuation therein represented, may be true. It only serves
to show that the shipper obtained a lower rate than he was lawfully
entitled to have by a misrepresentation. It is neither just nor equi-
table that ne shall benefit by the lower rate, and then recover for a
LIMITATION OF LIABILITY. 535
value which he said did not exist, in order to obtain that rate. Hav-
ing obtained a rate based upon the declared value, he is concluded, and
there is no room for parol evidence to show otherwise. Hart v.
Pennsylvania Kailroad, and Kansas City &c. Eailroad v. Carl, supra.
When the carrier graduates its rates by value and has filed its
tariffs showing two rates applicable to a particular commodity or class;
of articles, based upon a difference in valuation, the shipper must take
notice, for the valuation automatically determines which of the rates
is the lawful rate. If he knowingly declares an undervaluation for
the purpose of obtaining the lower of two published rates, he thereby
obtains an advantage and causes a discrimination forbidden and made
unlawful by the first section of the Elkins Act of February 19, 1903
(32 Stat. 847, c. 708). Texas & P. Railway v. Mugg, 202 U. S. 242 ;
Chicago & A. Railway v. Kirby, 225 U. S. 155. The particular cattle
were loaded by the shipper and were never seen by the company's
agent. Neither was it claimed that he was informed of the value or
quality of the cattle to be shipped. We see no ground upon which
this contract can be held upon its face to have offended against the
statute.
The court below held that the stipulation in the shipping contract
that no suit shall be brought after the lapse of 'ninety days from the
happening of any loss or damage, " any statute of limitation to the
contrary notwithstanding," was avoid.
It is conceded that there are statutes in Missouri, the State of the
making of the contract, and the State in which the loss and damage
occurred, and in Texas, the State of the forum, which declare contracts
invalid which require the bringing of an action for a carrier's liability
in less than the statutory period, and that this action, though started
after the lapse of the time fixed by the contract was brought within
the statutory period of both States.
The liability sought to be enforced is the " liability " of an interstate
carrier for loss or damage under an interstate contract of shipment
declared by the Carmack Amendment of the Hepburn Act of June 29,
1906. The validity of any stipulation in such a contract which in-
volves the construction of the statute, and the validity of a limitation
upon the liability thereby imposed is a Federal question to be deter-
mined under the general common law, and, as such, is withdrawn
from the field of state law or legislation. Adams Express Co. v.
Croninger, 226 U. S. 491 [520] ; Michigan Central Railroad v. Vree-
land, [227 U. S.] 69. The liability imposed by the statute is the lia^
bility imposed by the common law upon a common carrier, and may be
limited or qualified by special contract with the shipper, provided the
limitation or qualification be just and reasonable, and does notexempt
from loss or responsibility due to negligence. Adams Express Com-
pany V. Croninger, and Michigan Central Railroad v. Vreeland, cited
above; York Co. v. Central Railroad Co., 3 Wall. 107; Railroad
Company v. Lockwood, 17 Wall. 357; Express Company v. Cald-
536 CARRIERS OF GOODS.
well, 21 Wall. 264, 267 [536] ; Hart v. Pennsylvania Railroad, 112
U. S. 331.
The policy of statutes of limitations is to encourage promptness in the
bringing of actions, that the parties shall not suffer by loss of evidence
from death or disappearance of witnesses, destruction of documents or
failure of memory. But there is nothing in the policy or object of
such statutes which forbids the parties to an agreement to provide a
shorter period, provided the time is not unreasonably short. That is
a question of law for the determination of the court. Such stipula-
tions have been sustained, in insurance policies. Eiddlesbarger v.
Hartford Insurance Co., 7 Wall. 386. A stipulation that an express
company should not be held liable unless claim was made within ninety
days after a loss was held good in Express Company v. Caldwell, 21
Wall. 264 [536]. Such limitations in bills of lading are'Very custom-
ary and have been upheld in a multitude of cases. We cite a few :
Central Vermont Railroad v. Soper (1st C. C. A.), 59 Fed. Rep. 879 ;
Ginn v. Ogdensburg Transit Co. (7th C. C. A.), 86 Fed. Rep. 985 ; Cox
V. Central Vermont Railroad, 170 Massachusetts, 129 ; North British
&c. Insurance Co. v. Central Vermont Railroad, 9 App. Div. (N. Y.) 4,
aff'd 158 N. Y. 726. Before the Texas and Missouri statutes forbidding
such special contracts, short limitations in bills of lading were held to
be valid and enforceable. McCarty v. Gulf &c. Ry., 79 Texas, 33 ;
Thompson v. Chicago &c. Ry., 22 Mo. App. 321. See cases to same
effect cited in 6 Cyc, p. 508. The provision requiring suit to be
brought within ninety days is not unreasonable.
For the errors indicated, the judgment must be reversed for such
further proceedings as may be consistent with this opinion.
Mr. Justice Hughes concurs in the result. Mr. Justice Pitney
dissents.
d. T^me for claiming damages,
EXPRESS CO. V. CALDWELL.
21 Wall. (U. S.), 264. 1874.
Caldwell sued the Southern Express Company in the court below,
as a common carrier, for its failure to deliver at New Orleans a pack-
age received by it on the 23d day of April, 1862, at Jackson, Tennes-
see,— places the transit between which requires only about one day.
The company pleaded that when the package was received " it was
agreed between the company and the plaintiff, and made one of the
express conditions upon which the package was received, that the
company should not be held liable for any loss of, or damage to,
LIMITATION OF LIABILITY. 537
the package whatever, unless claim should be made therefor within
ninety days from its delivery to it." The plea further averred that
no claim was made upon the defendant, or upon any of its agents,
Tintilthe year 1868, more than ninety days after the delivery of the
package to the company, and not until the present suit was brought.
To the plea thus made the plaintiff demurred generally, and the
Circuit Court sustained the demurrer, giving judgment thereon
against the company. Whether this judgment was correct was the
question now to be passed on here.
Mr. Justice Strong. Notwithstanding the great rigor with which
courts of law have always enforced the obligations assumed by com-
mon carriers, and notwithstanding the reluctance with which modi-
fications of that responsibility, imposed upon them by public policy,
have been allowed, it is undoubtedly true that special contracts with
their employers limiting their liability are recognized as valid, if in
the judgment of the courts they are just and reasonable, — if they
are not in conflict with sound legal policy. The contract of a com-
mon carrier ordinarily is an assumption by him of the exact duty
which the law affixes to the relation into which he enters when he
undertakes to carry. That relation the law regards as substantially
one of insurance against all loss or damage except such as results
from what is denominated as the act of God or of the public enemy.
But the severe operation of such a rule in some cases has led to a
relaxation of its stringency, when the consignor and the carrier
agree to such a relaxation. All the modern authorities concur in
holding that, to a certain extent, the extreme liabil ity exacted by
the common law originally may be limited by express contract. The
difficulty is in determining to what extent, and here the authorities
differ. Certainly it ought not to be admitted that a common carrier
can be relieved from the full measure of that responsibility which
ordinarily attends his occupation without a clear and express stipu-
lation to that effect obtained by him from his employer. And even
when such a stipulation has been obtained, the court must be able to
see that it is not unreasonable. Common carriers do not deal with
their employers on equal terms. There is, in a very important
sense, a necessity for their employment. In many cases they are
•corporations chartered for the promotion of the public convenience.
They have possession of the railroads, canals, and means of trans-
portation on the rivers. They can and they do carry at mucli
■cheaper rates than those which private carriers must of necessity
demand. They have on all important routes supplanted private
carriers. In fact, they are without competition, except as between
themselves, and that they are thus is in most cases a consequence of
advantages obtained from the public. It is, therefore, just that
they are not allowed to take advantage of their powers and of the
necessities of the public to exact exemptions from that measure of
duty which public policy demands. But that which was public
638 CAEKIEES OF GOODS.
policy a hundred years ago has undergone changes in the progress
of material and social civilization. There is less danger than there
was of collusion with highwaymen. Intelligence is more rapidly
diffused. It is more easy to trace a consignment than it was. It
is more difficult to conceal fraud. And, what is of equal importance,
the business of common carriers has been immensely increased and
subdivided. The carrier who receives goods is very often not the
one who is expected to deliver them to the ultimate consignees. He
is but one link of a chain. Thus his hazard is greatly increased.
His employers demand that he shall be held responsible, not merely
for his own acts and omissions, and those of his agents, but for
those of other carriers whom he necessarily employs for completing
the transit of goods. Hence, as we have said, it is now the settled
law that the responsibility of a common carrier may be limited by
an express agreement made with his employer at the time of his
accepting goods for transportation, provided the limitation be such
as the law can recognize as reasonable and not inconsistent with
sound public policy. This subject has been so fully considered of
late in this court that it is needless to review the authorities at large.
In York Company v. The Central Railroad Company,' it is ruled
that the common-law liability of a common carrier may be limited
and qualified by special contract with the owner, provided such
special contract do not attempt to cover losses by negligence or
misconduct. And in a still later case, Eailroad Company v. Lock-
wood,'' where the decisions are extensively reviewed, the same
doctrine is asserted. The latter case, it is true, involved mainly an
inquiry into the reasonableness of an exception stipulated for, but
it unequivocally accepted the rule asserted in the first-mentioned
case. The question, then, which is presented to us by this record
is, whether the stipulation asserted in the defendant's plea is a
reasonable one, not inconsistent with sound public policy.
It may be remarked, in the first place, that the stipulation is not
a conventional limitation of the right of the carrier's employer to
sue. He is left at liberty to sue at any time within the period fixed
by the Statute of Limitations. He is only required to make his
claim within ninety days, in season to enable the carrier to ascer-
tain what the facts are, and, having made his claim, he may delay
his suit.
It may also be remarked that the contract is not a stipulation for
exemption from responsibility for the defendants' negligeiice, or for
that of their servants. It is freely conceded that had it been such,,
it would have been against the policy of the law, and inoperative.
Such was our opinion in Railroad Company v. Lockwood. A com-
mon carrier is always responsible for his negligence, no^ matter
what his stipulation may be. But an agreement that in case of
failure by the carrier to deliver the goods, a claim shall be made by
1 3 Wallace, 107. » 17 Id. 357.
LIMITATION OF LIABILITY. 539
the bailor, or by the consignee, within a specified period, if that
period be a reasonable one, is altogether of a different character. It
contravenes no public policy. It excuses no negligence. It is per-
fectly consistent with holding the carrier to the fullest measure of
good faith, of diligence, and of capacity, which the strictest rules of
the common law ever required. And it is intrinsically just, as
applied to the present case. The defendants are an express com-
pany. We cannot close our eyes to the nature of their business.
They carry small parcels easily lost or mislaid, and not easily traced.
They carry them in great numbers. Express companies are modern
conveniences, and notoriously they are very largely employed.
They may carry, they often do carry hundreds, even thousands of
packages daily. If one be lost, or alleged to be lost, the difficulty
of tracing it is increased by the fact that so many are carried, and
it becomes greater the longer the search is delayed. If a bailor
may delay giving notice to them of a loss, or making a claim indefi-
nitely, they may not be able to trace the parcels bailed, and to
recover them, if accidentally missent, or if they have in fact been
properly delivered. With the bailor the bailment is a single trans-
action, of which he has full knowledge ; with the bailee, it is one of
a multitude. There is no hardship in requiring the bailor to give
notice of the loss if any, or make a claim for compensation within a
reasonable time after he has delivered the parcel to the carrier.
There is great hardship in requiring the carrier to account for the
parcel long after that time, when he has had no notice of any failure
of duty on his part, and when the lapse of time has made it difficult,
if not impossible, to ascertain the actual facts. For these reasons
such limitations have been held valid in similar contracts, even when
they seem to be less reasonable than in the contracts of common
carriers.
Policies of fire insurance, it is well known, usually contain stipu-
lations that the' insured shall give notice of a loss, and furnish
proofs thereof within a brief period after the fire, and it is undoubted
that if such notice and proofs have not been given in the time desig-
nated or have not been waived, the insurers are not liable. Such
conditions have always been considered reasonable, because they
give the insurers an opportunity of inquiring into the circumstances
and amount of the loss, at a time when inquiry may be of service.
And, still more, conditions in policies of fire insurance that no action
shall be brought for the recovery of a loss unless it shall be com-
menced within a specified time, less than the statutory period of
limitations, are enforced, as not against any legal policy.'
Telegraph companies, though not common carriers, are engaged
in a business that is in its nature almost, if not quite, as important
to the public as that of carriers. Like common carriers, they cannot
1 See Riddlesbarger v. Hartford Insurance Company, 7 Wallace, 386, and the
numerous cases therein cited.
540 CARUIEES OF GOODS.
contract witli their employers for exemption from liability for the
consequence of their own negligence. But they may by such con-
tracts, or by their rules and regulations brought to the knowledge
of their employers, limit the measure of their responsibility to a
reasonable extent. Whether their rules are reasonable or unreason-
able must be determined with reference to public policy, precisely
as in the case of a carrier. And in Wolf v. The Western Union
Telegraph Company,^ a case where one of the conditions of a tele-
graph company, printed in their blank forms, was that the company
would not be liable for damages in any case where the claim was
not presented in writing within sixty days after sending the mes-
sage, it was ruled that the condition was binding on an employer of
the company who sent his message on the printed form. The con-
dition printed in the form was considered a reasonable one, and it
was held that the employer must make claim according to the con-
dition, before he could maintain an action. Exactly the same doc-
trine was asserted in Young v. The Western Union Telegraph
Company.^
In Lewis v. The Great Western Railway Company,' which was
an action against the company as common carriers, the court sus-
tained as reasonable stipulations in a bill of lading, that "no claim
for deficiency, damage, or detention would be allowed, unless made
within three days after the delivery of the goods, nor for loss, unless
made within seven days from the time they should have been
delivered." Under the last clause of this condition the onus was
imposed upon the shipper of ascertaining whether the goods had
been delivered at the time they should have been, and in case they
had not, of making his claim within seven days thereafter. In the
case we have now in hand the agreement pleaded allowed ninety
days from the delivery of the parcel to the company, within which
the claim might be. made, and no claim was made until four years
thereafter. Possibly such a condition might be regarded as unrea-
sonable, if an insufficient time were allowed for the shipper to learn
whether the carrier's contract had been performed. But that can-
not be claimed here. The parcel was received at Jackson, Ten-
nessee, for delivery at New Orleans. The transit required only
about one day. We think, therefore, the limitation of the defend-
ants' common-law liability, to which the parties agreed, as averred
in the plea, was a reasonable one, and that the plea set up a sufficient
defence to the action.
We have been referred to one case which seems to intimate, and
perhaps should be regarded as deciding, that a stipulation somewhat
like that pleaded here is insufficient to protect the carrier. It is
the Southern Express Company v. Caperton.* There the receipts
for the goods contained a provision that there should be no liability
1 62 Pennsylvania State, 83. ^ 34 New York Superior Court, 390.
» 5 Hurlstone & Norman, 867. * 44 Alabama, 101.
LIMITATION OF LIABILITY. 541
for any loss unless the claim therefor should be made in writing, at
the office of the company at Stevenson, within thirty days from the
date of the receipt, in a statement to which the receipt should be
annexed. The receipt was signed by the agent of the company
alone. It will be observed that it was a much more onerous require-
ment of the shipper than that made in the present case, and more
than was necessary to give notice of the loss to the carrier. The
court, after remarking that a carrier cannot avoid his responsibility
by any mere general notice, nor contract for exemption from liabili-
ties for his negligence or that of his servants, added that he could
not be allowed to make a statute of limitations so short as to be
capable of becoming a means of fraud ; that it was the duty of the
" defendant to deliver the package to the consignee, and that it was
more than unreasonable to allow it to appropriate the property of
another by a failure to perform a duty, and that too under the pro-
tection of a writing signed only by its agent, the assent to which by
the other party was only proven by his acceptance of the paper."
This case is a very unsatisfactory one. It appears to have regarded
the stipulation as a statute of limitations, which it clearly was not,
and it leaves us in doubt whether the decision was not rested on
the ground that there was no sufficient evidence of a contract. The
case cited from 36 Georgia, 532, has no relation to the question
before us. It has reference to the. inquiry, what is sufficient proof
of an agreement between the shipper and the carrier, an inquiry
that does not arise in the present case, for the demurrer admits an
express agreement.
Our conclusion, then, founded upon the analogous decisions of
courts, as well as upon sound reason, is that the express agreement
between the parties averred in the plea was a reasonable one, and
hence that it was not against the policy of the law. It purported
to relieve the defendants from no part of the obligation of a common
■carrier. They were bound to the same diligence, fidelity, and care
as they would have been required to exercise if- no such agreement
had been made. All that the stipulation required was that the
shipper, in case the package was lost or damaged, shoiild assert his
■claim in season to enable the defendants to ascertain the facts ; in
other words, that he should assert it within ninety days. It follows
that the Circuit Court erred in sustaining the plaintiff's demurrer
to the plea.
Judgment reversed.
542 CAEKIERS OF GOODS.
SPKAGUE V. MISSOUEI PACIFIC R. CO.
34 Kau. 347. 1885.
Action by Sprague against the Railway Company, to recover
$500 damages. Judgment for defendant. Plaintiff brings the case
here. The opinion states the material facts.
Johnston, J. S. Sprague brought this action in the District
Court of Cloud County against the Missouri Pacific Railway Com-
pany, alleging, in substance, that the defendant was a common
carrier, and that on or about the 2d day of March, 1883, for a valu-
able consideration, the railway company undertook and agreed with
the plaintiff to safely carry over its road from Atchison to Con-
cordia certain stock, goods, wares, and merchandise; that he
delivered the property mentioned for shipment in good condition at
Atchison, but the defendant negligently and carelessly managed
the car upon which the property was shipped, and by reason of such
negligence and without any fault on the part of the plaintiff, four of
the horses so shipped by the plaintiff were thrown down, bruised,
and injured so that one of them died, and the others were more or
less disabled, to the damage of plaintiff in the sum of $500. The
railway company denied the allegations of negligence, and the terms
of the contract as stated by the plaintiff, and alleged that the prop-
erty had been shipped in accordance with the terms of a special
agreement entered into between the plaintiff and the defendant,
wherein it was stated that the company transported livestock only
in accordance with certain rules and regulations, which were men-
tioned, and that, in consideration that the defendant company would
transport for the said plaintiff the said property at the rate of $30
per car, the same being a special rate lower than the regular rate
mentioned in the freight tariff of the railway company, and other
considerations, the plaintiff agreed to release the defendant from
some of the responsibility and risks imposed by law upon the rail-
way company when acting as a common carrier. The contract is set
out at length in the answer, and it provided that the plaintiff should
load and unload his stock at his own risk, and feed, water, and attend
to the same at his own expense. He was also to accompany and
care for the stock while it was being transported over the defend-
ant's road, and for that purpose the railway company was to furnish
the plaintiff free transportation over its road for one person from
the point of shipment to the destination.
Among the stipulations of the contract is the following : —
"And for the consideration before mentioned, said party of the
second part further agrees that as a condition precedent to his right
to recover any damages for any loss or injury to said stock, he will
give notice in writing of his claim therefor to some officer of said
LIMITATION OF LIABILITY. 543
party of tlie first part, or its nearest station agent, before said stock
is removed from tlie place of destination above mentioned, or from
the place of the delivery of the same to the said party of the second
part, and before such stock is mingled with other stock."
The defendant then alleged that the horses ■were unloaded and
taken from the car at Clifton by the duly-authorized agent of the
plaintiff, who refused the defendant the right to transport the same
to Concordia, and that when he obtained possession of the same he
was well aware of their condition, and well knew whether they had
sustained any injury or damage ; and that neither the plaintiff nor
any one acting for him, prior to the commencement of this action,
made any demand in writing for any damages sustained to said
stock, and never at any time gave any notice in writing of plaintiff's
claim for any damages, loss, or injuries to said stock, to defendant,
or any of its officers or agents. The reply of the plaintiff was a
general denial, not verified. Upon the trial it was expressly admitted
that the special contract set up in defendant's answer was signed
and executed by the duly-authorized agents of the parties, and it
was further admitted that if the plaintiff is entitled to recover under
the contract for the injuries alleged by the plaintiff, the amount of
such recovery should be $300. Testimony was then offered by the
plaintiff to the effect that the horses were in good condition when
delivered to the railway company at Atchison, Kansas. His
brother was given a free pass over the road and accompanied the
train upon which the horses were shipped, for the purpose of caring
for the stock while it was being transported over the defendant's
road. At several points on the route he inspected them, and found
them to be still in good condition. At the station named Palmer,
some distance east of Concordia, the horses were again examined by
the plaintiff's brother, and were then all right, and after returning
to the caboose and before leaving that station, he felt several jars,
but was unable to state what occasioned them, or whether the horses
were injured thereby. Upoii arriving at Clifton, the next station,
he again examined the horses and found that some of them were
lying down, and apparently injured. He then demanded of the
conductor that the car in which the horses were shipped should be
backed up to the stockyards in order that the horses might be
removed from the car. This was done, when the horses were
unloaded and found to be considerably bruised. He then refused to
reload the horses upon the car, took possession of them, and caused
them to be taken across the country to the plaintiff's farm, which
was not far distant. The plaintiff further testified that when the
car teached Concordia, he paid the price agreed upon for the trans-
portation of the same ; but that no notice has ever been given to the
conductor of that train, or to any officer or agent of the railway
company, prior to the commencement of this action, that he claimed
any damages for the injury to his stock; that he knew the condition
544 CAEEIEES OF GOODS.
of the horses and the extent of the injury to them before they were
taken to the farm, and yet he had not given any notice of any claim
the*^for. When the plaintiff closed his testimony, the railway
company interposed a demurrer to the evidence, which the court,
after consideration, sustained.
Upon this ruling the plaintiff raises and discusses several ques-
tions here, but as one of them disposes of the case, the others require
no attention. If the contract of the parties, by which it was agreed
that before the plaintiff could recover damages for any injury to his
horses, is to be upheld, he must give notice in writing of his claim
therefor, to some officer of the railway company, or to its nearest
station agent, before the horses were removed from the place of
destination or from the place of the delivery of the same to the
plaintiff, and before they were mingled with other stock, then the
demurrer to the evidence was rightly sustained, and the judgment
should be affirmed. The plaintiff contends that the agreement is.
not binding upon him, because it is not one permitted by the lawg
to be made, and for further reason that it is without consideration.
As a general rule, common carriers are held liable as insurers, and
are absolutely responsible for any loss to the property intrusted to
them, unless such loss is occasioned by the act pf God, or the public
enemy. It is now a well-established rule of law that this liability
maybe limited to a certain extent; but to accomplish this it must
clearly appear that the shipper understood and assented to the limi-
tation. Common carriers are not permitted, by agreement or other-
wise, to exempt themselves from liability for loss occasioned by
their negligence or misconduct. Such limitations are held to be
against the policy of the law, and would be void. But it is no
longer questioned that they may, by special agreement, stipulate for
exemption from the extreme liability imposed by the common law,
provided that such stipulations are just and reasonable and do not
contravene any law or a sound public policy. That the agreement
in question was executed by the plaintiff, is admitted, not only by
the pleadings, but it was expressly agreed to by him upon the trial.
There is no pretence that any deceit or fraud was practised upon
him by the railway company in obtaining his assent to the agree-
ment. So far as appears in the testimony, it was fairly and under-
standingly entered into and executed. His authorized agent, who
accompanied the horses, and who had them in charge while passing
over defendant's road, knew of this provision of the contract, and
was acquainted with their condition before they were taken from
the possession of the railway company. A.nd the plaintiff, with
full knowledge of this requirement, paid the freight charges agreed
upon, after the injury had been done, without complaint, and with-
out claiming any damages therefor; and gave no notice, nor did he
make any claim for damages prior to the commencement of this
action.
LIMITATION OF LIABILITY. 545
The stipulation requiring notice of any claim for damages to be
given cannot be regarded as an attempt to exonerate the company
from negligence or from the negligence or misfeasance of any of its
servants. The company concedes that such an agreement would be in-
effectual for that purpose. It is to be regarded rather as a regulation
for the protection of the company from fraud and imposition in the
adjustment and payment of claims for damages by giving the com-
pany a reasonable opportunity to ascertain the nature of the damage
and its cause. After the property has been taken from its posses-
sion and mingled with other property of a like kind, the difficulty of
inquiring into the circumstances and character of the injury would
be very greatly increased. That such a provision does not contra-
vene public policy, and that it is just and reasonable, has been
expressly adjudicated by this court. In Goggin v. K. P. Ely. Co.,
12 Kas. 416, a limitation substantially like the one in question was
under consideration', and the circumstances of that case were much
like those of the present one. It was there, as here, urged in sup-
port of the reasonableness and justice of the regulation, that the
defendant was , at the time of the alleged injury, engaged in trans-
porting great numbers of cattle and horses over its line of road, and
which were being shipped to different points thereon, and that it
would have been impossible for it to have distinguished one car-load
from another, unless its attention was called immediately thereto,
and that the object of the notice and demand mentioned in the con-
tract was to relieve it from any false or fictitious claim, and to
give it an opportunity to have an inspection of the stock before they
were removed or mingled with others, and the company could thus
have an opportunity to ascertain and allow the actual damages
suffered. These reasons are said to be cogent; and the agreement
is there held to be reasonable, just, and valid. The decision in
that case governs the one at bar, and the view which we have taken
of the validity of this limitation accords with the decisions of other
courts, among which the following may be cited: Rice v. K. P. Rly.
Co., 63 Mo. 314; Oxley v. St. Louis, Kans s City & Northern Ely.,
65 id. 629; Express Co. v. Caldwell, 21 Wall. 264 [536]; Dawson u
St. Louis, Kansas City & Northern Ely., 76 Mo. 614; Texas Central
Ely. Co. V. Morris, 16 Am. & Eng. Eld. Cases, 259, and cases there
cited.
The plaintiff makes the further objection to the special agreement,
that it was without consideration. It appears that the rate to be
paid for the car in which the horses were shipped was omitted from
the contract, and the plaintiff urges that as the price is not stated,
it does not appear that any concession or reduction was made from
the established rates, and therefore there was no consideration for
the stipulation in question. But that position cannot be main-
tained. The contract was in writing, and signed by the parties to
be bound thereby, and by virtue of our statute it imports a consid-
546 CARRIERS OF GOODS.
eration. Gen. Stat. ch. 21, § 7. If more was needed to show that
the objection is not well founded, it might be found in the plain*
tiff's petition, where he alleges that the contract was based upon a
valuable consideration; and in his testimony, where it appears that
$30 was the rate agreed upon and the amount that was paid by him
under the contract. When these things are taken in connection
with the statement in the written contract, that the price agreed
upon was a reduction from the established rates, , the consideration
for the stipulation in question is sufficiently shown.
It follows from what has been said, that the judgment at rJie
District Court should be affirmed.
EIDGWAY GRAIN CO. v. PENNSYLVANIA RAILROAD CO.
228 Pa. 641 ; 77 Atl. R. 1007 ; 31 L. R. A. N. S. 1178. 1910.
[Appeal from a judgment on a verdict in favor of Salberg and
Morey, doing business as the Ridgway Grain Co., against the Penn-
sylvania Railroad Co. for the value of seventeen carloads of grain and
feed shipped by plaintiffs to Copelin as consignee without requiring
the surrender of the bills of lading by such consignee.]
Me. Justice Pottek. The question here involved is the liability
of defendant company for the value of seventeen car loads of grain
and feed, delivered by the agent of the defendant, to the consignee,
without requiring the surrender of the bills of lading. As a general
principle, if the carrier delivers to anyone, even to the consignee, with-
out requiring the production of the bill of lading, it does so at its
peril. But there may be cases in which, by custom or a course of
dealing between consignor and consignee, delivery has, with the knowl-
edge and acquiescence of the consignor, been permitted without the
surrender of the bill of lading. In such a ease, the carrier, in the
absence of notice that the bill of lading is being held as security for
the purchase price of the goods, may be justified in making delivery
without requiring the surrender of the bill of lading. See 1 Hutchin-
son on Carriers, sec. 177, where the author cites National Bank v.
P. & R. R. R. Co., 163 Pa. 467. In the present case, the course of deal-
ing between the plantiffs and their consignee, Duke Copelin, extended
over a period from June, 1905, to June, 1907, and during that time
they sold him some fifty-one car loads of merchandise. There is evi-
dence to show that all, or nearly all of these cars were delivered to the
consignee without obtaining the surrender of the bills of lading. For
some thirty-four of the cars, payment was inade after delays varying
from 15 days to 251 days. For the value of the contents of the re-
maining seventeen cars, for which no payment has been made by the
carrier, the plaintiffs here seek to recover from the defendant. No
complaint seems to have been made to the defendant company until
THE BILL OF LADING. 547
June, 1907, although Copelin was then indebted to plaintiffs for cars
delivered in October previous. The letters of plaintiffs to Copelin,
which were in evidence, not only show' that they knew of the prac-
tice under which Copelin was permitted to take the cars without sur-
rendering the bills of lading, but that they were satisfied with it, pro-
viding Copelin made payment to them within a reasonable time. What
they objected to was, not the practice of delivering the ears without sur-
rendering the bills of lading, but it was the large amount of the credit
thus obtained from them by Copelin, and the length of time to which
it was extended. These letters clearly show a course of dealing which
accepted the fact of delivery of cars without reference to bills of lad-
ing, and under which plaintiffs charged interest upon drafts, and
strove to get Copelin to reduce the amount of his indebtedness to them.
Yet in the face of all this, they continued to ship additional car loads
of grain to Copelin, without a word of complaint to defendant com-
pany, or any hint to it, that they desired to terminate the course of
dealing which they had pursued, and would in the future rely upon
the bills of lading to secure to themselves possession of the grain until
it was paid for by Copelin. In North Penna. R. E. Co. v. Commercial
If at. Bank, 123 U. S. 727, it was held that a shipper was not bound by
a custom to deliver live stock to a drove yard company, without the
production of a bill of lading, where knowledge of the custom was
not brought home to the shipper. . . .
The ruling of the court below as to the failure to make claim for
the loss within thirty days of the alleged wrongful delivery was in
accordance with the authorities. In 4 Elliott on Railroads (2d ed.,
1907), sec. 1512, it is said: "A valid contract may be made requiring
claim for loss or damages to freight to be presented in a certain man-
ner or within a certain time, provided it is reasonable. . . . Such a
stipulation is not available to a common carrier in case of conversion
of the goods by the carrier." In Chicago, etc., Ey. Co. v. Bank, '26
Ind. App. 600, the precise question arose. The carrier had delivered
freight to the wrong person and the consignee brought suit for dam-
ages. Notice of the claim had not been given within thirty days
after the arrival of the goods at the point of delivery, and defense was
made on that ground. Wiley, J., said (pp. 603-604) : " The general
rule is that this condition in a bill of lading is a reasonable one, and
that the giving of such notice is a condition precedent to any recovery
upon the contract, and that a performance of such condition must be
averred in the complaint and proved on the trial. . . . The cases so
holding are based upon loss or damage in transitu, and do not relate
to cases where there has been a conversion. . . . That the delivery
of goods by a common carrier to a third or wrong person amounts to a
conversion is so declared by many authorities." In Forbes v. Boston
& Lowell E. R. Co., 133 Mass. 154, Morton, C. J., said (p. 156) : " It
is settled that any misdelivery of property by a carrier or warehouse-
man to a person unauthorized by the owner or person to whom the
648 CARRIERS OP GOODS.
carrier or warehouseman is bound by his contract to deliver it, is of
itself a conversion, which renders the bailee liable in an action of tort,
without regard to the question of his due care or negligence." In
Schouler on Bailments (1905), 392, it is said that " the common law,
in fact, treats such misdelivery (of goods to the wrong person) as con-
version, and makes the carrier suable in trover ; " citing among other
cases Shenk v. Steam Propeller Co., 60 Pa. 109, where Justice Shars-
wood said (p. 116) : " There is one point which is indisputable, that
he must take care at his peril that the goods are delivered to the right
person, for a delivery to a wrong person renders him clearly respon-
sible. . . . Such a wrongful delivery has been held in many cases to
amount to a conversion, and that trover may be maintained." The
tenth assignment of error is therefore overruled. . . .
e. Consignor and Consignee bound,
GRACE V. ADA.MS.
100 Mass. 505. 1868.
Contract, against the defendants, who carried on business under
the name of the Adams Express Company, to recover the value of a
package of money. In the Superior Court, judgment was ordered
for the plaintiff on agreed facts, and the defendants appealed. The
agreed facts were as follows : —
"It is agreed that the plaintiff delivered to the Adams Express
Company, as common carriers , at Wilmington, in the State of North
Carolina, March 21, 1865, a package containing one hundred and
iifty dollars, directed to Patrick Corbett, Taunton, Massachusetts,
and the said Express Company at the same time delivered to the
plaintiff a bill of lading, a copy whereof is hereto annexed, and
which makes part of this statement ; that the said Express Company
shipped said package with other packages from Wilmington by the
steamship 'General Lyon,' which ship was accidentally burnt at
sea, and said package thereby destroyed. It is further agreed, if
evidence of the fact be admissible, that the plaintiff would tes-
tify that when the plaintiff delivered the package and took the
bill of lading, a copy of which is annexed, he did not read the
same."
The material parts of the bill of lading, of which the copy was
annexed, were as follows : —
" Adams Express Company. Great Eastern, Western & Southern
Express Forwarders. $150. Form 5. Wilmington, March 21,
1865. Received from One P., Sealed and said to contain one
hundred and fifty dolls. Addressed, Patrick Corbett. Taunton,
Mass.
LIMITATION OF LIABILITY. 549
"Upon the special acceptance and agreement that this company
is to forward the same to its agent nearest or most convenient to
destination only, and there to deliver the same to other parties to
complete the transportation, — such delivery to terminate all liabil-
ity of this company for such package; and also, that this company
is not to be liable in any manner or to any extent for any loss,
damage, or detention of such package, or of its contents, or of any
portion thereof, . . . occasioned by the dangers of railroad trans-
portation, or ocean or river navigation, or by fire or steam. For
the Company. Eobinson."
Colt, J. It is to be received as now settled by the current and
weight of authority, that a common carrier may, by special contract,
avoid or limit his liability at common law as an insurer of property
intrusted to him against loss or damage by fire, occurring without
fault on his part. It is not necessary to discuss here, how far iiv
this or other respects he may escape those liabilities which the
policy of the law imposes by mere notices brought home to the
employer, or whether the effect of such notices may not be held to
vary according as it is attempted to avoid those extraordinary respon-
sibilities which are peculiar to common carriers, or those other
liabilities under which they are held in common with all other
bailees for hire. Judson v. Western Eailroad Co., 6 Allen, 486
[477] ; York Co. v. Central Railroad Co., 3 Wallace, 107; Hooper v.
Wells, 27 Calif. 11; and see article by Redtield, with collection of
authorities, 5 Am. Law Eeg. n. s. 1.
It is claimed here that the shipping receipt or bill of lading con-
stituted a valid and binding contract between the parties, and that,
upon the loss at sea of the plaintiff's package in the course of its
transportation under the contract, by an accidental fire, the defend-
ants were discharged from any obligation to the plaintiff in regard
to it; and the court are of opinion that this claim must be sustained.
The receipt was delivered to the plaintiff as the contract of the
defendants ; it is i^i proper form ; and the terms and conditions are
expressed in the body of it in a way not calculated to escape atten-
tion. The acceptance of it by the plaintiff, at tne time of the
delivery of his package, without notice of his dissent from its terms,
authorized the defendants to infer assent by the plaintiff. It was
his only voucher and evidence against the defendants. It is not
claimed that he did not know, when he took it, that it was a ship-
ping contract or bill of lading. It was his duty to read it. The
law presumes, in the absence of fraud or imposition, that he did
read it, or was otherwise informed of its contents, and was willing
to assent to its terms without reading it. Any other rule would
fail to conform to the experience of all men. Written contracts are
intended to preserve the exact terms of the obligations assumed, so
that they may not be subject to the chances of a want of recollection
or an intentional misstatement. The defendants have a right to this
550 CAEKIEES OF' GOODS.
protection and are not to be deprived of it by the wilful or negligent
omission of, the plaintiff to read the paper. The case of Eice v.
Dwight Manufacturing Co., 2 Gush. 80, 87, is an authority in point.
Iq an action to recover for work done, the defence was that the
work was performed under a special contract, and a paper of printed
regulations was shown to have been given to and accepted by the
plaintiii" as containing the terms of the contract, but which was not
signed by either party. The plaintiff denied knowledge of its con-
tents; but it was said by Forbes, J., that where a party enters into
a written contract, in the absence of fraud, he is conclusively pre-
sumed to understand the terms and legal effect of it, and to consent
to them. See also Lewis v. Great "Western Eailway Co., 5 H. & N,
867; Squire v. New York Central Eailroad Co., 98 Mass. 239.
This case, then, is brought within the rule which authorizes car-
riers to relieve themselves from losses of this description by express
contracts with the employer. It differs from the cases of Brown v.
Eastern Eailroad Co., 11 Cush. 97, and Malone v. Boston & Worcester
Eailroad Co., 12 Gray, 388. The limitation relied on in both those
cases was in the form of a notice printed on the back of a passenger
ticket, relating to baggage; and it was held that there was no pre-
sumption of , law that the party, at the time of receiving the ticket,
had knowledge of the contents of the notice. It is obvious that in
those cases the ticket was not designed to be held as the evidence of
the contract between the parties. The contract, which was of pas-
senger transportation, was not attempted to be set forth. At most,
it was but a check, to be used temporarily and then delivered to
the conductor as his voucher, with these notices on the back. The
presumption that every man knows the terms of a written contract
which he enters into, therefore, did not apply. Nor was the accept-
ance of the ticket conclusive evidence of assent to its terms.
The recent case of Buckland v. Adams Express Co., 97 Mass. 124,
requires notice, because, upon a case in most respects similar to
this, a different result was reached by the court.^ The legal prin-
1 [The following paragraph from the opinion in the case cited shows the view of
the court on this point. The other portion of the case is found on page 318 of this
volume.]
The other question raised by the agreed facts is rather one of fact than of law. It
is no longer open to controversy in this State that a common carrier may limit his
responsibility for property intrusted to him by a notice containing reasonable and
suitable restrictions, if brought home to the owner of goods delivered for transporta-
tion and assented to clearly and unequivocally by him. It is also settled that assent
is not necessarily to be inferred from the mere fact that knowledge of such notice on
the part of an owner or consignor of goods is shown. The evidence must go further
and be sufficient to show that the terms on which the carrier proposed to carry tha
goods were adopted as the contract between the parties according to which the service
of the carrier was to be rendered. Judson v. "Western Eailroad Co., 6 Allen, 486-
490 [477]. On a consideration of the facts stated, it does not appear to us that the
plaintiffs ever did agree that the merchandise in question should be transported on
the terms sei forth in the receipt which was delivered to the workman at the manu-
LIMITATION OF LIABILITY. 551
ciples upon which that case was decided are those here stated. It
was a case upon an agreed statement of facts; and the diiference
resulted in the application of the law to the facts then presented.
It is to be noticed that the receipt containing the limitation relied
on was in that case delivered to a workman in the employ of a
stranger, who, so far as it appears, had, in that particular instance
only, been requested by the plaintiffs to deliver the parcel in their
absence, and as a mere favor to them. And it further appeared
that the previous course of dealing between the parties was such
that, in a majority of instances, in which the plaintiffs had employed
the defendants to transport like packages , no receipt was made out,
and no special contract insisted upon. Under such circumstances,
it was held that it could not fairly be inferred that the plaintiffs
understood and assented to the contents of the receipt as fixing the
terms on which the defendants were to transport the merchandise,
or that the workman had authority to make an unusual contract.
The same remarks apply to the case of Perry v. Thompson, 98
Mass. 249, which is to be distinguished from the case at bar by the
fact that, in the previous dealings of the parties , property had been
received and carried without any notice relating to the carrier's
liability having been given, and by the further fact that, when the
notice in that instance was received, the printed parts of it were so
covered up by the revenue stamp afftxed to the receipt that it could
not be read intelligibly.
So in Fillebrown v. Grand Trunk Railway Co. , 55 Maine, 462, it
was held that, when a verbal contract for transportation was made
without restriction, its legal eiiect would not be changed by the con-
ditions in a receipt which was subsequently given to the clerk of
the consignor, who delivered the goods at the station, but who had
no express authority either to deliver or to contract with the
defendants.
These cases do not reach the case at bar, where the delivery of
the receipt was directly to the plaintiff; nor would they be held
decisive in a case where the delivery was made and the receipt
accepted under ordinary circumstances by a special or general agent
factory when the package was delivered to the defendant's agent. It is not stated that
the plaintiffs or either of them ever read the paper containing the alleged regulations
or one similar to it. It is agreed that defendants received and carried like packages
of merchandise for the plaintifls at or about the time when the one in controversy was
delivered for carriage without giving the plaintiffs any receipt whatever therefor, and
this was the course of dealing between the parties in a large majority of the instances
in which the defendants had been employed by the plaintiffs. From this it would
appear that the ordinary course of business was for the defendants to receive merchan-
dise from the plaintiffs without attempting to limit their liability as carriers in any
manner whatever. Under such .Ircumstances we cannot fairly infer that the plaintiffs
understood that by the delivery of a receipt for the merchandise the defendants in-
tended to limit the liability which they ordinarily assumed in their dealings with the
plaintiffs, or that the latter understood and assented to the contents of such receipt as
fixing the terms on which the defendants were to transport the merchandise.
552 CAREIEKS OF GOODS.
of tlie owner, not a mere servant or porter, and who might be
regarded as clothed with authority to bind the owner in giving
instructions and making conditions affecting the transportation.
Squire v. New York Central Kailroad Co., 98 Mass. 239.
Judgment for the defendants.^
SHELTON V. MEECHANTS' DISPATCH, etc. CO,
59 N. Y. 258. 1874.
Appeal from judgment of the General Term of the Superior Court
of the city of New York, affirming a judgment in favor of plaintiff,
entered upon the report of a referee.
This action was against defendant as a common carrier, for failure
to deliver goods intrusted to it for transportation.
The referee found the following facts : —
That on the 2d day of October, 1871, the plaintiff purchased at
the city of New York, of the firm of H. B. Claflin & Co., a quantity
of goods, and directed them to ship the same to him at Janesville,
Wisconsin, by the defendant's line. The goods so purchased were
packed by Claflin & Co., were by them marked "H. S. Shelton,
Janesville, Wis.," and were, on the same day, by them delivered
to the defendant, at its depot in the city. At the time of such
delivery, H. B. Claflin & Co. received from the defendant three
receipts. (A copy of one is contained in opinion.) On the thirrt
1 ANCHOR LINE v. DATEK.
68 111. 369. 1873.
Bbbese, Ch. J. .
The bill of lading delivered to the consignors relieves the carrier trom liability
for loss by fire, while the property is in transit C7 while in depots, etc.
This bill of lading, appellants insist, was the contract of the parties, by which they
are bound, and the provisions of which are plainly and easily understood by any
business man, and the assent of the shipper to the terms contained in it should be
presumed.
The court, sitting as a jury, did not find evidence sufficient to justify it in pre-
suming assent from the mere acceptance of the receipt. The shipper had no alternative
but an acceptance of it, and his assent to its conditions cannot be inferred from that
fact alone. It is in proof that its terms and conditions were not known to these
shippers, although they had accepted a large number of them in the course of their
business with the appellants.
The terms and conditions of this bill of lading, or receipt, weie inserted for the
purpose of limiting the liability appellants were under by the common law. They
should appear plainly in the instrument, be understood by the consignor, and
knowingly accepted as the contract of the parties, and intended to evidence the terms
of the contract. These were points for the court trying the case, and the finding-
of the court in this respect cannot be disturbed.
LIMITATION OF LIABILITY. 553
and fourtH days of October, Claflin & Co. presented the receipts at
the general office of the defendant, and on the same or following day
received bills of lading in the usual and customary form given by
defendant. They contained this clause : —
"To be forwarded in like good order (dangers of navigation,
collisions, and fire, and loss occasioned by mob, riot, insurrection,
or rebellion, and all dangers incident to railroad transportation,
excepted) to Chicago depot only, he or they paying freight and
charges for the same as below."
It was the usual custom of said H. B. Claflin & Co. to mail
receipts or bills of lading to their consignees.
The packages aforesaid were safely and with all due care and
diligence transported to Chicago, and arrived there, a part in the
evening of Saturday, the seventh day of October, and the remainder
thereof on the morning of Sunday, the eighth day of October, and
were, upon their arrival, unloaded into a freight-house used by the
defendants. In the evening of the eighth, a great fire occurred in
Chicago, without fault or negligence on the part of the defendant;
that said packages and their contents were consumed and entirely
destroyed, without negligence of any kind on the part of the
defendant.
The referee was requested to find the following additional facts,
which appeared by the evidence : —
" That the said A. B. Claflin & Co. were, on the said 2d day of
October, 1871, and for a long time previous thereto had been, large
shippers of goods by the defendant's line, and that it had always
been their custom to obtain receipts or bills of lading therefor."
" That the defendants were, at the time mentioned in the com-
plaint, carriers of goods, wares, and merchandise for him between
different parts of the United States, but that, in October, 1871, the
terminus of the route of defendant from the city of New York in
the direction of Janes ville, Wisconsin, was, and had been since the
10th day of March, 1871, Chicago, Illinois, and that transportation
beyond Chicago, in the direction of and to Janesville aforesaid, had
to be performed by separate and independent carriers, and the
charges of transportation beyond Chicago were paid to such carriers
by the owners of the property transported in addition to the amount
paid to defendant for transportation to Chicago aforesaid."
The referee refused so to find, as immaterial, and defendant's
counsel excepted.
Johnson, J. The referee refused to find that, previous to the
shipment in question, H. B. Claflin & Co. had been large shippers
by the defendant's line, and had been always accustomed to obtain
bills of lading for the goods shipped ; and also that the defendants
were carriers upon a route terminating at Chicago, and not extend-
ing to Janesville, Wisconsin; and that between the latter points
transportation had to be performed by separate and independent
554 CAEEIEES OF GOODS.
carriers. These matters the referee refused to find, on the ground
that they were immaterial to the rights of the parties. In this we
think he erred, and for the following reasons: Claflin & Co. were
the agents of the plaintiff in respect to the transportation of the
goods in question. His directions to them were to ship the goods to
him at Janesville, Wisconsin, by the' defendant's line. The extent
of the authority thus conferred, was considered in Nelson v. Hudson
Eiver Eailroad Company, 48 IST. Y. 498. It necessarily extends to
the making of such contracts as the agents, in the honest exercise
of their discretion, see fit to make. The fact that the carriers and
the agents employed have a habitual course of dealing in respect to
contracts for transportation, is a material and important element in
determining the construction to be put on their acts in any particu-
lar case. Mills v. Mich. Cent. Railroad, 45 N. Y. 622. The
delivery by the agents of the plaintiff, to the carriers, was made
upon no particular agreement made at the time. The packages were
marked with the address of the plaintiff, and receipts were signed
by the agents of the defendants, at their receiving depot at New
York. These receipts were in a bound receipt-book belonging to
Claflin & Co., filled up by them, and signed by the agents of the
defendants. They purport to be receipts, and not contracts for
carriage. They were in the following form: "New York, Oct. 2,
1871. Eeceived from H. B. Claflin & Co., in good order on board
the M. D. for the following packages, one case D. G. marked
H. S. Shelton, Janesville, Wis.," and were signed "Gleason." In
a day or two, but after the packages had been started on their way,
the agents of the plaintiff, acting in accordance with the habitual
mode of doing this business, sent the receipts to the defendant's
office, and procured bills of lading for the goods, the giving of
which was entered on the several receipts. These bills of lading
expressed the actual contract of carriage between the parties who
in fact made the contract, the defendants on the one hand, and
H. B. Claflin on the other. When the goods were delivered and the
primary receipts given, each of the parties was acting in a habitual
method, and with a habitual understanding of what they were
engaged in doing. The receipts were presented and signed with
the view and expectation on both sides that bills of lading were in
the usual course to be subsequently issued, expressing the intentions
and engagements of the parties. This was their method of dealing,
distinctly in their contemplation from the beginning, reasonable in
itself and completely within the authority committed by the plain-
tiffs to his agents, H. B. Claflin & Co. Any attempt on their part
to claim a different agreement would have been an act of bad faith ;
because it would have been a departure from the understanding
based upon the previous course of dealing of these parties. In the
view we take of the relations and acts of these parties, the matters
of fact which the referee held to be immaterial were plainly mate-
LIMITATION OF LIABILITY. 555
rial, because they were essential to tlie disclosure of the actual
contract of the parties. The bills of lading were obtained by the
plaintiff's agents, in the exercise of their original authority to
contract with the defendants for transportation, and these con-
trolled the rights of the parties and displaced the common-law
relation, which otherwise might have existed between them.
The order of time in which the business was actually transacted
cannot be allowed to affect the rights of the parties. If H. B.
Claflin & Co. were originally authorized to ship on bills of lading
limiting the common-law liability of the defendants, the fact that
receipts were taken in one stage of the business, intended by neither
party as completing their dealing or contract, did not exhaust the
authority. It was never so intended and cannot have that effect.
The acts of the parties must have operation as they were intended
by the parties when they were done. The bills of lading excepted
the risk of fire, and as it was by that danger that the property in
question was destroyed, the defendants are free from liability, at
least unless the loss was due to their negligence or fault. The only
suggestion of fault is that the cars containing these packages were
unloaded on Sunday in Chicago. The case does not inform us that
by the law of Illinois, where the loss happened, unloading cars on
Sunday was unlawful, and we have no means of knowing such to be
the fact, in respect to the laws of that State. The common law, at
least, teaches no such doctrine.
The judgment should be reversed and a new trial ordered, costs to
abide the event.
f . Available to Connecting Carrier.
BABCOCK V. LAKE SHOEE, etc. E. CO.
49 N. Y. 491. 1872.
Appeai, from judgment of the General Term of the Supreme
Court in the fourth judicial department, aflOLrming a judgment for
the defendant entered on decision of the court upon trial without a
jury. Eep. below, 43 How. Pr. E. 317.
The action was brought to recover the value of a quantity of
petroleum oil destroyed by fire while in possession of defendant as
common carrier.
On November 14, 1867, the plaintiff shipped fifty-six barrels of
refined petroleum, at Oil City, in the State of Pennsylvania, by the
Atlantic and Great Western Eailway Company, under an agreement,
of which the following is a copy : —
556 CAEEIEKS OV GOODS.
"Atlantic and Great Western Railway, 7.35.
"Oil City Station, November 14, 1867.
" Received from Babcock for shipment by The Atlantic and Great
Western Railway Company, the following property in good order,
except as noted, marked, and consigned as follows : —
Mark. Article.
J. W. 0. & Co. )
J. W. Osburn & Co. I 56 Bbls. R. Oil, Car 1,848.
Albany, N. Y. )
!5 Cent Internal Revenue |
, Stamp, cancelled. |
"Rate in cents per 100 lbs. $25.00 per car.
" Which this company and connecting roads agree to deliver with
as reasonable despatch as their general business will permit, delays
and accidents excepted, but they do not agree to transport the same
by any particular train, nor in any specified time."
" Subject to the conditions below :
" At Gorry station upon payment of freight and charges thereon.
" In consideration of the reduced rate given and specified above
for the transportation of petroleum, it is understood that the owner
or shipper assumes all risk of damage from fire or leakage or from
any cause whatever while in transit, or at the depots or stations of
any of the companies whose lines of road it may be transported upon
or over.
"The rates on petroleum, when taken at the companies' risk, or
damage from fire or other causes, being double the amount herein
specified. 'The owner or shipper of this property, in consideration
of having the same transported at such reduced rates, does hereby
release this and all other companies over whose lines of roads it may
pass, from all claim for loss or damage by fire, leakage, or any other
cause whatever, such products of petroleum as naphtha, benzine,
benzole, etc., etc., being exceedingly hazardous, will not be trans-
ported except by special agreement as to time of receiving and rates
to be charged; and any party shipping such articles, without notify-
ing the company and getting their consent, shall not only forfeit
all claim against the company for damages sustained, but shall be
accountable to the company for loss it may sustain in consequence
thereof.
"'The acceptance of this receipt by the owner or shipper will be
considered as evidence of his assent to all the conditions contained
therein.'
"D. W. Gtjknset, Jr., Agent."
The price stated in the contract was the customary price for the
transportation of freight from Oil City to Corry.
That company carried the petroleum to Corry, and there delivered
it to The Buffalo and Pittsburg Railroad Company, which company
LIMITATION OP LIABILITY. 557
carried it to Brocton, in this State, and delivered it to the Buffalo
and Erie Railroad ^Company, of which company defendant is suc-
cessor and liable for its debts and obligations. While in possession
of the Buffalo and Erie Eailroad Company, the oil was destroyed by
fire.
Allen, J. To exempt the defendant, the successor in liability
to the Buffalo and Erie Railroad Company, from the common-law
responsibility of common carriers, extending to all losses except
those resulting from the act of God or the public enemies, it must
appear that the oil of the plaintiff was, at the time of its destruc-
tion, in the possession of the Buffalo and Erie Railroad Company,
for transportation under a special -contract, restricting the liability
of the carrier, made by and with the plaintiff, or some one author-
ized to act in his behalf. The contract with the Atlantic and Great
Western Railway Company was special in its terms, and by it the
liabilities of the carrier were greatly restricted, and a loss by fire
was excepted from the risk of the carrier, and if that was a through
contract, — that is, a contract for the carriage of the property to and
a delivery of it at Albany, its ultimate destination, — each carrier in
the course of its transit, including the Buffalo and Erie Railroad
Company, was entitled to the benefit of the exemptions from liabil-
ity secured by it. It would be regarded as mad& for the benefit of
all who undertake the carriage of the goods upon the terms and
conditions prescribed by it.
If it was not a through contract, then the Buffalo and Erie
Railroad Company received the goods as common carriers, and are
liable as such for all losses not within the recognized exceptions ;
that is, except those which were inevitable or occasioned by public
enemies.
If the first carrier, the Atlantic and Great Western Railway
Company, only undertook for the carriage of the oil to Corry for an
agreed compensation, and the delivery at that place to another
carrier, there was no authority resulting from the relation, or the
contract between that company and the plaintiff, to enter into a
special contract, in behalf of the plaintiff, with the next carrier at
Corry, to limit and restrict the liability of such carrier in any
respect. There was no agency created; the whole duty of the
Atlantic and Great Western Railway Company was that of carrier,
and terminated with the delivery of the goods to the next carrier,
and the common-law liability of the carrier receiving the goods
attached at once and by necessary implication upon their receipt.
The goods were received by the Atlantic and Great Western Rail-
way Company at Oil City, in Pennsylvania, addressed to J. W. 0. &
Co., Albany, New York, and, had they been received without special
contract, a contract would not have been implied on the part of the
railway company to carry the goods or provide for their carriage
beyond the terminus of its road. Its whole duty would have been
558 CABKIEES OF GOODS.
performed by transporting them to the extent of its own route and
delivering them to the next connecting carrier; that is, the railway
company would have been liable as a carrier over its own road and
as a forwarder from the terminus of its line. This is the recognized
rule in this and other States, although it is otherwise in England.
Eoot V. Great Western Eailway Co., 45 N. Y. 524, and cases cited
by Rapallo, J., Eedfield on Carriers, § 181, and cases cited in note
9. But the goods were received by the Atlantic and Great Western
Railway Company under special contract, and upon the interpreta-
tion of that contract and the effect to be given to it the decision of
this case hinges. In the agreement the goods were described as
"66bbls. R. Oil, Car 1,848," and in the margin "mark, J. W. 0.
& Co., J. W. Osborne & Co., Albany, N. Y." The mark or direc-
tion of the property was given to identify and distinguish it from
other property of the same character, and was not inserted as a
part of the agreement, and from it a contract to carry to Albany
would not be implied. The agreement was by " this (The A. & G.
W. R.) company and connecting roads," to deliver the property at
Corry station, which was the terminus of the road of that company,
upon payment of freight and charges thereon. The freight was
specified at twenty-five dollars per car. This was the freight to
Corry, and no rate was agreed upon or specified for transportation
beyond that place. By the agreement the plaintiff, "in considera-
tion of the reduced rates given and specified above for the transpor-
tation of petroleum," assumed certain risks, including that by which
the property was destroyed, "while in transit, or the depots or
station of any of the companies whose lines of road it may be trans-
ported upon or over."
The plaintiff did, "in consideration of having the petroleum
transported at such reduced rates," release the A. & G. W. R. Co.
and all other companies over whose lines of roads it may pass, from
"all claim from loss or damage by fire," etc. The agreement was
made by filling up a printed form adapted to a contract for the
transportation of goods beyond the route of the contracting carrier,
and over the lines of other and connecting roads to distant places.
The parties merely inserted in writing the date and place of ship-
ment, the name of the owner, the description of the property, the
freight and the place of delivery (Corry station). The commence-
ment and termination of the responsibility of the carrier (The A. &
G. W. R. Co.) were expressed clearly and distinctly in the written
parts of the contract.
The goods were not lost or destroyed between the place of their
receipt and Corry, nor until after they had left Corry in charge of
other carriers and had come into the possession of the Buffalo and
Erie Railway Company, in the course of their transit to Albany.
The contract was for the carriage of the oil to Corry, and only so
much of the printed matter of the blank form used as is consistent
LIMITATION OF LIABILITY. 559
with and appropriate to that contract is of any effect. The intent
of the contracting parties is to be gathered from the- entire instru-
ment, the written part controlling where that and the printed are in
conflict, and the latter to be rejected when incompatible with or
inappropriate to the intent of the parties, as clearly indicated by
the written portion. The printed form is very general, and contains
provisions adapted to contracts differing essentially from this, some
of which are not adapted to a contract for the carriage of goods
wholly within the limits of the contracting carriers' line of road,
and such parts as are inapplicable must be .rejected as surplusage,
and the written portion .of the agreement prevail. Leeds v.
Mechanics' Ins. Co., 4 Seld. 351; Harper v. Albany Mutual Ins.
Co., 17 N. Y. 194. The limitation of the carrier's liability by
the contract is necessarily confined to the service contracted for,
and the carriers who were parties to it.
Carriers who are not named in a contract for the carriage of
goods, and who are not formal parties to it, may, under certain cir-
cumstances, have the benefit of it. Such is the case when a contract
is made by one of several carriers upon connecting lines or routes
for the carriage of property over the several routes for an agreed
price by authority, express or implied, of all the carriers. So, too,
in the absence of any authority in advance, or any usage from which
an authority might be inferred, a contract by one carrier for the
transportation of goods over his own and connecting lines , adopted
and acted upon by the other carriers, would enure to the benefit of
all thus ratifying it, and performing service under it. But in such
and the like cases the contract has respect to and provides for the
services of the carriers upon the connecting routes. Maghee v. The
Camden & Amboy E. Trans. Co., 45 N. Y. 514, and Lamb v. Same,
46 N. Y. 272, are in point, and illustrate the rule.
There was no agreement here for the^ carriage of the oil beyond
€orry, no rate of freight agreed upon to any other point, and the
■carrier was entitled to receive the freight earned, twenty-five dollars
per car, on delivery of the oil at that place. There was no consid-
•eration for an agreement by the plaintiff to relieve the carriers
who should thereafter receive the property for transportation from
the common-law liabilities, and no such an agreement was made.
It is claimed that the finding of the judge by whom the cause was
tried, that the Buffalo and Erie Eailroad Company received the
property, " under and in pursuance of said agreement, upon its said
railroad from Brocton to Buffalo," is conclusive as a finding of fact,
and entitles the defendant absolutely to the benefit of the stipulations
of that contract. The answer is that the transportation from Brocton
to Buffalo is not within the limits of the contract, and it was simply
impossible that goods could be carried between those places in pur-
suance of a contract expressly providing for an entirely different
transportation, or a transportation between two other places on a
560 CARRIERS OF GOODS.
different route. "While twenty-five dollars per car freight might
have been a reasonable or a reduced rate for transportation from Oil
City to Corry, it may have been an entirely inadequate or an exorbi-
tant rate for transporting the same property from Corry to Brocton,
from Brocton to Buffalo, or Buffalo to Albany. It is certainly
improbable that the same freight was to be the compensation to
each of the railroad companies by whom the oil should be carried
in its transit to Albany.
The contract was not intended as a through contract. The plain-
tiff has no claim under it either against the Atlantic and Great
Western Railway Company or any of the connecting roads for the
carriage of the goods beyond Corry, and it necessarily follows that
its stipulations did not extend to or affect the carriage beyond that
place.
The Camden and Amboy E. & T. Co. yere held liable as common
carriers under a contract somewhat like this, made with the Penn-
sylvania Railroad Company, under which the goods were transported
by the latter company to Philadelphia and there delivered to the
former company. C. & A. R. & T. Co. v. Porsythe, 61 Penn. R. 81.
Bristol & Exeter Railway Co. v. Cummings, 5 H. and N. 969,
merely held, carrying out the doctrine of Musehamp v. The Lancaster
& Preston Junction Railway Co., 8 M. and W. 421, which has not
been followed in this State, bhat the contract of carriag'e in that
case was a through contract made by the Great Western Railway
Co. for the carriage of the goods to their ultimate destination, and
that the contracting carrier was solely liable for the loss of the goods
in transit, although they were lost while in course of transportation
by the defendant who received them from the first carrier at the
terminus of its road for transportation to the place to which they
were directed. This case would not be followed with us, but each
carrier would be held responsible for a loss or damage to the goods
while in his custody, and the only question would be as to the extent
of his liability, and whether he was entitled to the benefit of any
stipulations in the contract made with the first carrier.
The defendant, upon the case made and facts found by the judge
at the trial, was subject to all the common-law liabilities of carriers,
and the stipulations of the contract with the Atlantic and G. W. R.
Co. did not extend to the transportation of the goods by the defend-
ant. It is not necessary to consider at this time the liability of
the parties, in case it should appear that the oil was being carried
at a reduced rate of freight.
Judgment must be reversed and a new trial granted.*
1 KIFF V, ATCHISON, TOPEKA & SANTA 'St R. CO.
32 Kan. 263. 1884.
HURD, J
The evidence sliows that on April 28th, 1883, the Cleveland Co-operatire Stove
THE BILL OF LADING, 561
6. THE BILL OF LADING.
a. As a Contract.
THE DELAWAKE.
14 Wall (U. S.) 579. 1871.
Appeal from the Circuit Court of the District of California, the
ease being thus : —
The Oregon Iron Company, on the 8th day of May, 1868, shipped
on board the bark "Delaware," then at Portland, Oregon, 76 tons of
pig-iron, to be carried to San Francisco, at a freight of f 4.60 a ton.
The bill of lading was in these words : —
" Shipped, in good order and condition, by Oregon Iron Company, on
board the good bark 'Delaware,' Shillaber, master, now lying in the port of
Portland, and bound to San Francisco, to say seventy-flve tons pig-iron, more
Company, of St. Louis, delivered to the Missouri Pacific Railway Company, in
St. Louis, the stoves in question, to be by it transported to Hutchinson, Kansas,
and there delivered to plaintiff. The railroad company, on delivery of the stoves,
delivered to the shippers a duplicate receipt, of which the following is a copy : —
" St. Louis, April 28th, 1883.
"Keceived from the Cleveland Co-operative Stove Company, St. Louis Branch,
2900 Eleventh Street, by Mo. Pac. R. R., the following property, to be. delivered in
like good order, as addressed, without delay, at consignor's risk :
FOE G. B. KIFF, ESQ., HUTCHINSON-, KANSAS.
Articles.
Marks.
3 cooking stoves.
3 stove sections, weight 690, W.
Owner's risk.
" This duplicate dray ticket is sent you as a memorandum by which to check off
goods. If the stoves, bundles, pieces, etc., do not agree with this, or the freight bill
is overcharged, please return to us your freight bill at once, with this, noting thereon
the charges, and we will attend to the matter with pleasure promptly."
This receipt is the only contract for transportation of the stoves shown by the
evidence, and under it they were transported, and on their arrival in Hutchinson were
found to be broken and damaged. The evidence shows that the stoves were earned- by
the Missouri Pacific Railway Company over a portion of its line and delivered to the
San Francisco Railroad Company, which carried them to Emporia, and there delivered
them to defendant, which carried them to Hutchinson. Each of these connecting
lines of transportation is entitled to the benefit of the special contract between the
shippers and the Missouri Pacific Railway Company, and either of them, when sued,
may claim the exemption of the contract. Whitworth et al. v. Erie Railway Co.,
87 N. Y. 414.
S62 CAERIEES OF GOODS.
or less (contents, quality, and weight unknown), being marked as in the
margin, and are to be delivered in like good order and condition at the
aforesaid port of San Francisco, at ship's tackles (the dangers of the seas,
fire, and collision excepted) unto , or assigns, he or they paying freight
for the said goods in United States gold coin (before delivery, if required) as
per margin, with 5 per cent, primage and average accustomed.
" In witness whereof the master or agent of said vessel hath affirmed to
three bills of lading, all of this tenor and date ; one of which being accom-
plished, the others to stand void. Vessel not accountable for breakage,
leakage, or rust.
" C. E. Shillaber,
" Portland, May 8th, 1868. For the Captain."
The iron was not delivered at San Francisco; and on a libel filed
by the Iron Company, the defence set up was that by a verbal agree-
ment made between the Iron Company and the master of the ship
before the shipment or the signing of the bill of lading, the iron
was stowed on deck, and that the whole of it, with the exception of
6 tons and 90 lbs., had been jettisoned in a storm.
On the trial, the owners of the vessel offered proof of this parol
agreement. The libellants objected, and the court excluded the
evidence on the ground that parol proof was inadmissible to vary
the bill of lading ; and decreed in favor of the libellants for the iron
that was thrown overboard. On appeal the case was disposed of in
the same way in the Circuit Court. It was now here ; the question
being, as in the two courts below, whether in a suit upon a bill of
lading like the one here, for non-delivery of goods stowed on deck,
and jettisoned at sea, it is competent, in the absence of a custom to
stow such goods on deck, to prove by parol a verbal agreement for
such stowage.
Mr. Justice Cmffoed
Seventy-five tons of pig-iron were shipped by the libellants, on
the 8th day of May, 1868, on board the bark "Delaware," then
lying in the port of Portland, Oregon, to be transported from that
port to the port of San Francisco, for the freight of four dollars and
fifty cents per ton, to be delivered to the shippers or their assigns
at the port of destination, they paying freight as therein stipulated,
before delivery if required, with five per cent primage and average
accustomed. Dangers of the seas, fire, and collision were excepted
in the bill of lading, and the statement at the close of the instru-
ment was, "vessel not accountable for breakage, leakage, or rust."
Process was served, and the claimant appeared and filed an answer
in which he admits the shipment of the iron and the execution of
the bill of lading exhibited in the record. Suf&cient also appears
in the record to show that the voyage was performed and that but a
small portion of the iron shipped — to wit, some thirteen or fourteen
thousand pounds — was ever delivered to the consignees, and that all
the residue of the shipment was thrown overboard as a jettison
THE BILL OF LADING. 563
during the voyage, which became necessary by a peril of the sea,
for the safety of the other associate interests and for the "preserva-
tion of the lives of those on board. Sacrificed as all that portion
of the shipment was as a jettison in consequence of a peril of the
sea, excepted in the bill of lading, the claimant insists that the
libellants have no claim against the ship, and that the libellants as
the shippers of the iron must bear their own loss.
Evidence was exhibited by the claimant sufficient to show that
the allegations of the answer that the iron, not delivered, was sacri-
ficed during the voyage as a jettison in consequence of a peril of the
sea, are true, but the libellants allege that the iron was improperly
stowed upon the deck of the vessel, and that the necessity of sacri-
ficing it as a jettison arose solely from that fact, and that no such a
necessity would have arisen if it had been properly stowed under
deck, as it should have been by the terms of the contract specified
in the bill of lading. That the iron not delivered was stowed on
deck is admitted, and it is also conceded thab where goods are
stowed in that way without the consent of the shipper the carrier is
liable in all events if the goods are not delivered, unless he can
show that the goods were of that description, which, by the usage
of the particular trade, are properly stowed in that way, or that the
delivery was prevented by the act of God or the public enemy, or
by some other cause or accident, without any fault or negligence on
the part of the carrier and expressly excepted in the bill of lading.
Goods, though lost by perils of the sea, if they were stowed on
deck without the consent of the shipper, are not regarded as goods
lost by the act of God within the meaning of the maritime law, nor
are such losses regarded as losses by perils of the sea which will
excuse the carrier from delivering the goods shipped to the con-
signee unless it appears that the manner in which the goods were
stowed is sanctioned by commercial usage, or unless it affirmatively
appears that the manner of stowage did, not, in any degree, con-
tribute to the disaster; that the loss happened without any fault or
negligence on the part of the carrier, and that it could not have
been prevented by human skill and prudence, even if the goods had
been stowed under deck, as required by the general rules of the
maritime law.'
Enough appears in the record to show that all the iron not
delivered to the consignees was stowed on deck, and there is no
proof in the case to show that the usage of the trade sanctioned such
a stowage in this case, or that the manner in which it was stowed
did not contribute both to the disaster and to the loss of the goods."
'None of these principles are controverted by the claimant, but he
insists that the iron not delivered was stowed on deck by the consent
of the shippers and in pursuance of an oral agreement between the
1 Lawrence et al. v. Minturn, 17 Howard, 114 ; The Peytona, 2 Curtis, 23.
* Gould V. Oliver, 4 Bingham's New Cases, 142 ; Story on Bailment, § 531.
564 CAKRIERS OF GOODS.
carrier and the shippers consummated before the iron was sent on
board, and before the bill of lading was executed by the master.
Pursuant to that theory, testimony was offered in the District Court
showing that certain conversations took place between the consignee
of , the bark and the agent of the shippers tending to prove that the
shippers consented that the iron in question should be stowed on
the deck of the vessel. Whether any express exceptions to the
admissibility of the evidence was taken or not does not distinctly
appear, but it does appear that the question whether the evidence
was or not admissible was the principal question examined by the
District Court, and the one upon which the decision in the case
chiefly turned. Apparently it was also the main point examined in
the Circuit Court, and it is certain that it has been treated by both
sides in this court as the principal issue involved in the record, and
in view of all the circumstances the court here decides that it must
be considered that the question as to the admissibility of the evi-
dence is now open for revision, as the decree for the libellant was
equivalent to a ruling rejecting the evidence offered in defence or to
a ruling granting a motion to strike it out after it had been admitted,
which is a course often pursued by courts in cases where the ques-
tion deserves examination. What the claimant offered to prove was
that the iron was stowed on deck with the consent of the shippers,
but the libellants objected to the evidence as repugnant to the con-
tract set forth in the bill of lading, and the decree was for the libel-
lants, which was equivalent to a decision that the evidence offered
was incompetent. Dissatisfied with that decree, the respondent
appealed to the Circuit Court, where the decree of the District Court
was afB.rmed, and the same party appealed from that decree and
removed the cause into this court for re-examination.
Even without any further explanation it is obvious that the only
question of any importance in the case is whether the evidence
offered to show that the iron in question was stowed on deck with
the consent of the shippers was or was not properly rejected, as it is
clear if it was, that the decree must be affirmed ; and it is equally
clear, if it should have been admitted, that the decree must be
reversed.^
Different definitions to the commercial instrument, called the bill
of lading, have been given by different courts and jurists, but the
correct one appears to be that it is a written acknowledgment,
signed by the master, that he has received the goods therein described
from the shipper, to be transported on the terms therein expressed,
to the described place of destination, and there to be delivered to
the consignee or parties therein designated.'' Regularly the goods
» Angell on Carriers, § 212 ; Eedfield on Carriers, §§ 247 to 269 ; The St. Cloud,
Brown & Lushington Admr. 4.
^ Abbott on Shipping, 7th Am. ed. 323 ; O'Brien i'. Gilchrist, 34 Maine, 558 [247] ;
J. Parsons on Shipping, 186 ; Maohlachlan on Shipping, 338 ; Emerigon on Ins. 251.
THE BILL OF LADING. 565
ought to be on board before the bill of lading is signed; but if the
bill of lading, through inadvertence or otherwise, is signed before
the goods are actually shipped, as if they are received on the wharf
or sent to the warehouse of the carrier, or are delivered into the
custody of the master or other agent of the owner or charterer of the
vessel, and are afterwards placed on board, as and for the goods
embraced in the bill of lading, it is clear that the bill of lading will
operate on those goods as between the shipper and the carrier by
way of relation and estoppel, and that the rights and obligations of
all concerned are the same as if the goods had been actually shipped
before the bill of lading had been signed. * Such an instrument is
twofold in its character; that is, it is a receipt as to the quantity
and description of the goods shipped, and a contract to transport
and deliver the goods to the consignee or other person therein
designated, and upon the terms specified in the same instrument.^
Beyond all doubt a bill of lading, in the usual form, is a receipt for
the quantity of goods shipped and a promise to transport and deliver
the same as therein stipulated.* Receipts may be either a mere
acknowledgment of payment or delivery, or they may also contain a
contract to do something in relation to the thing delivered. In the
former case, and so far as the receipt goes only to acknowledge the
payment or delivery, it, the receipt, is merely ^rma facie evidence
of the fact, and not conclusive, and therefore the fact which it
recites may be contradicted by oral testimony, but in so far as it is
evidence of a contract between the parties it stands on the footing
of all other contracts in writing, and cannot be contradicted or varied
by parol evidence.* Text-writers mention the bill of lading as an
example of an instrument which partakes of a twofold character,
and such commentators agree that the instrument may, as between
carrier and shipper, be contradicted and explained in its recital that
the goods were in good order and well conditioned, by showing that
their internal state and condition was bad, or not such as is repre-
sented in the instrument, and in like manner, in respect to any
other fact which it erroneously recites, but in all other respects it
is to be treated like other written contracts.'
Bills of lading when signed by the master, duly executed in the
usual course of business, bind the owners of the vessel if the goods
were laden on board or were actually delivered into the custody of
1 Eowley «. Bigelow, 12 Pickering, 307 ; The Eddy, 5 Wallace, 495.
" Maolachlan on Shipping, 338-9 ; Smith's Mercantile Law, 6th ed. 308.
s Bates V. Todd, 1 Moody & Kobinson, 106 ; Berkley v. Watling, 7 Adolphus &
Ellis, 29 ; Waylahd v. Mosely, 5 Alabama, 430 ; Brown v. Byrne, 3 Ellis & Black-
hurne, 714 ; Blaikie v. Stembridge, 6 C. B. n. s. 907.
* 1 Greenleaf on Evidence, 12th ed. § 305 ; Bradley v. Dunipace, 1 Hurlstone &
Colt, 525.
' Hastings ». Pepper, 11 Pickering, 42 ; Clark v. Barnwell et ah, 12 Howard, 272 ;
Ellis V. Willard, 5 Selden, 529 ; May v. Baboock, 4 Ohio, 346 ; Adams v. Packet Co.,
5 C. B. N. s. 492 ; Sack v. Ford, 13 C. B. N. s. 100.
566 CARRIERS OF GOODS.
the master ; but it is well-settled law that the owners are not liable
if the party to whom the bill of lading was given had no goods, or
the goods described in the bill of lading were never put on board or
delivered into the custody of the carrier or his agent. ^ Proof of
fraud is certainly a good defence to an action claiming damages for
the non-delivery of the goods ; but it is settled law in this court that
a clean bill of lading imports that the goods are to be safely and
properly stowed under deck, and that it is the duty of the master to
see that the cargo is so stowed and arranged that the different goods
may not be injured by each other or by the motion or leakage of the
vessel, unless by agreement that service is to , be performed by the
shipper." Express contracts may be made in writing which will
define the obligations and duties of the parties, but where those
obligations and duties are evidenced by a clean bill of lading, — that
is, if the bill of lading is silent as to the mode of stowing the goods,
and it contains no exceptions as to the liability of the master, except
the usual one of the dangers of the sea, — the law provides that the
goods are to be carried under deck, unless it be shown that the usage
of the particular trade takes the case out of the general rule applied
in such controversies.' Evidence of usage is admissible in mercan-
tile contracts to prove that the words in which the contract is
expressed, in the particular trade to which the contract refers, are
used in a particular sense and different from the sense which they
ordinarily import; and it is also admissible in certain cases, for the
purpose of annexing incidents to the contract in matters upon which
the contract is silent, but it is never admitted to make a contract or
to add a new element to the terms of a contract previously made by
the parties. Such evidence may be introduced to explain what is
ambiguous, but it is never admissible to vary or contradict what is
plain. Evidence of the kind may be admitted for the purpose of
defining what is uncertain, but it is never properly admitted to alter
a general rule of the law, nor to make the legal rights or liabilities
of the parties other or different from what they are by the common
law.* Cases may arise where such evidence is admissible and
material, but as none such was offered in this case it is not neces-
sary to pursue that inquiry. Exceptions also exist to the rule that
parol evidence is not admissible to vary or contradict the terms of
1 The Schooner Freeman, 18 Howard, 187 ; Maude & Pollock on Shipping, 233 ;
Grant v. Norway, 10 C. B. 665 ; Zipsy v. Hill, Foster & Finelly, 573 ; Meyer v.
Dresser, 16 0. B. N. s. 657.
2 The Cordes, 21 Howard, 23 ; Sandeman v. Sonrr, Law Reports, 2 Q. B. 98 ;
Swainston v. Garrick, 2 Law Journal, N. S. Exchequer, 355 ; African Co. v. Lamzed,
Law Reports, 1 C. P. 229 ; Alston v. Hering, 11 Exchequer, 822.
» Abbott on Shipping (7th Am. ed.), 345 ; Smith v. Wright, 1 Cain, 43 ; Gould v.
Oliver, 2 Manning & Granger, 208 ; Waring v. Morse, 7 Alabama, 343 ; Falkner v.
Earle, 3 Best & Smith, 363.
* Oelricks v. Ford, 23 Howard, 63 ; Barnard v. Kellogg et al., 10 Wallace, 383 ;
Simmons ». Law, 3 Keyes, 219 ; Spartali v. Benecke, 10 C. B. 222.
THE BILL OF LADING. 567
a written instrument where it appears that the instrument was not
within the Statute of Frauds nor under seal, as where the evidence
offered tends to prove a subsequent agreement upon a new consider-
ation. Subsequent oral agreements in respect to a prior written
agreement, not falling within a statute of frauds, may have the
effect to enlarge the time of performance, or may vary any other of
its terms, or, if founded upon a new consideration, may waive and
discharge it altogether.' Verbal agreements, however, between the
parties to a written contract, made before or at the time of the
execution of the contract, are in general inadmissible to contradict
or vary its terms or to affect its construction, as all such verbal
agreements are considered as merged in the written 'contract.''
Apply that rule to the case before the court and it is clear that
the ruling of the court below was correct, as all the evidence offered
consisted of conversations between the shippers and the master
before or at the time the bill of lading was executed. Unless the
bill of lading contains a special stipulation to that effect, the master
is not authorized to stow the goods sent on board as cargo on deck,
as when he signs a bill of lading, if in the common form, he con-
tracts to convey the merchandise safely, in the usual mode of con-
veyance, which, in the absence of proof of a contrary usage in the
particular trade, requires that the goods shall be safely stowed under
deck ; and when the master departs from that rule and stows them
on deck, he cannot exempt either himself or the vessel from liability,
in case of loss, by virtue of the exception, of dangers of the seas,
unless the dangers were such as would have occasioned the loss even
if the goods had been stowed as required by the contract of affreight-
ment.' Contracts of the master, within the scope of his authority
as such, bind the vessel and give the creditor a lien upon it for his
security, except for repairs and supplies purchased in the home
port, and the master is responsible for the safe stowage of the cargo
under deck, and if he fails to fulfil that duty he is responsible for
the safety of the goods, and if they are sacrificed for the common
safety the goods stowed under deck do not contribute to the loss.*
Shipowners in a contract by a bill of lading for the transportation
of merchandise take upon themselves the responsibilities of common
carriers ; and the master, as the agent of such owners, is bound to
have the cargo safely secured under deck, unless he is authorized to
1 Emerson v. Slater, 22 Howard, 41 ; Gross t'. Nugent, 5 Barnewall & Adolphus,
65 ; Nelson v. Boynton, 3 Metcalf, 402 ; 1 Greenleaf on Evidence, 303 ; Harvey v.
Grabham, 5 Adolphus & Ellis, 61.
2 Ruse V. Ins. Co., 23 N. Y. 519 ; Wheelton v. Hardisty, 8 Ellis & Blackburn,
296 ; 2 Smith's Leading Cases, 758 ; Angell on Carriers, 4th ed., § 229.
» The Rebecca, Ware, 210 ; Dodge v. Bartol, 5 Greenleaf, 286 ; Waloott v. Ins.
Co., 4 Pickering, 429 ; Cooper Co. v. Ins. Co., 22 id. 108 ; Adams ». Ins. Co., id.
163.
* The Paragon, Ware, 329, 331 ; 2 Phillips on Insurance, § 704 ; Brooks v. In-
surance Co., 7 Pickering, 259.
568 CARRIERS OF GOODS.
carry the goods on deck by the usage of the particular trade or by
the consent of the shipper, and if he would rely upon the latter he
must take care to require that the consent shall be expressed in a
form to be available as evidence under the general rules of law.^
Where goods are stowed under deck the carrier is bound to prove
the casualty or vis major which occasioned the loss or deterioration
of the property which he undertook to transport and deliver in good
condition to the consignee, and if he fails to do so the shipper or
consignee, as a general rule, is entitled to his remedy for the non-
delivery of the goods. No such consequences, however, follow if
the goods were stowed on deck by the consent of the shipper, as in
that event neither master nor the owner is liable for any damage
done to the goods by the perils of the sea nor from the necessary
exposure of the property, but the burden to prove such consent is
upon the carrier, and he must take care that he has competent evi-
dence to prove the fact.^ Parol evidence, said Mr. Justice Nelson,
in the case of Creery v. Holly,' is inadmissible to vary the terms or
legal import of a bill of lading free of ambiguity ; and it was accord-
ingly held in that case that a clean bill of lading imports that the
goods are stowed under deck, and that parol evidence that the vendor
agreed that the goods should be stowed on deck could not legally be
received even in an action by the vendor against the purchaser for
the price of the goods which were lost in consequence of the stowage
of the goods in that manner by the carrier. Even where it appeared
that the shipper, or his agent who delivered the goods to the carrier,
repeatedly saw them as they were stowed in that way and made no
objection to their being so stowed, the Supreme Court of Maine held
that the evidence of those facts was not admissible to vary the legal
import of the contract of shipment; that the bill of lading being
what is called a clean bill of lading, it bound the owners of the
vessel to carry the goods under deck, but the court admitted that
where there is a well-known usage in reference to a particular trade
to carry the goods as convenience may require, either upon or under
deck, the bill of lading may import no more than that the cargo
shall be carried in the usual manner.^ Testimony to prove a verbal
agreement that the goods might be stowed on deck was offered by
the defence in the case of Barber v. Brace ; ^ but the court rejected
the testimony, holding that the whole conversation, both before and
at the time the writing was given, was merged in the written instru-
ment, which undoubtedly is the correct rule upon the subject.
1 The Waldo, Davies, 162 ; Blackett v. Exchange Co., 2 Crompton & Jervis, 250 ;
1 Arnould on Insurance, 69 ; Lenox v. Insurance Co., 3 Johnson's Cases, 178.
" Shackleford v. Wilcox, 9 Louisiana, 38. » 14 Wendell, 28.
« Sproat V. Donnell, 26 Maine, 187 ; 2 Taylor on Evidence, §§ 1062, 1067 ; Hope
V. State Bant, i Louisiana, 212 ; 1 Arnould on Insurance, 70 ; Lapham «. Insurance
Co., 24 Pickering, 1.
6 3 Connecticut, 14.
THE BILL OF LADING. 569
Written instruments cannot be contradicted or varied by evidence of
oral conversations between the parties wbich took place before or at
the time the written instrument was executed ; but in the case of a
bill of lading or a charter-party, evidence of usage in a particular
trade is admissible to show that certain goods in that trade may be
stowed on deck, as was distinctly decided in that case.'' But evi-
dence of usage cannot be admitted to control or vary the positive
stipulations of a bill of lading, or to substitute for the express terms
of the instrument an implied agreement or usage that the carrier
shall not be bound to keep, transport, and deliver the goods in good
order and condition.*
Eemarks, it must be admitted, are found in the opinion of the
court, in the case of Vernard v. Hudson,' and also in the case of
Say ward v. Stevens,* [809] which favor the views of the appellant, but
the weight of authority and all the analogies of the rules of evi-
dence support the conclusion of the court below, and the court here
adopts that conclusion as the correct rule of law, subject to the
qualifications herein expressed. Decree affirmed.
GARDEN GROVE BANK v. HUMESTON & SHENANDOAH
EY. CO.
67 Iowa, 526. 1885.
The plaintiff seeks to recover of the defendant the sum of $550,
which it advanced upon a bill of lading issued by the defendant
upon the shipment of certain walnut lumber, and which bill of lad-
ing was assigned to the plaintiff. The right of action is based upon
the claim that the defendant failed to comply with its contract of
shipment, and by negligence delivered the lumber to parties not
authorized to receive the same, by which plaintiff was damaged in
the amount advanced, and interest. There was a trial by jury, and
a verdict and judgment for the defendant. Plaintiff appeals.
EoTHKOCK, J. The facts necessary to a determination of the
questions of law involved in the case are not disputed. They are as
follows : One Henry Zohn was engaged in buying walnut logs and
walnut lumber along the line of the railroad of the defendant, and
shipping the same to Chicago. About the twentieth day of August,
1881, he caused three cars to be loaded with said lumber, for ship-!
ment at Van Wert, a station on the defendant's railroad. Zohn'
T^'as indebted to Wells Bros, in the sum of f 550 for this lumber,
1 Barber v. Brace, 3 Pickering, 13 ; 1 Smith's Leading Cases, 6th American
edition, 837.
2 The Reeside, 2 Sumner, 570 ; 1 Duer on Insurance, § 17.
« 3 Sumner, 406. * 3 Gray, 101.
570 CAEEIEKS OF GOODS.
and on the twenty-third day of August, 1881, before any bill of
lading was issued for the shipment of the property, Wells Bros,
caused the lumber on said cars to be attached to secure their claim
against Zohn. On the same day Wells Bros, and Zohn met at said
station, and agreed that the bill of lading should be issued to
Wells Bros, as consignors, that they should hold it as security
for their claim against Zohn, and that they would take such bill of
lading to the Garden Grove Bank, and draw a sufBcient amount of
money thereon to pay the claim of Wells Bros. The conversation;
in regard to this arrangement was in the presence of the station,
agent of the defendant, and he knew, when he issued the bill of
lading, that Zohn and Wells Bros, expected and intended to use the
same at the Garden Grove Bank to draw or receive money thereon.
The said agent thereupon issued and delivered to Wells Bros, a bill
of lading, of which the following is a copy : —
" HuMESTON & Shenandoah R. R. Co. Bill op Lading. Freight
Office, Van Wert, August 23, 1881.
" Received from Wells Bros., in apparent good order, by the Humeston &
Shenandoah R. R. Co., the following described packages (contents and valua
unknown) consigned as marked and numbered in the margin, upon the term*
and conditions hereinafter contained, and which are hereby made a part of
this agreement, also subject to the conditions and regulations of the published
tariffs in use by said railroad company, to be transported over the line of this-
road to Chicago station, and there delivered in like good order to the con-
signee or owner, at said station, or to such company or carriers (if same ar&
to be forwarded beyond said station) whose line may be considered a part of
the route, to the place at destination of said goods or packages; it being-
distinctly understood and agreed that the responsibility of this company as a.
common carrier shall cease at the station where delivered or tendered to such
person or carrier ; but it guaranties that the rate of freight for the transporta-
tion of said packages shall not exceed rates as specified below, and charges-
advanced by this company, upon the following conditions [read the condi-
tions]. The owner or consignee to pay freight or charges as per specified
rates upon the goods as they arrive. Freight carried by the company must
be removed from the station during businens hours on the day of its arrival, or
it will be stored at the owner's risk and expense; and, in the event of its
destruction of damage from any cause while in the depots of the company,,
either in transit or at the terminal point, it is agreed that the company shall
not be liable except as warehousemen. It is agreed, and is a part of the-
consideration of this agreement, that the company will not be responsible for
the leakage of liquors or liquids of any kind ; breakage of glass or queensware;.
the injury or breakage of castings, carriages, furniture, glass show-cases,
hollow-ware and looking-glasses, machinery, musical instruments of any kind,
packages of eggs, or picture frames ; loss of weight of coffee, or grain in bags,
or rice in tierces ; or for any decay of perishable articles ; nor for damage
arising from effects of heat or cold ; nor for loss of nuts in bags, lemons or
oranges in boxes, unless covered with canvas ; nor for loss or damage of hay,
hemp, cotton, or any article the bulk of which renders it necessary to trans-
port it in open cars, unless it can be shown that such loss or damage occurred
THE BILL OF LADING.
571
through negligence or default of the agents of this company. Goods in bond
subject to custom-house regulations and expenses. The company is not
responsible for accidents or delays from unavoidable cause ; the responsibility
of this company,^ as carriers, to terminate on the delivery or tender of the
freight as per this bill of lading to the company whose line may be considered
a part of the route to the place of the destination of said goods or packages.
In the event of loss of any property for which the carriers may be responsible
under this bill of lading, the value or cost of the same at the point and time
of shipment is to govern the settlement for the same, except the value of the
article has been agreed upon with the shipper, or is determined by the classi-
fication upon which the rates are based. And in case of loss or damage of
any of the goods named in this bill of lading for which the company may be
liable, it is agreed and understood that this company may have the benefit of
any insurance effected by or on account of the owner of said goods. This
receipt to be presented without erasure or alteration.
l^arks and consignees.
Car No.
Description of Ar-
ticles given by Con-
signee,
Weight, subject to
Correction.
560 A. & N...:
1006 K. S. J. & C. B.
9450 S......
Walnut lumber
22,000
22,000
22,000
" Freight to be paid upon the weight by the company's scales,
but no single shipment to be rated at less than 100 lbs. Car-load freight
subject to the current rules as to the minimum and maximum weights.
Charges advanced (if any). This bill of lading to be surrendered before prop-
erty is delivered.
" S. O. Campbell, Freight Agent."
The bill of lading was issued and delivered on the evening of the
twenty-third day of August. On the next morning Wells Bros, and
Zohn appeared at the Garden Grove Bank, and requested the cashier
to advance them f 550 on said bill of lading. He consented to do
so. Thereupon Wells Bros, assigned the bill of lading to Zohn, and
he assigned the same to C. S. Stearns, cashier of the bank, and at
the same time Zohn executed a draft of |550 in favor of said cashier
to one J. H. Wallace, of Chicago, and the bill of lading, and draft
attached thereto, were delivered to the cashier in consideration
whereof he advanced and paid for said bank to Wells Bros, the sum
of $550.
It will be observed that there is no person named as consignee in
the bill of lading. The space under the head of "Marks and Con-
signees" is left blank. The defendant introduced parol evidence by
which it was shown that, when the bill of lading was issued, the
name of the consignee was intentionally omitted, because Zohn had
not then determined to whom he would ship the lumber. He did
not intend to return to Van Wert, and he directed the station agent
to ship to Stokes & Son, of Chicago, unless he received other
instructions from him by telegraph. No such instructions were
572 CAEEIEES OF GOODS.
received, and, on the next day, being the same day the plaintiff
advanced the money on the bill of lading, the agent of the railroad
company shipped the lumber consigned to Stokes & Son, to whom
the same was delivered, and it was shipped immediately to Canada.
The plaintiff forwarded the bill of lading and draft to Chicago, and
demanded the lumber of the C. B. & Q. K. Co., the railroad con-
necting with defendant, and delivery was refused, because a delivery
had already been made to Stokes & Son. Wells Bros, knew of the
arrangement between the station agent and Zohn, that the lumber
was to be consigned to Stokes & Son unless Zohn should name
another consignee; but this arrangement was wholly unknown to
the plaintiff until it was too late to prevent the delivery of the
lumber to Stokes & Son.
The plaintiff objected to the parol evidence on the ground that it
contradicted the written contract as evidenced by the bill of lading.
The objection was overruled and the evidence received, and the
court instructed the jury as follows : " (4) You are instructed that
the bill of lading, as shown upon its face, does not name a con-
signee, and does not express the full agreement between the parties;
and you are instructed that if Zohn and Wells Bros, consented that
at the time the way-bills should be made to Stokes & Son, unless
the agent should be advised to the contrary, then it was proper for
the said agent to ship said lumber to Stokes & Son, and your verdict
should be for the defendant. But if there was no such agreement,
then the bill of lading is a contract between the parties thereto,
whereby said defendant agreed to transfer said lumber to Chicago to
Wells Bros, or their assignee. The burden of proof is upon the
defendant to establish said agreement. (5) If you find that Wells
Bros, and Zohn went to the bank of plaintiff, in order to get money
so that Wells Bros.' claim could be satisfied, and you further find
that Wells Bros, assigned their interest to said Henry Zohn, that
then Zohn drew a draft on Chicago upon said Wallace, which said
draft was cashed by the plaintiff, and Zohn then assigned and
delivered the bill of lading to the plaintiff, then you are instructed
tha,t it was the duty of plaintiffs, in order to protect their rights, to
notify the defendant that they were the owners of said bill of lad-
ing; and if you find that the defendant shipped said lumber to
Stokes & Son, and said consignment was with the consent of Zohn,
and he was satisfied with such assignment, and you further find
that the defendant did not know that said bill of lading had been
assigned to plaintiff, and had no knowledge of plaintiff's rights,
then the plaintiff cannot recover in this action, and your verdict
should be for the defendant."
These instructions are complained of by counsel for appellant,
and, in connection with the admission of the parol evidence, they
present the questions which, in our opinion, are decisive of the
rights of the parties. A bill of lading is both a receipt and a con-
THE BILL OF LADING. 573
tract, and in its character as a contract it is no more open to expla-
nation or alteration by parol than other written contracts. This
proposition seems to be conceded by counsel for appellee; and the
court below, in the fourth instruction cited above, appears to have
been of the opinion that, as the contract did not name any one as
consignee, it shows upon its face that it does not express the full
agreement between the parties, and the parol evidence was doubtless
admitted upon the ground that the contract was partly in writing
and partly in parol. ^ It is, however, conceded in the same instruc-
tion that if it was not agreed by parol that Zohn should designate
the consignee, then the bill of lading is a contract whereby the
•defendant agreed to transfer the lumber to Chicago to Wells Bros,
or their assignees. We think the proposition that the bill of lading
shows on its face that it is an obligation to convey the property to
Chicago and deliver to Wells Bros., or their assignees, is correct,
and that it is a complete and valid contract not susceptible of expla-
nation by parol, notwithstanding the space left in the instrument for
the name of a consignee does not contain the name of any person.
It was an obligation to deliver the goods to Chicago' to the
"consignee or owner." Wells & Co., according to the contract,
were consignors, consignees, and owners. In Chandler v. Sprague,
5 Mete. 306, it is said: "Ordinarily the name of a consignee
is inserted, and then such consignee or his indorsee may receive
the goods and acquire a special property in them. Sometimes the
shipper or consignor is himself named as consignee, and then the
engagement of the shipowner or master is to deliver them to him or
his assigns. Sometimes no person is named; the name of the con-
signee being left blank, which is understood to import an engage-
ment oh the part of the master to deliver the goods to the person to
whom the shipper shall order the delivery, or to the assignee of
such person;" citing Abb. Shipp., 4th Amer. ed. 215. See, also,
City Bank v. Railroad Co., 44 N. Y. 136; Low v. De Wolf, 8 Pick.
101 ; Glidden v. Lucas, 7 Cal. 26. In Hutchinson on Carriers, § 134,
it is said : " When there has been no agreement to ship the goods
which will make the delivery of them to the carrier a delivery to
the consignee, and vest the property in him, the shipper may, even
after the delivery to the carrier, and after the bill of lading has
been signed and delivered, alter their destination, and direct their
delivery to another consignee, unless the bill of lading has been
forwarded to the consignee first named, or to some one for his use.
{Citing Blanchard v. Page, 8 Gray, 285; Mitchel v. Ede, 11 Adol.
.& E. 888; and other cases.] But, after the carrier or his agent has
given one bill of lading or receipt for the goods, he cannot give
another, unless the first and all duplicates of the same have been
returned to him."
The reason of this rule is obvious. An assignment of a bill of
lading operates as a transfer of a title to the property therein
574 CAKKIEKS OF GOODS.
described. As is said in Meyerstein v. Barber, L. E. 2 C. P. 45:
" While the goods are afloat it is common knowledge, and I would
not think of citing authorities to prove it, that the bill of lading
represents them; and this indorsement and delivery of the bill of
lading, while the ship is at sea, operates exactly the same as the
delivery of the goods themselves to the assignee after the ship's
arrival would do." 'Now, it is perfectly manifest that if a carrier
may issue a second bill of lading without requiring the return of
the first, no reliance can be placed upon any such an instrument by
those dealing with the consignor with reference to the property.
And the same consequences would ensue if he should be permitted,
without the surrender of a bill of lading, to ship the property to
any one other than that named in the instrument. In view of the
well-known fact that the livestock, grain, and other products of
this country are paid for upon advancements made upon bills of
lading, just as was done in this case, the interests of commerce
seem to require that the rule that no alteration shall be made in
contracts of this character without the production of the original
should be strictly enforced. The defendant appears to have had
due regard to this rule when preparing its blank bills of lading.
The last provision therein contained — to wit, "This bill of lading to
be surrendered before property is delivered " — was printed across
the face of the instrument. It is claimed by counsel that this part of
the contract was no part of the mutual obligation, but that it was a
provision for the protection of the defendant which it might well
waive. It is true, it could, as it did in this case, deliver the prop-
erty without the surrender of the bill of lading. But it did so at
its peril. This bill of lading was issued with a full knowledge that
it was intended to procure an advancement of money upon it; but
whether the agent had such knowledge or not, third persons dealing
with Wells & Co. were justified in believing that their assignee
would receive the property upon the surrender of the instrument.
It is claimed, however, and the court below seems to have been
of the opinion, that because a bill of lading is not negotiable the
defendant had the right to ship the property to Stokes & Co. by the
direction of Zohn, and is not liable to the plaintiff because it had
no notice that the bill of lading had been assigned to plaintiff. It
is true that a bill of lading is not negotiable. It is, however,
assignable, and the assignor may maintain an action thereon in his
own name. It possesses attributes not common to the ordinary
non-negotiable instruments enumerated in section 2084 of the Code.
The instrutoents there enumerated are obligations for the payment
of money, or promises to discharge obligations or debts by the
delivery of property. Such obligations may be assigned, but they
are "subject to any defence or counter-claim which the maker or
debtor had against any assignor thereof before notice of his
assignments."
THE BILL or LADING. 575
It is claimed that the defendant, under this statute, may avail
itself of any defence it could have interposed against Zohn, because
he was the assignor of the plaintiff. A bill of lading is a different
character of instrument. It stands for and represents the property,
and an assignment of it passes the title to the property. When
issued, it can only be altered or changed, as we have seen, by a
surrender of the original, and the contract is that the bill of lading
must be surrendered before the property is delivered.
This is a plain contract, which persons dealing with the consignor
are justified in believing will be performed. They have also the
undoubted right to rely upon the rule that no change can be made
in the contract which is issued and sent out into the commercial
world, as every business man knows, for the very purpose of using
it as the means by which to procure money to move the produce of
the country to market. If bankers cannot rely upon bills of lading
as being what they plainly import, and in order to protect them-
selves against private oral agreements between the carrier and the
shipper, varying and contradicting the bill of lading, must give
notice to the carrier of rights acquired in the property as assignees,
it would very seriously embarrass the business interests of the
cotintry, and would produce a state of affairs that we think is neither
warranted by sound legal principles nor by any consideration of
public policy.
We think that the parol evidence should not have been admitted,
and that the instructions above set out are erroneous.
Reversed.
b. As a Receipt.
O'BKIEN V. GILCHRIST.
34 Maine, 554. 1852.
On exceptions from the District Court, Eice, J.
The defendant was master of the schooner "Grecian." She was
lying at the port of King William in Virginia. The plaintiff shipped
on board of her a quantity of oak timber to go on freight to East
Thomaston in Maine. The bill of lading, signed by the defendant,
contained the following expressions : —
"Shipped in good order and condition, by Seth O'Brien, in and
upon the good schooner called the 'Grecian,' whereof Cornelius
, Gilchrist is master for the present voyage and now lying in the port
of King William and bound for East Thomaston, viz. : —
"Three hundred seventy-eight pieces of white oak ship timber,
amounting to one hundred and thirty-four tons and thirty-two feel^
576 CARRIERS OF GOODS.
more or less, and are to be delivered in the like good order and
condition, at the said port pf East Thomaston," etc.
The timber delivered at East Thomaston was but 351 pieces
amounting to one hundred and twenty-three tons, making a deficit
from the bill of lading of eleven tons and thirty-two feet. This
controversy relates to that deficiency.
The defendant at the trial offered several witnesses to prove that
there were not so many pieces nor so many tons received on board as
is described in the bill of lading. The plaintiff objected to contra-
dicting the bill of lading by parol, but the court held that, so far as
the bill of lading was in the nature of a receipt, it was very strong
•prima facie evidence of the truth of its recitals, but not conclusive j
and it was therefore, as to numbers and quantity, liable to be con-
tradicted and overcome by oral testimony, and that as between the
parties, all relevant evidence tending to show that the defendant
was induced, by misrepresentation or mutual mistake, to sign a bill
of lading reciting a larger quantity than had in fact been delivered
and received, would be proper for the consideration of the jury.
The verdict was for the defendant, and the plaintiff excepted,
Appleton, J. That a receipt may be contradicted by parol evi-
dence has long been considered well-settled law. The bill of ladings
so far as regards the condition of the goods shipped, \& prima facie
evidence of a high nature, but not conclusive. Barrett v. Eogers, 7
Mass. 297. The master of a vessel is not authorized to open the
packages to ascertain their condition. The principles of public
policy and the convenience of transportation forbid that boxes,
bales, etc., should be opened and inspected before receipted for by
carriers. They therefore may show that they were damaged before
coming into their possession. Gowdy v. Lyon, 9 B. Mun. 113.
The same rule of law has been applied to the quantity of goods
therein stated as having been received for transportation. In Bates
V. Todd, 1 M. & E. 106, Tindal, C. J., said, that he was of
opinion that, as between the original parties, the bill of lading is
merely a receipt liable to be opened by the evidence of the real facts,
and left the question for the jury to determine what number of bags
of coffee had been shipped. In Berkely v. Watting, 34 E. C. L.
22, it was held, that the defendants were not estopped by the bill of
lading to show that goods purporting to be, were not in fact, shipped.
In Diokerson v. Seelye, 12 Barb. 102, Edmonds, J., in delivering
the opinion of the court, says, '' as between the shipper of the goods
and the owner of the vessel, a bill of lading may be explained so
far as it is a receipt; that is, as to the quantity of goods shipped
and the like; but as between the owner of the vessel and an assignee
for a valuable consideration paid on the strength of a bill of lading,
it may not be explained." What may be the rights of an assignee
under such circumstances it is not necessary to consider or determine
here , as that question does not arise in the present case.
THE BILL OF LADING. 577
In Way land v. Moseley, 5 Ala. 430, the court say, '4liat a bill
of lading in its character is twofold, viz. : a receipt and a contract
to carry and deliver goods. So far as it acknowledges the receipt of
goods and states their condition, etc., it may be contradicted, but in
other respects it is treated like other written contracts." In May v.
Babcock, 4 Ohio, 334, the language of the court is, that " a bill of
lading is a contract including a receipt." The same doctrine in
New York is likewise fully affirmed in Walfe v. Myers, 3 Sand. 7.
The best elementary writers also concur in this view of the law. 1
Greenl. Ev. § 305; Abbott on Shipping, 324. The evidence, so far
as relates to this question, was legally admissible, and the instruc-
tions of the court in relation thereto were in conformity with well-
established principles.
The evidence offered by way of giving a construction to the mean-
ing of the words "more or less" in the bill of lading, was most
clearly inadmissible. The court, however, directed the jury entirely
to disregard all evidence, which was designed to control the legal
construction of the instrument, and it is to be presumed that the jury
in rendering their verdict followed the instructions of the court.
At the same time, the construction of these words, as given in the
charge of the judge, was most favorable to the plaintiff.
Exceptions overruled. Judgment on the verdict.
EELYEA V. NEW HAVEN EOLLING MILL CO.
42 Conn. (U. S. D. C.) 579. 1873.
Libel for freight-money; tried in the United States District
Court for the District of Connecticut, August Term, 1873. The
facts of the case are sufficiently stated in the opinion.
Shipman, J. This is a libel in personam in favor of the owner
and master of the sloop " Carver " to recover freight-money from the
respondents. On or about the 8th day of August, 1872, Pettee &
Mann engaged the libellant to transport in his sloop a cargo of scrap
iron from New York to New Haven. The iron was weighed upon
the wharf at New York, and delivered on board the vessel by Pettee
& Mann. The captain, on August 8th, 1872, signed three bills of
lading, whereby he acknowledged to have received on board the
sloop one hundred and nine tons and a specified fraction of a ton,
and agreed to deliver the same to the respondents at New Haven, or
to their assigns, he or they paying freight at the rate of $2.25 per
ton of 2,240 pounds. The captain demurred to signing the bills of
lading, as he had not seen the iron weighed, but finally signed them
upon the assurance of Pettee & Mann that the quantity was correctly
stated.
578 CAEEIERS OF GOODS.
On the same day the consignors sent by mail to the respondents
one of the three bills of lading, and a bill of the iron at f 62.60 per
ton. This letter was received before the vessel arrived.
The vessel and cargo reached New Haven about the 10th of
August. There was a delay of three or four days in discharging,
in consequence of the respondents' dock being preoccupied, but the
vessel was discharged on the 17th. On the 16th the respondents
paid Pettee & Mann in accordance with the quantity stated in the
invoice and the bill of lading. On the 17th, when the iron was
entirely discharged, the respondents discovered a deficiency of about
six tons, and refused to pay for the freight. The libellant delivered
all the iron that was put on board his vessel, and which amounted
to one hundred and three tons. It is fairly to be inferred that the
consignees would not have paid Pettee & Mann ujitil the weight
of the iron had been ascertained, had they not relied upon the posi-
tive statement of the bill of lading.
The question of law in the ease is, whether the consignees, who
have advanced money on the faith of a clean bill of lading signed by
the master and owner of a vessel, and have been injured thereby,
can recoup , in an action for freight-money brought by such master,
so much of their loss as does not exceed the libellant's claim for
freight.
It is well settled that as between the shipper and the shipowner
the receipt in the bill of lading is open to explanation. But the
point here is, whether the master and owner are concluded by posi-
tive representations as to third persons who have relied upon such
statements and have suffered loss thereby? Since the case of
Lickbarrow v. Mason, 2 T. E. 63, it has generally been considered
as settled law, that a bill of lading is a quasi negotiable instrument,
and when goods are sold by the consignees " to arrive," and the bill
of lading is indorsed to the purchaser, who receives the same in
good faith, that the consignor's right of stoppage in transitu is lost.
The custom of merchants upon a sale of gopds which have not
arrived is, to deliver the bills of lading to the purchaser, which
pass from successive vendor to vendee, and thus become a muniment
of title of great value. In such case, the only evidence which the
purchaser has of the quantity of goods which he has bought, may
be the statement of the master in the bill of lading. This declara-
tion is oftentimes the only source of information upon which the
purchaser can safely rely.
It then becomes the duty of the master to see to it that innocent
purchasers are not deceived by his incorrect or uncertain represen-
tations. In case purchasers are deceived, a corresponding legal
liability should be imposed upon him to make good the loss which
he has caused. Had the New Haven Eolling Mill Company sold
the iron while in transit, and had the purchaser, relying upon the
representations of the bill of lading, paid for the full amount therein
THE BILL OF LADING. 579
stated, there can be little doubt that the master, being also the
owner, would have been considered bound by his statements, at least
to the extent of his freight-money.
I see no reason why his liability should be diminished when the .
person who is deceived is the consignee named in the bill of lading.
If the consignee has not been misled, and has not suffered loss, in
consequence of the bill of lading, he has no cause of complaint.
But if it is found that a loss has been suffered, and that such loss
happened through a reliance upon an erroneous bill of lading, there
is no just reason why the person whose negligence has immediately
caused the injury should not also bear the loss.
To this effect is the decision of Judge Nelson, in Bradstreet v.
Heran, 2 Blatchf. C. C. E. 116. This was a libel in personam by
the master to recover freight on cotton shipped from New Orleans
to New York and consigned to the respondents. The court say:
" The consignees made large advances upon the cotton on the faith
of the representation in the bill of lading that it was shipped in
good order. They are justified in doing so, and their security
should not be lessened or impaired by permitting the master to
contradict his own representation in that instrument. It might be
otherwise if the question arose between the master and the owner of
the cotton. The question of damage might in that case be well
limited to that accruing in the course of the voyage, notwithstand-
ing the bill of lading. But the respondents stand in the light of
bona fide purchasers, who became such on the faith of the represen-
tation of the master."
In case of Sears v. Wingate, 3 Allen, 103, the court hold that the
master and owner is bound by the representations in the bill of
lading, when the consignee is deceived thereby, provided the state-
anents are those which the master knew or ought to have known
■were erroneous, and the incorrectness of which he had the means of
discovering.
Here the cargo was weighed upon the dock at New York. It is
not probable that the master, unless exceedingly diligent, could
have verified the accuracy of the weights, or have ascertained the
truth or incorrectness of the representations made to him by the
consignors. But in my opinion it was his duty either to have
ascertained the true weight, or to have refused to sign a clean bill.
The master, when he ignorantly signs a bill of lading, whereby he
undertakes to deliver a specified quantity, is always in danger of
misleading a third person. It is incumbent upon him to avoid that
danger, by refusing to sign a bill unless he is satisfied of the
accuracy of its contents.
It is claimed by the libellant that the hundred and three tons
ivere accepted, and that the freight-money is therefore to be paid.
It is true that there was an acceptance, and that the respondents are
liable for the freight-money. But they have nevertheless a right to
580 CARKIEKS OF GOODS.
recoup against this claim for freight, the damage which they have
sustained in consequence of the fault of the master in the same
transaction which is the subject of the suit; but such recoupment
cannot be to an extent beyond the amount claimed for freight.
The respondents can prosecute this claim for damage, either by
an independent suit or libel, or they can by recoupment, "seek to
diminish or extinguish the libellant's just claim." Kennedy v.
Dodge, 1 Benedict, 315; Nichols v. Tremlett, 1 Sprague's Decis.
367.
The libellant was also entitled to a small sum for demurrage, but
as the price of the six tons of iron was greater than the amount of
the freight-money and demurrage, the libel must be dismissed.
DEAN V. DEIGGS.
137 N. Y. 274 ; 33 N. E. E. 326 ; 83 Am. St. R. 721 ; 19 L. R. A. 302. 1893.
[Action to recover damages against defendant as warehouseman on
account of the issuance by defendant to one Von Angeren of ware-
house receipts for about twenty five hundred "barrels Portland
cement" to be delivered to his order on return of the receipts, it
appearing that plaintiffs had become surety for said Von Angeren
on the indorsement to them of such receipts, and had been obliged
to pay the indebtedness for which they had become surety, Von
Angeren having absconded ; and that when the barrels described in
such receipts were opened they were found to contain '' a hardened
substance like clay or mortar, coarse in its grain and different from
any cement" and practically worthless. The plaintiffs relied upon
defendant's statement in the warehouse receipts that he had on stor-
age Portland cement as therein recited. Plaintiffs claimed to have
been bona fide purchasers of the warehouse receipts for value, and that
defendant was bound to make good the truth of the statement therein
contained that he had Portland cement on deposit, and they claimed
damage to the amount of the Von Angeren note ($3500) which they
had paid, with interest from the time of such payment. The trial court-
charged the jury that plaintiff was entitled to recover if the material
in the barrels was not Portland cement, and refused to charge on re-
quest that a warehouseman incurs no liability to the holder of a receipt
issued by him whenever the goods are described according to their
outward appearance, marks and description, except for their safe
custody and return, unless he has knowledge or reason to believe that
such description is untrue, and wilfully misrepresents the character
and condition of the goods. Exceptions were taken to the charge
as given and to the refusal to charge as requested. There was a
verdict and judgment for plaintiffs and defendant appeals.]
Peckham, J. The question in this case is as to the meaning of the-
LIMITATION OF LIABILITT. 581
receipt issued by the defendant. Does it mean that the warehouse-
man acknowledges and asserts the fact that the merchandise de-
livered to him and consisting of twenty-five hundred barrels does
in truth contain the genuine article, Portland cement, or does it
mean that the warehouseman has received that number of barrels
bearing the usual appearance of barrels in which Portland cement
is packed and with the usual marks and signs thereon, and repre-
sented to him to be Portland cement, and which he in good faith
supposes to be that article ?
The defendant, at the time he received this merchandise, was a
warehouseman, and in connection with his business he had a bonded
warehouse under license from the United States government, and in
it he received on storage imported, dutiable merchandise which could
not be delivered until the duty was paid. The goods in question
came to the defendant from the vessels named in the two receipts,
which vessels came from Marseilles, France, from which place Port-
land cement is imported. The barrels came on trucks licensed to
transport bonded merchandise, and when they came in the duty had
not been paid. They were stored in the bonded warehouse under
the joint custody of the defendant and a government officer. The
duty was subsequently paid. The defendant testified that the ware-
houseman had no authority to open goods stored in a bonded ware-
house without permission of the government.
These barrels the defendant testified were in character, appearance
and style, the same as those in which Portland cement was imported.
The brand on the barrel heads was " Wil, Neight & Co., Portland
Cement, Trade Mark." There was also a label on each barrel to the
same effect, and also some other signs and letters, all of them con-
sistent with the idea that the barrels contained genuine Portland
cement, and in brief the whole external appearance of the barrel was
that of one in which Portland cement was usually imported. Upon
these facts, the court charged as above stated.
We think the language of the receipts is merely descriptive of the
barrels which defendant received.
It is meant to describe their outside appearance and that they were
in truth marked and represented to be Portland cement. It cannot
be that the language properly construed could mean that the ware-
houseman warranted such contents. If that were the meaning to be
attributed to such a statement, the warehouseman could be safe only
after he had examined critically and cautiously the contents of each
box or barrel which he received. To do so would consume a great
deal of time, and frequently necessitate the employment of experts
who dealt in or were judges of the particular article claimed to be
delivered, and they would have to make such an examination of the
article as its nature demanded before an opinion could be arrived at.
Any one at all familiar with the business of a warehouseman knows
that he could not transact business if he were first to examine the
582 CARKIEES OF GOODS.
contents of each package, barrel or box of merchandise which was
delivered to him and so packed as to cover and conceal the real nature
of the goods delivered. The warehouseman cannot be supposed to
know the contents of barrels or boxes so delivered to him. All he
can be fairly charged with asserting by the mere acknowledgment of
the receipt of merchandise thus described is that the box or barrel in
-which it is packed bears the same outward appearance as does the box
or barrel in which merchandise of the character described is usually
carried, and that there is nothing unusual or out of , the ordinary way
of business in the marks, appearance, signs, labels or character of the
barrel or box from that in which goods of the character described are
usually transported, and that the articles have been represented to
him and that he believes them to be as described.
It has been urged that a warehouseman may easily protect him-
self from any liability by signing a receipt which in so many words
acknowledges the receipt of barrels or boxes said to contain certain
described merchandise, but the contents of which are unknown by the
warehouseman, and which, therefore, he does not warrant. This is
true, but it does not answer the objection to a warranty which arises
out of the transaction itself. In its very nature it seems to me plain
that no warranty as to contents can reasonably be implied under these
circumstances from the use of such language as these receipts con-
tain. Representations in a bill of lading or warehouse receipt which
should be held to be warranties should be confined usually to those
which the carrier or warehouseman may ordinarily be assumed to
have knowledge of, or which he or his agents ought to know. As
was said by Mr. Justice Hoar, in Sears v. Wingate (3 Allen, 103, at
107), when speaking of a bill of lading, the master is estopped to
deny the truth of the statements to which he has given credit by his
signature, so far as those statements relate to matters which are or
ought to be within his knowledge.
It is known and understood that the business of a warehouseman
is not that of an inspector of property delivered to him, nor is he an
insurer of the contents of packages. It is no part of the duty of the
defendant as a warehouseman to have property inspected or its quality
warranted, and no proceedings are supposed to take place to enable a
warehouseman to become acquainted with the contents of packages
for the very reason that in his business it is unimportant what such
contents are. The general object of giving a description of the prop-
erty in the receipt, is for purposes of identification only, so that the
identical property delivered to the warehouseman may be delivered
back by him upon the return of the warehouse receipt, and for such
purpose it is sufficient to describe the property as it by its external
appearance seems to be. Such a description is not calculated to mis-
lead any one in regard to the actual contents of the package. When
the warehouseman described in this case the outward appearance and
marks and the numbers on the barrels, he did warrant the correctness
THE BILL OF LADING. 583
of his description so far as to say that the numbers stated were in
reality delivered and that they were marked as stated, and also that
there was nothing unusual in the appearance of the barrels or in the
direction, marks or labels upon the merchandise which would reason-
ably lead to any suspicion that the contents were not what they were
represented to be.
A warehouse receipt does not differ in this respect from a bill of
lading. In the one ease the warehouseman agrees to keep, and in the
other case the carrier agrees to transport the goods which he receives,
but the acknowledgment of delivery either to the warehouseman or
to the-carrier is essentially the same and the same rules govern in the
interpretation of the receipt. In Hastings v. Pepper (11 Pick. 41),
Shaw, Ch. J., said that the acknowledging to have received the goods
in question in good order and well conditioned would be prima facie
evidence that as to all circumstances which were open to inspection
and visible, the goods were in good order, but the carrier could show
that a loss did in fact proceed from a cause existing at the time of the
execution of the bill of lading, if it were not then open and apparent,
and if he showed that fact it would be a defense. This statement is
approved in Nelson v. Woodruff (1 Black [U. S.] 156, at 160).
In Warden v. Greer (6 Watts, 424), Huston, J., in delivering the
opinion of the Pennsylvania Supreme Court, held that generally a
bill of lading could not hi contradicted, but that if a captain were
innocently to receive a barrel of corn instead of a barrel of coffee, or a
barrel of cider instead of Madeira wine, or a package of cotton linen
instead of flaxen linen ; it would seem that his bUl of lading would
not and ought not to exclude him from proving this, as the captain
does not open or otherwise examine the casks.
We think the rule is clearly expressed in Hale v. Milwaukee Dock
Co. (23 Wis. 276 ; S. C, on second appeal, 29 Wis. 482). It is there
stated (29 Wis. at 489) that the warehouseman or carrier in regard to
packages which are so covered as to conceal their contents, receipts
them upon the representation of the bailor and upon the external
appearance corresponding therewith as to contents. He is not
supposed to have any actual knowledge of their contents and the
language of the receipt is not to be so understood. It is a warranty
that the barrels are so represented and so appear to him to the extent
of his knowledge or means of information on the subject, and as they
are represented and appear to him, so he represents or describes them
in his receipt
In the Wisconsin case here alluded to, the warehouseman receipted
for fifty-four barrels of mess port. The Supreme Court held the
defendant at liberty to show its readiness to re-deliver the identical
property delivered to it and that the barrels when the defendant took
them and unknown to it really contained nothing but salt. A verdict
for the plaintiff (who was a iona Jide holder for value) was, therefore,
set aside and a new trial granted.
584 CAEEIEES or GOODS.
It was stated upon the argument here that a different doctrine pre-
vails in this state and counsel cited as authority for such claim Jones
on Pledges, § 252. The learned author does so remark and the cases
of Meyer v. Peck (28 N. Y. 590); Armour v. Kailroad Co. (65 id.
Ill), and Miller v. Hannibal & St. Jo. E. E. (24 Hun, 607), are cited
as authority for such alleged difference.
In Meyer v. Peck the question did not really arise. The facts
showed the draft was paid by the defendant because drawn upon
him by his own agent and without the least reference to the bUl
of lading. Chief Judge Denio referred to the principle as well under-
stood, that a bona fide indorsee for value of a bill of lading could claim
the benefit of an estoppel in his favor as against the carrier, and he
said that such indorsee could rely upon the quantity of the merchan-
dise acknowledged in the bill and might compel the carrier to account
for the same, whether it was placed on board or not. But it is clear
chough that a carrier thus situated ought to be estopped from showing
that a less quantity was received, because it was his own carelessness
in certifying to a fact which was or at any rate ought to have been
within his own or his agent's knowledge. When one has advanced
money upon the faith of a statement thus within the knowledge of the
person making it, I think all would agree that the latter cannot be
heard to dispute it. A carrier or a warehouseman is not, however,
supposed to know the contents of merchandise so packed as to conceal
such contents and, therefore, his ignorance cannot be said to be care-
lessness. In Armour v. E. E. {supra) the same principle was an-
nounced. The defendant acknowledged in its bill of lading the
receipt of a quantity of lard which in fact it had not received. Drafts
were attached to the bill and were paid on the faith of the defendant's
acknowledgment in the bill of the receipt of the lard. It was held
that the defendant was bound by the acts of its agent who signed the
bill of lading and that it was estopped from denying the receipt of
the lard.
It would seem as if this decision were right upon the plainest prin-
ciples of justice. A written declaration was made that acknowledged
the receipt of property which in fact had not been delivered and which
defendant's agent knew had not been delivered, but trusted that it would
be. It was a statement of that nature which either was or necessarily
ought to have been within the personal knowledge of the defendant's
agents and as to such a statement another person had the right to be-
lieve it and act as if it were true.
The case of Miller v. Hannibal & St. Jo. E. E. Co. {supra) was re-
versed in this court in the 90th !N". Y. 430.
The point under discussion in that case and the only one to which
the attention of this court on appeal was directed was whether the
written and printed part of the bill of lading should be read together,
30 that the printed part, which acknowledged the receipt of the mer-
chandise "in apparent good order, contents unknown," should be
THE BILL OF LADING. 585
construed in connection with the written part, which acknowledged
the receipt of " 30 bhls. eggs." It was held the whole should be con-
strued together, and that the bill simply admitted the receipt of 30
bbls. described as containing eggs, but the actual contents of which
were unknown. The judge, in the course of his opinion, said that if
the description of the article were a representation that the barrels
contained eggs, plaintiffs would have the right to recover, citing the
case of Meyers v. Peck (swpj-a). Itwasheld that itwasnot. Although
there was in the bill of lading the added expression, " contents un-
known," yet there was no decision that in the absence of such expres-
sion the description would have amounted to a representation. That
question was not before the court, was not in fact discussed directly, and
was not decided. For the reasons already suggested, it would seem
improper to so regard the description of merchandise which, when
received, is so covered and packed as to securely conceal the actual
contents from the carrier or warehouseman.
In First National Bank of Chicago v. Dean [127 N. Y. 110] there
was a direct written representation on the receipts that the brandy
was stored in a " free warehouse " of defendant's, which expression
means that the revenue tax or import duties have been paid on all
goods there deposited. This was a representation of a fact which was
within the knowledge of the defendant, and we held that he could not
be permitted to show that the representation was untrue as against a
bona fide holder for value of the certificates, who had purchased in
reliance upon the representation that -the brandy was "free." The
real point in dispute there was, whether the plaintiff occupied the
position of such a holder.
From this review of the authorities upon which it was claimed that
the courts of New York had taken an exceptional stand, I think it
quite plain that in truth no exceptional doctrine obtains here. I
think that we in common with the courts of other states hold the
carrier or warehouseman estopped in regard to any error or misstate-
ment in the bill or receipt only when it amounts to a representation as
to a fact which was, or in the ordinary course of business ought to
have been, within his knowledge and which, therefore, such a third
person acting reasonably would have a right to rely and act upon.
The court below, however, has sustained the right of the plaintiffs
to recover in this case chiefly upon the provisions of the Factors' Act
of 1858, as amended by that of 1866 (Chap. 326 of the Laws of 1868 ;
chap. 440, Laws 1866). The first section of the amended act pro-
hibits a warehouseman (among others) from issuing a receipt for any
goods unless such goods shall have been actually received into the
store or upon the premises of such warehouseman at the time of issu-
ing the receipt.
The court held that if the goods were not Portland cement then
the receipts issued by the defendant were untruthful and a violation
of the above cited first section of the act.
586 CARRIERS OF GOODS.
We think the act was not intended to and does not reach, this case..
It was not passed in order to transform a warehouseman from a mere
depositary to that of an insurer of the kind and quality of goods
deposited with him. It was not intended to alter the law in regard to
the character of such a representation as is contained in these receipts
or to make it anything other than a description of property as above
stated. We are quite clear the act does not cover such a case as this
if we assume the defendant was honestly mistaken when he described
the goods actually received by him as Portland cement. The court
withdrew from the jury the question of the knowledge of the defendant
as to the character of the merchandise received by him as entirely im-
material, and hence we must assume his ignorance in discussing his
liability.
The English statute to amend the law relating to bills of lading,
passed in 1855 (18 & 19 Vic. chap. Ill), recited that "it frequently
happens that the goods in respect of which bills of lading purport
to be signed have not been laden on board, and it is proper that such
bills of lading in the hands of a bona fide holder for value should not
be questioned by the master or other person signing the same on the
ground of the goods not having been laden as aforesaid." It was then
enacted that bills of lading in the hands of a consignee or indorsee
for value, representing goods to have been shipped on board a vessel,
should be conclusive evidence of such shipment as against the master,
notwithstanding the goods or some part had not been so shipped,
unless the indorsee had notice, etc.
This statute evidently referred to a case where there had been no
delivery of any goods or only a part delivery of the amount receipted
for, and we think the section of the acts of the legislature of this state
above cited, refers to the same kind of omission. Signing a receipt
for goods actually delivered, but known by the signer to be something
other than that described in the receipt, would be a fraud and amount
to a false representation for which the signer would be liable in any
event.
But this issue was not submitted to the jury.
It is urged that such a receipt is made negotiable. We do not see
that its negotiability is of the least importance in the decision of this
question. That there is a certain kind of negotiability attached to
this kind of a receipt and to a bill of lading is not disputed. (Dows
■y. Perrin, 16 N. Y. 325 ; Dows v. Greene, 24 id. 638 ; Lickbarrow v.
Mason, 1 Smith's L. C. [8th Am. ed.] 1159 and notes ; § 6, factors'
Acts, above cited.)
It is not the same thing as the negotiability of a promissory note or
bill of exchange. It could not be in the nature of things, but by the
indorsement and delivery of such a receipt or bill of lading, the in-
dorsee for value and without notice is entitled to hold the property
represented thereby under the circumstances stated in the above men-
tioned acts.
THE BILL OF LADING. 587
In this case the plaintiffs are entitled to be treated as the owners of
the property which was deposited with defendant, and they are entitled
to its re-delivery to them upon payment of the charges, just the same
as the original owner would have been but for the transfer. When,
however, the plaintiffs demand, not the identical property which was
deposited with the defendant, but such property as would have been
deposited had the description in the receipt been correct, the right
to demand such a delivery must be based not upon the mere transfer of
the receipt, but upon the principle of estoppel; such a principle as
precludes a party who has made a representation upon which another
has acted from denying the truth of that representation. Obviously
the first inquiry must be whether such a representation has been
made, and when it turns out that it has not, the estoppel falls to the
ground. We have seen that the' character of the representations made
by defendant was nothing more than that he had in fact received
twenty-five hundred barrels of what purported to be and was described
to him as and what he believed was Portland cement, packed as such
cement was usually packed and bearing the outward indicia of such
article. There is in such case no room for the application of that
principle which decrees that when one of two equally innocent per-
sons must suffer from the fraud of a third, that one should suffer who
has enabled the third person to commit the fraud.
Upon the proper construction given to the language of the receipt
the representation contained therein was true. If, however, the
plaintiffs chose to regard a mere description of the outward appear-
ance of property packed in barrels as a representation and warranty
by defendant that the contents were actually as described in the
receipt and to advance money upon the faith of such alleged repre-
sentations, the fault lies wholly with the plaintiffs, who placed a
degree of faith in the correctness of the description which was totally
unwarranted from the nature of the transaction and for which the
defendant ought not to be held responsible.
Our conclusion is that the trial judge erred in his charge to the jury
above quoted, and in his refusals to charge as above requested, and
for such errors the judgment should be reversed and a new trial
ordered, with costs to abide the event.
All concur.
Judgment reversed.
588 CAKRIEES OF GOODS.
THE IDAHO.
93 U. S. 575. 1876.
[For this case, see infra, p. 690.]
POLLARD V. VLtfTON.
105 U. S. 7. 1881.
Ekror to the Circuit Court of the United States for the District
of Kentucky.
The facts are stated, in the opinion of the court.
Mr. Justice Miller. The defendant in error, who was also
defendant below, was the owner of a steamboat running between
the cities of Memphis, on the Mississippi River, and Cincinnati, on
the Ohio River, and is sued on a bill of lading for the non-delivery
at Cincinnati of one hundred and fifty bales of cotton, according to
its terms. The bill of lading was in the usual form, and signed
by E. D. Cobb & Co., who were the general agents of Vinton for
shipping purposes at Memphis, and was delivered to Dickinson,
Williams & Co. at that place. They immediately drew a draft on
the plaintiffs in New York, payable at sight, for $5,900, to which
they attached the bill of lading, which draft was duly accepted and
paid. No cotton was shipped on the steamboat, or delivered at its
wharf, or to its agent for shipment, as stated in the bill of lading,
the statement to that effect being untrue.
These facts being undisputed, as they are found in the bill of
exceptions, the court instructed the jury to find a verdict for the
defendant, which was done, and judgment rendered accordingly.
This instruction is the error complained of by the plaintiffs, who
sued out the present writ.
A bill of lading is an instrument well known in commercial
transactions, and its character and effect have been defined by judi-
cial decisions. In the hands of the holder it is evidence of owner-
ship, special or general, of the property mentioned in it, and of the
right to receive said property at the place of delivery. Notwith-
THE BILL OF LADING. 589
standing it is designed to pass from hand to hand, with or without
indorsement, and it is efficacious for its ordinary purposes in the
hands of the holder, it is not a negotiable instrument or obligation
in a sense that a bill of exchange or a promissory note is. Its
transfer does not preclude, as in those cases, all inquiry into the
transaction in which it originated, because it has come into hands
of persons who have innocently paid value for it. The doctrine of
bona fide purchasers only applies to it in a limited sense.
It is an instrument of a twofold character. It is at once a receipt
and a contract. In the former character it is an acknowledgment
of the receipt of property on board his vessel by the owner of the
vessel. In the latter it is a contract to carry safely and deliver.
The receipt of goods lies at the foundation of the contract to carry
and deliver. If no goods are actually received, there can be no
valid contract to carry or to deliver.
To these elementary truths the reply is that the agent of defendant
has acknowledged in writing the receipt of the goods, and promised
for him that they should be safely delivered, and that the principal
cannot repudiate the act of his agent in this matter, because it was
within the scope of his employment.
It will probably be conceded that the effect of the bill of lading
and its binding force on the defendant is no stronger than if signed
by himself as master of his own vessel. In such case we think the
proposition cannot be successfully disputed that the person to whom
such a bill of lading was first delivered cannot hold the signer
responsible for goods not received by the carrier.
Counsel for plaintiffs, however, say that in the hands of subse-
quent holders of such a bill of lading, who have paid value for it in
good faith, the owner of the vessel is estopped by the policy of the
law from denying what he has signed his name to and set afloat in
the public market. However this may be', the plaintiffs' counsel
rest their case on the doctrine of agency, holding that defendant is
absolutely responsible for the false representations of his agent in
the bill of lading.
But if we can suppose there was testimony from which the jury
might have inferred either mistake or bad faith on the part of Cobb
& Co., we are of opinion that Vinton, the shipowner, is not liable
for the false statement in the bill of lading, because the transaction
was not within the scope of their authority.
If we look to the evidence of the extent of their authority, as
found in the bill of exceptions, it is this short sentence: —
" During the month of December, 1873 " (the date of the bill of
lading), "the firm of E. D. Cobb & Co., of Memphis, Tennessee,
were authorized agents of the defendant at Memphis, with power to
solicit freights and to execute and deliver to shippers hills of lading
for freight shipp'ed on defendant's steamboat, ' Ben Franklin.' "
This authority to execute and deliver bills of lading has two limi-
590 CARRIERS -OF GOODS.
tations ; uamely, they could only be delivered to shippers, and they
could only be delivered for freight shipped on the steamboat.
Before the power to make and deliver a bill of lading could arise,
some person must have shipped goods on the vessel. Only then
could there be a shipper, and only then could there be goods shipped.
In saying this, we do not mean that the goods must have been
actually placed on the deck of the vessel. If they came within the
control and custody of the officers of the boat for the purpose of
shipment, the contract of carriage had commenced, and the evidence
of it in the form of a bill of lading would be binding. But without
such a delivery there was no contract of carrying, and the agents of
defendant had no authority to make one.
They had no authority to sell cotton and contract for delivery.
They had no authority to sell bills of lading. They had no power
to execute these instruments and go out and sell them to purchasers.
No man had a right to buy such a bill of lading of them who had
not delivered them the goods to be shipped.
Such is not only the necessary inference from the definition of
the authority under which they acted, as found in the bill of excep-
tions, but such would be. the legal implication if their relation to
defendant had been stated in more general terms. The result would
have been the same if it had been merely stated that they were the
shipping agents- of the owner of the vessel at that point.
It appears to us that this proposition was distinctly adjudged by
this court in the case of Schooner Freeman v. Buckingham, 18
How. 182.
In that case the schooner was libelled in admiralty for failing to
deliver flour for which the master had given two bills of lading,
certifying that it had been delivered on board the vessel at Cleve-
land, to be carried to Buffalo and safely delivered. The libellants,
who reside in the city of New York, had advanced money to the
consignee on these- bills of lading, which were delivered to them.
It turned out that no such flour had ever been shipped, and that the
master had been induced, by the fraudulent orders of a person in
control of the vessel at the time, to make and deliver the bills of
lading to him, and that he had sold the drafts on which libellants
had paid the money and received the bills of lading in good faith.
A question arose how far the claimant, who was the real owner,
or general owner, of the vessel could be bound by the acts of the
master appointed by one to whom he had confided the control of the
vessel; and the court held that, having consented to this delivery of
the vessel, he was bound by all the acts by which a master could
lawfully bind a vessel or its owner.
The court, in further discussing the question, says : " Even if the
master had been appointed by the claimant, a wilful fraud com-
mitted by him on a third person by signing false bills of lading
would not be within his agency. If the signer of a bill of lading
THE BILL OF LADING. 591
was not the master of the vessel, no one would suppose the vessel
bound; and the reason is, because the bill is signed by one not in
privity with the owner. But th§ same reason applies to a signature
made by a master out of the course of his employment. The taker
assumes the risk, not only of the genuineness of the signature, and
of the fact that the signer was master of the vessel, but also of the
apparent authority of the master to issue the bill of lading. We
say the apparent authority, because any secret instructions by the
owner, inconsistent with the authority with which the master
appears to be clothed, would not affect third persons. But the
master of a vessel has no more apparent authority to sign bills of
lading than he has to sign bills of sale of the ship. He has an
apparent authority, if the ship be a general one, to sign bills of
lading for cargo actually shipped; and he has also authority to sign
a bill of sale of the ship when, in case of disaster, his power of sale
arises. But the authority in each case arises out of and depends
upon a particular state of facts. It is not an unlimited authority
in one case more than in the other; and his act in either case does
not bind the owner even in favor of an innocent purchaser, if the
facts on which his power depended did not exist; and it is incum-
bent upon those who are about to change their condition upon the
faith of his authority, to ascertain the existence of all the facts upon
which his authority depends."
The court cites as settling the law in this way in England the
cases of Grant v. Norway, 10 C. B. 665 ; Coleman v. Riches, 16 id.
104; Hubbersty v. Ward, 8 Exch. Rep. 330; and Walter v. Brewer,
11 Mass. 99. See also McLean & Hope v. Fleming, Law Eep. 2 H.
of L. Sc. 128; Maclachlan's Law of Merchant Shipping, 368, 369.
It seems clear that the authority of E. D. Cobb & Co., as shipping
agents, cannot be greater than that of the master of a vessel trans-
acting business by his ship in all the ports of the world.
And we are unable to see why this case is not conclusive of the
one before us, unless we are prepared to overrule it squarely. The
very questions of the power of the agent to bind the owner by a bill
of lading for goods never received, and of the effect of such a bill of
lading as to innocent purchasers without notice, were discussed and
were properly in the case, and were decided adversely to the prin-
ciples on which plaintiffs' counsel insist in this case. Numerous
other cases are cited in the brief of counsel in support of these
views, but we deem it unnecessary to give them more special notice.
The case of New York & New Haven Railroad Go. v. Schuyler,
54 N. Y. 30, is much relied on by counsel as opposed to this
principle.
Whatever may be the true rule which characterizes actions of
officers of a corporation who are placed in control as the governing
force of the corporation, which actions are at once a fraud on the
corporation and the parties with whom they deal, and how far
592 CARRIERS OF GOODS.
courts may yet decide to hold the corporations liable tor such exer-
cise of power by their officers, they can have no controlling influence
over cases like the present. In the one before us it is a question of
pure agency, and depends solely on the power confided to the agent.
In the other case the officer is the corporation for many purposes.
Certainly a corporation can be charged with no intelligent action,
or with entertaining any purpose, or committing any fraud, except
as this intelligence, this purpose, this fraud, is evidenced by the
actions of its officers. And while it may be conceded that for many
purposes they are agents, and are to be treated as the agents of the
corporation or of the corporators, it is also true that for some pur-
poses they are the corporation, and their acts as such officers are
its acts.
We do not think that case presents a rule for this case.
Judgment affirmed.
SIOUX CITY AND PACIFIC RAILEOAD COMPANY,
Plaintiff in Erkok, v. FIEST NATIONAL BANK OF
FREMONT, Defendant in Eeeok.
10 Neb. 556. 1880.
Maxwell, Ch. J.
It will be seen that the object of the action is to hold the railroad
company liable on two bills of lading executed by its station agent
to one Watkins, one of said bills being dated Nov. 13th, 1877, for
two cars of wheat, and the other dated Nov. 15th, 1877, for three cars
of wheat, which bills of lading were transferred to the bank, the
bank advancing f 1,500 on them, relying on the statements therein
contained that Watkins had shipped five full cars of wheat, when in
fact the cars mentioned in the first receipt contained about one-half
a car-load of wheat and about one-half a car-load of barley, and the
three cars mentioned in the second receipt were never in fact shipped,
and no wheat was in fact received by the railroad company at the
time the receipt was given. Is the company liable under such cir-
cumstances upon the bills of lading? In the case of Grant v. Nor-
way, 2 Eng. Law and Eq. 337, it was held that the master of a ship
has no general authority to sign a bill of lading for goods which are
not put on board the vessel ; and consequently the owners of the ship
are not responsible to parties taking a bill of lading which has been
signed by the master without receiving the goods on board. This
case was decided in the common pleas in 1851. No authorities
are cited by the court to sustain its position, the court saying:
"There is but little to be found in the books on this subject; it was
discussed in the case of Berkley v. Watling, 7 Ad. and El. 29 ; but
THE BILL OF LADING. 593
that case was decided on another point, althougli Littledale, J., said
in Ms opinion the bill of lading was not conclusive under similar
circumstances on the shipowner." This decision was followed in
Hubbersty v. Ward, 18 id. 551, in the Court of Exchequer, Pollock,
C. B., placing the decision upon a lack of power in the master.
See also Coleman v. Kiches, 29 id. 329. These decisions were
followed by the Supreme Court of the United States in the case of
the Schooner Freeman v. Buckingham, 18 How. 182. In that case
the claimant, being the sole owner of the schooner named, contracted
with one John Holmes to sell it to him for the sum of $10,000,
payable by instalments at different dates. By the terms of the
contract John Holmes was to take possession of the vessel, and if
he should make all the agreed payments, the claimant was to con-
vey to him. The vessel was delivered to Holmes under this con-
tract, and^he had paid one instalment, the only one which had become
due. Holmes permitted his son, Sylvanus Holmes, to have the
entire control and management of the vessel and to appoint the
master. Sylvanus Holmes transacted business under the style of S.
Holmes & Co., and the flour mentioned in the bills of lading as hav-
ing been shipped by him was never in fact shipped, the master
having been induced to sign the bills of lading by fraud and impo-
sition. The question before the court is thus stated in the opinion :
"But the real question is, whether in favor of a bona fide holder of
such bills of lading procured from the master by the fraud of an
owner ^ro hao vice, the general owner is estopped to show the truth,
,a,s undoubtedly the special owner would be." It was held that the
maritime law gave no lien upon the vessel, and that the general
owner thereof was hot estopped from alleging and proving the facts.
In the case of Dean v. King, 22 Ohio State, 118, it was held in an
action by the shipper against the owner of a steamboat engaged in
the business of common carriers, to recover for goods as per bill of
lading, that the defendants are liable only for so much of the goods
as was actually received on the boat or delivered to some one author-
ized to receive freight on her account. This seems to have been
an action between the original parties. In Dickerson i'. Seelye, 12
Barb. 99, the court held that as between the shipper of the goods
and the owner of the vessel a bill of lading may be explained as to
the quantity and condition of the goods, yet it cannot be so explained
as between the owner of the vessel and a consignee or assignee of
the bill of lading who ias in good faith advanced money on the
strength of it, and has thus been induced by the master's signing
the bill to do an act changing the situation of the parties. In such
case the bill of lading is conclusive on the owner in respect to
the quantity of goods. The court say : " As between the owner of
the vessel and an assignee for a valuable consideration paid on the
strength of the bill of lading, it may not be explained; Portland
Bank v. Stubbs, 6 Mass. 422; Abbott on Shipping, 323-4; Brad
594 CARRIERS OF GOODS.
street v. Lees, M. S., U. S. District Court. In such case the
superior equity is with the bona fide assignee who has parted with
his money on the strength of the bill of lading."
In the case of Armour v. Michigan C. R. E. Co., 65 N. Y. Ill,
the defendant's agent, having authority to issue bills of lading, upon
delivery to him by M. of a forged warehouse receipt, issued to M.
two bills of lading, each stating the receipt of a quantity of lard
consigned to plaintiffs at New York, and to be transported and
delivered to them, M. drew sight drafts on the plaintiffs, to which
he attached the bills of lading; these were delivered to a bank and
were forwarded to New York, and the drafts were paid by plaintiff
upon the faith and credit of the bills of lading. It was held that
the defendant was bound by the acts of its agent, the same being
within the apparent scope of his authority, and was estopped from
denying the receipt of the lard. In the case of the Savings Bank v.
A. T. & S. F. E. E. Co., 20 Kansas, 519, the court held that where
the agent of a railroad company has authority to receive grain for
shipment over its road, and issues in the name of the corporation a
bill of lading for each consignment received, and issues two original
bills of lading for a single consignment, the two bills of lading
having been assigned to the bank, which advanced money thereon
in good faith, and the shipper being insolvent and having absconded,
that the railroad company was estopped by its statement and promise
in the bill of lading to deny that it has received the grain mentioned
therein. The court say : " The custom of grain-dealers is to buy of
the producer his wheat, corn, barley, etc., then deliver the same to
the railroad company for shipment to market. The railroad com-
pany issues to the shipper its bill of lading. The shipper takes his
bill of lading to a bank, draws a draft upon his commission mer-
chant or consignee against the shipment, and attaches his bill of
lading to the draft. Upon the faith of the bill of lading and with-
out further inquiry the bank cashes the draft, and the money is thus
obtained to pay for the grain purchased, or to repurchase other ship-
ments. In this way the dealer realizes at once the greater value of
his consignments, and need not wait for the returns of the sale of
his grain to obtain money to make other purchases. In this way
the dealer with a small capital may buy and ship extensively ; and
while having a capital of a few hundred dollars only, may buy for
cash and ship grain valued at 'many thousands. This mode of trans-
acting business is greatly advantageous both to the shipper and the
producer. It gives the shipper who is prudent and posted as to the
markets almost unlimited opportunities for the purchase and ship-
ment of grain, and furnishes a cash market for the producer at his
own door. It enables the capitalist and banker to obtain fair rates
of interest for the money he has to loan, and insures him, in the
way of bills of lading, excellent security. It also furnishes addi-
tional business to railroad companies, as it facilitates and increases
THE BILL OF LADING. 595
shipments to the markets. A mode of doing business so beneficial
to so many classes ought to receive the favoring recognition of the
courts to aid its continuance." The question -whether or not bills
of lading are negotiable does not enter into the case. All the testi-
mony shows that the bills of lading in controversy were issued by
an authorized agent of the railroad company, and that he not only
had authority to issue such bills, but it was one of the duties imposed
upon him. As against an innocent purchaser of the bills it will not
do to say that the agent had authority to issue bills of lading duly
signed, only in cases where shipments were made, and no authority
where shipments were not made. The company itself has invested
its own agent with the authority to issue bills of lading, and when
duly issued they are not the bills of the agent, but of the railroad
company. The representations, therefore, thus made in the bills
that the company has received a certain quantity of grain for ship-
ment, is a representation to any one who, in good faith relying
thereon, sees fit to make advances on the same. If these repre-
sentations are false, who should bear t4ie loss? The party who
appointed, placed confidence in, and gave authority to make the
bills, or the one that in good faith, relying thereon, purchased or
advanced money on the same? In Lickbarrow v. Mason, 2 T. E.
63, 1 Smith's Leading Cases, 6 Am. ed., 1044, Ashhurst, J., says:
"We may lay it down as a broad, general principle, that whenever
one of two innocent persons must suffer by the acts of a third, he
who has enabled said third person to occasion the loss must sustain
it." _
This case presents every element necessary to constitute an
estoppel in pais, a representation made with full knowledge that it
might be acted upon, and subsequent action in reliance thereon, by
which the defendants in error would lose the amount advanced if
the representation is not made good. This principle was entirely
overlooked in Grant v. Norway, and the cases following it. The
defendant in the court below is therefore liable to the bank to the
extent of the amount advanced on faith of these bills, not exceeding
the value of the grain certified to as having been shipped. Objet-
tions are made to the proof of the price of wheat at Scribner at the
time stated in the bills, to proof in reference to the grade of wheat
shipped from that place, and to the weight of an ordinary car-load,
but as the verdict is for several hundred dollars less than the
amount advanced by the bank on the bills of lading in question, and
much less than it should have recovered, it is unnecessary to con-
sider them. There is no error in the record of which the plaintiff
in error can complain, and the judgment must be afiirmed.
Judgment affirmed.
596 CAKRIEKS OF GOODS.
7. DELIVERY BY CAEEIER.
A. To TEKMINATE EXCEPTIONAL LIABILITY.
HYDE V. NAVIGATION COMPANY,
King's Bench. 5 Term R. 389. 1793.
This was an action on the case against the defendants as common
carriers. The declaration stated that the defendants were common
carriers of goods for hire from Gainsborough, in the county of
Lincoln, to Manchester, in the county of Lancaster. That the plain-
tiffs on the 28th September, 1789, delivered the defendants eighteen
bags of cotton, to be safely carried by the defendants from Gains-
borough to Manchester, and there to be delivered to the plaintiffs,
etc., and that the defendants undertook to carry and convey, etc.,
and there deliver them, which they neglected, etc. The second
count was upon a delivery of fourteen other bags of cotton, to be
carried by the defendants from Bromley Common, in the county of
Stafford, to Manchester, and there to be delivered to the plaintiffs ;
that the defendants undertook, etc., and that the goods were lost
through their negligence.
It appeared at the trial that the goods were put on board the
defendant's barges at the respective places mentioned in the decla-
ration, and conveyed therein along the defendant's navigation and
the Duke of Bridgewater's canal to Manchester, where they were
landed upon the quay, and lodged there in the Duke of Bridgewater's
warehouse, in which place they were consumed by an accidental
fire the same night. In the bills made out by the defendants, there
were charges of so much for tonnage on the river Trent, so much
for tonnage on the Trent and Mersey Navigation, so much for the
Duke of Bridgewater's canal, so much for warehouse room for the
Duke of Bridgewater; besides which, in the bill for the fourteen
bags was a charge for cartage, which was intended for the cartage
from the Duke of Bridgewater's warehouse to the plaintiff's own
warehouse in Manchester, and which was paid by the plaintiffs when
the goods were put on board the defendant's barges ; but the charge
for warehouse room was merely received by the defendants as agents
to the duke, and they had no share of the profit. It appeared also
to be the practice of many persons in Manchester, for whom goods
were brought by the defendants, to send their own carts for the
goods from the quay or warehouse, but the usage had uniformly
been for the cotton merchants to have their goods conveyed to their
own warehouse in carts furnished by the defendants. Formerly the
defendants employed their own carts for this purpose, but had
DELIVEEY BY OARKIEK. 597
latterly given, up this business, together with the profits derived
from it, to a person named Hibbert, who was their book-keeper; and
the plaintiffs knew that the cartage had been received for this man.
Previous to this transaction the defendants had circulated the fol-
lowing printed notice: "Navigation from the Trent to the Mersey.
Conveyance of goods by land and navigation to and from London,
Manchester, Warrington, Liverpool, Chester, most parts of the
North, the Staffordshire Potteries, and their environs. The pro-
prietors, having hitherto labored under several inconveniences to
make their conveyance worthy the attention of merchants, etc.,
have at length removed every obstacle, and can now promise to
deliver goods each way in ten days with the utmost punctuality,
and at a much reduced price, to an inland conveyance," etc. Since
this transaction, upon the arrival of goods, etc., at the quay at
Manchester, the defendants have sent written notices of the same to
the owners, desiring them to order the goods away as soon as pos-
sible, as they remained at the risk of the owners. A verdict was
found for the plaintiffs at the sittings after last term at Guild-
hall, before Lord Kenyon ; to set aside which a rule having been,
obtained.
Lord Kbnyon, Ch. J. This is a question of very general concern,
since few days in the year occur in which cases do nof arise that
may depend upon it; and therefore it were to be wished that this
case should have called for a decision upon the point, which should
have left no doubt in future respecting the extent to which common
cari'iers are liable. But peculiar circumstances exist in this case,
which render it unnecessary to decide the general question; though
as the whole has been argued at the bar, I will give my opinion on
the general, as well as the particular, question made. I lay no
stress on the circumstances so much relied on, that the defendants
named themselves on their card, "carriers by land and navigation; "
that was introduced in order to advertise the public that they would
carry the whole distance from London to the most extreme point,
including, in several places, intervals by land between one navigable
cut and another; this, therefore, could have no reference to the
article of carriage from the navigation at Manchester to the plain-
tiffs' warehouse. On the point of law, the rule is too clear to admit
of any doubt; the only question is respecting the application of the
facts in this case to it. Whether at the time when the accident
happened the goods were in the custody of the defendants as com-
mon carriers ? because if they were, by the strict rules of the law
the defendants are responsible, carriers being insurers in all cases
except in two. That the plaintiffs' goods were in the custody of
the defendants as carriers, when they were navigated on their own
canal, there is no doubt ; it is equally clear that they were so during
the time when they were on the Duke of Bridgewater's canal, which
is open to the public, they paying the Duke tonnage on it; it is as
598 CAEKIBKS OF GOODS.
clear that when the goods arrived at Manchester, they were unloaded
with due care and circumspection, and deposited in the Duke of
Bridge water's warehouse; after this a further act was to be done,
the goods were to have been taken away in carts, but not by the
defendants, for, though they formerly kept carts and carried away
the goods of their customers to their respective houses, for some
time past they have ceased to have any concern with the carts, or to
derive any advantage from cartage whatever; the carts themselves
and all the benefits arising from that part of the business belonging
to Hibbert. If indeed there had been any fraud in this transaction,
as if the defendants had induced the public to believe that they
would be responsible in all cases, and, in order to excuse themselves,
had relied on some secret agreement between them and Hibbert,
that might have varied the case; but in the first place we cannot
presume fraud, and in the next, there are no facts in the case from
which we could presume it. If the defendants here be liable, con-
sider how far the liability of carriers will be extended : it will affect
the owners of ships bringing goods from foreign countries to mer-
chants in London; are they bound to carry the goods to the ware-
houses of the merchants here, or will they not have discharged their
duty on landing them at the wharf to which they generally come ?
It would be strange, indeed, if the owners of a West Indiaman were
held liable for any accident that happened to goods brought by them
to England, after having landed them at their usual wharf. The
instance of game, which has been mentioned at the bar, shows the
general sense and understanding of the public on this subject. The
different claims of the respective persons concerned are separately
marked on the direction. The carrier who receives a certain sum
for carrying the game, is not bound, iu consideration of that sum,
to deliver the goods; he has performed his duty when he has
brought the game to the inn where he puts up ; then the business of
the porter begins. I am not aware that it has ever been decided
that it is the duty of the carrier to deliver such goods at the house
of every individual person to whom they are directed; if it has, the
action brought by Mr. Price against the keeper of the Bell Inn was
misconceived ; it should have been brought against the carrier, and
not the innkeeper; and yet it did not occur to the defendants'
counsel, in that case, to make such an objection. When goods are
sent by a coach, a letter of advice should also be sent to the person
to whom they are directed that he may send for them : or the price
which the porter expects to receive for delivering them will induce
such porter to carry them ; but the carriage and porterage constitute
distinct charges.
In this case, however, there is one peculiar circumstance, which
makes it unnecessary to decide the general question, and that is the
charge made by the defendants in one of their bills for the cartage
at Manchester; for that charge the defendants undertook to deliver
DELIVERY BY CARRIER. 599
the goods. Therefore, without deciding the general question, I
think the plaintiffs are entitled to the verdict which they have
obtained. On the general point, I have great doubts ; the leaning
of my mind at present is, that carriers are not liable to the extent
contended for.
AsHHUBST, J. I am glad to find one circumstance which puts the'
case out of all doubt; namely, that one of the bills contains a charge
for the wharfage and cartage ; which is decisive to show that in this
ease the liability of the defendants continued until the goods were
delivered. Had it not beea for this circumstance, I should have
desired further time to consider the case. The inclination of my
opinion on the general question is, that a carrier is bound to deliver
the goods to the person to whom they are directed. A contrary
decision would be highly inconvenient, and would open the door to
fraud; for if the liability of a carrier were to cease when he had
brought the goods to any inn where he might choose to put up his
coach, and a parcel containing plate or jewels, brought by him, were
lost before it was delivered to the owner, the latter would only have
a remedy against a common porter. It has been said, however, that
it is the practice of many persons to send to the inn for their goods;
but that does not prove that the carrier is not bound to deliver them,
if they do not send. If the owner choose to send for his goods,
that merely discharges the carrier from his liability in that case ; it
only dispenses with the general obligation thrown by the law upon
the carrier; but it does not apply to the other cases where that
obligation is not dispensed with. But' on this question I do not
mean to give any decided opinion.
BuLLEK, J. Upon the general question my opinion coincides with
that given by my brother Ashhurst ; and according to the defendants'
own argument great inconveniences would result to the public from
adopting any other rule. According to their argument, there must
be two contracts in all cases where goods are sent by a coach or a
wagon ; but I think the same argument tends to establish the neces-
sity of three, — one with the carrier, another with the innkeeper, and
a third with the porter. But in fact there is but one contract : there
is nothing like any contract or even communication between any
other person than the owner of the goods and the carrier; the carrier
is bound to deliver the goods, and the person who actually delivers
them acts as the servant of the carrier. This does not militate
against the decision in the action alluded to against the innkeeper.
In general it happens that the innkeeper in London has some interest
or concern in the coaches and wagons that put up at his house ; in
those cases he is liable as carrier; but even if this fact were not
proved in that case, the porter was considered as the servant of the
innkeeper; and if the latter insisted, by his servant, that he would
not part with the game until he had received more than he was
entitled to, he was a wrong-doer and liable to an action of trover.
600 CARRIERS OF GOODS.
It has been said too, that the place of a porter is valuable, and is the
subject of a purchase ; but who sells the place ? Who agrees with
him that he shall be the porter ? Not the person to whom the goods
are sent, but the carrier and the innkeeper, whom I consider as the
same person. But if the innkeeper have no share in the profits of
the carriage, and receives the goods for the purpose of delivering
them to the owners, then the innkeeper is the servant of the carrier
as well as the porter. Therefore, whether there be the innkeeper and
the porter, or the porter only, the carrier is liable in all cases where
the goods are lost after they get into the hands of the innkeeper or
porter, because they are delivered to those persons with the consent,
and as the servants, of the carrier. It does not appear to me that
the difficulties suggested respecting foreign ships exist. When
goods are brought here from foreign countries, they are brought
under a bill of lading, which is merely an undertaking to carry from
port to port. A ship trading from one port to another has not the
means of carrying the goods on land ; and, according to the estab-
lished course of trade, a delivery on the usual wharf is such a
delivery as will discharge the carrier.
In this case, however, I have not the least doubt. The expres-
sion in the card, circulated by the defendants, "carriers by land
and navigation," cannot indeed have much weight for the reason
given ; but I rely on the charge which the defendants compelled the
plaintiffs to pay before they would engage to deliver the goods.
Hibbert was originally a servant to the defendants; and though he
has since, by agreement with them, undertaken the cartage on his
own account, and received the whole profits of it himself, that can-
not affect third persons. The different proprietors may divide the
profits among themselves in any way they choose, but they cannot
by their own agreement with each other exonerate themselves from
their liability to the owner of the goods. The carriers have the
direction of the goods, and are responsible for them until they are
delivered to the owner ; and here the defendants insisted on receiv-
ing a certain sum of money for the whole expense of carrying and
delivering, including the identical charge of cartage, before they
would take the goods into their vessel. If the carrier and porter
were to make separate contracts with the owner of the goods, the
latter would at least have the option of sending his own carts to
bring away his goods ; whereas here the defendants put the goods
into the Duke of Bridgewater's warehouse at once, in order to send
them afterwards to the plaintiffs by a particular cart of their own.
The defendants say, however, that they are warehouse-men as well
as carriers. That they may fill those two different characters at
different times, I am ready to admit; but I deny that they can be
both warehouse-men and carriers at the same instant. In this case
they received the goods in the capacity of carriers; and, as the
engagement was to carry and deliver them, the goods remained in
DELIVERY BY CAKKIEK. 601
their custody as carriers the whole time. The case of Garside
against these defendants is perfectly distinguishable from the
present: there the engagement on the part of the defendants was
merely to carry the goods to Manchester; and, having discharged
their duty in carrying them to that place, their liability ceased. It
was proved in that case, that if the defendants had had the means
of forwarding the goods from Manchester to Stockport, they were
ready to have delivered them to the Stockport carrier ; but no such
carrier being then arrived, what were the defendants to do? Theyj
had carried the goods to the place of delivery according to their'
contract, and there being no one there ready to receive them, the
next thing to be done was to deposit them in a place of safe custody, I
and then their contract was at an end. But in this case the contract
was not only to carry, but to deliver, the goods at Manchester; and
the plaintiffs had not the option of taking them from the quay
before they were put into the warehouse by the side of the canal.
The preference given by the defendants to Hibbert, respecting the
cartage, is also a material circumstance: it is like the case of an
innkeeper, who agrees with his head .hostler, that the latter shall
supply the customers with post-horses ; in which case, if goods be
lost, the innkeeper is liable, because he holds himself out to the
public as the responsible person, and his engagement with his ser-
vants cannot vary the contract between him and the public. So, in
this case Hibbert was the servant of the defendants, and the goods
were still in the custody of the defendants as carriers, at the time
when the fire happened.
Geosb, J. The question in this cause is. Whether the plaintiff's
goods, when they were consumed by the fire, were or were not in
the custody of the defendants as common carriers? Undoubtedly
they were so, unless the defendants had, according to their under-
taking, delivered them to the plaintiffs. And then arises the
material question, Whether the delivery of the goods at the ware-
house at Manchester were a delivery to the plaintiffs? It seems to
me that upon the circumstances of this case it cannot be considered
to be a delivery to them. Whether it be or be not a delivery, may
depend on the general custom of the trade, or the particular usage
which has prevailed between the parties themselves. As to the
general custom, it is a strong circumstance against the defendants
that the cotton merchants have never been accustomed to send their
own carts for their goods, but those goods have been sent to their
respective owners either by carts belonging to, or procured by, the
defendants. And in the present case the particular transaction is
dercisive against the defendants ; for the cartage was demanded of,
and paid by, the plaintiffs, before the goods were put on board the
defendants' vessel; and from that circumstance the defendants
undertook to deliver the goods at the place where the carts were to
carry them. They did not deliver them at that place ; the delivery
602 CAEEIEKS OF GOODS.
at the warehouse was not a delivery to the plaintifis according to.
this contract. So much for the circumstances of this case, which
leave no room for doubt. On the general question of law I am not
so perfectly clear, and if it had been necessary to have decided this
case on the general law, I should have desired further time to con-
sider of it. As far, however, as I have considered this case, the
strong inclination of my opinion is, that the defendants would be
liable as common carriers. The law, which makes carriers answer-
able as insurers, is indeed a hard law ; but it is founded on wisdom,
and was established to prevent fraud. But it seems to me, that it
would be of little importance to determine that carriers were liable
as insurers, unless they were also bound to see that the goods were
carried home to their place of destination; since as many frauds
may be practised in the delivery as in the carriage of them. In
general the carrier appoints a porter who provides a cart for the
purpose of delivering the goods ; but it would be open to an infinity
of frauds, if the carrier could discharge himself of his responsibility
by delivering them to a common porter, a person of no substance, a
beggar, of whose name the owner of the goods never heard, and
against whom, in the event of the goods being lost, there could be
no substantial remedy. In this case the carriers fixed on the par-
ticular warehouse at which the goods were deposited on their arrival
at Manchester, and made an agreement with their own servant
Hibbert, respecting the cartage. The defendants, therefore, ought
to be answerable for the acts of those persons whom they nominate.
With respect to the case of Garside against this company ; there the
goods were delivered at least as far as the defendants were bound to
deliver them. The case of foreign goods brought to this country
depends on the custom of the trade, of which the persons engaged
in it are supposed to be cognizant : by the general custom the liabil-
ity of ship-carriers is at an end when the goods are landed at the
usual wharf. On the particular circumstances of this case I am
clearly of opinion that the verdict is right. And on the general
question of law, I do not mean to be bound by the opinion I have
now given, though at present I think that common carriers are
answerable if the goods be lost at any time before they are delivered
to the owners. Rule discharged.
BALDWIN, Plaintiff in Error, v. AMERICAN EXPRESS
COMPANY, Defendant in Error.
23 lU. 197. 1859.
This was an action of assumpsit brought at the April Term of the
Cook County Circuit Court by the plaintiff in error, to recover the
value of a package of money which the defendant, as a common
DELIVEKY BY CARRIER. 603
carrier, undertook to convey from Chicago, Illinois, to Madison,
Wisconsin, and there to be delivered to D. J. Baldwin, or his
authorized agents, and which undertaking the said defendant failed
to perform.
Bebesb, J. The question in this case is, was there suificient
evidence of a delivery of this package, or of an offer to deliver, as
will discharge the liability of the express company as a common
carrier, or change it into the liability of a depository simply.
There is no count in the declaration against the defendant, charg-
ing any other contract with it than that as a common carrier, and
consequently, all evidence in relation to the security of the safe, or
the absence of a night watch, is out of the question. The defendant
can only be liable as a common carrier, and in no other character on
this declaration. We do not consider there is any offer to deliver
this package either to the ofiS.cers of the Dane County Bank or to
Flowers, or to any one in his employment authorized to receive it,
proved.
The testimony of Douglas, the agent of the express company,
taken in connection with that of Memhard, the messenger, of Tread-
way, one of the employees of the bank, and of Brown, the cashier
of the bank, and of Willis, the clerk of Flowers, all go to show that
the package was not ever tendered by Douglas to either of them,
and he shows most clearly that the package was at no time ready for
'delivery, either to the bank or to Flowers, for he says it was the
custom at the express office to enter the packages received in a
delivery book, which is also the receipt book, and by which book
they deliver to consignees, who sign a receipt in this delivery book.
Now this package was never entered on this book, and of course
was not ready for delivery.
The bank had no opportunity to refuse to receive the package,
for it was not offered to any officer of the bank. One or more of
them was informed there was such a package there for Baldwin,
but though the bank office was not five steps distant,- and in the
same building with the express office, the express agent did not
take it to the bank, and there offer to deliver it. It was not offered
to Flowers, or his clerk, at his place of business. The clerk was
merely told by the messenger when making his rounds, there was
a package for Baldwin at the office, and the clerk said he would
"go round and see about it." When at the office, the package was
not offered to him, and if it had been, he would not have been
authorized to receive it at the office, it not having been entered on
the delivery book, and the custom of the express company being
shown to be, at Madison, to deliver by that book to the consignees
in person, or to their authorized agent, at their place of business.
An offer to deliver at the express office , if that was proved, under
such circumstances, amounted to nothing.
Mr. Fargo, the general agent of this company, says, " we deliver
604 CAKEIEKS OF GOODS.
goods actually to the person, or by notice," by which we would
understand, that at important towns on their routes, and at the ter-
mination of their routes at important towns, they deliver personally;
at way-stations by notice, and by depositing the goods or packages
in a safe receptacle, if that be the known custom of the com-
pany. Such a custom may be reasonable, and therefore legal, and
if well-established, parties will be presumed as having contracted
with reference to it; but at small stations, where the business
will not justify them in keeping a special delivery agent, prompt
notice should be given to the consignee, in order to discharge them
from the strict liability of common carriers. Mr. Van Vleet, the
check clerk in the United States express office, says that "the
general method of conducting an express business is to take receipts
in a receipt book, which is called the delivery book." This was
the custom, as proved by Douglas of the defendants, at Madison.
The cases cited by defendant's counsel, of vessels and railroad
companies delivering goods at their landings or depots with or with-
out notice, cannot meet such a case as this, where the undertaking
is to deliver in person.
It is the settled doctrine of England and of this country, that
there must be an actual delivery to the proper person, at his resi-
dence or place of business, and in no other way can he discharge
himself of his responsibility as a common carrier, except by proving
that he has performed such engagement, or has been excused from
the performance of it, or been prevented by the act of God or a public
enemy.
Stephenson v. Hart, 4 Bing. 476; Garnett v. Willan, 6 Barn. &
Aid. 53; DufE v. Budd, 3 Brod. & Bing. 177; Hyde v. The Naviga-
tion Company, from the Trent to the Mersey, 5 T. E. 389 [596] ; 2
Kent Com. 604; Gibson v. Culver, 17 Wend. 305; Eagle v. White,
6 Wharton, 505; Moore v. Sheindine, 2 Har. & McHen. 453; Chick-
ering v. Eorolm, 4 Mass. 453; Young v. Smith, 3 Dana, 92.
It is necessary, in order to give one security to property, this
rigid rule should obtain, and it has for years been enforced against
common carriers. They are considered as insurers, and are under
that responsibility; and to prevent litigation, and avoid the neces-
sity of going into the examination of matters difficult to be unrav-
elled, the law very justly, in case of loss, presumes against them.
The ru-le being so rigorous, they are entitled to demand, and do
demand, a compensation for their services in full proportion, at
least, to the risks incurred. The company in this case have shown
no excuse for the non-delivery of the package. The facts and the
law are against them. We have not the opportunity to examine the
case of Marshall et al. v. Henry Wells et al., in 6 Wisconsin, 7
Wis. 1, re:ferred to by defendant's counsel, in which this company
prevailed, as is said, upon the same state of facts upon which we
have adjudicated. We are inclined to think there must have been
DELIVERY BY CARRIER. 605
some circumstance in that case not found in this, which determined
the recovery. It may be the proof in that case showed the entry of
the package on the delivery book, and an offer at the bank perhaps,
after bank hours, and a refusal to receive it on that account, or
some other controlling fact not appearing in this record.
If not so, then we can only say, we differ from the Supreme Court
of Wisconsin in our view of the law upon the facts presented.
The judgment of the Circuit Court is reversed, and the cause
remanded.
PACKAED V. EARL.
113 Mass. 280. 1873.
Tort against the defendants as common carriers for the loss of a
trunk and its contents, intrusted to them to be carried from Provi-
dence, Rhode Island, to West Mansfield, Massachusetts, and to be
there delivered to the plaintiff.
At the trial in the Superior Court, before Pitman, J., it appeared
that the defendants were express carriers over the line of the Boston
& Providence Railroad from Providence to Boston, and intermediate
stations; that the trunk was delivered to them at their office in
Providence, on Saturday, March 2, 1872, to be carried by them as
expressmen to the plaintiff at West Mansfield, a station on the
railroad ; that it was marked " Henry M. Packard, West Mansfield ; "
that no special directions as to the delivery were given; that the
plaintiff did business in Wrentham, during the week, and was
accustomed to spend Sundays at his father's house, about one-half
of a mile from the West Mansfield station; that the Boston & Provi-
dence Railroad Company had had a depot at West Mansfield for
about twenty years, where some of their trains had stopped for
receiving and leaving passengers and merchandise ; that the defend-
ants and other express carriers on the line of the railroad had been
accustomed to deliver and receive at that station, parcels, carried
and to be carried by them employing the station agent and switch-
tender as their agents ; that the amount of express business there
was very small; that no messenger had ever been employed there by
any express carriers for the delivery of goods ; that it had been the
uniform' course of business of all express carriers to deliver all
goods and parcels destined for that place to the station agent, who
kept them in the baggage-room, notified the consignees of their
arrival, and delivered them when called for at the station.
Endicott, J. It was the duty of the defendants, as common
carriers of parcels, to deliver the trunk to the plaintiff personally or
at his residence at West Mansfield, and until such delivery their
liability as carriers continued. This liability they undertook to
limit by proof of usage in their business to leave packages sent to
606
CAEKIEKS OF GOODS.
West Mansfield at the station, with notice to the consignee as a sub-
stitute for personal delivery. This was not a general usage of such
a character, that a presumption of knowledge arises by mere force
of existence, and which enters into and becomes part of the agree-
ment of the parties. It was a particular usage, local in its applica-
tion and character, and confined to this station, and, in order to bind
the plaintiff, it must be proved that he knew it when he made' the
contract with the defendants to carry the trunk. The instructions
on this point were sufiiciently favorable to the defendants. Stevens
V. Eeeves, 9 Pick. 198; Berkshire Woolen Co. v. Proctor, 7
Gush, 417.
JExceptions overruled.
WITBECK, Eespondent, v. HOLLAND, Teeasueeb of the
Ameeioan Express Company, Appellant.
45 N. Y. 13. 1871.
Appeal from the judgment of the General Term of the Supreme
Court in the fourth judicial district, affirming the judgment for the
plaintiff, entered upon the report of the referee.
This action was tried before a referee, who found that the
American Express Company was a joint stock association engaged
in the general express business. That the plaintiff was a soldier on
Hart's Island, N. Y., who, having received his bounty money on the
3d of December, 1864, took $320 of it to the office of the Adams
Express Company, on that island, where it was counted, put in an
envelope, sealed and addressed to "Martin Witbeck, Schenectady,
N. Y.," delivered to the agent of the company who gave the plain-
tiff a receipt acknowledging the receipt of the package, "upon the
special acceptance and agreement, that this company is to forward
the same to its agent, nearest and most convenient to destination
only, and there to deliver the same to other parties to complete the
transportation, such delivery to terminate all liability of this com-
pany for such package," etc.
The package was delivered by the Adams Express Company on the
5th December, 1864, to the American Express Company at its office
in New York, and a receipt was given to the Adams Express
Company as follows : —
Received, New York, December 5, 1864, of Adams Express Company
(per bills), in good order, the following articles set opposite their respective
ARTICLES.
Dollars
Cents.
Consignee.
Where
from.
Destination.
Amount
charged.
By whom
received.
Pck.
S320
Martin
Witbeck.
H. I.
Schenectady,
N.Y.
$1.75
Myers.
DELIVERY BY CA.KEIEE. 607
Myers was tlie agent of the American Express Company at New-
York. The plaintiff, December 8, 1864, enclosed the receipt in a
letter to his brother, Daniel Witbeck, who resided at Schenectady,
which letter and receipt were received by Daniel Witbeck as an
advertised letter about the njiddle of February, 1865.
There was at the time no contract or business connection between
the Adams Express Company and the American Express Company,
except that they took parcels, goods, etc., for each other for trans-
portation and delivery along their respective routes of business.
The American Express Company delivered the package to its local
agent at Schenectady, December 6, 1864. Martin Witbeck, the con-
signee of said package, resided with his wife at Schenectady, at the
time of the arrival of the package at Schenectady, and until after
January 14, following.
The agent of the American Express Company did not know Martin
Witbeck, and, when the package arrived, looked at the directory
and did not find his name in it. The next day the agent filled up
a notice and addressed it to Martin Whitbeck, Schenectady, and
deposited it in the post-oflEice. Between one and three days there-
after, the agent inquired of two men, conductors upon the N. Y.
Central Railroad, running from Schenectady to Troy, and also
inquired of John Brandt, the city treasurer of Schenectady, whether
he knew Martin Whitbeck, and they replied they did not.
The agent made no further effort to find the consignee, and the
package was deposited in the company's iron safe in its of&ce till
January 17, 1865, when the office was burglariously opened in the
night, the safe blown open, the package abstracted and stolen, and
has never been recovered.
The notice put in the post-office was not received by Martin
Witbeck, though inquiries were made several times at the post-office
while it was there, by his wife and father, for letters for themselves
and for him.
The referee decided, among other things, that the American
Express Company was bound to deliver the package to Martin
Witbeck, personally, or at his residence or place of business; that
the American Express Company did not make due effort to find
Martin Witbeck, or his residence or place of business; that the
plaintiff was entitled to judgment for f 320, with interest from
December 7, 1864.
Erom the judgment entered upon the report the defendant
appealed to the General Term, where it was affirmed, and from
such judgment of affirmance this appeal was taken.
Gkoveb, J. The facts found by the referee showed, beyond
question, that the defendant was a common carrier, and responsible,
as such, for property delivered to it for transportation. This find,
ing was warranted by the evidence. It was engaged in transacting
a general express business. It is insisted by the counsel for the
608 CAEEIERS OF GOODS.
defendant that its liability was restricted by the contract, proved by
the receipt given by the Adams Express Company to the plaintiff,
upon the receipt of the money from him by it at Hart's Island.
From this receipt, it appears that the latter company undertook to
forward the package to its agent nearest to its destination, there
to deliver it to other parties to complete the transportation, such
delivery to terminate all liability of that company for its passage.
There is nothing in this or any other restriction at all affecting the
liability of the defendant as a common carrier; alll the restrictions
found in the receipt are by the language limited to the liability of
the Adams Company. Indeed, were they applicable to the defend-
ant, they would not affect the liability of defendant in the action,
as they do not include the cause of the loss, unless they relieve the
carrier from the duty of delivery to the consignee. The first inquiry
is, whether it was the duty of the carrier so to deliver the package
in the absence of any restriction. Carriers by land are bound to
deliver or tender the goods to the consignee at his residence or place
of business, and until this is done they are not relieved from respon-
sibility as carriers. 2 Kent's Com. 605; Angell on Carriers, § 259;
Gibson v. Culver, 17 Wend. 305; Fisk v. ISTewton, 1 Den. 45. But
when goods are safely conveyed to the place of destination, and
the consignee cannot, after reasonable effort, be found, the carrier
may discharge himself from further responsibility by depositing the
property in a suitable place for the owner. Fisk v. Newton, supra.
Carriers by vessels, boats, and railways are exempt from duty of
personal delivery. Eedfield on Railways, § 127; Thomas ■«. Boston
E. E. Co. 10 Metcalf, 472. Such carriers discharge themselves
from responsibility, as such, by transporting the goods to their
nearest business station to the residence or place of business of the
consignee, and notifying the consignee of their readiness to deliver
the goods at such station, after the lapse of a reasonable time for
him to receive them.- But this exemption does not extend to express
companies, although availing themselves of carriage by rail. Eed-
field on Eailways, § 127. These were established for the purpose of
extending to the public the advantages of personal delivery enjoyed
ia all cases of land carriage prior to the introduction of transporta-
tion by rail.
It appeared in the present case that the defendant had its vehicles
by which they carried articles to the consignee in the city of
Schenectady, which had arrived there by rail under contracts with
the company for the transportation. This is the usual course of
transacting business by such companies; were it otherwise, the
business done by these companies would be greatly diminished, as
it would be equally advantageous in many cases to have the property
transported by the railroad company. When the defendant received
the package from the Adams Company at New York, consigned to
Martin Witbeck, Schenectady, it became liable as carrier for its
DELIVERY BY CAKRIBK. 609
carriage to Schenectady and its delivery to Witbeck there, if with
reasonable diligence he could be found. The performance of this
entire service was contracted for by its receipt so addressed, and
had the defendant received it from the plaintiff at New York and
given him a receipt for its transportation, the obligation to make
personal delivery at Schenectady would have been incurred. The
only remaining question arises upon the exception taken to the find-
ing by the referee, as a fact, that the defendant did not make due
effort, nor use due diligence to find said Martin Witbeck, the con-
signee of said package. It is insisted by the counsel for the appel-
lant, that the question, what is reasonable diligence, is one of law.
That may be so, when there is no conflict in the evidence, or con-
troversy as to the facts to be inferred therefrom. But that is not
this case, nor will most cases of this class be of that description.
In most, if not all, the question will be mixed, both of fact and
law. In the present case the finding of the referee is clearly cor-
rect. The diligence, which the law required of the defendant, was
such as a prudent man would have used in an important business
affair of his own. The evidence shows that the defendant was so
inattentive as to mistake the surname of the consignee. Although
the package was addressed to Witbeck, all its inquiries were made
for Whitbeck. This may have prevented their finding him. It
further appeared that its inquiries were confined to a few persons
in the vicinity of its place of business, and that by these it obtained
information of other persons of a like surname, one of whom was
the father of the consignee. Surely inquiry should have been made
of these persons, and had it been so made, delivery would have been
made and the loss would never have occurred. There is nothing in
the point that the negligence of the plaintiff in not giving further
information as to the residence of the consignee contributed to the
loss. The defendant accepted the package, addressed as it was, and
failed in the performance of the duty imposed thereby. For such
failure it is responsible, irrespective of the right of the plaintiff to
give additional information. I have examined the various excep-
tions taken by the appellant to the rulings of the referee as to the
competency of evidence. The question whether the consignee was
well known in Schenectady was proper. The plaintiff had the
right to prove this fact if he could. But the testimony given in
answer was not material. None of the testimony excepted to could
have prejudiced the defendant. The judgment appealed from must
be affirmed.
All the judges concurring, judgment affirmed.
610 CABEIERS OF GOODS.
HUTCHINSON v. UNITED STATES EXPEESS CO.
63 W. Va. 128 ; 59 S. E. R. 949; 14 L. E. A. N. S. 393. 1908.
PoFFENBAEGEB, J. Ill an action pending in the circuit court of
Braxton County, on appeal from a judgment of a justice's court, in
which H. B. Hutchinson was plaintiff and the United States Express
Company defendant, for the recovery of $128.60, the value of a pack-
age of furs stolen from the express company, a demurrer to the evi-
dence was sustained, and judgment rendered for the defendant, of
which Hutchinson complains here.
Hutchinson, a dealer in furs for a number of years, residing in the
vicinity of Cogar, a town in Braxton County, frequently, if not gener-
ally, sent out through the country one or more buyers who bought
furs at such prices as could be agreed upon, and turned them over to
him at certain fixed prices, retaining the difference as compensation
for the service. These buyers graded the pelts according to quality
and shipped them by express to him at Cogar, and, if the packages so
shipped were sinall and of little value, he took them from the express
oflS.ce, but, if they were of considerable size, he regraded and repacked
them for the market and consigned them to a dealer in New York,
without removing them from the express-ofBce premises. Deliveries
were never made to him by the express company, but it was the prac-
tice to notify him by mail of the arrival of packages. The furs for
the value of which action was brought had been collected by B. F.
Blake, who resided on Hutchinson's farm, and by him delivered to the
express messenger on the train at a place called Carl siding, on Satur-
day, February 4, 1903, consigned to Hutchinson at Cogar. Blake took
passage on the same train for the same place, and, on alighting from
the train at Cogar, saw the package of furs. This was after 4 o'clock
p. M. of that day. No notice of the arrival of the package was given
to Hutchinson by the express company, and he knew nothing of it,
until late Monday evening, February 6th, when Blake came to his
house and informed him of the fact. Had notice been friven him by
mail, it would probably have been received at about the same time.
That Monday was a bad, stormy day, the ground being covered with
a heavy, soft, melting snow, and the stream lying between Hutchin-
son's place and Cogar somewhat swollen. He probably would not
have called for the package on that day, had he been aware of its
arrival. On the next day, he and Blake together went to Cogar, and
found that, on the preceding night, the railway station in which the
express oflSce was, and in the freight room of which the package had
been left, had been burglarized and the package stolen. It further
appears from the testimony of Hutchinson himself that, had he found
DELIVERY BY CARRIER. 611
the package there, he would not have taken it away, but would have
regraded it and immediately shipped it to New York, it being one of
considerable size and value. Whether, at the time the package was
taken, it was in the hands of the express company as a common car-
rier, or merely as warehouseman, is a question of the gravest impor-
tance. A common carrier is exempted from liability for loss of goods
intrusted to it for carriage, in only a few instances, and, subject to
these exceptions, it is an insurer of them to the extent of their value.
Ordinarily, it can be jelieved only on the ground of loss or damage by
act of God, vis major, or inevitable accident. These are things
against which prudence and care cannot avail, and, for that reason,
the law exonerates common carriers from liability for loss attributable
to them. Moore, Carr. pp. 219, 224, inclusive; Hutchinson, Carr.
§ 265 ; 6 Cyc. Law & Proc. pp. 376, 377 ; 5 Am. & Eng. Enc. Law,
p. 233. The exceptions are classified by Hutchinson as follows : (1)
Those arising from what is known as the act of God ; (2) those caused
by the public enemy ; (3) those arising from the act of the public au-
thority ; (4) those arising from the act of the shipper ; and (5) those
arising from the inherent nature of the goods. Loss by theft or rob-
bery is not within any of these exceptions. " The common-law liar
bility of a common carrier, as an insurer of goods carried, did not
extend to losses caused by the acts of public enemies ; and the term
' enemies ' was understood to mean the public enemies of the country
of the carrier, and not of the owner of the goods, and did not include
thieves, robbers, or those engaged in mobs, riots, or insurrections."
Moore, Carr. 225; Hutchinson, Carr. § 316. A much lighter degree
•of responsibility rests upon the carrier, after the function of carriage
is deemed by the law to have been completed and its relation to the
property and the owner thereof has assumed the character of that of
mere custodian. After the goods have reached their destination and
the lapse of a reasonable time, within which the owner is expected to
remove them, the carrier's liability respecting them is measured by the
legal principles applicable to warehousemen. Under these principles,
a loss not due to the negligence of the custodian or his failure to exer-
cise such care and diligence for their safety as an ordinarily prudent
3)erson would bestow upon his own property is excusable. He is not
an insurer, and not liable for loss by robbery or theft if he has not con-
tributed to it by negligence. Berry v. West Virginia & P. E. Co. 44
W. Va. 538, 67 Am. St. Eep. 781, 30 S. E. 143 ; Hutchinson, Carr.
§ 685 ; Moore, Carr. 181. These are general principles more directly
.applicable to such carriers as railway companies and steamship lines,
which, ordinarily, do hot make deliveries to the consignees, but, on
the arrival of the goods at the points of destination, store them in
warehouses until called for. But the law of warehousemen sometimes
governs the duty, rights, and liabilities of express companies. These
are common carriers, like railroads, steamships, and other instrumen-
talities for the transportation of goods generally ; and, as such, they
612 CAKKIEBS OF GOODS.
are insurers so long as tlie goods remain in their hands as carriers,
12 Am. & Eng. Enc. Law, p. 546; Hutchinson, Carr. § 80. Good
reason for rigidly applying to express companies the law of common
carriers is their profession and representation of superiority over other
carriers in respect to facilities, whereby they obtain both preference
and higher compensation. They claim to have specialized and limited
their business, and so enabled themselves to bestow upon property
intrusted to them a degree of care that a general carrier cannot give,,
and to have employed agents and instrumentalities of peculiar and
superior fitness for handling certain classes of commercial articles in
transportation, so that, on the whole, they excel in respect to safety
and economy in time.
By the general rule of law, express companies are required to
deliver the goods to the consignee in person, or his authorized agent,.
at his residence or place of business. The duty of carriage is not
terminated on their arrival at the point of destination, that is, at the
station or agency to which they are directed. The duty of carriage
and the liability as carrier continue beyond this point to the residence
or place of business of the consignee. 12 Am. & Eng. Enc. Law,
p. 550; 6 Cyc. Law & Proc. p. 454; Hutchinson, Carr. § 716. In
this respect, express companies differ from other public carriers.
But this rule is subject to some qualifications. If a diligent and
honest effort to find the consignee or any person authorized to receive
the goods has proved unavailing, failure to make actual delivery is.
excused, and the company may then deposit the goods in a reasonably
safe warehouse. Erom the time of such deposit, its liability as carrier
ceases, and it holds the property in the capacity of warehouseman.
12 Am. & Eng. Enc. Law, p. 551 ; 6 Cyc. Law & Proc. p. 454 ; Van
Zile, Bailments & Carriers, § 567; Hasse v. American Exp. Co. 94
Mich. 133, 34 Am. St. Eep. 328, 53 N. W. 918. Of course, the com-
mencement and termination of liability as carrier may be limited and
controlled to some extent by special contract. How far this may be
done, it is unnecessary here to inquire. The general rule of law is
also relaxed, varied, or set aside by usage or custom established by the
company, and recognized and acquiesced in by the public. The
maintenance of delivery messengers and vehicles involves an expense
wholly out of proportion to the business transacted at small way
stations, and, at such places, a custom or usage generally obtains
under which deliveries are not made elsewhere than at the express
company's office. The consignee is expected to call at the office for
his package after having been notified of its arrival. Even in cities,
delivery districts are sometimes established, beyond the limits of
which deliveries are not made. Hutchinson, Carr. §§ 717, 718; 12
Am. & Eng. Enc. Law, p. 653. The duty to give notice, usually by
mail, is founded upon the usage or custom, dispensing with the
general rule requiring delivery at the residence or place of business of
the consignee. Bearing this in mind, the conclusion that the express
.DELIVERY BY CARRIER. 613
company is bound to give notice of the arrival of tlie goods is not
inconsistent with the holding in Berry v. West Virginia & P. E. Co.
supra, declaring that a railroad company is not required to give
notice to the consignee of such arrival. The rules of law prescribing
the duties of railroad companies and express companies differ in this
respect, and the difference is founded upon the additional burden
placed by the law upon express companies to carry the goods from
the office to which they are consigned to the residence or place of
business of the consignee. But for the usage to the contrary, the
liability as carrier would not end until after such delivery or an
unsuccessful effort to effect it. The general rule is only partially set
aside by the usage. Instead of making such actual delivery, the
company gives a notice of the arrival, and so substitutes for actual
delivery a sort of constructive delivery. It necessarily follows that
a reasonable time must be allowed for removal of the goods after
notice has been given. Hutchinson, Carr. § 716; Southern Exp. Co.
V. Holland, 109 Ala. 362, 19 So. 66; Laporte v. Wells, F. & Co.'s
Express, 23 App. Div. 267, 48 N. Y. Supp. 292. The notice must
be given promptly on the arrival of the goods. Baldwin v. Ameri-
can Exp. Co. 23 111. 197, 74 Am. Dec. 190 [602] ; American Mer-
chants' Union Exp. Co. v. Schier, 55 111. 140.
But the heavy burden of insurance, incident to the contract of
carriage, is not extended farther than is necessary to enforce good
faith on the part of the carrier, and secure reasonable safety of trans-
portation. While in transit, property is wholly in the hands of the
carrier and beyond the personal control of the owner, who can neither
know to what perils the carrier subjects it, nor take any measures for
its safety, and the opportunities of the carriage contract for imposi-
tion by fraud and collusion are very great. These and other con-
siderations form the basis of the insurance feature of the contract
and, when these reasons for its continuation have ceased by the com-
pletion of the contract of carriage, the liability as insurer terminates.
From its exceptional and arbitrary character, it necessarily follows
that the party in whose favor it is imposed must be diligent in the
performance of every duty imposed upon him by law or the special
contract. The insurance is not primary or special in character, but
merely incidental to the main duty of carriage. It begins and ends
with the duty of carriage, and the incidental time necessary to receiv-
ing the goods for shipment and delivering them after shipment. It
has no independent life or being. The owner of the goods cannot
consult his mere convenience in respect to time of removal after
notice. He must remove promptly, though the weather be inclement
and the roads difficult for travel. " A consignee must promptly and
diligently remove the goods in a reasonable time after arrival, without
regard to distance from the depot, or the means of removal or conven-
ience of the consignee, else the carrier will cease to be further liable
as carrier." Berry v. West Virginia & P. E.. Co. cited. While thia
614 CABRiEES or goods;
is railroad law, it clearly applies to an express company after it has
fully performed its duty. In Blumenthal v. Brainerd, 38 Vt. 402, 91
Am. Dec. 350, the plaintiff having called for his package, and found
it ready, left it, intending to call for it the next morning. In the
night it was stolen. The court held the carrier not liable, since the
box -was in its care as warehouseman only. In Lemke v. Chicago,
M. & St. P. E. Co. 39 Wis. 449, goods arrived at their destination
on Saturday evening, and were destroyed by an accidental fire on the
Tuesday following, at about noon ; and the court held that the owner
had had a reasonable time in which to remove them. It was further
held that consignee's absence from the town during most of the time
elapsing between the arrival and loss of the goods was immaterial.
In Chalk v. Charlotte, C. & A. B. Co. 85 N. C. 423, the goods were
left on the platform of the depot for the convenience of the con-
signees, and remained there for nearly two days. The consignees
had notice of the arrival, and had paid the freight charges, and with
knowledge of the place of deposit, biit failed to remove the goods on
account of inability to secure a drayman for the purpose. On the
afternoon of the second day, the goods were destroyed by an acci-
dental fire, and the court adjudged the railroad company not liable.
A consignee having had notice of the arrival of goods on Saturday
afternoon, and neglected to call for them until the following Wednes-
day, has had more than a reasonable time, and can hold the carrier
liable as warehouseman only. Wynantskill Knitting Co. v. Murray,
90 Hun, 654, 36 N. Y. Supp. 26. Three full days to remove after
notice of arrival is a reasonable time, and the carrier cannot be held
as an insurer after the lapse of such a period. Tarbell v. Royal Exch.
Shipping Co. 110 N. Y. 170, 6 Am. St. Eep. 350, 17 N. E. 721.
As no notice of the arrival of the package was given in this instance,
it is insisted, in the argument for plaintiff in error, in view of the
principles stated, that liability as carrier had not ceased, and the
demurrer should have been overruled. But there is another principle
which must not be overlooked. The omission of duty, relied upon as
fixing upon the carrier liability for the loss, must have been the prox-
imate cause thereof. In Berry v. West Virginia & P. R. Co. this
principle was applied against the carrier so as to hold it for the loss.
The consignee, having called upon the agent for the goods, was
told, contrary to the fact, that they had not arrived. But for this
false statement, they would have been removed and saved from loss
by fire. The false statement by the agent continued or extended the
liability of the railroad company as carrier and insurer of the property.
Had he truthfully informed the consignee that they had arrived, and
they had then been left in the warehouse of the defendant, liability
as a carrier would have ceased, and the loss would have fallen upon
the consignee. Application of the same principle here would exon-
erate the express company; for, though no notice was given, the
result would have been the same, if it had been. The plaintiff him-
DELIVERY BY CARRIER. 615
self testifies that, if a postal card addressed to him, notifying him of
the arrival of the package, had been placed in the postoffice, he would
not have received it earlier than Monday evening, the time at which
he had actual notice from another source. Hence, he would not have
called for the package until the next day. To excuse the carrier
from liability on the ground that the cause of the loss was the act of
God, or the like, it must appear that such act was the proximate, not
the remote, cause of the loss. 6 Cyc. Law & Proc. p. 382. Con-
versely, if the proximate cause is an act of God, the carrier is relieved,
although, preceding the loss, he had been negligent, and, but for that
negligence, the goods would not have been exposed to the peril result-
ing in their destruction. Ibid. This is probably subject to the
qualification that the negligence must not have contributed to the
loss. The rule is also applicable where the loss is due to a cause
from which the carrier has exempted itself by a valid contract.
Eichmond & D. E. Co. v. Benson, 96 Ga. 203, 22 Am. St. Eep. 446,
12 S. E, 357; Missouri, K. & T. E. Co. v. McFadden Bros. 89 Tex.
138, 33 S. W. 853. The package in question here remained in the
care of the express company at Cogar from Saturday afternoon, about
4 : 30 P.M., until Monday night. Had a notice of its arrival been de-
posited in the postoffice on Saturday afternoon, the company would
then have performed all it was incumbent upon it to do. The con-
signee might well have been expected to obtain the notice on that
evening or Monday morning, and then, on Monday, to have called for
and received his package, and either taken it from the ofilce or re-
shipped it ; and, in the latter case, it would, on Monday night, have
been in transit for New York, and thus escaped loss. Though no
such notice was placed in the postoffice, this fact neither occasioned
nor contributed to the failure of the consignee to call for his package
on Monday. By his own testimony, it appears that he would not
have received the notice ; for, owing to the inclemency of the weather
and the bad condition of the road, he did not go to the postoffice on
Monday. Failure to send the notice did not, therefore, prejudice or
injure him in any sense or degree, and was not the cause of his loss.
To hold the express company liable would virtually amount to an in-
fliction of punishment for an omission of duty which in no way in-
jured the plaintiff. We feel bound, therefore, in obedience to the
general rule of law which precludes relief against wrongs or failures
of duty, not prejudicial or productive of injury, — mere technical
wrongs, — to say that recovery could not be sustained on the mere
failure to give notice of the arrival of the package. To this it may
be replied that, if the consignee had gone to the postoffice for his mail
on Saturday evening or Monday, his mission would have been fruit-
less, as regards notice of the arrival of his package ; but, had he done
this, his position would have been different from what it is. He
could then have said that the omission of duty on the part of the ex-
press company had wrought injury to him Affirmed.
616 CARKIERS OF GOODS.
NORWAY PLAINS CO. v. BOSTON AND MAINE E. K.
1 Gray (Mass.) 263. 1854.
Action of contract upon the agreement of the defendants to
transport certain goods from Eochester, N. H., to Boston.
Shaw, C. J. The liability of carriers of goods by railroads, the
grounds and precise extent and limits of their responsibility, are
coming to be subjects of great interest and importance to the com-
munity. It is a new mode of transportation, in some respects like
the transportation by ships, lighters , and canal-boats on water, and
in others like that by wagons on land ; but in some respects it differs
from both. Though the practice is new, the law, by which the
rights and obligations of owners, consignees, and of the carriers
themselves are to be governed, is old and well established. It is
one of the great merits and advantages of the common law, that,
instead of a series of detailed practical rules, established by positive
provisions, and adapted to the precise circumstances of particular
cases, which would become obsolete and fail when the practice and
course of business, to which they apply, should cease or change, the
common law consists of a few broad and comprehensive principles,
founded on reason, natural justice, and enlightened public policy,
modified and adapted to the circumstances of all the particular cases
which fall within it. These general principles of equity and policy
are rendered precise , specific, and adapted to practical use, by usage,
which is the proof of their general fitness and common convenience,
but still more by judicial exposition; so that when, in a course of
judicial proceeding, by tribunals of the highest authority, the general
rule has been modified, limited, and applied, according to particular
cases, such judicial exposition, when well settled and acquiesced in,
becomes itself a precedent, and forms a rule of law for future cases,
under like circumstances. The effect of this expansive and compre-
hensive character of the common law is, that whilst it has its foun-
dations in the principles of equity, natural justice, and that general
convenience which is public policy ; although these general consider-
ations would be too vague and uncertain for practical purposes, in
the various and complicated cases, of daily occurrence, in the busi-
ness of an active community, — yet the rules of the common law, so
far as cases have arisen and practices actually grown up, are ren-
dered, in a good degree, precise and certain, for practical purposes,
by usage and judicial precedent. Another consequence of this
expansive character of the common law is, that when new practices
spring up, new combinations of facts arise, and cases are presented
for which there is no precedent in judicial decision, they must be
DELIVEET BY CAEEIEE. 617
governed by the general principle, applicable to cases most nearly
analogous, but modified and adapted to new circumstances by con-
siderations of fitness and propriety, of reason and justice, which
grow out of those circumstances. The consequence of this state of
the law is that when a new practice or new course of business arises,
the rights and duties of parties are not without a law to govern
them ; the general considerations of reason, justice, and policy, which
underlie the particular rules of the common law, will still apply,
modified and adapted, by the same considerations, to the new cir-
cumstances. If these are such as give rise to controversy and liti-
gation, they soon, like previous cases, come to be settled by judicial
exposition, and the principles thus settled soon come to have the
€fEect of precise and practical rules. Therefore, although steam,
boats and railroads are but of yesterday, yet the principles which
govern the rights and duties of carriers of passengers, and also those
which regulate the rights and duties of carriers of goods, and of the
owners of goods carried, have a deep and established foundation in
the common law, subject only to such modifications as new circum-
stances may render necessary and mutually beneficial.
The present is an action brought to recover the value of two par-
cels of merchandise, forwarded by the plaintiffs to Boston, in the
cars of the defendants. These goods were described in two receipts
of the defendants, dated at Rochester, N. H., the one October 31st,
1850, and the other November 2d, 1850.
By the facts agreed it appears that the goods specified in the first
receipt were delivered at Rochester, and received into the cars, and
arrived in Boston seasonably on Saturday, the 2d of November, and
were then taken from the cars, and placed in the depot or warehouse
of the defendants ; that no special notice of their arrival was given
to the plaintiffs or their agent; but that the fact was known to
Ames, a truckman, who was their authorized agent, employed to
receive and remove the goods, that they were ready for delivery, at
least as early as Monday morning, the 4th of November, and that
he might then have received them.
The goods specified in the other receipt were forwarded to Boston
on Monday, the 4th of November; the cars arrived late; Ames, the
truckman, knew from inspection of the waybill that the goods were
on the train, and waited for them some time, but could not con-
veniently receive them that afternoon, in season to deliver them at
the places to which they were directed, and for that reason did not
take them ; in the course of the afternoon they were taken from the
cars and placed on the platform within the depot; at the usual time
at that season of the year, the doors were closed. In the course of
the night the depot accidentally took fire and was burnt down, and
the goods were destroyed. The fire was not caused by lightning;
nor was it attributable to any default, negligence, or want of due care
on the part of the railroad corporation, or their agents or servants.
618 CAEEIEES OF GOODS.
We understand the merchandise depot to be a warehouse, suitably
enclosed and secured against the weather, thieves, and other like
ordinary dangers, with suitable persons to attend it, with doors to
be closed and locked during the night, like other warehouses, used
for the storage of merchandise ; that it is furnished with tracks, on
which the loaded cars run directly into the depot to be unloaded;
that there are platforms on the sides of the track, on which the goods
are first placed; that if not immediately called for and taken by the
consignees, they are separated according to their marks and direc-
tions, and placed by themselves in suitable situations within the
depot, there to remain a reasonable and convenient time, without
additional charge, until called for by parties entitled to receive
them.
The question is whether, under these circumstances, the defendants
are liable.
That railroad companies are authorized by law to make roads as
public highways, to lay down tracks, place cars upon them, and carry
goods for hire, are circumstances which bring them within all the
rules of the common law, and make them eminently common car-
riers. Their iron roads, though built, in the first instance, by indi-
vidual capital, are yet regarded as public roads, required by common
convenience and necessity, and their allowance by public authority
can be only justified on that ground. The general principle has
been uniformly so decided in England and in this country; and the
point is, to ascertain the precise limits of their liability. This was
done to a certain extent in this court, in a recent case, with which,
as far as it goes, we are entirely satisfied. Thomas v. Boston &
Providence Eailroad, 10 Met. 472.
Being liable as common carriers, the rule of the common law
attaches to them, that they are liable for losses occurring from any
accident which may befall the goods, during the transit, except
those arising from the act of God or a public enemy. It is not
necessary now to inquire into the weight of those considerations of
reason and policy, on which the rule is founded, nor to consider
what casualty may be held to result from an act of God, or a public
enemy; because the present case does not turn on any such distinc-
tion. It is sufficient, therefore, to state and affirm the general rule.
In the present case, the loss resulted from a fire, of which there is
no ground to suggest that it was an act of God ; and it is equally
clear that it did not result from any default or negligence on the
part of the company, though the goods remained in their custody.
If, at the time of the loss, they were liable as common carriers,
they must abide by the loss; because, as common carriers, they
were bound as insurers to take the risk of fire, not caused by the act
of God, and in such case no question of default or negligence can
arise. Proof that it was from a cause for which they, neither by
themselves nor their servants, were in any degree chargeable, could
DELIVERY BY CAKEIEE. 619
amount to no defence, and would therefore be inadmissible in evi-
dence. If, on the contrary, the transit was at an end, if the defend-
ants had ceased to have possession of the goods as common carriers,
and held them in another capacity, as warehousemen, then they
were responsible only for the care and diligence which the law
attaches to that relation ; and this does not extend to a loss by acci-
dental fire, not caused by the default or negligence of themselves,
or of servants, agents, or others, for whom they are responsible.
The question then is, when and by what act the transit of the
goods terminated. It was contended, in the present case, that, in
the absence of express proof of contract or usage to the contrary,
the carrier of goods by land is bound to deliver them to the con-
signee, and that his obligation as carrier does not cease till such
delivery.
This rule applies, and may very properly apply, to the case of
goods transported by wagon and other vehicles, traversing the com-
mon highways and streets, and which therefore can deliver the
goods at the houses of the respective consignees. But it cannot
apply to railroads, whose line of movement and point of termination
are locally fixed. The nature of the transportation, though on land,
is much more like that by sea, in this respect, that from the very
nature of the case, the merchandise can only be transported along
one line, and delivered at its termination, or at some fixed place by
its side, at some intermediate point. The rule in regard to ships
is very exactly stated in the opinion of Buller, J., in Hyde v. Trent
& Mersey Navigation, 6 T. E. 397 [596]. "A ship trading from one
port to another has not the means of carrying the goods on land ; and,
according to the established course of trade, a delivery on the usual
wharf is such a delivery as will discharge the carrier."
Another peculiarity of transportation by railroad is that the car
cannot leave the track, or line of rails, on which it moves ; a freight
train moves with rapidity, and makes very frequent journeys, and
a loaded car, whilst it stands on the track, necessarily prevents
other trains from passing or coming to the same place; of course,
it is essential to the accommodation and convenience of all persons
interested, that a loaded car, on its arrival at its destination, should
be unloaded, and that all the goods carried on it, to whomsoever
they may belong, or whatever may be their destination, should be
discharged as soon and as rapidly as it can be done with safety.
The car may then pass on to give place to others, to be discharged
m like manner. From this necessary condition of the business, and
from the practice of these transportation companies to have plat-
forms on which to place goods from the cars, in the first instance,
and warehouse accommodation by which they may be securely stored,
the goods of each consignment by themselves, in accessible places,
ready to be delivered, the court are of opinion that the duty assumed
by the railroad corporation is — and this, being known to owners of
620 CAEEIEES OF GOODS.
goods forwarded, must, in the absence of proof to the contrary, be
presumed to be assented to by them, so as to constitute the implied
contract between them — that they will carry the goods safely to
the place of destination, and there discharge them on the platform,
and then and there deliver them to the consignee or party entitled
to receive them, if he is there ready to take them forthwith; or if
the consignee is not there ready to take them, then to place them
securely and keep them safely a reasonable time, ready to be
delivered when called for. This, it appears to us, is the spirit and
legal effect of the public duty of the carriers, and of the contract
between the parties when not altered or modified by special agree-
ment, the effect and operation of which need not here be considered.
This we consider to be one entire contract for hire; and although
there is no separate charge for storage, yet the freight to be paid,
fixed by the company as a compensation for the whole service, is
paid as well for the temporary storage as for the carriage. This
renders both the services, as well the absolute undertaking for the
carriage, as the contingent undertaking for the storage, to be ser-
vices undertaken to be done for hire and reward. From this view of
the duty and implied contract of the carriers by railroad, we think
there result two distinct liabilities : first, that of common carriers,
and afterwards that of keepers for hire, or warehouse keepers ; the
obligations of each of which are regulated by law.
We may then say, in the case of goods transported by railroad,
either that it is not the duty of the company as common carriers,
to deliver the goods to the consignee, which is more strictly con-
formable to the truth of the facts ; or, in analogy to the old rule that
delivery is necessary, it may be said that delivery by themselves as
common carriers, to themselves as keepers for hire, conformably to
the agreement of both parties, is a delivery which discharges their
responsibility as common carriers. If they are chargeable after the
goods have been landed and stored, the liability is one of a very
different character, — one which binds them only to stand to losses
occasioned by their fault or negligence. Indeed, the same doctrine
is distinctly laid down in Thomas v. Boston & Providence Hailroad,
10 Met. 472, with the same limitation. The point that the same
company, under one and the same contract, may be subject to dis-
tinct duties, for a failure in which they may be liable to different
degrees of responsibility, will result from a comparison of the two
cases of Garside v. Trent & Mersey Navigation, 4 T. K. 681, and
Hyde v. Trent & Mersey Navigation, 5 T. E. 389 [596]. See also
Van Santvoord v. St. John, 6 Hill, 157, and McHenry v. Philadel-
phia, Wilmington & Baltimore Eailroad, 4 Harring. 448.
The company, having received an adequate compensation for the
entire service, if they store the goods, are paid for that service;
they are depositaries for hire, and of course responsible for the
security and fitness of the place, and all precautions necessary to
DELIVEEY BY CAREIEK. 621
the^afety of the goods, and for ordinary c^re and attention of theii
servants and agents, in keeping and delivering them when called
for. This enforces the liability of common carriers to the extent to
which it has been uniformly carried by the common law, so far as
the reason and principle of the rule rendered it fit and applicable,
that is, during the transit ; and affords a reasonable security to the
owner of goods for their safety, until actually taken into his own
custody.
The principle, thus adopted, is not new; many cases might be
cited; one or two will be sufficient. Where a consignee of goods,
sent by a common carrier to London, had no warehouse of his own,
but was accustomed to leave the goods in the wagon office, or ware-
house of the common carrier, it was held, that the transit was at
an end, when the goods were received and placed in the warehouse.
Eow V. Pickford, 8 Taunt. 83. Though this was a case of stoppage
in transitu, it decides the principle. But another case in the same
volume is more in point. In re "Webb, 8 Taunt. 443. Common car-
riers agreed to carry wool from London to Frome, under a stipula-
tion that when the consignees had not room in their own store to
receive it, the carriers, without additional charge, would retain it
in their own warehouse, until the consignor was ready to receive it.
Wool thus carried, and placed in the carriers' warehouse, was
destroyed by an accidental fire; it was held that the carriers were
not liable. The court say that this was a loss which would fail on
them, as carriers, if they were acting in that character, but would
not fall on them as warehousemen.
This view of the law, applicable to railroad companies, as com-
mon'carriers of merchandise, affords a plain, precise, and practical
rule of duty, of easy application, well adapted to the security of all
persons interested; it determines that they are responsible as com-
mon carriers until the goods are removed from the cars and placed
on the platform; that if, on account of their arrival in the night, or
at any other time, when, by the usage and course of business, the
doors of the merchandise depot or warehouse are closed, or for any
other cause, they cannot then be delivered; or if, for any reason,
the consignee is not there ready to receive them, — it is the duty of
the company to store them and preserve them safely, under the
charge of competent and careful servants, ready to be delivered, and
actually deliver them when duly called for by parties authorized
and entitled to receive them; and for the performance of these
duties after the goods are delivered from the cars, the company are
liable, as warehousemen, or keepers of goods for hire.
It was argued in the present case, that the railroad company are
responsible as common carriers of goods, until they have given
notice to consignees of the arrival of goods. The court are strongly
inclined to the opinion, that in regard to the transportation of goods
by railroad, as the business is generally conducted in this countryj
622 CARRIERS OF GOODS.
this rule does not apply.. The immediate and safe storage of the
goods on arrival, in warehouses provided by the railroad company,
and without additional expense, seems to be a substitute better
adapted to the convenience of both parties. The arrivals of goods,
at the larger places to which goods are thus sent, are so numerous,
frequent, and various in kind, that it would be nearly impossible to
send special notice to each consignee of each parcel of goods or
single article forwarded by the trains. We doubt whether this is
conformable to usage; but perhaps we have not facts enough dis-
closed in this ease to warrant an opinion on that question. As far
as the facts on this point do appear, it would seem probable that
persons frequently forwarding goods have a general agent who is
permitted to inspect the way-bills, ascertain what goods are received
for his employers, and take them as soon as convenient after their
arrival. It also seems to be the practice for persons forwarding-
goods to give notice by letter and enclose the railroad receipt, in the
nature of a bill of lading, to a consignee or agent, to warn him to
be ready to receive them. From the two specimens of the form of
receipt given by these companies, produced in the present case, we
should doubt whether the name of any consignee or agent is usually
specified in the receipt and on the way-bill. The course seems to
be to specify the marks and numbers, so that the goods may be
identified by inspection and comparison with the way-bill. If it is
not usual to specify the name of a consignee in the way-bill,, as well
as on the receipt, it would be impossible for the corporation to give
notice of the arrival of each article and parcel of goods. In the two
receipts produced in this case, which are printed forms, a blank is
left for the name of a consignee, but it is not filled, and no con-
signee in either case is named. The legal effect of such a receipt
and promise to deliver no doubt is to deliver to the consignor or his;
order. If this is the usual or frequent course, it is manifest that it
would be impossible to give notice to any consignee ; the consignor
is prima facie the party to receive, and he has all the notice he can
have. But we 'have thought it unnecessary to give a more decisive
opinion on this point, for the reason, already apparent, that in these
receipts no consignee was named; and for another, equally con-
elusive, that Ames, the plaintiffs' authorized agent, had actual
notice of the arrival of both parcels of goods.
In applying these rules to the present case it is manifest that the
defendants are not liable for the loss of the goods. Those which
were forwarded on Saturday arrived in the course of that day, lay
there on Sunday and Monday, and were destroyed in the night
between Monday and Tuesday. But the length of time makes no
difference. The goods forwarded on Monday were unladen from
the cars, and placed in the depot, before the fire. Several circum-
stances are stated in the case, as to the agent's calling for them,
waiting, and at last leaving the depot before they were ready. But
DELIVERY BY CAREIER. 623
we consider them all immaterial. The argument strongly urged
was, that the responsibility of common carriers remained until the
agent of the consignee had an opportunity to take them and remove
them. But we think the rule is otherwise. It is stated, as a cir-
cumstance, that the train arrived that day at a later hour than usual.
This we think immaterial ; the corporation do not stipulate that the
goods shall arrive at any particular time. Further, from the very
necessity of the case and the exigencies of the railroad, the corpora-
tion must often avail themselves of the night, when the road is less
occupied, for passenger cars ; so that goods may arrive and be un-
laden at an unsuitable hour of the night to have the depot open for
the delivery of the goods. We think, therefore, that it would be
alike contrary to the contract of the parties and the nature of the
carriers' duty, to hold that they shall be responsible as common
carriers, until the owner has practically an opportunity to come with
his wagon and take the goods ; and it would greatly mar the sim-
plicity and efficacy of the rule, that delivery from the cars into the
depot terminates the transit; If, therefore, for any cause, the con-
signee is not at the place to receive his goods from the car as
unladen, and in consequence of this they are placed in the depot,
the transit ceases. In point of fact, the agent might have received
the second parcel of goods in the course of the afternoon on Monday,
but not early enough to be carried to the warehouses at -which he
was to deliver them ; that is, not early enough to suit his conven-
ience. But, for the reasons stated, we have thought this circum-
stance immaterial, and do not place our decision for the defendants,
in regard to this second parcel, on that ground.
Judgment for the defendants.
LEWIS V. LOUISVILLE & N. E. CO.
135 Ky. 361 ; 122 S. W. K. 184; 25 L. R. A. N. S. 938. 1909.
Carroll, J. The questions presented by this record are : When
does the duty and liability of a common carrier of goods as a carrier
cease upon the arrival of the goods at the point of destination, and
when does its duty and liability as a warehouseman begin ?
It is agreed that there was shipped to the appellant, Lewis, over the
road of the appellee company to Pineville, Kentucky, three packages
of goods that were in its warehouse at Pineville on the night of
September 16th, when the building and its contents, including this
freight, was destroyed by fire; that the fire commenced at a late
hour on the night of the 16th or an early hour on the morning
of the 17th, and was not caused, either directly or indirectly, by
624 CAKEIEES OF GOODS.
the negligence, fraud, or wrongdoing of the company, or any of its
agents, servants, or employees; that at the time of the fire, and
for some five years prior thereto, Lewis was engaged in selling goods,,
as a merchant, at a point some 25 miles distant by the nearest
traveled route from Pineville; that during this time all of the
goods and merchandise that he sold was delivered to him by the com-
pany at its Pineville station, and this fact was known to its agent at
Pineville, who also knew where Lewis lived and his postoifice address ;
that two of the packages of merchandise destroyed reached Pineville
on the 13th of September, and were placed in the company's ware-
house on that day, and the other package destroyed was placed in the
warehouse at noon on September 16th ; that neither Lewis nor anyone
for him made inquiry about or called at the warehouse for the goods,
nor was any notice of the arrival of the goods, or any of them, sent or
given by mail or otherwise to Lewis, and he did not, at the time of the
fire, have any knowledge or notice that the goods, or any of them,
were in the warehouse. It is further agreed that, on account of the
heavy trafB.c on the road, it was impossible for Lewis to know with
reasonable certainty when the goods, which were shipped from distant
points, would reach Pineville, and that the goods in question were
transported without unreasonable delay, although it appears that one
shipment that left Louisville on August 28th did not reach Pineville
until September 13th, while another package that left Louisville on
September 14th reached Pineville on September 16th, and the package
that was sent from Knoxville, which is only about half the distance
from Pineville that Louisville is, did not arrive at Pineville until
September 13th, although it was shipped on September 6th. Upon
these facts the trial court held as matter of law that the company was
not liable.
There is really no contrariety of opinion as to the difference be-
tween the liability of a common carrier and the liability of a ware-
houseman ; it being everywhere agreed that a common carrier is an
insurer of the freight delivered to it for carriage, and can only escape
liability for loss or damage to the goods by showing that the loss or
damage was caused by the act of God, or the public enemy, or by in-
herent defects in the goods. It is equally as well established that a
warehouseman is not an insurer of goods placed in his warehouse, and
is only liable for such loss or damage to the goods as is caused by his
negligence or failure to exercise ordinary care. Prom these rules it
will be seen that, if the goods in controversy were in the custody of
the company as a common carrier at the time of their destruction, it
would nevertheless be liable for their value ; while, if they were in its
custody as a warehouseman, it would not be liable, as the loss was not
occasioned by its fault or negligence. Although the liability of a
carrier and that of a warehouseman are well defined, and the distinc-
tion between them in this respect clearly pointed out in all the authori-
ties, there is wide and irreconcilable conflict concerning when the
DELIVERY BY CAERIEE. 625
liability of a common carrier as a common carrier ceases, and its lia-
bility as a warehouseman begins. In Massachusetts and other states
the rule is that when the carrier has delivered the goods at the point
of destination, removed them from its cars, and placed them in its
warehouse, its liability as a carrier immediately ceases, and thereafter
it holds the goods as a warehouseman. In New Hampshire and other
jurisdictions the rule is that the carrier continues liable as a carrier
after the goods have reached their destination, and have been placed
in the warehouse, and for a reasonable time thereafter, in which time
the consignee must remove them or otherwise the carrier will hold
them as a warehouseman. While the supreme court of New York
and other state courts of last resort hold that, unless the consignee is
present when the goods arrive, he must be notified of their arrival,
and have a reasonable time after notice in which to remove them be-
fore the liability of the carrier as a carrier ceases. Hutchinson, Carr.
3d. ed. §§ 701, 710; 4 Elliott, Eailroads, 2d ed. § 1527; note to
Denver & E. G. E. Co. v. Peterson, 97 Am. St. Eep. 76; East
Tennessee, V. & G. E. Co. v. Kelly, 91 Tenn. 699, 17 L. E. A. 691,
30 Am. St. Eep. 902, 20 S. W. 312. In this state we have no statute
on the subject, but the question we are considering has been before
this court in three cases. In Louisville, C. & L. E. Co. v. Mahan, 8
Bush, 184, and Wald v. Louisville, E. & St. L. E. Co. 92 Ky. 646, 18
S. W. 860, the point involved was what constituted a reasonable time
in which a passenger might remove from the depot the baggage that
came on the train with him. In Jeffersonville E. Co. v. Cleveland,
2 Bush, 468, the question presented was in many respects like the one
now before us, and the court, in delivering the opinion, followed what
may be called the New Hampshire rule. In that case, suit was brought
to recover the value of goods shipped by freight and destroyed by fire
on the night of April 26th, while they were in the warehouse of the
carrier at the place of destination. The goods, in the ordinary course
of transportation, should have arrived on the 20th, but, on account of
delays, they did not arrive until the evening of the 26th; and the
owner inquired at the warehouse for them on each day from the 20th
to and including the morning of the 25th. On the morning of the
26th a notice to the owner, of the fact that his goods had arrived, was
deposited in the postoffice, but not received. In the course of the
opinion the court said : " Whether the responsibility of the company,
after the arrival and storage of the goods in Detroit, was that devolved
by law on carriers or only that of depositaries, it was not necessary, in
our opinion, that the company should either give notice of the arrival
of the goods or make actual delivery of them, as is now done by ex-
press companies, in order that the liability of carriers should cease
after reasonable time had elapsed for the owner to attend and re-
remove the goods. . . . [But] the liability of railroad corporations as
common carriers for goods transported on their railroads continues
until the goods are ready to be delivered at their place of destination,
626 CAEEIEES OF GOODS.
and the owner or consignee has had reasonable opportunity of receiv-
ing and removing them. . . . What such reasonable time should be
must, in the nature of the case, when not provided for by express con-
tract, depend on the character of the freight, the distance to which it
is to be carried, and the capacity and business of the road, with such
other circumstances as would s6rve to notify the consignee of the
probable time when the goods would reach their destination, so that,
with proper watchfulness, he might receive them, and thus terminate the
carrier's responsibility as soon as practicable." Upon the facts stated,
the court held that the owner did not have a reasonable time in which
to remove the goods after their arrival, and that the carrier, at the
time of their destruction, was holding them as a carrier, and hence
liable. The liability was put upon the ground that the owner had ex-
ercised reasonable diligence to ascertain when the goods would arrive,
and, as their arrival was delayed several days after the time when they
should have reached their destination, the owner was not obliged to
continue his inquiries as to when they would come, and the notice was
not sufficient to enable him, by reasonable diligence, to remove the
goods during the day on which the notice was sent.
Although disposed towards the view that the carrier should give
notice if its desires to be relieved of its duty as a carrier, yet we are not
fully prepared to overrule the Cleveland Case on this point. This
being so, the only question left open is the one relating to reasonable
time in which to remove the goods. That the consignee should have
such time after the goods have been placed in the warehouse, we have
no doubt. When a carrier accepts freight for transportation, its duty
as a carrier does not end by merely carrying the goods in its cars to the
point of destination. It must deliver as well as carry, although by
this we do not mean that it must deliver them as express companies
do, to the home or place of business of the consignee, but it must de-
liver them at such place in or about its station as will enable the con-
signee to conveniently get them. It may, if it desires, keep them in
its cars or place them in its warehouse, but, wherever it keeps them, it
insures their safety, except against the causes mentioned, until the
consignee has reasonable time to remove them, as the delivery contem.
plated is not fully performed until the consignee has had this time
after the arrival of the goods in which to remove them. And this is
true, although the bill of lading or contract for carriage, as in this case,
provides, "property shall be at the risk of the owner from the time of
its arrival at destination, whether in the vessel, car, depot, or place of
delivery ; if not taken possession of and removed by the party entitled
thereto within twenty-four hours thereafter, shall be subject to a
reasonable charge for storage, or, at the option of the carrier, may be
removed or otherwise stored at the owner's risk and cost; " as neither
this nor any other stupulation in the contract or bill of lading will be
allowed to reduce the liability of the carrier below what it was at
common law. Our Constitution (§ 196) provides in part that "no
DELIVERY BY CAHRIEE. 627
common carrier shall be permitted to contract for relief from its
common law liability ; " and, under the common law, the duty and
liability of the common carrier was not terminated until the goods,
after the carriage, were delivered to the consignee. 2 Kent, Com. 604 ;
Moses V. Boston & M. R. Co. 24 N. H. 71, 65 Am. Dec. 222. But, as it is
not deemed reasonable to require a railway carrier of freight to deliver
the goods to the consignee at his residence or place of business, the
rule of the common law, in the interest of and for the convenience of
this class of carriers, has been modified, and now it is only required
that the delivery shall be at the point of destination, and at this place
the consignee must come for and remove his goods within a reasonable
time after their arrival, during which time the common law liability
of the carrier continues.
The question then comes up : What is a reasonable time ? How
is it to be determined ? Is it to be decided by the court, as a matter
of law, or by the jury, as a matter of fact ? Some courts hold that a
reasonable time for the consignee to remove the goods is not to be
measured by any peculiar circumstances in his own condition or situa-
tion, rendering it necessary, for his own convenience and accommoda-
tion, that he should have a longer time or better opportunity than if
he resided in the vicinity of the warehouse, and was prepared with the
means and facilities for taking the goods away ; or, to put it in another
"way, a reasonable time is such time as will enable one living in the
vicinity of the place of delivery, in the ordinary course of business,
and in the usual hours of business, to remove the goods. Moses v.
Boston & M. R. Co. 32 N. H. 623, 64 Am. Dec. 381 ; Leavenworth,
L. & G. E. Co. V. Maris, 16 Kan. 333; Wood u Crocker, 18 Wis. 346,
86 Am. Dec. 773 ; United Fruit Co. v. New York & B. Transp. Co. 104
Md. 676, 8 L. K. A. (N. S.) 240, 65 Atl. 416, 10 A. & E. Ann. Cas. 437 ;
Columbus & W. R. Co. v. Ludden, 89 Ala. 612, 7 So. 471 ; 6 Am. &
Eng. Enc. Law, pp. 263-274 ; 6 Cyc. Law & Proc. p. 445. It must be
conceded that this rule has at least the merit of easy application, and
that its adoption would solve the question of what is a reasonable
time with little difficulty. Under it the only issue of fact left open
would be the time of day the goods arrived at the station ; as, if they
arrived in time to remove them on that day in the usual hours of
business, then they must be removed on that day, or afterwards the
carrier would hold them as warehouseman ; and so, if they arrived in
the night, they must be removed in the hours of business on the fol-
lowing day. And it is manifest that, if this rule should be applied
to the case before us, the carrier would be relieved of responsibility,
even as to the package of goods that arrived at noon on the 16th, as
a person living in the vicinity of the depot could have removed this
package as well as the ones that came on the 13th, during the after-
noon of the 16th. But we do not feel disposed to follow the rule
announced. Nor was it observed in the Cleveland Case, supra. There
the goods, although they arrived on the 26th, were not destroyed until
628 CARRIERS OF GOODS.
the night of the 26th, and yet, notwithstanding the fact that the con-
signee had the entire day of the 26th in which to remove them, the
carrier was held liable as a carrier. In our opinion, the true test of
what is a reasonable time depends not on whether the consignee lives
in the vicinity of the station, or whether he could remove the goods
in. the usual hours of business on the day of their arrival, but on the
question whether or not he exercised reasonable diligence to ascertatu
when the goods would or did arrive, and reasonable diligence in their
removal, after he received, or, in the exercise of reasonable care,
should have received, notice of their arrival. If the consignee is pres-
ent, or if he has notice of the time of the arrival of his goods, or if he
is notified by the consignor that his goods have been shipped on a certain
day, and the train upon which they are shipped arrives on schedule
time, he should remove them within a reasonable time thereafter ; and,
if he fails to do so, the liability of the carrier will be reduced to that
of a warehouseman. On the other hand, if he is not present, and has
no notice of when they arrive, or there is delay in the transportation
of the goods, he should exercise reasonable diligence to inform himself
of their arrival, and have a reasonable time thereafter to remove them.
In other words, the period at which the reasonable time for removal
begins is when the consignee knows, or, in the exercise of reasonable
diligence, should know, that his goods have arrived.
In every state of case, the consignee must exercise reasonable dili-
gence to inform himself of the arrival of the goods, and, if he wishes
to hold the carrier liable as a carrier, must remove them within a
reasonable time thereafter, whether it be a day or a week. What is
reasonable diligence being, like reasonable time, a question of fact,
varying with each case, it is manifest that no fixed rule can be laid
down to measure reasonable time or reasonable diligence. What
would be reasonable in one instance would be unreasonable in another ;
and so, in these particulars, each case must be adjudged upon the
facts it presents. If the consignee is to have a reasonable time in
which to remove the goods, then it is not just that this should be
measured by his proximity to the depot, or his ability to remove the
goods on the day of their arrival. All consignees should be treated
alike, no matter whether they live close to or far from the depot. If
the consignee has exercised reasonable diligence in ascertaining when
his goods arrived, and in removing them, then he has removed them
in a reasonable time. If he has not exercised reasonable diligence in
finding out when his goods have or should have arrived, and in remov-
ing them, he has not removed them in a reasonable time. This, not-
withstanding the respect we have for the courts that define reasonable
time in the manner before stated, is, we submit, the true rule, and
that the* other definition is both illogical and unsound. How can it
be said that a consignee who does not know, and, in the exercise of
reasonable care, cannot know, that his goods had arrived, has had a
reasonable time to remove them ? How can it be said that a person
DELIVERY BY CARRIER. 629
has failed to do a thing within a reasonable time when he has no
notice that he will be required to do it ? It would be just as well to
abolish the rule of reasonable time as to say that the time when rear
sonable time commences to run is the time when the consignee had
not and could not, in the exercise of reasonable diligence, tnow of its
beginning. The test of reasonable time should not be made to turn
on whether or not the consignee might remove them on the day of
their arrival, if he can do this in the business hours of that day. To
illustrate : Under this rule, if a box of goods arrived at noon, and the
warehouse was open in the afternoon, the consignee, if present, or
notified that his goods would be sent on the train that arrived at noon,
and the train reached the station on schedule time, would have a
reasonable time in the business hours of that day to remove them.
But let us suppose that he is not present, and has no notice that his
goods have arrived, or are expected to arrive, — how can it be said that
he has had a reasonable time to remove them on the day of their arrival
when he does not, and by the exercise of reasonable diligence could
not, learn of their arrival until the following day or the day there-
after ? Or let us suppose that the consignee has notice that his goods
have been shipped at a certain time, and, in the ordinary course, will
reach their destination at a certain hour, and the consignee is at the
station when the train is due, but it is delayed, and does not come
until the next day or the day following, — must the consignee wait
until its arrival ? Or let us suppose that the goods, in the course of
shipment, are in some way delayed, and do not come for a week, —
must he wait in attendance at the depot ? These examples, which
are of common occurrence, illustrate that the rule requiring the goods
to be removed on the day of their arrival, if this can be done in the
usual business hours, is not the proper test of what constitutes a rea-
sonable time in which the consignee must remove his goods after their
arrival. Nor are we wanting in authority for the views we have
expressed as to what constitutes reasonable time. In Eedfield on the
Law of Railways, 6th ed. § 175, the learned author, speaking upon
this point, says : " Upon principle it seems more reasonable to con-
clude that the responsibility does not terminate until the owner or
consignee, by watchfulness, has had, or might have had, an opportu-
nity to remove them. . . . There is, then, no very good reason, as it
seems to us, why the responsibility of the carrier should not continue
until the owner or consignee, by the use of diligence might have
removed the goods. The warehousing seems to be with that intent,
and for that purpose. And if we assume, as we must, we think, that
there is no obligation upon railway carriers to give notice of the
arrival of the goods, there does still seem to be reason and justice in
giving the consignee time and opportunity to remove the goods by
the exercise of the proper watchfulness, before the responsibility of
the carrier ends." We appreciate the fact that the rule we have
announced is open to objection on account of its uncertainty and the
630 CAKKIERS OF GOODS.
difficulty of its application ; but it is not more uncertain or difficult
of application than any other matter involving like questions of fact.
The decisions of many of the most important business affairs that
come before the courts turn upon the question of what is reasonable
time and what is reasonable diligence. These two factors enter into
cases that come up every day. Nor does the rule impose any particu-
lar hardship on the carrier, as it can, by giving notice to the consignee
of the arrival of his goods, reduce its liability to that of a warehouse-
man, if the consignee, within a reasonable time after the reception of
the notice, does not remove them
The judgment of the lower court is reversed.
TAULKNEE v. HAET.
82 N. Y. 413. 1880.
Appeal from judgment of the General Term of the Superior Court
of the city of New York, in favor of defendants, entered upon a case
submitted under 1279 of the Code of Civil Procedure. (Eeported
below, 12 J. & S. 471.)
The question submitted was as to the liability of defendants,
common carriers, for the loss of certain goods.
MiLLEK, J. The goods, for the value of which the plaintiffs
claim to recover in this action, were shipped at New York, to be
transported to and were consigned to them at Boston; and they
were called for on the day of their arrival, but a delivery was
refused until the next day, because it was not convenient for the
defendant to deliver them. They were unloaded from the cars the
same afternoon, but too late for delivery, and were placed during
the night of that day in the defendant's warehouse, and before the
plaintiffs had an opportunity to make another demand the ware-
house, together with the goods, was destroyed by fire. The plain-
tiffs were doing business both in New York and Boston, and all
resided in Boston except one of them, who lived in New Jersey.
The contract for transportation of the goods was made in New York,
with the Norwich and New York Transportation Company, in be-
half of itself and the connecting carriers to Boston, and they were
to be conveyed to Boston. The last part of the route they were
placed in ears upon the road, operated by the defendants.
The rule as to the liability of carriers under the facts stated is
well established by the law merchant, and the authorities are numer-
ous which sustain the position that the carrier is bound to pay for
the loss of the goods destroyed. It is his duty not only to transport
the goods, but he has not performed his entire contract as a com-
DELIVERY BY CAKKIEK. 631
mon cari'ier until he has delivered the goods, or ofEered to deliver
them to the consignee, or has done what is equivalent, by giving to
the consignee, if he can be found, due notice after their arrival, and
by furnishing him a reasonable time thereafter to take charge of or
to remove the same. Gatliffe v. Bourne, 4 Bing. N. C. 314; s. c.,,
11 Clarke & Fin. 45; Price v. Powell, 3 Comst. 322; Zinn v. N. J..
St. Co., 49 N. Y. 442; Sherman v. Hudson Eiver R. E. Co., 64 id.
254; The Sultana v. Chapman, 5 Wis. 454; Sleade v. Payne, 14
La. Ann. 453; Graves v. H. & N. Y. St. Co., 38 Conn. 143; C. &
E. I. E. E. V. Warren, 16 111. 502; Moses v. B. & M. E. E., 32
N. H. 523; The Tangier, 1 Clifford, 396.
In view of the rule laid down in the authorities cited, there would
appear to be no serious question as to the plaintiffs' claim to recover
for the value of the goods actually destroyed. The right of the
plaintiffs to recover is resisted, and exemption for liability is
claimed by reason of the decisions of the courts of the State of
Massachusetts, holding adversely to the rule which is established
at common law, arid which, as we have seen, has been generally
adopted and sustained in this country and in England. The deci-
sions of that State established that the proprietors of a railroad,
who transport goods for hire and deposit them in a warehouse until
the owner or consignee has a reasonable time to take them away,
are not liable as common carriers for their loss by fire without neg-
ligence or default on their part; that the railroad corporation ceases
to be a common carrier, and becomes a warehouseman, as a matter
of law, when it has completed the duty of transportation, and has
assumed the position of a warehouseman, as a matter of fact, and
according to the usages and necessities of the business in which it is
engaged. Norway Plains Co. v. B. & M. E. E. Co., 1 Gray, 263 [616] ;
Eice V. Hart, 118 Mass. 201. These decisions are entitled to the
highest respect; but, like all other adjudications, are the subject of
revisal, limitation, and even to be overruled in the court in which
they originated. The same right exists in other courts to consider
and pass upon the same question; and how far they should be
allowed to control their decisions in a cause of action where the con-
tract was made in one State, and performed in part in another State
where the law has been decided differently, is the question now to
be determined. It was long since held in this State that we could
not' break in upon the settled principles of our commercial law to
accommodate them to those of any country. Aymar v. Sheldon,
12 Wend. 439. This principle is well established in regard to
all contracts of a commercial character; and so far as may be
practicable, it is of no little importance that the rule should
be harmonious and uniform. Contracts of this description have
been the subject of frequent consideration in the Federal courts,
and the decisions have been direct and clear, that while the
decisions of local courts in reference to matters purely local in the
632 CARRIERS OF GOODS.
States are obligatory throughout the country, they are not con.
elusive and final as to questions of commercial law. In Swift v.
Tyson, 16 Peters, 19, the court say: "The true interpretation and
effect of contracts and other instruments of a commercial nature
are to be sought, not in the decisions of local tribunals, but
in the general principles and doctrines of commercial jurispru-
dence. Undoubtedly the decisions of the local tribunals upon such
subjects are entitled to, and will receive, the most deliberate atten-
tion and respect of this court; but they cannot furnish positive
rules or conclusive authority by which our own judgments are to be
bound up and governed." In a recent case, Oates v. Nat. Bank, 100
U. S. 239, the State court in Alabama held that by the rules of the
commercial law, one who receives a promissory note as collateral
security for a pre-existing debt does not become a purchaser for
value in the course of business, so as to cut off equities which the
maker may have against the payee ; and on appeal it was held that
the courts of the United States are not bound by the decisions of
the State courts upon questions of commercial law. This principle
has been repeatedly upheld in other cases. Meade v. Beale, Taney,
339, 360; Austen v. Miller, 6 McLean, 153; The Ship George,
Olcott, 89 ; Pine Grove v. Talcott, 19 Wall. 666 ; Robinson v. Com.
Ins. Co., 3 Sumn. 220. In Meade v. Beale {supra) it is said : "Where
the State court does not decide a case upon the particular law of
the State or established usage, but upon general principles of com-
mercial law, if it falls into error, that erroneous decision is not
regarded as conclusive."
From the authorities cited it follows that if the higher court in
the State of Massachusetts has made an erroneous decision, wrong
in principle and contrary to a well-settled rule of commercial law
in the English courts, in the Supreme Court of the United States,
and many of the State courts, and especially adverse to the decisions
of this court, it should not be followed here; and it is not only the
right, but the duty of this court to adhere to its own decisions.
Any other rule would lead to confusion in regard to a principle of
general application; for if the doctrine of the Massachusetts Court
is to prevail, the right of the aggrieved party might depend upon the
fact whether the action was brought in the Federal or State court;
and if the action in this case had been brought in the Circuit Court
of the United States for the State of Massachusetts, the plaintiffs
would be entitled to recover, while in the State court a different
result would prevail. Eichardson v. Goddard, 23 How. [U. S.] 38;
The Tangier, 1 Cliffprd, 396; Moses v. B. & M. E. E., 32 N. H. 523.
This court has the same authority to disregard the Massachusetts
decisions, in a case involving a commercial question, as that court
had to establish a rule adverse to the decisions of this court, as was
done, virtually, in the cases cited. Nor is it important to determine
whether, upon a reconsideration, any different rule would have
DELIVEKY BY CAEEIEE. 633
been adopted. It is sufficient to say that in reference to a law not
of a single State, but afEecting the commerce of the world, the deci-
sions of the courts of such State are not obligatory upon the courts
of other States or countries.
The learned counsel for the respondents argues that, as the
delivery of the goods was to be made in Boston, where they were
destroyed, the law of Massachusetts should control in respect to
such delivery; and we are referred to several decisions which, it is
claimed, sustain this doctrine. Barter v. Wheeler, 49 N. H. 9;
Gray v. Jackson, 51 id. 9; Knowlton v. Erie Eailway Co., 19 Ohio
St. 260; M. & St. P. E. Co. v. Smith, 7 Chicago Leg. News, 174.
While these cases uphold the general principle, that where the con- ,
tract is to be performed partly in one country and partly in another
country, each portion is to be interpreted according to the laws of
the country where it is to be performed, — a rule which is fully
sustained by authority (see Story on Cont., § 655; Pope v. Nicker-
son, 3 Story, 474, 485; Scudder v. Union Nat. Bank, 1 Otto, 413;
Pomeroy v. Ainsworth, 22 Barb. 118), none of them hold that where
a great principle of commercial law has been established, which is
universally acknowledged and acquiesced in, that the law announced
by the courts of a single State can overturn that principle and con-
trol the decisions of the courts of another and a distant State. No
such question arose in any of the cases cited ; and the answer to the
position taken, that the decision of the local courts should control,
is that such, decisions are not, under the circumstances, a correct
interpretation of the rule of law in such a case, and are not tli|
accepted law of the land. It is erroneous and must fall, for the)
reason that it cannot be upheld, either upon principle or authority.
Nor are any of the authorities cited applicable to the case con-
sidered. As to those cited from the State of New Hampshire, it
may be remarked that the precise question was presented in Moses
V. B. & M. E. E. Co., 32 N. H. 523, where the goods were trans-
ported to Boston and burned before the consignee had an opportunity
to remove them ; and the authority of the Massachusetts cases was
repudiated, and it was said that by the rule there laid down the
salutary principles of the common law are sacrificed to considera-
tions of convenience and expediency, in the simplicity and precise
and practical character of the rule which it established. The case
of Curtis V. D., L. & W. E. E. Co., 74 N. Y. 116, involved a ques-
tion as to the effect of a local statute of Pennsylvania, limiting the
•defendant's liability, upon the law applicable to such a case in the
State of New York. It was held that the lex loci contractus did not
■control, the place of delivery being a material and important part of
the contract and in contemplation of the parties at the time. It was
said that it was a reasonable inference that it was entered into with
reference to the laws of the place where delivered. The case last
cited did not involve any such question as is here presented, as there
634 CAKKIERS OF GOODS.
was no conflict in reference to the decisions of the courts, and no
question made as to any general rule of commercial law being
involved, as is the case here.
If there had been a positive statute of the State of Massachusetts
providing that the carrier's liability should cease when the goods,
had been deposited at the end of the route in a suitable warehouse,,
a different question would arise, and it might well be contended
that, as the question arose under the statute of that State, the ques-
tion of liability would depend upon the construction placed upon
such statute by the court in Massachusetts, in accordance with the
decisions of the court of this State and the Supreme Court of the'
United States. Jessup v. Carnegie, 80 N. Y. 441; Mills v. M. C.
E. E. Co., 45 id. 626; Whitford v. Panama E. E. Co., 23 id. 465;,
Elmendorf v. Taylor, 10 Wheat. 152; Shelby v. Guy, 11 id. 367;
Town of Ottawa v. Perkins, 94 U. S. 260; Fairfield v. County of
Gallatin, MS. Op. U. S. Sup. Ct. But no such question arises in
the case at bar. So, also, if the Massachusetts cases were decisive
as to the law upon the question considered, it might well be urged
that the plaintiff entered into the contract having them in view.
But, as we have seen, they are not conclusive, and the real point is,
what is the common-law rule? And the courts of Massachusetts
having decided one way, and the courts of the United States and of
this State, as well as those of other States and countries, differently,
it is open, in a case arising in the courts of this State, to determine
the true rule. It is the same subject, and involves the precise point,
whether the common law shall prevail, and whether the decision of
the State court is erroneous. The question is not as to the applica-
tion of a local statute or a local law, but one of a comprehensive
character, affecting a general rule applicable to all contracts of the
nature of the one now involved.
The fact that the defendants were not carriers between New York
and Boston, but only for a portion of the route, and that they made
no contract directly with the plaintiffs, cannot affect the question as-
to the liability upon the contract made on their behalf for transpor-
tation over their portion of the route. As the original contract was-
made in New York for a through transportation, the connecting car^
rier was entitled to all the benefits of the contract, as well as to any
special exemptions it contained. Maghee v. C. & A. E. E. Co.,
45 N. Y. 514, 521; Lamb v. The Same, 46 id. 271. For the same
reason they would be subject to all the obligations incurred thereby.
The contract between the first carrier and the connecting carrier is.
deemed to have been made for the shipper's benefit, and is ratified
by bringing the suit. Green v. Clark, 2 Kern. 343. And each of
the connecting lines is responsible for injuries on its own line,
except where there is an express contract for carriage beyond the
terminus. Condict v. G. T. E. E. Co., 54 N. Y. 600; Eoot v. G>
W. E. E. Co., 45 id. 524; Sherman v. H. E. E. E. Co., 64 id. 260.
DELIVERY BY CARRIER. 635
The contract, being made in New York, is binding upon the plain-
tiffs, the shippers, and the defendants, the connecting carriers, so
far as they undertook to perform it; and although their liability-
arose at the end of their route, yet it was under the contract as made
in New York.
We are referred to a number of cases by the learned counsel for
the respondents, to sustain the proposition that the general obliga-
tion created by the law of the place of delivery, in respect to the
mode of delivery by a carrier, controls ; and it is urged that when
by the law of the place of delivery the carrier had a right to store
the goods, the nature of the bailment is changed, and the carrier is
relieved from the responsibility originally assumed, and the liability
of a warehouseman is substituted. We do not deem it necessary to
controvert the correctness of the rule laid down, where it does not
interfere with the general principles and doctrines of commercial
jurisprudence ; but there is no case cited which holds that the court
of another State, where an action is pending, may not adhere to its
own rules and disregard the decision of a State which overrules a
great principle. As we have seen, the United States Supreme Court
have refused to sustain the decisions of the State court when vio-
lating a great principle ; and the rule is a sound one which upholds
the position that the decisions of the State court should not be fol-
lowed to such an extent as to make a sacrifice of truth, justice, and
law. Gelpcke v. Dubuque, 1 Wall. 175, 205 ; Olcott v. Supervisors,
16 id. 678. It is upon a principle of comity, that one State recog-
nizes and admits the operation of the laws of another Sbate within
its own jurisdiction, where such law is not contrary to its own
rules of policy, or to abstract right, or the promotion of justice and
morality; but this principle should never be carried to the extent of
holding that a suitor in its courts is debarred from the maintenance
of his just rights according to its well-established decisions and
laws, and the general principles of the common law which it has
fully recognized and which are almost universally regarded and
accepted, in reference to the question presented, wherever the com-
mon law prevails. No rule of comity demands any such sacrifice in
the business intercourse between the people of the different States,
and great injustice might follow by yielding to such a principle, and
in sustaining a rule of law which was wrong in itself, hostile to the
policy and law of the State where the contract was made, and adverse
to the general current of authority elsewhere. King v. Sarria,
69 N. Y. 24.
In the consideration and determination of the case before us, it is
worthy of notice that the contract made in New York, as the record
shows, was, in effect, in conformity with the usual course of busi-
ness, that the goods were to be delivered to the consignees. In Rice
V. Hart, supra, the contract was merely to transport to Boston, and
vfas silent as to delivery. It may, perhaps, be doubted whether the
636 CAKEIEKS OF GOODS.
agreement to deliver to the plaintiffs as consignees was satisfied by
a delivery to the defendants, especially after a demand by the plain,
tiffs and a refusal to deliver to them.
If the shipper was entitled to the benefit of a contract to deliver
the goods to the consignees without any restriction, it is not entirely
clear that the rule laid down in the Massachusetts decisions is
applicable. Without, however, expressing a decisive opinion upon
the question last discussed, for the reasons already apparent, the
rule adopted in the Massachusetts cases cannot be sustained. It
should not be overlooked that the point presented does not involve
solely a question as to a local law, but part of a system of general
commercial law. That the court in Massachusetts had decided the
law contrary to what it was is not controlling; for it maybe assumed,
even if the parties had knowledge of the decision, that they knew
it was contrary to the current of authority in similar cases, and con-
tracted, having in view the law as it actually existed. Like an
unconstitutional law, void of itself, the decision was not the law,
and is not to be regarded as authority for that reason.
The judgment should be reversed, and judgment should be ren-
dered in favor of the plaintiffs for $6,156.95, with interest from
November 7, 1872, with costs.*
KANSAS CITY, T. S. & M. E. CO. v. McGAHEY.
63 Ark. 344 ; 38 S. W. R. 659 ; 36 L. R. A. 781 ; 58 Am. St. R. 111. 1897.
Battle, J. " Baggage," as defined by Lord Chief Justice Cockbum
in Maerow v. Great Western Eailway Co., L. K. 6 Q. B. 612, is
" whatever the passenger takes with him for his personal use or con-
venience, according to the habits or wants of the particular class to
which he belongs, either with reference to the immediate necessities
or to the ultimate purpose of the journey." As said by Mr. Justice
Field in Hannibal Eailroad v. Swift, 12 Wall. 272 [342], the contract
of the carrier to carry a passenger, as to baggage, " only implies an
undertaking to transport such a limited quantity of articles as are
ordinarily taken by travelers for their personal use and convenience,
such quantity depending, of course, upon the station of the party, the
object and length of his journey, and many other considerations."
Under the statutes of this state, " each passenger who shall pay fare
, . . shall be entitled to have transported along with him, on the same
train, and without additional charge, one hundred and fifty pounds of
baggage, to consist of such articles as are usually carried by ordinary
persons when traveling." Sand. & H. Dig., sec. 6216. With the ex-
1 Ace. : Eailroad Co. v. Hatch, 52 Ohio St., 408, 89 N. E. R. 1042.
DELIVERY BY CARRIER. 637
ception of the amount of the baggage, the statute is substantially the
contract of the carrier with the passenger, as stated in Hannibal Eail-
road Co. v. Swift, supra.
What is baggage, within the rule of the carrier's liability, is often
diffteult to determine. It depends, as already stated, in a great
measure upon the condition in life of the passenger, and the length,
nature, and object of his journey. According to this criterion, the
following articles have been held to constitute baggage : the wearing
apparel of the passenger in all cases ; the easel of an artist on a sketch-
ing tour ; the gun or fishing tackle of the sportsman when on a hunting
or fishing excursion ; the costly laces of a lady of wealth, high rank
and social standing, traveling on a railway ; " a manuscript price book,
which a commercial agent took in his valise, and used in making
sales ; " the surgical instruments of a surgeon in the army, traveling
with troops ; a few books carried for amusement or entertainment ;
and the manuscript books of the passenger used in the prosecution of
his studies. Many cases upon this subject have been collected in
a valuable treatise by Judge U. M. Eose upon the " General Liability
of Carriers of Passengers for Baggage," in 2 Am. & Eng. E. Cases,
(N. S.) 1.
When a passenger presents to the carrier for transportation his goods
and chattels, and makes known what they are, or exposes them to view,
or packs them in a way to give to any one concerned good reason to
understand and know that they are not usually carried as baggage,
and demands transportation of them as his luggage,, and the carrier
receives and carries them accordingly, he will be responsible for them
as baggage, notwithstanding he was not bound to accept and trans-
pott them as such. If he wishes to avoid responsibility for them as
baggage, he must refuse to receive them in that way. Eailway Co. v.
Berry, 60 Ark. 433; Minter v. Pacific Eailroad Co., 41 Mo. 503;
Sloman v. Great Western Eailway Co., 67 N. Y. 208 ; Great Northern
Eailway Co. v. Shepherd, 8 Exch. 30 [338] ; Mauritz v. N. Y., Lake
Erie & Western E. Co., 21 Am. & Eng. E. Cases, 286 ; Waldron v.
Chicago & N. W. E. Co., 46 N. W. Eep. 456 ; Oakes v. Northern
Pacific E. Co., 48 Am. & Eng. E. Cases, 437 ; Hannibal Eailroad v.
Swift, 12 Wall. 262 [342] ; Texas, etc., E. Co. v. Capps, 16 Am. & Eng.
IB. Cases, 118 ; Hamburg-American Packet' Co. ■y.Gattman, 127 111. 598.
In EaUway Company v. Berry, 60 Ark. 433, this court held " that
where a passenger, who is ignorant of the rules or instructions of rail-
way companies forbidding agents to receive money for transportation
as baggage, delivers to the baggage agent more money than the carrier
is required to transport, and informs the agent of the amount (it
being inclosed in the baggage, and concealed from view), if he accepts
it to ship as baggage, and a loss occurs, the carrier's common-law
liability will attach."
In Minter v. Pacific Eailroad, supra, a passenger delivered his
±runk and a piece of carpet to the baggage master of a railroad com-
638 CARRIEBS OF GOODS.
pany. The carpet was exposed to view. The passenger received a,
check for the trunk, but was told that none was necessary for the
carpet, as it would go safely. The carpet was lost, and a suit was
brought for the recovery of its value. The court held that, inasmuch
as the railroad company had received and treated the carpet as personal
baggage, it was liable for the loss of it, although, by the printed rules
of the company, the baggage master was forbidden to receive as
passenger's baggage articles of merchandise.
In Sloman v. Great Western Railway Co., supra, the plaintiff's son,
a lad eighteen years of age, was employed by him as traveling agent
to sell goods by sample. He had two large trunks containing the
samples, and a valise for his personal baggage. The trunks did not
present the appearance of ordinary traveling trunks. They were
thirty inches long, twenty -seven deep and twenty-four wide. One was
covered with oil-cloth, and the other was of wood. " He delivered the
trunks to a baggage master at a railroad depot, and, when asked where
he wanted them checked to, replied that he did not then know, as he had
sent a dispatch to a customer at Pentonville to know if he wanted any
goods ; if not, he wanted them to go to Rochester, where he expected
to meet some customers. Soon after he had them checked to Rochester,
paying two dollars, and receiving a receipt ticket for them, headed
' Receipt Ticket for Extra Baggage and Dogs.' The court held that
the jury were authorized by these facts to infer that the baggage mas-
ter understood that the agent was traveling for the purpose of selling
goods, and that these trunks contained his wares ; and that he was not
entitled to have them carried as ordinary baggage ; and further held
that the railroad company, having this notice, was responsible for the
loss of the trunks and their contents."
Some courts hold that where a railroad company receives for trans-
portation property which it is not bound by its contract with passen-
gers to transport as personal baggage, of which it has notice, it must be
considered to assume, with reference to such property, the liability of
a common carrier of merchandise (Hannibal Railroad v. Swift, supra ;
Sloman v. Great Western Railway Co., supra) ; while others say that,
if it received the property, under such circumstances, as baggage, it will
be responsible therefor as a common carrier, and will be estopped from
denying that it was baggage. Texas & P. R. Co. v. Capps, 16 Am. &
Eng. R. Cases, 118 ; Minter v. Pacific R. Co., 41 Mo. 403 ; Hoeger v.
Chicago, M. & St. P. R. Co., 63 Wis. 100, 21 Am. & Eng. R. Cases, 308;
Chicago, R. I. & P. R. Co. v. Conklin, 32 Kas. 55, 16 Am. & Eng. R.
Cases, 116 ; Butler v. Hudson River R. Co., 3 E. D. Smith (N. Y.) 571;
Railway Company v. Berry, 60 Ark. 433. It seems to us the latter
view is sustained by the better reason and weight of authority. But,
be that as it may, the liability of the carrier for loss and damage in
transportation in either case is the same.
In the case under consideration, the plaintiff, McGaliey, purchased
for himself and his family, consisting of a wife and three small chU-
DELIVERY BY CARRIER. 639
dren, three tickets, which entitled him to transportation for himself
and family and 450 pounds of baggage over the railway of the defend-
ant railroad company from Sulligent, in the state of Alabama, to Mam-
moth Springs, in this state. He delivered to the company his baggage,
which was contained in two trunks and three boxes, and weighed over
500 pounds, and paid the usual rate for the weight in excess of his
baggage allowance, and received checks for the trunks and boxes, which
contained property of the following description and value :
"Fourfeatherbeds40 1bs. each, 40cts $-64.00
Ten pillows 4 lbs. each, at 40 cts 16.00
Forty-five quilts at $5 each 225.00
Three pairs of blankets at |5 15.00
Three bed ticks at $2 6.00
Five double woven counterpanes at |6 ........ . 30.00
Fourteen bed sheets at 50 cts 7.00
Thirty pillow slips at 15 cts. 4.50
Eight dresses (ladies') $2 16.00
Thirty dresses (children's)
Twenty-fiive shirts and underwear
Twenty articles underwear, ladies'
Twelve pairs socks
Twenty-five yards cloth
30.00
12.00
Estimate 12.00
1.80
3.60
Bazor hone 1.50
Knitting yarn . 1.50
Three suits clothing 24.00
Two pairs pants 2.00
Four cotton shirts 2.00
Four pairs drawers (gents') 1.60
Two razors 3.00
Two pairs shoes (ladies' ) 2.50
Five table cloths 3.00
Eight hand towels 2.00
One lot of pictures (photographs) 10.00
One lot carpenter tools 6.00
Seven books 2.70
Set knives and forks 1.00
One clock 1.25
Six buckets and two flat irons 2.00
Total amount 1508.95"
The trunks were of the aggregate value of five dollars. From this
description of the trunks and boxes and their contents, it is evident
that the trunks and boxes must have been of a size very much larger
than was necessary to hold the ordinary luggage of the number of per-
sons entitled to transportation on three tickets would amount to. It is
highly improbable that the plaintiff would carry with him such large
trunks and boxes for the purpose of carrying such personal effects of
himself and family as he was entitled to have carried as baggage on
three tickets. The effects contained in the boxes were thereby packed
in such a manner as to indicate they were not carried as necessary per-
sonal baggage to be used on the journey, but as merchandise would be
when it reaches its place of destination. From all these circumstances,
640 CABRIEES OF GOODS.
we think that the judge, sitting as a jury, as he did in this case, was
authorized to infer that the company was put upon notice, and given
to understand, that the trunks and boxes contained more than the or-
dinary baggage, and that it accepted and treated the contents, without
regard to what they might be, as baggage, and transported them ac-
cordingly.
Railroad companies are responsible as common carriers for the bag-
gage of their passengers. Such responsibility continues until the,
baggage is ready to be delivered to the owner at the place of his des-
tination, and until he has had a reasonable time and opportunity to
come and take it away. If it be not called for in a reasonable time,
the company may store it in a secure warehouse, when it becomes a
mere warehouseman, and is thenceforward bound to exercise the same
care, and no more, that ordinary prudent men do in keeping their own
goods of similar kind and value. Mote v. Chicago & N. W. R. Co.,
27 Iowa, 22 ; Chicago, R. I. & P. R. Co. v. Boyce, 73 111. 610.
What constitutes a reasonable time and opportunity for a passenger
to remove his baggage is, ordinarily, a mixed question of fact and
law. When the facts are in dispute, the jury should decide, under
the instructions of the court as to the law ; otherwise, it is a question
of law, and the court should decide it. Chicago, R. I. & P. R. Co. v.
Boyce, 73 111. 610; Louisville, C. & L. R. Co. v. Mahan, 8 Bush, 184;
Roth V. Buffalo & S. L. R. Co., 34 N. Y. 548.
No absolute rule on this subject can be stated. In determining
whether a passenger has had a reasonable time in which to receive
and remove his baggage, "the customs of the railway and of the
station, the manner of transporting baggage therefrom, in short, the
peculiar circumstances surrounding each case," except as hereafter
stated, must be considered. Mote v. Chicago & N. W. R. Co., 27
Iowa, 22.
In many places, especially in cities, transportation for baggage can
be procured immediately upon its arrival by railroad trains and steam-
boats. If such places be its destination, it is the duty of the passen-
ger to present his check and receive it, on its arrival by train or
steamboat, or as soon thereafter as the checks can reasonably, under
the circumstances, be presented, and the baggage delivered. If he
refuses or neglects to do so, the liability of the carrier is changed from
that of an insurer to the responsibility of a warehouseman. Roth v.
Buffalo & State Line R. Co., 34 N. Y. 548 ; Ouimit v. Henshaw, 36 Vt.
605.
"The passenger, however, cannot extend the strict and rigid liabil-
ity of common carriers as insurers by postponing the time of taking
possession of his baggage for his own convenience on account of its
arrival at a late hour of the night, or his peculiar circumstances. In
Chicago, Rock Island & Pacific Railroad Co. v. Boyce, 73 111. 510, it
was held that the fact that a passenger on a railroad is taken sick,
and is given a lay-over ticket, so that he does not reach his destina-
DELIVERY BY CAEKIEB. 641
tion as soon as his baggage, will not have the effect of extending the
liability of the carrier as insurer beyond what it would otherwise be."
In the case before us the plaintiff and his baggage arrived at Mam-
moth Springs, their place of destination, at 11.08 o'clock at night.
There were no conveyances at the depot, or running at that hour.
They were in the city, " a mile's distance from the defendant's depot."
The plaintiff, although he saw his baggage on the platform, made no
demand for it during the night of its arrival, but left it in the posses-
sion of the defendant, who stored the same in its warehouse, which
was destroyed with the baggage by fire about one o'clock that night.
According to the evidence, it appears that plaintiff had a reasonable
time in which he might with the use of diligence have received and
removed his baggage before the fire occurred. There is no excuse
given for his failure to do so, except the lateness of the hour, and the
fact that no vehicles were at the depot or " running " that night, by
which it could have been removed. This merely shows that it was
inconvenient for him to remove it during the night. This, in the ab-
sence of a better showing, was not sufficient to extend the reasonable
time within which the plaintiff should call for it to the next morning,
so that, it not being called for, the defendant became liable for its
custody as a carrier. " If it was not the usual course of business for
the defendant to deliver baggage immediately on the arrival of the
train at that late hour of the night, or if the railroad company detained
the plaintiff's baggage for their own convenience upon the arrival of
the train, such facts should have been shown by the plaintiff, and, if
shown, might vary the defendant's liability for the custody of the
property. But we cannot presume such facts to exist." Ouimit v.
Henshaw, 36 Vt. 616.
The defendant company not being liable as common carrier for the
loss of the baggage of plaintiff, before he could recover on account
thereof, it was necessary for him to show that the fire was the result
of such negligence of the railroad company as would make it liable as
a warehouseman for hire, which he failed to do.
Keversed and remanded for a new trial.
642 CAREIERS or GOODS.
B. Termination of Liability as Bailee.
a. Delivery to Connecting Carrier.
RAILROAD CO. v. MANDFACTCJRING CO.
16 Wall. (U. 8.), 318. 1872.
In error to the Circuit Court for the District of Connecticut; the
«ase being thus : —
In October, 1865, at Jackson, a station on the Michigan Central
Railroad, about seventy-five miles west of Detroit, one Bostwick
delivered to the agent of the Michigan Central Railroad Company,
for transportation, a quantity of wool consigned to the Mineral
Springs Manufacturing Company, at Stafford , Connecticut, and took
a receipt for its carriage, on the back of which was a notice that all
goods and merchandise are at the risk of the owners while in the
warehouses of the company, unless the loss or injury to them should
happen through the negligence of the agents of the company.
The receipt and notice were as follows : —
"Michigan Central Railboad Company,
"Jackson, October 11th, 1865.
" Received from V. M. Bostwick, as consignor, the articles marked,
numbered, and weighing as follows : —
[ Wool described. ]
" To be transported over said railroad to the depot in Detroit, and there to
be delivered to , agent, or order, upon the payment of charges thereon,
and subject to the rules and regulations established by the company, a part of
which notice is given on the back hereof. This receipt is not transferable.
" Hastings,
" Freight Agent."
The notice on the back was thus : —
" The company wUl not be responsible for damages occasioned by delays
from storms, accidents, or other causes . , . and all goods and merchandise will
be at the risk of the owners thereof while in the company's warehouses, except
such loss or injury as may arise from the negligence of the agents of the company."
Verbal instructions were given by Bostwick that the wool should
be sent from Detroit to Buffalo, by lake, in steamboats, which
instructions were embodied in a bill of lading sent with the wool.
Although there were several lines of transportation from Detroit east»
ward by which the wool could have been sent, there was only one
transportation line propelled by steam on the lakes, and this line
was, and had been for some time, unable, in their regular course of
business, to receive and transport the freight which had accumulated
DELIVERY BY CARRIER. 643
in large quantities at the railroad depot in Detroit. This accumula-
tion of freight there, and the limited ability of the line of propellers
to receiTe and transport it, were well known to the oflGLcers of the
road, but neither the consignor, consignee, nor the station-master at
Jackson were informed on this subject. The wool was carried over
the road to the depot ia Detroit, and remained there for a period of
six days, when it was destroyed by an accidental fire, not the jesult
of any negligence on the company's part. During all the time the
wool was in the depot it was ready to be delivered for further trans-
portation to the carrier upon the route indicated.
In consequence of the loss the manufacturing company sued the
railroad company. The charter of the company, which was pleaded
and offered in evidence, contained a section thus : —
" The said company may charge and collect a reasonable sum for
istorage upon all property which shall have been transported by
them upon delivery thereof at any of their depots, and which shall
have remained at any of their depots more than four days ; Provided,
that elsewhere than at their Detroit depot, the consignee shall have
been notified if known, either personally or by notice left at his
place of business or residence, or by notice sent by mail, of the
receipt of such property at least four days before any storage shall
be charged, and at the Detroit depot such notice shall be given
twenty-four hours (Sunday excepted) before any storage shall be
charged; but such storage may be charged after the expiration of
said twenty-four hours upon goods not taken away, Provided, that
ill all cases the said company shall be responsible for goods on
deposit in any of their depots awaiting delivery, delivery as ware-
housemen, and not as common carriers."
The controversy, of course, was as to the nature of the bailment
when the fire took place. If the railroad company were to be con-
sidered as warehousemen at the time the wool was burned, they were
not liable in the action, as the fipe which caused its destruction was
nat the result of any negligence on their part. If, on the contrary,
their duty as carriers had not ceased at the time of the accident, and
there were no circumstances connected with the transaction which
lessened the rigor of the rule applicable to that employment, they
were responsible; carriers being substantially insurers of the prop-
erty intrusted to their care.
The court was asked by the railroad company to charge the jury
that its liability was the limited one of a warehouseman, importing
only ordinary care. The court refused so to charge, and, on the
contrary, charged that the railroad company were liable for the
wool as common carriers, during its transportation from Jackson to
Detroit, and after its arrival there, for such reasonable time as,
according to their usual course of business, under the actual circum-
stances in which they held the wool, would enable them to deliver
it to the next carrier in the line, but that the manufacturing com*
644 CAERIERS OF GOODS.
pany took the risk of the next carrier line not being ready and will-
ing to take said wool, and submitted it to the jury to say whether
under all the circumstances of the case in evidence before them suc^
reasonable time had elapsed before the occurrence of the fire.
The jury, under the instructions of the court, found that tho
railroad company were chargeable as carriers, and this writ of error
was prosecuted to reverse the decision.
Mr. Justice Davis. It is not necessary in the state of this-
record to go into the general subject of the duty of carriers in respect
to goods in their custody which have arrived at their final destina-
tion. Different views have been entertained by different jurists of
what the carrier is required to do when the transit is ended, in order
to terminate his liability; but there is not this difference of opinion
in relation to the rule which is applicable while the property is in
progress of transportation from the place of its receipt to the place
of its destination.
In such cases it is the duty of the carrier, in the absence of any
special contract, to carry safely to the end of his line and deliver
to the next carrier in the Mute beyond. This rule of liability is
adopted generally by the courts in this country, although in England,
at the present time, and in some of the States of the Union, the dis-
position is to treat the obligation of the carrier who first receives
the goods as continuing throughout the entire route. It is unfortu-
nate for the interests of commerce that there is any diversity of
opinion on such a subject, especially in this country; but the rule
that holds the carrier only liable to the extent of his own route, and
for the safe storage and delivery to the next carrier, is in itself so
just and reasonable that we do not hesitate to give it our sanction.
Public policy, however, requires that the rule should be enforced,
and will not allow the carrier to escape responsibility on storing the
goods at the end of his route, without delivery or an attempt to
deliver to the connecting carrier. If there be a necessity for storage,
it will be considered a mere accessory to the transportation , and not
as changing the nature of the bailment. It is very clear that the
simple deposit of the goods by the carrier in his depot, unaccom-
panied by any act indicating an intention to renounce the obligation
of a carrier, will not change or modify even his liability. It may
be that circumstances may arise after the goods have reached the
depot which would justify the carrier in warehousing them; but if
he had reasonable grounds to anticipate the occurrence of those
adverse circumstances when he received the goods, he cannot by
storing them change his relation towards them.
Testing the case in hand by these well-settled principles, it is
apparent that the plaintiffs in error are not relieved of their proper
responsibility,, unless through the provisions of their charter, or by
the terms of the receipt which was given when they received the
wool. They neither delivered nor offered to deliver the wool to the
DELIVERY BY CAEEIER. G45
propeller company. Nor did they do any act manifesting an inten-
tion to divest themselves of the character of carrier and assume that
of forwarder.
It is insisted that the offer to deliver would have been a useless
act, because of the inability of the line of propellers, with their
means of transportation, to receive and transport the freight which
had already accumulated at the Michigan Central Depot for shipment
by lake. One answer to this proposition is, that the company had
no right to assume, in discharge of its obligation to this defendant,
that an offer to deliver this particular shipment would have been
met by a refusal to receive. Apart from this, how can the company
set up, by way of defence, this limited ability of the propeller line
when the officers of the road knew of it at the time the contract of
carriage was entered into, and the other party to the contract had
no information on the subject?
It is said, in reply to this objection, that the company could not
have refused to receive the wool, having ample means of carriage,
although it knew the line beyond Detroit selected by the shipper
was not at the time in a situation to receive and transport it. It is
true the company were obliged to carry for all persons, without
favor, in the regular course of business, but this obligation did not
dispense with a corresponding obligation on its part to inform the
shipper of any unavoidable circumstances existing at the termina-
tion of its own route in the way of a prompt delivery to the carrier
next in line. This is especially so when, as in this case, there were
other lines of transportation fpm Detroit eastward by which the
wool, without delay, could have been forwarded to its place of des-
tination. Had the shipper at Jackson been informed, at the time,
of the serious hindrances at Detroit to the speedy transit of goods
by the lake, it is fair to infer, as a reasonable man, he would have
given a different direction to his property. Common fairness re-
quires that at least he should have been told of the condition of
things there, and thus left free to choose, if he saw fit, another mode
of conveyance. If this had been done there would be some plausi-
bility in the position that six days was an unreasonable time to
require the railroad company to hold the wool as a common carrier
for delivery. But under the circumstances of this case the company
had no right to expect an earlier period for delivery, and cannot,
therefore, complain of the response of the jury to the inquiry on
this subject submitted to them by the Circuit Court.
It is earnestly argued that the plaintiffs in error are relieved from
liability under a provision contained in one section of their charter,'
if not by the rules of the common law.
But it is quite clear, on reading the whole section, that it refers
to property which has reached its final destination, and is there
1 Seethe section, supra, pp. 320-321 [643]. — Eep.
646 CAEEIEES OF GOODS.
awaiting delivery to its owner. If so, how can the proviso in ques-
tion be made to apply to another and distinct class of property?
To perform this office it must act independently of the rest of the
section, and enlarge, rather than limit, the operation of it. This it
cannot do, unless words are used which leave no doubt the legisla-
ture intended such an effect to be given to it.
It is argued, however, that tliere is no difference between goods
to be delivered to the owner at their final destination, and goods
delivered to the owner, or his agent, for further carriage. That
in both cases, as soon as they are " ready to be delivered " over,
they are "awaiting delivery." This position, although plausible,
is not sound. There is a clear distinction, in our opinion, between
property in a situation to be delivered over to the consignee on
demand, and property on its way to a distant point to be taken
thence by a connecting carrier. In the former case it may be said
to be awaiting delivery; in the latter to be awaiting transporta-
tion. And this distinction is recognized by the Supreme Court of
Michigan in the case of the present plaintiffs in error against Hale.*
The court in speaking on this subject say, " that goods are on deposit
in the depots of the company, either awaiting transportation or
awaiting delivery, and that the section (now under consideration)
has reference only to goods which have been transported and placed
in the company's depots for delivery to the consignee." To the
same effect is a recent decision of the Court of Appeals of New
York,'' in a suit brought to recover for the loss of goods by the same
fire that consumed the wool in this case, and which were marked for
conveyance by the same line of propellers on Lake Erie.
Judgment affirmed.
MUSCHAMP V. THE LANCASTEE AND PRESTON
JUNCTION K. CO.
Exchequer of Pleas. 8 M. & W. 421. 1841.
Casis. — The declaration stated, that, after the passing of a cer-
tain Act of Parliament, intituled "An Act for making and maintain-
ing a Railway from the Town of Lancaster to the Town of Preston,
in the county Palatine of Lancaster," the defendants were the pro-
prietors of a certain railway, to wit, etc., and of certain engines
and carriages used thereon; and the plaintiff, on, etc., caused to be
offered and delivered to the defendants, to wit, as common carriers,
and the defendants received as such carriers, a certain box, and
1 6 Michigan, 243.
* Mills V. Micliigan Central Railroad Co., 46 New York, 626.
DELIVEKY BY CAEKIEK. 647
divers goods and chattels contained therein, of the plaintiff, to be
safely and securely carried and conveyed for the plaintiff by the
defendants, from Lancaster aforesaid, upon the said railway, and
upon other railways, and to be caused by the defendants to be left
at a certain other place, to wit, at a certain place called the Wheat-
sheaf, Bartlow, near Bakewell, Derbyshire, for the plaintiff, for
certain reward to be therefore paid by the plaintiff to the defend-
ants; yet the defendants contriving, etc., did not nor would convey
the said box, etc., upon their said railway, nor upon other railways,
or cause the same to be left at the said Wheatsheaf,'etc., for the
plaintiff; but through the negligence, carelessness, etc., of the
defendants, the said box, goods, and chattels were wholly lost to
the plaintiff.
Pleas, first, not guilty ; secondly, that the plaintiff did not cause
to be delivered to the defendants, nor did the defendants accept and
receive the said box, etc., for the purpose, and in tlie manner and
form as the plaintiff has in his declaration alleged : — on which
issues were joined.
At the trial before Eolfb, B., at the last assizes at Liverpool, the
following facts appeared in evidence : — The defendants are the pro-
prietors of the Lancaster and Preston Junction Railway, and carry
on business on their line between Lancaster and Preston, as common
carriers. At Preston the line joins the North Union Railway, which
afterwards unites with the Liverpool and Manchester Railway at
Parkside, and that with the Grand Junction Railway. The plain-
tiff, a stone-mason living at Lancaster, had gone into Derbyshire in
search of work, leaving his box of tools to be sent after him. His
mother accordingly took the box to the railway station at Lancaster,
directed to the plaintiff, "to be left at the Wheatsheaf, Bartlow,
near Bakewell, Derbyshire" (a place about eight miles wide of the
Birmingham and Derby Junction Railway), and requested the clerk
at the station to book it. In answer to her inquiries, he told her
that the box would go in two or three days ; and on her asking
whether it would go sooner if the carriage was paid in advance, he
inquired whether any one was going with_ it ; on her answering in
the negative, and that the person for whom it was intended would
be ready at the other end to receive it, he said the carriage had
better be paid for by that person on receipt of it. It appeared
that the box arrived safely at Preston, but was lost after it was
despatched from thence by the North Union Railway. Upon these
facts the learned judge stated to the jury, in summing up, that
where a common carrier takes into his care a parcel directed to a
particular place, and does not by positive agreement limit his
responsibility to a part only of the distance, that is prima facie evi-
dence of an undertaking on his part to carry the parcel to the place
to which it is directed ; and the same rule applied, although that
place were beyond the limits within which he in general professed
,648 CAKRIEES or GOODS.
to carry on his trade of a carrier. The jury found a verdict for the
plaintiff, damages £16 Is.
In Easter Term, Cresswell obtained a rule nisi for a new trial, on
the ground of misdirection.
Martin now showed cause, and contended that there was no mis-
direction; that there was abundant evidence for the jury of an
undertaking by the defendants, through their agent, to carry the
box and its contents to the place of its ultimate destination ; that if
the carriage had been paid in advance, according to the offer made
by the plaintiff's mother, the sum demanded would clearly have beeu
the carriage for the whole distance; and that to suppose as many
different contracts as there were carriers on a continuous line of rail-
way, would be against all principle and convenience. — The court
then called on
Cresswell, Baines, and Burrell, in support of the rule. This is
not the case of a conveyance travelling throughout a continuous line,
like a coach, for instance, which professes to run from London to
York; in such a case parties are not bound to look out for the par-
ticular proprietors interested in the different parts of the line. But
there it is held out to the public as one line; this is the case of a
company known as the Lancaster and Preston Junction Railway,
and holding themselves out to the world as the proprietors of and
carriers upon that distinct line of railway only. To hold them
liable for the loss of a parcel beyond the limits of their own line
would therefore be very unjust. Suppose the case of a known coach
from London to Stamford, and a party delivers to the book-keeper
a parcel directed to York, does that prove a contract to carry it to
York? [Lord Abingek, C. B. What would be the undertaking of
the carrier in that case?] To carry to Stamford, and forward thence
to York. Parties must be assumed to contract in reference to the
known mode in which the carrier carries on his business. Suppose
it had been alleged in this case that the defendants were common
carriers from Lancaster to Derby, and that had been traversed;
would evidence of the kind given on the part of the plaintiff have
proved that they were? If the defendants are held liable in this
case, it would follow, that a carrier who professed on his part to
carry parcels one stage only from London, would be liable for the
loss of a parcel at any place between London and the Land's End;
or the owners of a steam-vessel plying between Liverpool and
Belfast, by receiving a box directed to an inland town in Ireland,
would be responsible for its safe delivery at that place. If it be so,
the same principle must hold as to imputed negligence to persons as
to goods. Now, suppose a passenger booked at Lancaster for Lon-
don, and injured on the North Union Eailway: could the proprie-
tors of the Lancaster and Preston line be held responsible? The
true construction of the defendant's contract is, that they engage to
carry the goods safely as far as Preston — i.e., as far as they hoU
DELIVERY BY CAKEIEK. 649
themselves out, and are empowered by their Act of Parliament to
trade, as carriers — and then to put them in a course of carriage
onward, by transferring them to another carrier, so as to give the
owner, in the event of their loss, a right of action against the new
bailees. Garside v. Trent and Mersey Navigation Company, 4 T. R.
S81. [Lord Abingek, C. B. The defendants refuse to receive
the money for the carnage at the time: does that not show that
they treat the carriers forward as their agents, from whom they are
to get their remuneration?] A contrary inference rather arises, —
that they could not tell what the whole amount of the carriage would
be, and therefore declined to receive it. If this be in law a contract
to carry the whole distance, it must be so also, although the other
party be fully cognizant of the terms on which the defendants carry
on their business. [Lord Abinger, C. B. Do you say the succes-
sive carriers are agents of the original customer?] Yes, if the suc-
cessive companies be known to him. [Kolfe, B. How is he to
discover on which line the goods were lost?] In Upston v. Slark,
2 Car. & P. 598, the name of the defendant was over the door of a
booking-house for coaches and wagons in Piccadilly, with the words
"Conveyances to all parts of the world," followed by a list of places,
amongst which was Windsor: yet it was held, that proof of the
booking at that office of a box directed to Windsor, which did not
reach its destination, was not sufB.cient to make the defendant
responsible for its loss. So, in Gilbert v. Dale, o Ad. & Ell. 543,
1 Nev. & P. 22, which was an action brought for negligence in the
loss of goods, against the proprietor of a general booking-office for
the transmission of parcels by coach, it was held insufficient to prove
that the goods never reached their destination. Coleridge, J., there
says , " Suppose goods were left with carrier, to be taken by him to
York, and from thence forwarded to Edinburgh, would it be suffi-
cient, in an action against him for negligence, to show that the
goods did not reach Edinburgh?" The same hardship which is
recited in the preamble to the Carriers' Act, 1 Will. 4, c. 68, from
the great increase of the responsibility and risk of common carriers,
will occur again, if a carrier is to be held liable under such circum-
stances as these.
Lord Abingek, G. B. The simple question in this case is,
whether the learned judge misdirected the jury in telling them that
if the case were stripped of all other circumstances beyond the mere
fact of knowledge by the party that the defendants were carriers
only from Lancaster to Preston, and if, under such circumstances,
they accepted a parcel to be carried on to a more distant place, they
are liable for the loss of it, this being evidence whence the jury
might infer that they undertook to carry it in safety to that place.
I think that in this proposition there was no misdirection. It is
admitted by the defendants' counsel that the defendants contract
to do something more with the parcel than merely to carry it to
650 OAEEIEES OF GOODS.
Preston; they say the engagement is to carry to Preston, and there
to deliver it to an agent, who is to carry it further, who is afterwards
to be replaced by another, and so on until the end of the journey.
Now that is a very elaborate kind of contract; it is in substance
giving to the carriers a general power, along the whole line of route,
to make at their pleasure fresh contracts, which shall be binding
upon the principal who employed them. But if, as admitted on
both sides, it is clear that something more was meant to be done by
the defendants than carry as far as Preston, is it not for the jury to
say what is the contract, and how much more was undertaken to be
done by them? Now it certainly might be true that the contract
between these parties was such as that suggested by the counsel for
the defendants ; but other views of the case may be suggested quite
as probable; such, for instance, as that these railway companies,
though separate in themselves, are in the habit, for their own advan-
tage, of making contracts, of which this was one, to convey goods
along the whole line, to the ultimate terminus, each of them being
agents of the other to carry them forward, and each receiving their
share of the profits from the last. The fact that, according to the
agreement proved, the carriage was to be paid at the end of the
journey, rather confirms the notion that the persons who were to
carry the goods from Preston to their final destination were under
the control of the defendants, who consequently exercised some
influence and agency beyond the immediate terminus of their own
railway. Is it not then a question for the jury to say what the
nature of this contract was ; and is it not as reasonable an inference
for them to draw, that the whole was one contract, as the contrary?
I hardly think they would be likely to infer so elaborate a contract
as that which the defendants' counsel suggests ; namely, that as the
line of the defendants' railway terminates at Preston, it is to be
presumed that the plaintiff, who intrusted the goods to them, made
it part of his bargain that they should employ for him a fresh agent
both at that place and at every subsequent change of railway or con-
veyance, and on each shifting of the goods give such a document
to the new agent as should render him responsible. Suppose the
owner of goods sent under such circumstances, when he finds they
do not come to hand, comes to the railway oflce and makes a com-
plaint, then, if the defendants' argument in this case be well
founded, unless the railway company refuses to supply him with
the name of the new agent, they break their contract. It is true
that, practically, it might make no great difference to the proprietor
of the goods which was the real contract, if their not immediately
furnishing him with the name would entitle him to bring an action
against them. But the question is, why should the jury infer one
of these contracts rather than the other? which of the two is the
most natural, the most usual, the most probable? Besides, the car-
riage-money being in this case one undivided sum rather supports
DELIVEKY BY CAKEIEK. 651
the inference, that although these carriers carry only a certain dis-
tance with their own vehicles , they make subordinate contracts with
the other carriers, and are partners inter se as to the carriage-
money, — a fact of which the owner of the goods could know nothing:
as he only pays the one entire sum at the end of the journey, which
they afterwards divide as they please. Not only, therefore, is there
some evidence of this being the nature of the contract, but it is the
most likely contract under the circumstances ; for it is admitted that
the defendants undertook to do more than simply to carry the goods
from Lancaster to Preston. The whole matter is therefore a ques-
tion for the jury, to determine whether the contract was on the evi-
dence before them. With respect to the case referred to, of the
booking-offtce in London, it only goes to show that when persons
take charge of parcels at such an office they merely make themselves
agents to book for the stage-coaches. You go to the office and book
a parcel ; the effect of this is to make the booker your agent, instead
of going to the coach-office yourself; and so that he sends the parcel
to the proper coach-office, and once delivers it there, he has dis-
charged himself; he has nothing to do with the carriage of the
goods. In eases like the present, particular circumstances might
no doubt be adduced to rebut the inference which, prima facie, must
be made, of the defendants having undertaken to carry the goods
the whole way. The taking charge of the parcel is not put as con-
clusive evidence of the contract sued on by the plaintiff; it is only
prima facie evidence of it; and it is useful and reasonable for the
benefit of the public that it should be so considered. It is better
that those who undertake the carriage of parcels, for their mutual
benefit, should arrange matters of this kind inter se, and should be
taken each to have made the others their agents to carry forward.
GrURNBY, B. I think there is no misdirection in the case, and
that the jury might fairly infer that the contract was such as was
stated by the learned judge. If the goods were to be carried only
in the narrow sense contended for by the defendants, then, if the
place of their destination were but three miles beyond Preston, and
they were lost on the other side of the railway terminus, the defend-
ants are not to be liable, but the plaintiff is to find out somebody or
other who is to be liable in respect of the carriage for those three
miles.
EoLFB, B. I am of the same opinion, and think the construc-
tion we are putting on the agreement is not only consistent with
law, but is the only one consistent with common-sense and the con-
venience of mankind. What I told the jury was only this, that if
a party brings a parcel to a railway station, which in this respect is
just the same as a coach-office, known at the time that the company
only carry to a particular place, and if the railway company receive
and book it to another place to which it is directed, prima facie they
undertake to carry it to that other place. That was my view at the
652 CA.KEIEES. OF GOODS.
trial, and nothing has occurred to alter my opinion. As to the ease
which has been put, of a passenger injured on the line of railway
beyond that where he was originally booked, I suppose it is put as
a reductio ad absurdum; but I do not see the absurdity. If I book
my place at Euston Square, and pay to be carried to York, and am
injured by negligence of somebody between Euston Square and
York, I do not know why I am not to have my remedy against the
party who so contracted to carry me to York. But, at all events, in
the case of a parcel, any other construction would open the door to
incalculable inconveniences. You book a parcel, and on its being
lost, you are told that the carrier is responsible only for one portion
of the line of road. What would be the answer of the owner of the
goods? — "I know that I booked that parcel at the Golden Cross for
Liverpool, and my contract with the carrier was to take it to Liver-
pool." All convenience is one way, and there is no authority the
other way. Sule discharged.^
NUTTING V. CONNECTICUT RIVER R. CO.
1 Gray (Mass.), 502. 1854.
Action of contract to recover the value of two of the boxes
described in the following receipt, signed by the defendants' agent:
"Northampton, Mass., Feb. 27th, 1851. Received of E. Nutting,
for transportation to New York, 9 boxes planes, marked R. & F. 21
Piatt St., New York; 4 boxes planes and handles, marked G. T;
Hewlett, 146 Bowery Street, New York.
/ "Fred W. Clarke."
The following facts were agreed by the parties: All the boxes
named in this receipt were delivered by the defendants, within a
reasonable time, at Springfield, the southern terminus of their road,
1 The mere acceptance of goods W a common carrier marked to a designation
beyond the terminus of its line as a matter of law imports no absolute undertaking
upon the part of the carrier beyond the end of its road, but is a matter of evidence to
be submitted to the jury, from -which, in connection with other evidence produced,
they are to determine, as a question of /ad, the real engagement entered into.
This position was very ably maintained in a recent and elaborate opinion of the
Supreme Court of New Hampshire, reviewing almost the whole current of decision.s
from Muschamp v. The Lancaster Railway Co., 8 M. & W. 421, down to the present
period. See Gray v. Jackson, 51 N. H. 9. The question is not an open one in this
State! In Angle v. The M. M. K'y Co., 9 Iowa, 487, the rule was settled as it is
understood to exist in England, and it was held that the acceptance by a carrier of
goods marked to a destination beyond the terminus of its road, creates a ■prima fa/Ae
liability to transport to and deliver at that point, which may be modified by proof of a
different \isage known to the shipper at the time of making the consignment. Per
Day, J., in Mulligan v. Illinois Central R. Co., 36 Iowa, 181.
DELIVERY BY CAEEIER. 653
to the New Haven, Hartford, and Springfield Eailroad Company,
with whose road the defendants' road there connects. The New
Haven, Hartford, and Springfield Eailroad extends from Springfield
to New Haven, and there connects with the New York and New
Haven Railroad, which extends to the city of New York. The
defendants took a receipt for these boxes from the New Haven,
Hartford, and Springfield Railroad Company ; and all the boxes were
duly delivered in New York, except two, which were lost between
Springfield and New Haven.
It is the practice of the defendants, who are common carriers, to
convey goods, received at places on the line of their road for trans-
portation to New York, in their own cars to Springfield, and there
to deliver them to the New Haven, Hartford, and Springfield Rail-
road Company, by whose agents the goods are overhauled and
checked. Such goods are sometimes carried over the New Haven,
Hartford, and Springfield Railroad without change of cars, and are
sometinies shifted into the, oars of that company. But the defend-
ants receive pay only as far as Springfield. When goods are brought
from New York to places on the line of the defendants' road, they
are brought either in the freight cars of the defendants, or of one
of the two corporations above mentioned, or of the Vermont Valley
Railroad Company, whose road extends from the northern terminus
of the defendants' road into the State of Vermont.
The parties agreed that if the defendants were not liable to the
plaintiff judgment should be entered for them; otherwise, that the
plaintiff -should have judgment for $25.50, the value of the lost
boxes and their contents.
Metcalf, J. On the facts of this case, we are of opinion that
there must be judgment for the defendants. Springfield is the
southern terminus of their road ; and "no connection in business is
shown between them and any other railroad company. When they
carry goods that are destined beyond that terminus, they take pay
only for the transportation over their own road. What, then, is the
obligation imposed on them by law, in the absence of any special
contract by them, when they receive goods at their depot in North-
ampton , which are marked with the names of the consignees in the
city of New York? In our judgment that obligation is nothing
more than to transport the goods safely to the end of their road, and
there deliver them to the proper carriers, to be forwarded towards
their ultimate destination. This the defendants did, in the present
case, and in so doing performed their full legal duty. If they can
be held liable for a loss that happens on any railroad besides their
own, we know not what is the limit of their liability. If they are
liable in this case, we do not see why they would not also be liable
if the boxes had been marked for consignees in Chicago, and had
been lost between that place and Detroit, on a road with which they
had no more connection than they have with any railway in Europe,
654 CAEEIEES OF GOODS.
But the plaintiff seeks to charge the defendants on the receipt
given by Clarke, their agent, as on a special contract that the boxes
should iie safely carried the whole distance between Northampton
and New York. We cannot so construe the receipt. It merely
states the fact that the boxes had been received " for transportation
to New York." And the plaintiff might have proved that fact, with
the same legal consequences to the defendants, by oral testimony,
if he had not taken a receipt. That receipt, in our opinion, imposed
on the defendants no further obligation than the law imposed
without it.
The plaintiff's counsel relied on the case of Musehamp v. Lancas-
ter & Preston Junction Eailway, 8 M. &W.421 [646], in which it was
decided by the Court of Exchequer, that when a railway company
take into their care a parcel directed to a particular place, and do
not by positive agreement limit their responsibility to a part only
of the distance, that is prima facie evidence of an undertaking to
carry the parcel to the place to which it is directed, although that
place be beyond the limits within which the company, in general,
profess to carry on their business of carriers. And two justices of
the Queen's Bench subsequently made a like decision. Watson v.
Ambergate, Nottingham & Boston Eailway, 3 Eng. Law & Eq. R.
497. We cannot concur in that view of the law; and we are sus-
tained, in our dissent from it, by the Court of Errors in New York,
and by the Supreme Courts of Vermont and Connecticut. Van
Santvoord v. St. John, 6 Hill, 167. Farmers' & Mechanics' Bank
V. Champlain Transportation Company, 18 Verm. 140, and 23 Verm.
209. Hood V. New York & New Haven Eailroad, 22 Conn. 1. In
these cases, the decision in Weed v. Saratoga & Schenectady Kail-
road, 19 Wend. 534 (which was cited by the present plaintiff's coun-
sel), was said to be distinguishable from such a case as this, and to
be reconcilable with the rule that each carrier is bound only to the
end of his route, unless he makes a special contract that binds him
further.
Judgment for the defendants.^
GALVESTON, H. & S. A. E. CO. v. WALLACE.
223 U. S. 481 ; 32 S. C. Rep. 205. 1912.
Mb. Justice Lamak. In both these cases the plaintiff in error was
held liable as " initial carrier " for failure to deliver mohair shipped
from points in Texas to the consignee in Lowell. The company
denied liability on the ground that under the contract expressed in
1 Aoc. : Myrick v. Michigan Central E. Co., 107 U. S. 102.
DELIVERY BY CARRIER. 655
the bills of lading its obligation and liability ceased when it duly
and safely delivered the goods to the next carrier. It excepts to
various rulings of the trial court by which it was prevented from
proving that it had fully complied with its contract; had duly
delivered the mohair, at Galveston, to the first connecting carrier,
which delivered it, at New York, to the next carrier, which, in turn,
delivered it to the Boston & Maine Eailroad. Neither the pleadings
nor proof showed what this company did with the mohair nor the
cause of its non-delivery, if indeed it was not delivered. For there
was some evidence tending to show that this mohair might have been
among other sacks, the marks of which had been destroyed, and were
still held by the consignee awaiting identification. This contention,
however, was found against the carrier, and it was held liable to the
plaintiffs. 117 S. W. Rep. 169, 170.
The question as to whether the plaintiff was entitled to recover the
value of the goods at Lowell or, as provided in the bill of lading, at
the point of shipment, is suggested in one of the briefs. No such
issue was made in the lower court, nor is it referred to in any of the
many assignments of error involving the construction and constitu-
tionality of the Carmack amendment to the Hepburn Act of 1906, pro-
viding that where goods are received for shipment in interstate com-
merce the initial carrier shall be liable for damages caused by itself
or connecting carriers, and making void any contract of exemption
against such liability. (34 Stat. 584.)
1. The jurisdiction of the state court was attacked, first, on the
ground that § 9 of the original act of 1887 provided that persons
damaged by a violation of the statute " might make complaint before
the commission ... or in any District or Circuit Court of the United
States." 24 Stat. 379.
Statutes have no extra-territorial operation, and the courts of one
government cannot enforce the penal laws of another. At one time
there was some question both as to the duty and power to try civil
cases arising solely under the statutes of another State. But it is
now recognized that the jurisdiction of state courts extends to the
hearing and determination of any civil and transitory cause of action
created by a foreign statute, provided it is not of a character opposed
to the public policy of the State in which the suit is brought. Where
the statute creating the right provides an exclusive remedy, to be
enforced in a particular way, or before a special tribunal, the
aggrieved party will be left to the remedy given by the statute which
created the right. But jurisdiction is not defeated by implication.
And, considering the relation between the Federal and the state
Government, there is no presumption that Congress intended to pre-
vent state courts from exercising the general jurisdiction already pas-
sessed by them, and under which they had the power to hear and
determine causes of action created by Federal statute. Eobb. v. Con-
nolly, 111 U. S. 624, 637.
656 CAEEIEES OF GOODS.
On the contrary, the absence of such provision would be construed
as recognizing that where the cause of action was not penal, but civil
and transitory, it was to be subject to the principles governing that
class of cases, and might be asserted in a state court as well as in
those of the United States. This presumption would be strengthened
as to a statute like this passed, not only for the purpose of giving a
right, but of affording a convenient remedy.
2. The question as to the constitutionality of the Carma«k amend-
ment, though ably and elaborately argued, is out of the case, having
been decided adversely to the contention of the plaintifE in Atlantic
Coast Line E. E. v. Eiverside Mills, 219 U. S. 186, after the present
suit was instituted.
Under the Carmack amendment, as already construed in the Eiver-
side Mills Case, wherever the carrier voluntarily accepts goods for
shipment to a point on another line in another state, it is conclusively
treated as having made a through contract. It thereby elected to treat
the connecting carriers as its agents, for all purposes of transportation
and delivery. This case, then, must be treated as though the point of
destination was on its own line, and is to be governed by the same
rules of pleading, practice and presumption as would have applied if
the shipment had been between stations in different States, but both
on the company's railroad. Thus considered, when the holders of the
bills of lading proved the goods had not been delivered to the con-
signee, the presumption arose that they had been lost by reason of the
negligence of the carrier or its agents. . The burden of proof that the
loss resulted from some cause for which the initial carrier was not re-
sponsible in law or by contract was then cast upon the carrier. The
plaintiffs were not obliged both to prove their case and to disprove
the existence of a defense. The carrier and its agents, having received
possession of the goods, were charged with the duty of delivering
them, or explaining why that had not been done. This must be so,
because carriers not only have better means, but often the only means,
of making such proof. If the failure to deliver was due to the act of
God, the public enemy or some cause against which it might lawfully
contract, it was for the carrier to bring itself within such exception.
In the absence of such proof, the plaintiffs were entitled to recover,
and the judgment is Affirmed.
THE ATCHISON, TOPEKA & SANTA -pt E. CO. v.
EOACH.
35 Kan. 740. 1886.
Action brought by Eoach against The Eailroad Company, to
recover the value of certain baggage. Trial at the September Term,
1884, and judgment for plaintiff for $227.32. The defendant com-
DELIVERY BY CARRIER. 657
pany brings the case to this court. The opinion states the material
facts.
JoHNSTOsr, J. This action was brought by Michael Eoaoh against
the Atchison, Topeka & Santa Fe Eailroad Company, to recover for
baggage alleged, to' have been lost and injured while in transit from
New York City to Hutchinson, Kansas. A verdict was given in
favor of Eoach for $227.32, and judgment rendered accordingly.
The railroad company brings the case here, and complains of the
charge of the court and of the insufficiency of the evidence. The
essential facts of the case maybe briefly stated: On February 28,
1881, Eoach purchased eight coupon tickets for the passage of him-
self and family from the city of New York to Hutchinson, Kansas,
over the New York, Lake Erie & Western Eailroad, Grand Trunk
Eailway, Michigan Central Eailroad, Chicago, Burlington & Quincy
Eailroad, Hannibal & St. Joseph Eailroad, and Atchison, Topeka
& Santa Fe Eailroad. The tickets were purchased from one Henry
Opperman, who had an office in New York, and who at the same
time caused several pieces of baggage to be checked through to
Hutchinson, using checks on which the names of the roads men-
tioned were stamped. As there was more baggage than could be
carried on the tickets purchased, Eoach was required to and did pay
$62.15 for extra baggage, and Opperman gave him duplicates of
the checks, which he retained. The defendant in error and his
family made the journey over the roads mentioned, and the tickets
were honored and accepted for their passage, and the servants of
the several companies detached the coupons or portions of the ticket
that represented the passage-money over the different roads. When
the passengers reached Hutchinson application was made for the
baggage, and it was found that some of it had been lost, and por-
tions of it badly injured. The testimony tended to show that the
baggage was delivered to the first carrier in good condition, but on
what road or roads the loss or injury occurred was not shown. The
plaintiff below sought to recover upon two theories: one that
Opperman, who sold the tickets, was the agent of the A. T. & S. F.
Eld. Co., and that that company undertook to carry the passengers
and baggage over the entire route, and that, being the contracting
carrier, it was liable for the loss and injury regardless of where and
upon what road it occurred. The other theory is, that the several
roads constitute a connected and united line, and that the combina-
tion and running arrangements existing among the owners of the
roads were such as amounted in effect to a partnership, and there-
fore the injury and loss was a common liability, and each and all of
the companies are liable, no matter upon what part of the line the
loss occurred. No recovery can be had upon the first theory, for
the reason that the testimony wholly fails to establish that Opper-
man was the agent of the defendant company. Some of the wit«
nesses for Eoach spoke of Opperman as the agent of that company,
658 CAEEIEKS OF GOODS.
while others stated that he was agent of the New York, Lake Erie
& Western Eailroad Company. It was however developed upon
cross-examination, that they had no knowledge of his authority or
agency beyond his action in the sale of the tickets and the check-
ing of the baggage. Opperman testified that he was the authorized
agent of the New York, Lake Erie & Western Eailroad Company,
and sold tickets for and as the agent of that company, and that he
did not represent and was not the agent of the defendant company.
There was other testimony to the same effect, and also that when
Roach purchased his tickets the defendant company had no tickets
on sale in or about the city of New York. The theory that the
defendant company was the original contracting carrier finds no
Support in the testimony, and no liability arises against the com-
pany on that ground. Where then is the liability? It is contended
by the railroad company that the New York, Lake Erie & Western
Railroad Company, being the first carrier, is alone liable. While
a railroad company cannot be compelled to transport to a point
beyond its own line, it is well settled that it may lawfully contract
to carry persons and property over its own and other lines to a des-
tination beyond its own route; and when such a contract is made, it
assumes all the obligations of a carrier over the connecting lines as
well as its own. In such cases the connecting carriers engaged in
completing the carriage are deemed to be agents of the first carrier,
for whose negligence and default the contracting carrier becomes
liable. Berg v. A. T. & S. F. Rid. Co., 30 Kas. 661; Lawson's Con-
tracts of Carriers, § 236; Hutchinson on Carriers, § 145; Thompson's
Carriers of Passengers, p. 431 ; 2 Rorer on Railroads, p. 1234. Of
course a railroad company or other common carrier may limit its
liability to the loss or injury occurring on its own line, and the
understanding or contract between the parties is to be determined
from the facts of each case. Some of the courts have held that the
mere acceptance of the property marked for transportation to a
place beyond the terminus of the road of the accepting carrier,
amounts to an undertaking to carry to the ultimate destination,
whatever that may be; and in the absence of any conditions or limi-
tations to the contrary, will make it liable for a loss occurring upon
the connecting lines as well as its own; while others hold that in
such a case the carrier is only bound to safely carry to the end of
its own route, and there to deliver to the connecting carrier for the
completion of the carriage. Lawson's Contracts of Carriers, §§ 238,
239, 240. But where a railroad company sells a through ticket for
a single fare over its own and other roads, and checks the baggage
of the passenger over the entire route, more is implied, it seems to
us, than the mere acceptance of the property marked for a destina-
tion beyond the terminus of its own line. The sale of a through
ticket and the checking of the baggage for the whole distance is
some evidence of an undertaking to carry the passenger and baggage
DELIVERY BY CAKRIBK. 659
to the end of the journey. The contract need not be an express one,
but may arise by implication and may be established by circum-
stances the same as other contracts. In Wisconsin a passenger pur-
chased a through ticket from the Chicago & Milwaukee Railway
Company from Milwaukee to New York City, and at the same time
delivered her trunk to that company, and received therefor a
through check to New York City. Upon arrival at New York the
trunk was found to have been opened and some of the articles taken
therefrom. The Supreme Court, in ruling upon the effect of the
railway company issuing the through ticket and check, stated
that : —
" The ticket and check given by the Chicago & Milwaukee Rail-
way Company implied a special undertaking by that company to
safely transport and carry, or cause to be safely transported and
carried, the plaintiff and her baggage over the roads mentioned in
the complaint, from Milwaukee to the city of New York. This we
think must in legal contemplation be the nature and extent of the
•contract entered into and assumed by that company when it sold the
plaintiff the through ticket and gave a through check for the trunk,
and received the fare for the entire route." Candee v. Pennsylvania
Eld. Co., 21 Wis. 582; 111. Cent. Eld. Co. v. Copeland, 24 111. 332;
Carter v. Peck, 4 Sneed [Tenn.J, 203; Eailroad v. Weaver, 9 Lea,
38; B. & 0. Eld. Co. v. Campbell, 36 Ohio St. 64T; same case, 3
Am. & Eng. Eld. Cases, 246; 2 Eorer on Railroads, p. 1001.
Prom the authorities we conclude that the sale of a through ticket
for a single fare by a railroad company to a point on a connecting
line, together with the checking of the baggage through to the des--
tination, is evidence tending to show an undertaking to carry the
passenger and baggage the whole distance, and which in the absence
of other conditions or limitations and of all other circumstances
will make such carrier liable for faithful performance, and for all
loss on connecting lines, the same as on its own. The liability of
the first carrier does not necessarily relieve the defendant company
from responsibility. Each carrier is liable for the result of its own
negligence, and although the first carrier may have assumed the
responsibility for the transportation to a point beyond its own route,
any of the subsequent or connecting carriers to whose default it can
be traced will be liable to the owner for the loss of his baggage.
Hutchinson on Carriers, § 715; Aigen v. Boston & Maine Eld. Co.,
132 Mass. 423; Eailroad v. Weaver, 9 Lea, 39.
The defendant company cannot, however, be held liable upon that
ground, because there is no evidence that the baggage was injured
or lost while in the custody of that company, nor was it in fact
shown upon what part of the route the injury or loss occurred.
The other theory upon which a recovery is sought is, that the
several connecting lines over which the baggage was to be carried
should be treated as a continuous and united line, and that the
GoO OAEKIERS OF GOODS.
arrangements made by the several lines for through traffic was such
as to constitute them a partnership. There is a singular lack of
testimony in the case, not only respecting the terms of the contract
with the passenger, but also in regard to the relations existing
among the several carriers. Not a word of testimony was intro-
duced as to the running arrangements between the compaaies , nor
the basis upon which through business was done. The practice or
custom of the companies in the past was not shown, neither was
there any proof that they had ever co-operated, or had done any
through business beyond the transaction in question. It was not
even shown what the form of the ticket was, nor what were the
stipulations, if any, printed on them. There was in fact no evi-
dence upon which to predicate a theory of partnership, or that each
of the companies was the agent of all the others, except the single
transaction of selling the tickets and checking the baggage. It is
doubtless true that arrangements are frequently made among rail-
road companies whose lines connect, for through traffic, which con-
stitute them partners. Such an arrangement is greatly to the
advantage of the companies; the convenience which it affords the
public invites business, and swells the traffic of the companies
engaged in the joint enterprise. These arrangements among asso-
ciated lines render it difficult for the passenger or shipper, in case of
loss or injury of his property, to ascertain where the loss occurred;
but no such difficulty lies in the way of the railroad companies ; they
have the facilities and can easily trace the property to the company
which caused the injury or loss. In interpreting the agreements
and conduct of associated lines engaged in a through traffic, public
policy and the inconvenience mentioned should be considered, and
they should be fairly and liberally interpreted towards the patrons
of the lines holding the companies, where it is admissible under
the rules of the law, to a common liability as partners. But such
arrangements for through traffic cannot be held to be a partnership,
unless there is a community of interest among the companies, and
under which each shares the profits and losses of the enterprise.
The mere sale of a through coupon ticket over the connecting lines
of several companies, and the checking of the baggage to the end of
the route does not show such a community of interest as would make
them partners inter sese, or as to third persons. This question has
been directly adjudged. A through ticket was purchased for pas-
sage from New York to Washington over three lines of railroad
which constituted a through line for the transportation of passen-
gers and freight, and the passenger purchasing the ticket received
a through check for her baggage. It appeared that the fare received
for through tickets was accounted for by the company selling the
tickets to the other lines according to certain established rates, but
there was no division of losses; and it was held in an action against
the last carrier to recover for lost baggage, that the first carrier was
DELIVERY BY CAKKIER. 661
liable for losses occurring on its own line, as well as any other con-
necting line throughout the whole distance, but that the arrange-
ment of the three companies for the sale of through tickets and the
issuance of through checks, while it resembled a partnership, did
not constitute one, nor make any of the connecting carriers liable tor
a loss not occurring on its own line. Croft v. B. & 0. Kid. Co.,
1 Mc Arthur, 492.
In Hartan v. Eastern Railroad Co. , 114 Mass. 44, it was ruled
that arrangements between connecting roads forming a continuous
line for the sale of through coupon tickets, which enabled passen-
gers to pass over all the roads without change of cars, did not imply
joint interest or joint liability. In another case, where several car-
riers whose lines connected made an agreement among themselves to
appoint a common agent at each end of a continuous line to sell
through tickets and receive fare, it was held that this arrangement
did not constitute them partners as to passengers who purchased
through tickets, so as to render each of the companies liable for
losses occurring on any portion of the line. Ellsworth v. Tartt, 26
Ala. 733. A somewhat similar case was decided in New York.
There a passenger purchased a through ticket from New York to
Montreal over several connecting lines of railroad, owned by several
companies. The ticket was a strip of paper divided into coupons,
whereof one was to be detached and surrendered to the conductor of
each line on the route. The passenger, instead of giving his valise
into the charge of the agent of the company and receiving a check
therefor, kept it in his own charge to the terminus of the line of the
first carrier, where he delivered it to the agent of the connecting
line, who checked it through to another point on the road. It
appeared that an arrangement had been entered into between the
various lines from New York to Montreal to connect regularly.
Tickets were sold in New York for the entire route or intermediate
places, under the direction of a general agent, who was paid by the
several companies. The rate of fare was different on the different
roads, and each company received its own proportion of the whole
fare or passage-money at the close or at the beginning of every
moath, according to the established rates of fare. It was held that
there was nothing in an arrangement like this to constitute the
different companies partners for the transportation of passengers or
baggage, so as to make one of them liable in common with the others
for the loss of the valise. It was decided that "the arrangement
may be beneficial to them as well as to the public, inasmuch as by
facilitating travel, it may tend to increase it, but .that would not
create that joint interest, that community in profit and loss which
is essential to the existence of a partnership." Straiton v. New
York & New Haven Eld. Co., 2 E. D. Smith, 184; Hot Springs Eld.
Co. V. Tripple & Co., 42 Ark. 465; same case, 18 Am. & Eng. Eld.
Cas. 562; Aigen v. Boston & Maine Eld. Co., 132 Mass. 423; same
662 CAKKIEES OF GOODS.
case, 6 Am. & Eng. Eld. Gas. 426; Darling v. Boston & Worcester
Eld. Co., 11 Allen, 295; Kessler v. Eailroad Co., 61 N. Y. 538;
Irwin V. Eld. Co., 92 111. 103; Insurance Co. v. Eld. Co., 104 U. S.
146; same case, 3 Am. & Eng. Eld. Cas. 260.
Among the cases relied on by the defendant iu error is Hart v.
Eld. Co., 4 Selden, 37. In that case the defendant, which was one
of three railroad companies owning distinct portions of a continuous
road, was held liable for the loss of the baggage of a passenger
received at one terminus to be carried over the whole road. The
liability was not, however, based alone upon the selling of the ticket
and the checking of the baggage. In addition to through tickets, it
appeared that under the agreement made each of the railroad com-
panies ran its cars over the whole route, and employed the same
agents to sell passage-tickets. Besides these facts, it appeared that
the lost baggage had been placed directly in charge of the servants
of the defendant company, and that its loss was due in part to the
negligence of that company.
Texas & Pacific Eld. Co. v. Eort, a decision by the commission of
appeals of the State of Texas, reported in 9 Am. & Eng. Eld. Cases,
392, is also relied on. There it is held -that the delivery of through
checks, upon which were stamped letters indicating the different
railways over which the baggage would go, constituted a contract
under which the several companies were liable, regardless of the
line upon which the loss occurred, — a proposition to which we can-
not accede. The decision in this case is based upon the ruling in
Hart V. Eailroad Co., supra, which, as we have seen, was deter-
mined upon other considerations. The same may also be said
respecting Texas & Pacific Eailway Co. v. Ferguson, another de-
cision of the commission of appeals of Texas, 9 Am. & Eng.
Eld. Cases, 395, as well as Hart v. The Grand Era, 1 Woods
C. C. 184.
The only other case relied on is Wolf v. Central Eld. Co., 68 Ga.
653. It was there held that where a passenger with a through ticket
over a connecting line checked his baggage at the starting-point
through to his destination, and upon arrival there found that it had
been injured, he might sue the railroad company which issued the
check or the one delivering the baggage in bad order. Upon the
facts in that case the court determined that the company selling
the tickets was to be regarded as the agent of the other companies
composing the line, and intimated that Where a passenger travels
over a continuous line on a through ticket, and the baggage is sent
on a through check, that any one of the companies may be held
liable for spoliation of the baggage, irrespective of the point at which
it actually occurred ; and the query is also raised as to whether they
are jointly liable as partners. The writer of the opinion held that
by the sale of the tickets and the division of the receipts at period-
ical settlements they acted as principals and not as agents, and that
DELIVERY BY CAEEIER. 663
by such action they stood substantially in the position of partner in
the through business, and were jointly and severally liable as such.
The concurrence of the other justices was, however, placed upon the
ground that as the last carrier, and the one which was sued, received
the baggage in apparent good condition, it was presumably liable,
and the Chief Justice stated that this was the exact point decided.
It is difficult in many cases to determine whether the arrangements;
and agreements of connecting carriers are such as to constitute each
of them principals, or to place them in the relation of partners ; but.
neither upon reason or authority can we hold that the sale of
through tickets and the checking of baggage over the connecting-
lines of several companies, without other proof of their relations or
the basis upon which the business was done, is sufficient to make
them jointly and severally liable as partners.
The instructions of the court not being in accord with the views
herein expressed, and the evidence being insufficient to support the
verdict, the judgment of the District Court must therefore be
reversed, and the cause remaijded for another trial.
All the justices concurring.
PETEESON V. CHICAGO, EOCK ISLAND AND PACIFIC
E. CO.
80 Iowa, 92. 1890.
The plaintiff seeks to recover of the defendants, who are common
carriers of passengers and baggage, the value of certain wearing
apparel, ornaments, and other property which were stolen from cer-
tain trunks of the plaintiff and her husband, while being conveyed
as baggage from Davenport, in this State, to the city of Los Angeles,
in the State of California. There was a trial by jury, and at the
close of the introduction of the evidence the court, on the motion
of the defendants, directed the jury to return a verdict for the
defendants. Plaintiff appeals.
EOTHROCK, C. J
II. In an amendment to the petition the plaintiff set up a second
and further cause of action, in which it is, in substance, alleged
that, at the time the tickets were purchased by Peterson and the
journey was made, the four railroad companies owned and operated
by the defendants formed a complete connecting line of railway
from Davenport to Los Angeles, and at said time said four defend-
ants had formed and entered into an agreement and combination for
the purpose of transporting passengers and their baggage from
Davenport to Los Angeles, by using said four lines of railway as a
664 CAEEIEES OF GOODS.
continuous line between said places, and making one fare or charge
for such transportation for the entire distance, " that said business
of transporting said baggage was done by defendants in such a man-
ner that it was impossible for plaintiff or her husband to know or
discover at what particular place on said route said property was so
taken from trunks, and she is, therefore, unable to state." There
was no evidence to sustain this count of the petition as against
the Chicago, Rock Island and Pacific Eailway Company. On the
contrary, it is expressly provided, on the face of the ticket, that the
said company assumed "no responsibility beyond its own line." It
did not check the baggage beyond its own line, and the evidence
shows that the trunks were not opened while they were in the pos-
session of that company. When the baggage was delivered at Kansas
City, the checks taken up and the trunks rechecked, the contract,
so far as the Rock Island Company was concerned, was fully per-
formed. The court is committed to the doctrine that the receiving
or initial carrier may, by a stipulation in the bill of lading or con-
tract of carriage, limit its liability to injuries to the consignment
which occur on its own line. Mulligan v. Railway Co., .36 Iowa, 181.
We do not understand counsel for appellant to claim that the court
erred in directing a verdict for the Rock Island Company, and it has
made no appearance in this court, and has not filed either brief or
argument.
The important question to be determined in the case is whether
the other three defendants are jointly, or, rather, jointly and
severally, liable for the pillage of plaintiff's baggage. That some
one of them is liable there can be no serious question. It is true
that larceny may have been committed by the employees of the
transfer company at Los Angeles. But, in view of the brief time
between the delivery of the checks and the arrival of the baggage at
the hotel, this is not at all probable. To determine this question, it
will be necessary to analyze the contract, and determine its legal
effect upon the rights of the parties. It will be observed that the
ticket does not provide that the Atchison, Topeka, and Santa Fe, the
Atlantic and Pacific, and the California Southern Railroad com-
panies assumed no responsibility beyond their own line. Their
obligation is, therefore, to be determined by the ticket with the
coupons attached, and by the other facts developed in the evidence
tending to show what the real contract was ; and here it is proper to
say that a railroad passenger ticket does not ordinarily import a
complete contract. It is in some sense like a check for baggage. It '
is issued by the carrier as the evidence of the right of the passenger
to transportation between the points named on the face of the ticket.
It is surely not as complete a contract in form as a bill of lading for
the transportation of goods, and a bill of lading is everywhere recog-
nized as a receipt as well as a contract. In the case of Steamboat
Co. V. Brown, 54 Pa. St. 77, speaking of a bill of lading, it is said:
DELIYERY BY CAEKIEE. 665
" On its face, it is but a memorandum, and not in form a contract
inter partes. It is doubtless an instrument iitted for the occasion in
wbich it is usually employed; and while what is clearly expressed
may not be contradicted by oral testimony, unless under the quali-
fication of fraud or mistake, yet there is no rule which excludes tes-
timony to explain it, and to show what the real contract was, of
which it is but a note or memorandum at best." And see Quimby
V. Vanderbilt, 17 N. Y. 306. This court has determined that,
where a contract is partly in writing and partly by verbal agree-
ment, parol evidence may be introduced to show the portion of the
contract not reduced to writing. Singer Sewing Machine Co. v.
Holcomb, 40 Iowa, 43; Keen v. Beckman, 66 Iowa, 672.
Applying this rule to the evidence in the case, it appears that the
Eock Island Eailroad Company or its ticket agent was authorized to
sell through tickets over the three roads, and to collect and receive
the full fare for the whole distance from Kansas City to Los Angeles.
How this was divided among the said companies does not appear.
So far as it appeared to Peterson, the purchaser of the tickets, it
was a joint transaction. The ticket recognizes the right of the pas-
senger to have the baggage transported over the respective lines, and
an attempt was made to limit the liability to one hundred dollars,
but no reference is made to any several liability of any company
forming the line, except the Rock Island Company. The Kock
Island Company, as the agent of the other lines, had no authority
to check baggage over them. This is apparent from the fact that
the trunks were passed over the Eock Island road without question
as to their weight ; but, when they were rechecked by the Atchison,
Topeka, and Santa ~Fe Company at Kansas City, the sum of twenty-
seven dollars on extra baggage was exacted by the company, and
paid by Peterson, and in consideration thereof the baggage was
checked through to Los Angeles. This was, in efEect, paying to all
three of the companies for carrying extra baggage from Kansas City
to the end of the journey. It appears that the trunks and Peterson
and his family were all carried through to Los Angeles on the same
train. It does not appear whether there was any change of passen-
ger or baggage cars in the train. The checks delivered to Peterson
at Kansas City imported an obligation on the part of the three com-
panies to carry the baggage through to its destination. A check for
baggage has the same elements of a contract as an ordinary railway
passenger ticket. It is, to say the least, some evidence of the con-
tract between the carrier and the traveller for the transportation of
his baggage. Anderson v. Eailway Co., 65 Iowa, 131. An exam-
ination of the coupon attached to the ticket above set out will show
that, at the foot of the coupon, the initials of all of the defendants
appear. It is not claimed that these initials are not intended to
represent the defendants. There is no evidence tending to show for
what purpose these initials were placed there, but it is conceded
663 CAKEIEES OF GOODS.
they were on all the coupons. It is contended by counsel for appel-
lees that these initials were placed upon the coupons to indicate the
route pursued by the traveller. Counsel for appellant claim that
they are signatures to a contract. In the absence of any evidence,
and in construing the contract so far as it is written, and in connec-
tion with the facts above recited, we think the defendants ought not
to complain if it be held that they imported a joint obligation upon
the part of the defendants, except the Rock Island Company, which,
by the express stipulation in the body of the ticket, is not bound for
any failure beyond its own line. The appearance of these initial
letters on all the coupons was, to say the least, an important fact,
to be considered in determining whether, as to the last three roads
in the line, there were three separate contracts or one joint contract;
and we, can see no valid reason why it may not be held that the con-
tract, so far as the last three roads are concerned, was completed
by what occurred at Kansas City and afterwards. It is true the
Atchison, Topeka, and Santa F^ Company was an intermediate car-
rier. But such a carrier may, by its contract, make itself liable for
the safe transportation of the baggage through the entire route.
Beard v, Eailway Co., 79 Iowa, 518.
It is important to understand just what question was determined
by the District Court. The direction to the jury to return a verdict
for the defendants was, in effect, a holding that there was not suffi-
cient evidence to submit to the jury to justify a verdict that the.
defendants were jointly liable. In other words, that the ticket,
with the coupons attached, together with parol evidence, showed
that four separate contracts were made, which made four causes of
action, or one action against each company for spoliation of the
baggage on its road only, and that there was, therefore, a misjoinder
of causes of action. If this was correct, there could be no recovery
against either company, because there was no evidence at what point
of the line the trunks were unlocked and the property removed.
The counsel for the plaintiff cited a large number -of cases, which
it is claimed hold that, under like facts, the several lines are held
to be jointly liable, and other cases where the last carrier in the
continuous line is held liable. The following are some of the author-
ities relied upon: Laughlin v. Railway Co., 28 Wis. 204; Brintnall
V. Railway Co., 32 Vt. 665; Hart i'. Railway Co., 8 N. Y. 37; Fair-
child V. Slocum, 19 Wend. 329; Wolff v. Railway Co., 68 Ga. 653;
Railway Co. v. Mcintosh, 73 Ga. 532; Barter v. Wheeler, 49 N; H.
9; and Harp v. The Grand Era, 1 Woods, 184.
In the last ^bove case the action was against an intermediate car-
rier, and in all the others the action was either against the receiving
carrier or the last one in the line. In one of the cases — that of
Laughlin v. Railway Co. — the action was against the last cai-rier.
There was no evidence at what point the goods were stolen, and the
court held the defendant liable upon the presumption that the goods
DELIVERY BY CAKEIEK. 667
were stolen in the possession of the last carrier. In Brintnall v.
Eailway Co., the plaintiff was permitted to recover of the receiving
carrier, because, when the goods were shown to have been in its
custody, it was incumbent on it to show that it had delivered the
goods to the next carrier in the line. It may be said of all the cited
cases that they rest mainly upon what is deemed presumptions.
These presumptions are grounded upon the necessities of the case,
rather than upon any clear and well-delined legal grounds. Indeed,
many of them are really grounded upon the thought that, where it
is impossible for the owner to show upon which part of the whole
line of travel the property was lost or stolen, it is incambent on the
defendant to show itself clear of the loss. In one of the cited cases.
Smith V. Eailway Co., 43 Barb. 225, it is said: "Unless this rule
is to be applied to goods delivered, to be transported over several
connecting railroads, there would be no safety to the owner. It
would often be impossible for him to prove at what point, or in the
hands of what company, the injury happened." Others of the cited
cases hold the defendants liable upon grounds which are really based
upon the thought that all of the connecting lines are jointly liable.
This is true of the case of Wollf v. Eailway Co., 68 Ga. 653; and
in Eailway Co. v. Fort, 9 Am. & Eng. E. E. Cas. 392, and Eail-
way Co. V. Ferguson, 9 Am. & Eng. E. E. Cas. 395, the Supreme
Court of Texas holds that, when a person purchases a through ticket
over several railroads, and procures a corresponding check for his
baggage, and the baggage is lost, each carrier is the agent of all the
others, and is liable to any damage to the baggage on whatever part
of the line the damage was done. The case of Harp v. The Grand
Era, supra, is to the same effect.
On the other hand, we are cited by counsel for appellee to a large
number of cases which determine that, where several connecting
companies form a through line, each operating its own road, and
through tickets with coupons attached are sold over the entire route
for a single fare, there is no joint liability by reason thereof, and
each carrier will only be liable for defaults occurring on its own
road, except that in some States the receiving carrier is presumed to
contract for carriage over the entire route. Among the cases cited
are the following: Ellsworth v. Tartt, 26 Ala. 733; Hood v. Eail-
way Co., 22 Conn. 12; Knight v. Eailway Co., 56 Me. 240; Croft v.
Eailway Co., 1 McArthur, 492; Kessler v. Eailway Co., 61 N. Y.
538; Eailway Co. v. Eoach, 35 Kan. 740; 12 Pac. Eep. 93. The
length of this- opinion forbids that we should review these cases.
After a very full and careful examination of the subject, Mr.
Hutchinson, in his work on carriers (page 131), says: "From the
cases it may be deduced : First, that where carriers over different
routes have associated themselves under a contract for a division of
the profits of the carriage in certain proportions, or of the receipts
from it, after deducting any of the expenses of the business, they
668 CARRIERS OF GOODS.
become jointly liable as partners to third persons ; but that, where
the agreement is that each shall bear the expenses of his own route,
and of the transportation upon it, and that the gross receipts shall
be divided in proportion to distance or otherwise, they are partners
neither inter se nor as to third persons, and incur no joint liability."
We think this is a fair statement of the rule of joint liability which
IS supported by the great weight of authority.
It only remains to be determined whether the evidence in this case
authorized the jury to find a joint liability. We think it did. It
is true there is no express proof that these defendants were partners.
But it is to be remembered that the plaintiff made the best proof of
which her case was capable. The fact as to the relation which these
companies sustained to each other, and the impossibility of proving
where or on which road the trunks were pillaged ; the receipt of the
whole of the fare by their joint agent, the Kock Island Railway
Company; the collection of the charge for extra baggage at Kansas
City; and the fact that the trunks were checked through and carried
to the end of the journey on the same train with Peterson and his
family; and the initials of all of the companies to each coupon,
authorized a finding that the undertaking was a joint transaction,
at least so far as the rights of the passengers to have their baggage
safely carried were involved. In our opinion, the case ought to
have been submitted to the jury.
Seversed.
b. Deliver;/ to Consignee,
SWEET V. BAENEY.
23 N. Y. 335. 1861. ~
Appeal from the Supreme Court. Action against the defendants,
an express company, as common carriers, to recover the amount of
a package of money, received by the defendants, directed to the
"People's Bank, 173 Canal Street, New York." The defendants had
a verdict at the circuit, which was af&rmed at the General Term of
the Supreme Court in the seventh district, and the plaintiffs appealed
to this court.
The proof showed these facts: The plaintiffs were bankers at
Dansville, Livingston County. They kept an account with the
People's Bank, in which they were in the habit of making deposits
and drawing bills of exchange or checks against the same. A pack-
age containing $2,892 was delivered by them to the defendants,
directed "People's Bank, 173 Canal Street, New York," to be for-
warded as directed. The package was taken to New York, and
DELIVERY BY CAEKIER. 669
delivered at the defendant's office in that city to one Messenger, an
employee of the People's Bank. Messenger was a porter in the
People's Bank, and had been for several years ; was accustomed to
receive money brought by the defendant's company at the bank, at
the Clearing House and at the defendant's office. Messenger was
also accustomed to act for the People's Bank in making exchanges
and collections with other banks ; and he acted as its representative
at the Clearing House, at a desk labelled "People's Bank;" had
there often received packages of money from the defendants ad-
dressed to " People's Bank " and given receipts for the same for said
bank. The defendants' office was in the same building with the
Clearing House, and Messenger requested the defendants to keep
the packages for the People's Bank at their office until he called
for them. The defendants did so, and Messenger regularly called
for them and received them, and gave receipts. In the eighteen
days previous to the delivery of this, nine other packages for the
People's Bank were delivered to and receipted by Messenger with-
out any complaint or objection from the bank. After the delivery
to Messenger of the package in question it was stolen from him.
The plaintiff's counsel requested the judge to charge the jury that
the duty of the defendants was to deliver the package at the bank as
directed, and they were not authorized to deliver the same to any
person at any place other than at the bank. 2. That neither the
bank nor the defendants were authorized to change the mode of
delivery of the package without the consent or knowledge of the
plaintiffs; and that such change, if made without their knowledge
or consent, would not discharge the defendants.
The judge refused both of these requests, and the plaintiffs' coun-
sel excepted to such refusal. The judge charged that a delivery to
an agent of the bank, authorized by it to receive, the package, at
any place other than the bank, would discharge the defendant, to
which the plaintiffs' counsel also excepted.
James, J. That these defendants were common carriers can
hardly be doubted. Persons whose business it is to receive pack-
ages of bullion, coin, bank notes, commercial paper, and such other
articles of value as parties see fit to trust to their care for the pur-
pose of transporting the same from one place to another for a com-
pensation, are common carriers, and responsible as such for the safe
delivery of property intrusted to them. Russell v. Livingston, 19
Barb. 346; Sherman v. Wells, 28 Barb. 403. Such was the busi-
ness of these defendants, and such their responsibility.
The consignee is the presumptive owner of the thing consigned ;
and when, the carrier is not advised that any different relation exists,
he is bound to so treat the consignee; but this presumption may be
Tebutted; and if in an action for non-delivery by the consignor
against the carrier that presumption be overcome, the action is
properly brought in the consignor's name. Price v. Powell, 3 Comst.
670 CARRIERS OF GOODS.
322. But in this case, unless a delivery of the money be established,
the plaintiffs' right to recover was made out.
There was no notice of the contents of the package in question
belonging to the consignors; nor was there any fact proved, calcu-
lated to weaken the presumption of ownership in the consignee.
The defendants were, therefore, not only authorized, but fully jus-
tified in treating the consignment as the property of the bank. The
defendants could not know that they were employed to make a
deposit in the People's Bank for the benefit of the assignors; or
that this package was entitled to or demanded a special delivery.
There was, in fact, nothing in the transaction to advise them that
this package was to be treated differently from other packages
actually belonging to the bank; and, therefore, any delivery good
against the bank discharged the carrier.
The principal question then is, was there a delivery good against
the bank; if there was, the plaintiffs must follow the bank; they
have no cause for action against these defendants. It is conceded
that the liability of a carrier, begins with the receipt of the goods
by him, and continues until the delivery of the goods by him, sub-
•ject to the general exceptions. And an express carrier is bound to
deliver the goods at their destined place, to the consignee, or as the
consignee may direct. In general, the delivery must be to the
owner or consignee himself, or to his agent, 11 Met. 509, or they
must be carried to his residence, or they may be taken to his place
of business, when from the nature of the parcels that is the appro-
priate place for their delivery. But there is no rule of law requir-
ing a delivery at the consignee's residence or place of business when
he is willing to accept it at a different place, or directs a delivery at
another place. The consignee, or his authorized agent, may receive
goods addressed to him in the hands of a carrier at any place, either
before or after their arrival at their place of destination, and such
acceptance operates as a discharge of the carrier from his liability.
It was held in Lewis v. The Western Eailroad, 11 Met. 509, that
if A, for whom goods are transported, authorizes B to receive a
delivery thereof, and to do all acts incident to the delivery and
transportation thereof to A, and B, instead of receiving the goods
at the usual place of delivery, requests the agent of the railroad to
permit the car which contains the goods to be hauled to a near depot
of another company, and such agent assents thereto, and assists B
in hauling the car to such depot, and B then requests and obtains
leave of that company to use its machinery to remove the goods
from the car — the company that transported the goods is not
answerable for the want of care or skill in the persons employed in
so removing the goods from the car, nor for the want of strength in
the machinery used for the removal of them, and cannot be charged
with any loss that may happen in the course of such delivery to A.
Had the consignee in this case received the package in question at
DELIVERY BY CAKRIER. 671
the defendants' office, I think no one would doubt the defendants
were discharged. The case then turns upon Messenger's agency.
If an authorized agent in the premises, a delivery to him was as
effectual as a delivery to the principal. The question of agency was
a question of fact, and was settled by the verdict of the jury.
We think the delivery at the office of the defendant to the
authorized agent of the consignee was proper, and operated to
discharge the defendants from their obligations as carriers.
This disposes of the case unless there was some error committed
at circuit in submitting the question of Messenger's authority to
the jury, or in the court's refusing to charge as requested. I have
been unable to discover any such error. The evidence submitted
was competent — it was of the most perfect and satisfactory kind,
and not only justified, but required the verdict rendered. The judg-
ment should be affirmed.^
1 Da VIES, J., dissenting.
The question presented to our consideration in this case is, whether the defendants
have performed the service which they undertook. There is no ground for the a.ssump-
tion that the money transmitted by the defendants was the property of the bank.
It was sent by the plaintiffs to be deposited with the bank as their property, and there
is no reason to infer that it was sent to pay an antecedent debt. There is no proof
that any such debt existed, and it might as well be said that the money of any de-
positor when set aside to be deposited in a bank became the property of the bank and
ceased to be that of the depositor. It is placed in the bank for safety, and as a
convenient mode of transacting business and for making payments by the depositor,
by checks or drafts on the bank. It could be attached and reached as the property of
the depositor. The ordinary presumptions applicable to a consignment of property, as
to the ownership by the consignee, have no application to the present case. Have the
defendants performed the service which they undertook ? It is contended on their
behalf that they have, because they delivered the package to an agent of the bank,
and, as they assume, under such circumstances as would render the bank liable to the
plaintiffs for the money transmitted.
It would seem to be a sufftcieut answer to this defence to say, that such was not the
contract made by the defendants with the plaintiffs, and that they have no legal right
to make a new contract, or do something which they contend is equivalent to that
undertaken to be done by them : there is no pretence that the plaintiffs were parties
to any such modification of the contract, made or had any knowledge of it, or in any
manner assented to it. Nor can it be alleged that the custom of the defendants in
delivering packages to the parties, at places other than the bank, can have any effect
on the rights of the plaintiffs. As between the defendants and thq bank it has signifi-
cance : as to the parties of the contract, it is res inter alios acta, and the plaintiffs are
not deprived of any of their rights by reason of it. It is well settled, that it is the
duty of the carrier, not only to transport the goods safely to the place of delivery, but
without any demand upon him to deliver the same according to the owners' directions.
There is no question that in this case the directions of the owners, the plaintiffs, were
to deliver this money at the bank, at 173 Canal Street, to the officers of the bank. It
was held in Hyde v. Trent and Jersey Navigation Company (5 T. R., 389 [596]), that
a delivery to a porter at an inn, to carry to the consignee, did not discharge the
carrier. That the goods continued at the risk of the carrier until a personal delivery
at the house or place of deposit of the consignee, and that the porter to whom the
package was delivered, was the servant of the carrier. It would follow in the present
672 CAEKIEES OF GOODS.
BAILEY V. HUDSON EIVER R. CO.
49 N. y. 70. 1872.
Appeal from judgment of the General Term of the Supreme Court
in the first judicial department, affirming a judgment in favor of
plaintiffs entered upon a verdict.
Action for the conversion of eleven cases of dry goods.
Chukoh, C. J. It is undisputed that Alden, Frink & Weston
delivered the goods in question to the defendant, to be transported
by them to the plaintiffs ; that they were consigned to the plaintiffs,
and the packages properly marked with the name of the plaintiffs'
firm, and the defendant gave a receipt for the same, agreeing to
deliver the goods safely to the plaintiffs at the city of New York.
It is also undisputed that the plaintiffs had made a specific advance
upon a portion of the goods, and the remainder were shipped in
pursuance of an agreement between the plaintiffs and Alden , Prink
& Weston, to pay for money borrowed by the latter of the former a
few days previous, and that invoices of all the goods, stating the
consignment and shipment by the defendant's railroad, had been
forwarded to the plaintiffs by mail. This was substantially the
condition of things on the 17th of October, when one of the members
of the firm of Alden, Frink & Weston, for his individual benefit,
but in the name of his firm, changed the destination of the goods,
and the defendant delivered them in pursuance of such changed
destination to another person. The question is whether the title
had vested in the plaintiffs. I think it had. It is clear that the
consignors delivered the goods to the carrier for the plaintiffs in
case that Messenger, the porter to whom the defendants delivered the package in this
instance, is to be regarded as the servant of the defendants. Prima facie, the carrier
is under an ohligation to deliver the goods to the consignee personally at the place of
delivery. Custom of so general and universal a character as may warrant the sup-
position that the parties contracted with reference to it, may be pi'oven to vary the
manner of the delivery ; or the place and manner of the delivery may be varied by the
assent of the owner of the property ; and where he interferes to control or direct in
the matter, he assumes the responsibility. Edwards on Bail., pp. 615, 519. In this
case no general or universal custom changing the carrier's legal liability, of such a
character as that we may presume the parties to have contracted in reference to it, was
shown or pretended. Neither was it alleged that the owners, the plaintiffs, had by
their assent in any manner varied the carrier's legal liability, or interfered in any way
with the delivery or had any knowledge of the practice of the defendants in making
deliveries different from that contained in the direction or contract, or had given any
consent to any other delivery or to any change of the legal liabilities assumed by the
Carrie)' on receipt of the package. The an'angemeut alleged to be made between the
defendants and the bank or its officers, by which a different delivery was made than
that embraced in the contract with the plaintiffs, can therefore have no binding effect
npou the plaintiffs, or in any manner impair or affect their rights.
DELIVEET BY CAEEIEK. 673
compliance -witli their contract to do so. The parol contract was
thereby executed, and the title vested in the plaintiffs. The plain--
tiffs occupied the legal position of vendees after having paid the
purchase-money and received the delivery of the goods. But it is
unnecessary, in order to uphold this judgment, to maintain that the
plaintiffs occupied strictly the relation of vendees. The legal rights
of the vendee attach when goods are shipped to a commission mer-
chant, who has made advances upon them in pursuance of an agree-
ment between the parties. Such an agreement may be either inferred
from the circumstances or shown by express contract. Holbrook v.
Wight, 24 Wend. 169; Haille v. Smith, 1 Bos. & Pul. 663. In the
latter case, Eyre, J., said: "Prom the moment the goods were set
apart for this particular purpose, why should we not hold the prop-
erty in them to have changed, it being in perfect conformity to the
agreement and such an execution thereof as the justice of the case
requires ? " The same principle has been repeatedly adopted. Gros-
venor v. Phillips, 2 Hill, 147.
It must appear that the delivery was made with the intent to
transfer the property. Until this is done the parol agreement is
executory, the title remains in the consignor, and he has the power
to transfer the property to whomsoever he pleases, and render him-
self liable for the uon-performance of the contract. It is urged by
the counsel for the defendant that no bill of lading was forwarded
or delivered to the plaintiffs, and that until this was done the title
remained in the consignors. This is undoubtedly true in many
cases; but it is mainly important in characterizing the act of the
shipper, and showing with what purpose and intent the goods were
delivered to the carrier. If A has property, upon which he has
received an advance from B upon an agreement that he will ship it
to B to pay the advance or to pay any indebtedness, he may or may
not comply with his contract. He may ship it to C or he may ship
it to B upon conditions. As owner he can dispose of it as he pleases.
But if he actually ships it to B in pursuance of his contract, the
title vests in B upon the shipment. The highest evidence that he
has done so is the consignment and unconditional delivery to B of
the bill of lading. If the consignor procures an advance upon the
bill of lading from a third person , or delivers or indorses the bill
of lading to a third person for a consideration, it furnishes equally
satisfactory evidence that the property was not delivered to the
consignee, for the simple reason that it was delivered to some one
else. But I apprehend that if a consignor who had such an agree-
ment retained in his own possession a duplicate of the bill of lading,
and notified the consignee by letter that he had shipped the property
for him in pursuance of the agreement, or in any other manner the
intention thus to ship it was evinced, the title would pass as effec-
tually, as between them, as if he had forwarded the bill of lading.
The question whether a subsequent indorsee of the bill of lading for
674 CARRIERS OF GOODS.
a valuable consideration could acquire any rights against the con-
signee, is not involved. As against the consignor the delivery of
the property to the carrier, with intent to comply with his contract,
vests the title in the consignee. It is largely a question of inten-
tion. In Mitchell v. Ide, 39 C. S. K. 260, cited by the defendants,
Lord Denman said: "The intention of Mackenzie to transfer the
property to the plaintiff is unquestionable, and we think that under
the circumstances he has carried that intention into effect." And
in the Bank of Rochester v. Jones, 4 N. Y. 501, this court said:
" When the bill of lading has not been delivered to the consignee,
and there is no other evidence of an intention on the part of the con-
signor to consign the specific property to him, no lien will attach."
In that case the bill of lading was not only not sent to the consignee,
but was transferred to the plaintiffs, and money borrowed upon it,
and there was no evidence of an intention to consign the flour to the
defendant except upon the condition of paying the money so bor-
rowed. It should be observed also that in that ease there was no
agreement to consign the property to the defendant as security, or
in payment of the indebtedness due him from the consignor. Such
an agreement, either express or implied, is important, although not
conclusive, in showing the intent with which the act was done. In
this case there was no other bill of lading than the receipt produced
in evidence, and no duplicate was taken; but the intention of Alden,
Frink & Weston to transfer this specific property to the plaintiffs,
to be applied upon their indebtedness, conclusively appears by the
undisputed evidence. 1. By the agreement the day prior to the
shipment.- 2. By forwarding invoices of the shipment to the plain-
tiffs. 3. By making the shipment unconditionally. 4. By retain-
ing the receipt given by the defendant, and neither making nor
attempting to make any use of it.
These acts were so unequivocal of an intention to transfer the
property to the plaintiffs that there remains no room for doubt. The
moment these acts were done, the title vested in the plaintiffs, and
the consignors were powerless to interfere with the property.
The recent case of the Cayuga County National Bank v. Daniels
(not reported) was decided against the consignees upon the distinc-
tion above referred to. It was held in that case that the consignors
did not deliver the property to the carrier with the intention to vest
the title in the defendants, except upon condition of paying a draft
discounted by the plaintiffs , and that the bill of lading was delivered
upon that condition, and that on the defendants' refusal to comply
with the condition they acquired no- right or title to the property,
and that the case therefore came within the principle of the Bank of
Eochester v. Jones, supra. Here the intention to vest the title is
clear and plain. It is^ urged that the words "on our account," in
the invoices, evinced an intention not to vest the title in the plain-
tiffs. They can have no such effect in this ease, even if standing
DELIVERY BY CARRIER. 675
alone and unexplained they might have. A hill of lading for which,
as between the parties, the invoices were a substitute, can always
be explained by parol. It may be shown by parol to have been
intended as evidence of an absolute sale, a trust, a mortgage, a
pledge, a lien, or a mere agency. 2 Hill, 161; 4 N. Y. 501, and
cases cited. The actual agreement and transaction will prevail, and
it was proved by two of the members of the firm, and uncontra-
dicted, that the goods were, in fact, shipped in pursuance of the
agreement. Besides, these words are not necessarily inconsistent
-with the agreement. The goods were not purchased absolutely by the
plaintiffs at a specified price, but were to be sold and the avails ap-
plied. The relation of the plaintiffs was more nearly that of trustee,
having the title, and bound^to dispose of the property and apply the
proceeds in a particular manner, and the consignors were the cestuis
que trust, having the legal right to enforce the terms of the agree-
ment for their benefit. In this sense the property was shipped on
their account, and the agreement is consistent with the meaning of
those words. The Statute of Frauds has no application. 1st. There
-was no sale. 2d. If there was, the consideration was paid. 3d.
The property was specified when the agreement was made as being
that which had been and was then being shipped, and the plaintiffs
agreed to accept that particular property, and the subsequent
delivery to the carrier agreed upon was in legal effect a delivery to
the plaintiffs. Cross v. O'Donnell, 44 N. Y. 661; Stafford v. Webb,
Lalor's Sup., 217.
The defendant is liable for a conversion of the property. It had
receipted the property and agreed to transport safely, and deliver
it to the plaintiffs. Instead of complying with its contract, it
•delivered the property to another person by the direction of one who
had no more legal authority over the property than a stranger, with-
out the return even of its receipt. -The plaintiffs had vested rights
which the defendant was bound to respect, and with a knowledge of
which it was legally chargeable. 45 N. Y. 49; 6 Hill, 586; 24
Wend. 169; Story on Bailment, 414; 31 N. Y. 490. It was its duty
to deliver the property to the real owner. 45 N. Y. 34.
Judgment affirmed with costs.
AEMENTROUT v. ST. LOUIS K. C. & N. R. CO.
1 Mo. App. 158, 1876.
Blaokwell, J. Plaintiff sues defendant, a common carrier, for
'breach of contract of affreightment, in not fulfilling its undertaking
with plaintiff that it would securely keep and safely carry over its
road, from Ottumwa, Iowa, to St. Louis, Missouri, and in reason-
able time securely deliver to plaintiff's agent, in St. Louis, 100
676 CA.EEIEES OF GOODS.
boxes of eggs, whereby said eggs were totally lost to plaintiff, as he
alleges, to his damage f 2,000.
The case was tried by the court, a jury being waived upon the
following agreed statement of facts.
Plaintiff bought the 100 boxes of eggs in question of McCullough
& Lilburn, at Ottumwa, Iowa, at bhe price of $1,628.04; he paid f 10'
in cash, and agreed with McCullough & Lilburn that for the balance
of the purchase price they should draw against the shipment on
Bussy & Co., at St. Louis, with the bill of lading, or receipt therefor
of defendant, attached; of all which defendant had no knowledge.
Bussy & Co. were the commission merchants of plaintiff, to sell
said eggs for plaintiff's account on arrival, and had no other interest
in said eggs or the proceeds.
That on November 25, 1872, McCullough & Lilburn accordingly
delivered said eggs to defendant at Ottumwa, Iowa, and took its bill
of lading, or receipt, therefor, which is on file in this cause, and
may be read in evidence by plaintiff.
That thereupon George McCullough, one of the firm of McCullough
& Lilburn, requested defendant to hold said eggs until ordered by
them to be sent forward, the particulars of that transaction being:
set forth in an affidavit of one Phillipps, as follows : —
" On the morning of November 25, 1872, George McCullough came
to my office, in Ottumwa, and requested bill of lading for 100 boxes
of eggs, to be shipped to Bussy & Co., St. Louis, and not load till
following day. This I refused. The eggs were loaded the same
day, November 25th, and George McCullough requested ear to be
held at their risk until draft was accepted. Afternoon of November
27th he gave order to forward car, which was done on first train,
morning of 28th, a.m., car 798.''
This request to hold and agreement to take all risk was made
verbally.
That on November 25, 1872, said McCullough & Lilburn drew
their draft on Bussy & Co., for said sum of $1,518.04, with said bill
of lading, or receipt, attached; that the same, with bill of lading,
or receipt, attached, were presented to Messrs. Bussy & Co., for ac-
ceptance, on November 27, 1872, and the draft was by them accepted,
and paid by them on November 30, 1872, and charged to account of
plaintiff, as plaintiff and Bussy & Co. had agreed it should be, and
said draft is annexed hereto, and may be read in evidence herein.
That on November 28, 1872, McCullough & Lilburn directed,
defendant to forward the eggs to the consignees, Bussy & Co., at
St. Louis, and it was at once done. They arrived at St. Louis at
10 A.M., on Sunday, December 1st, being a reasonable time after-
being forwarded, and notice of their arrival was given to Bussy &
Co. on Monday, December 2d, as soon as could be done after their
arrival; and that three days is ample, and the usual time for freight
to be carried from Ottumwa to St. Louis.
DELIVERY BY CARRIER. 677
That Bussy & Co. had sold said eggs, to arrive on November 30th,
at the price of $1,641.78, but, owing to the eggs having been frozen,
they were sold to the best advantage, for 11,156.62; the said price
of 11,641.78 being the usual and market price thereof in St. Louis,
and said sale being lost because the eggs were so frozen.
That said eggs were so frozen because of the extreme cold weather
, on the route, and they would not have been frozen if sent forward
on November 25, 1872.
That defendant had no knowledge of the interest of any one in the
eggs, other than that of the consignor, except that shown, if any,^
by the receipt, or bill of lading, and by the affidavit of Phillipps,
That plaintiff, by his commission merchants, Bussy & Co., con-
signees, paid defendant the freight, f 64, on said shipment, on its
arrival in St. Louis.
The bill, of lading is in the usual form, and sets forth that, on
November 25, 1872, the date of the bill, there was received, in good
order, at Ottumwfi, by defendants, from McCuUough & Lilburn, to
be delivered to Messrs. Bussy & Co., at 16 South Commercial Street,
St. Louis, Missouri, 100 boxes of eggs, marked "M. & L., Ottumwa,
Iowa, for Bussy & Co., St. Louis, Missouri."
The court found for defendant. Plaintiff duly excepted; and,
his motion for a new trial being overruled, the case is brought here
by appeal.
On this statement of facts the plaintiff was, in our opinion,
entitled to recover. The delivery to the defendant, under the cir-
cumstances stated, vested the goods in the consignee ; the defendant
was from that moment liable to plaintiff, and its liability was that
of a common carrier, and not that of a warehouseman. The goods
were injured by an exposure which would not have occurred had the
goods been forwarded without delay ; and the delay which occasioned
the damage was wholly unauthorized by the consignee, or his agent,
and occurred at the direction or suggestion of a third party who had
no legal right whatever to control the goods.
These principles may be taken to be now well settled, and it is
too late to attempt to change them. They are also consonant with
common-sense and the recognized customs of trade in this country.
A bill of lading is taken by the consignor. It is a statement of the
carrier to the effect that he has received a certain weight or quantity
of a certain description of merchandise, to be forwarded with all
reasonable despatch to a certain person named in the bill. To this
bill of lading is attached, as in this instance, a draft on the con-
signee for the value of the goods, which is forwarded by the shipper
to his agent at the point of consignment, for presentation to the
consignee for acceptance and payment. This draft and bill of lad-
ing attached arrive, in the course of mail, before the goods, and are
the assurance of the consignee that the goods are on the way. On
the faith of the bill of lading he accepts and pays the draft. It is,
678 CARRIERS OF GOODS.
therefore, conclusive on the carrier as to persons who have acted on
the faith of his contract, and he will not be allowed to modify it
without their consent. Any other rule would be destructive of com-
merce. What commission merchant would be safe in accepting
drafts drawn against shipments ; what bank would take bills of lad-
ing as collaterals, and make the necessary advance upon them, if
the shipper, at will, could forward the bill of lading and detain
the goods? If the carrier, in this instance, could have detained the
goods at the request of the consignor, after the bill of lading was
out, until the draft was heard from, he might, with equal safety to
himself, have given back the goods to the shipper after the accept-
ance of the draft by the consignee. The vendor, in the case stated,
had no such rights over these goods as he attempted to exercise.
Erom the moment they were received by the carrier he parted with
all right to control them in any way, except the right to stop
them, before they reached their destination, in the sole case of the
insolvency of the consignee.
There was something said in argument as to this being a case of
injury by the act of God. The severe cold which injured the eggs
could not have been prevented, nor, perhaps, foreseen, by man; but,
if the carrier had done his duty, the goods would have arrived at
their destination before the frost. The carrier is liable for a loss
arising from an inevitable necessity existing at the time of the loss,
if guilty of previous misconduct or negligence by which the exposure
which resulted in the loss was occasioned.
For the reason stated the judgment of the court below must be
reversed. But, inasmuch as every fact necessary to a final judgment
in favor of plaintiff would appear to be fully set out in the agreed
statement of facts, it does not seem necessary to remand the cause
for a new trial, and we accordingly give judgment here for plaintiff
for $721, being the difference between the amount for which the
eggs were sold to best advantage, on their arrival, and the sale
which was lost by the default of defendant, after adding thereto
interest from the date of the commencement of the suit to the entry
of judgment here. The other judges concur.
McENTEE V. NEW JEESEY STEAMBOAT CO.
45 N. Y. 34. 1871.
Action for the conversion of goods, brought by McEntee against
the New Jersey Steamboat Company. It appeared that defendant,
as common carriers, received in 1868, at Albany, several bundles of
sash and blinds from one Sayer, addressed to "McEntee," New
York. The goods having reached their destination, a demand was
DELIVEKY BY CAElilEE. 679
made by plaintiff upon defendant, who refused to deliver them, upon
tender of charges. There was conflicting evidence as to what the
form of the refusal was; but defendant introduced testimony tend-
ing to show that a delivery was offered on condition that plaintiff
would produce any paper showing ownership or authority to receive
the goods, or his identity as the consignee. The judge ruled that
the only question for the jury was whether freight-money was ten-
dered, and charged that, under the circumstances, the company was
authorized to deliver the goods to any person calling for them ; and
that common carriers are not responsible for wrong delivery, and
therefore had no right to insist upon any person proving ownership.
Verdict was rendered for plaintiff, and judgment thereon afiirmed
at general term. An appeal was taken by defendant to this
court.
Allen, J. The defendants were charged for the conversion of
the goods upon evidence of a demand and a refusal to deliver them.
' If the demand was by the person entitled to receive them, and a
refusal to deliver was absolute and unqualified, the conversion was
sufficiently proved, for such refusal is ordinarily conclusive evidence
of a conversion; but, if the refusal was qualified, the question was,
whether the qualification was reasonable; and if reasonable and made
in good faith, it was no evidence of a conversion. Alexander v.
Southey, 5 B. & Aid. 247; Holbrook v. Wight, 24 Wend. 169;
Eogers y. Weir, 34 N. Y. 463; Mount v. Derick, 5 Hill, 456. If,
at the time of the demand, a reasonable excuse be made in good
faith for the non-delivery, the goods being evidently kept with a
view to deliver them to the true owner, there is no conversion.
This action is not upon the contract of the carriers, but for a
tortious conversion of the property; but the rights and duties of
the defendants as carriers are, nevertheless, involved.
The defendants were bailees of the property, under an obligation
to deliver it to the rightful owner. They would have been liable
had they delivered tl).e goods to the wrong person. Common car-
riers deliver property at their peril, and must take care that it is
delivered to the right person, for if. the delivery be to the wrong
person, either by an innocent mistake or through fraud of third
persons, as upon a forged order, they will be responsible, and the
wrongful delivery will be treated as a conversion. Hawkins v.
Hoffman, 6 Hill, 586; Powell v. Myers, 26 Wend. 290; Devereux
V. Barclay, 2 B. & Aid. 702; Guillaume v-. Hamburgh and Am.
Packet Co., 42 N. Y. 212; Duff v. Budd, 3 Brod. and Bing. 177.
The duties of carriers may be varied by the differing circumstances
of cases as they arise ; but it is their duty in all cases to be diligent
in their efforts to secure a delivery of the property to the person
entitled, and they will be protected in refusing delivery until reason-
able evidence is furnished them that the party claiming is the party
entitled, so long as they-act in good faith and solely with a view to
680 CAEKIERS OP GOODS.
a proper delivery. The circumstances of this case, tile very defec-
tive address of the parcels, and the omission of the plaintiff to pro-
duce any evidence of title to the property or identifying him as
the consignee, justified the defendants in exercising caution in the
delivery, and it should have been submitted to the jury whether
the refusal was qualified, as alleged by the defendants ; and if so,
whether the qualification was reasonable, and was the true reason
for not delivering the goods. The judge also erred in his instruc-
tions to the jury as to the duty of the defendants, as common car-
riers, in the delivery of goods. They may not properly, or without
incurring liability to the true owner, deliver goods to any person
who calls for them, other than the rightful owner. The judgment
must be reversed and a new trial granted, costs to abide event.
c. Delivery to Holder of Bill of Lading.
PEKlSrSYLVANIA E. CO. v. STEEN & SPIEGEL.
119 Penn. St. 24. 1888.
Me. Justice Paxson. The only error assigned is to the charge of
the court. It was in substance that the defendant company could
only deliver the merchandise upon the production of the bill of lad-
ing, and that as there was nothing to excuse delivery without a
compliance with the terms, the jury should find for the plaintiffs.
We see no error in this. The plaintiffs shipped this car-load of
dry bones from Bay City, Michigan, to Landenburg, Chester Co.,
Penn., consigned to themselves. *At the same time they drew on
Whann for the amount, at forty-five days. There was a bill of lad-
ing attached to the draft showing that Stern & Spiegel, .the shippers,
had consigned said car to themselves. The letter of the latter to
Whann, and the invoice, both of which were shown to the agent of
the defendant company at Landenburg, were notice that there was a
draft and bill of lading, and that Whann was required to protect the
draft. The agent delivered the car to Whann without the bill of
lading, and without an acceptance of the draft. This he had no
right to do. The title to the property remained in the consignors
until delivery in accordance with the conditions. Bills of lading
are symbols of property, and when properly indorsed operate as a
delivery of the property itself, investing the indorsers with a con-
structive custody, which serves all the purposes of an actual posses-
sion, and so continues until there is a valid and complete delivery
of the property under and in pursuance of the bill of lading, and to
the persons entitled to receive the same : Hieskell v, National Bank,
DELIVERY BY CAKRIEK. 681
91 U. S. 618. There could be no delivery except in accordance
with the bill of lading. Dows v. Milwaukee Bank, 91 U. S. 618;
Stollenwerck v. Thatcher, 115 Mass. 224. The invoice standing
alone furnishes no proof of title: Benjamin on Sales, sec. 332;
Dows V. Milwaukee Bank, supra.
It was argued, however, that there was a course of dealing be-
tween the parties that would take the case out of the rule above
stated. The attention of the court below does not appear to have
been called to this matter upon the trial. No reference to it is to
be found in the charge, nor was any point submitted which would
call it forth. There was evidence that the defendant company had
on more than one occasion delivered goods from the shippers to
Whann prior to the acceptance of the drafts. No harm came of this
because the drafts were afterwards accepted and paid. But this
course of dealing between the company and Whann was not brought
home to the knowledge of the plaintiffs in a way that would justify
the jury in finding that they had acquiesced in such an arrangement,
and that they had consented to the delivery of this particular car-
load without the production of the bill of lading and acceptance of
the draft. The company delivered in their own wrong and assumed
the risk.
Nor can we say as matter of law that plaintiffs suffered no loss by
reason of the improper delivery. If the draft had been accepted it
might have been paid, notwithstanding the failure of Whann, or the
plaintiffs might have sold it without recourse.
Judgment affirmed.
I
WEYAND V. ATCHISON, T. & S. F. E. CO.
75 Iowa, 573. 1888.
This is an action aided by attachment, brought to recover the value
of a quantity of canned goods, shipped by the Elgin, Iowa, Canning
Company to Pueblo, Colorado, and alleged to have been delivered
1 It is no excuse for a delivery to the wrong persons that the indorsee of the bills
of lading was unknown, if indeed he was, and that notice of the arrival of the [goods]
could not he given. Diligent inquiry for the consignee, at least, was a duty, and no
inquiry was made. Want of notice is excused when a consignee is unknown, or is
absent, or cannot be found after diligent search. Fisk v. Newton, 1 Denio, 45 ;
Peytona, 2 Curtis, 21. And if, after inquiry, the consignee or the indorsee of a bill of
lading for delivery to order cannot be found, the duty of the carrier is to retain the
goods until they are claimed, or to store them prudently for and on account of their
owner. He may thus relieve himself from a carrier's responsibility. Galloway ».
Hughes, 1 Bailey, 553 ; 1 Conklin's Admiralty, 196 ; Fisk v. Newton, supra. He has
no right under any circumstances to deliver to a stranger. Justice Strong, in The
Thames, 14 Wall. 98.
682 CAERIEES OF GOODS.
to a person not entitled to receive the same, through the fault of
defendant. The cause was tried to the court, and a judgment ren-
dered in favor of the plaintiff for the amount admitted to be the
value of the goods in controversy, and sustaining the attachment.
Defendant appeals. On the iirst submission of this cause a decision
was rendered by this court reversing the judgment of the Superior
Court. A rehearing was ordered on the petition of appellee, and
the cause again submitted.
EoBiisrsoN, J. Plaintiff is the trustee of the Elgin, Iowa, Can-
ning Company. Defendant is a corporation organized and existing
under the laws of the State of Kansas, and engaged in operating a
line of railway from Kansas City through the States of Kansas and
Colorado, and to the city of Pueblo, in the last-named State. At
the time this cause was tried in the court below, defendant had never
owned nor operated any railway within the State of Iowa. In
October, 1884, one Evans, of Pueblo, ordered of the canning com-
pany the goods in controversy. Not being acquainted with Evans,
and not wishing to sell the goods on credit, it delivered them,
marked and consigned to itself at Pueblo, to a railway company at
Elgin, Iowa. Prom that company the canning company took two
receipts or bills of lading, which were, in fact, duplicates, but neither
showed that the other had been issued. The canning company drew
a draft on Evans, through a bank in Pueblo, for the price of the
goods, and sent to the bank an order on defendant to deliver the
goods to Evans. The draft and order were sent together to the bank,
with instructions to deliver the order to Evans upon payment by him
of the draft. At the same time the canning company sent to Evans
one of the bills of lading, instructing him that the goods had been
shipped, and that he was to pay the draft and obtain the order.
The bill of lading sent to Evans was not signed nor indorsed by the
canning company. In due time the goods were transferred by the
railway company which first received them to defendant, and were
by it transferred to Pueblo. Evans never paid the draft nor obtained
the order, but within twenty-four hours after the arrival of the
goods in Pueblo he presented the bill of lading which he had received
to defendant, and without other authority obtained the goods. At
that time Evans was insolvent, but defendant had no knowledge of
that fact, nor that the goods had not been paid for, nor that a draft
and order had been sent or instructions given in regard to the goods,
but delivered them in good faith. . . .
II. Appellant insists that it was not in fault in delivering the
goods to Evans, for the reason that the delivery to him of the bill of
lading was in effect an assignment of the goods, and invested him
with a right to demand and receive them. We are referred to many
authorities which are claimed to support this view. One of these is
Merchants' Bank v. Union Ey. & Trans. Co. , 69 N. Y. 374. An
DELIVERY BY OAERIEE. 683
examination of that case and the cases therein cited will show that
what the court really decided was that a delivery of the forwarder's
receipt without assignment, but with intent that the title to the
goods for which it was given, or an interest therein, should be
thereby transferred, would be effectual to accomplish the transfer
intended. Other authorities cited by appellant are to the same
effect. In this case it was the intention of the canning company to
retain the title and right of possession in itself until the price of
the goods should be paid. The bill of lading required the delivery
of the goods to the consignor. It did not provide for delivery to
bearer or order, but to the Elgin Canning Company. Therefore it
is clear that the forwarding of the bill of lading to Evans, with
directions to pay the draft and obtain the order for the goods, did
not invest him with any right to the goods as against the consignor.
But it is said that defendant was justified in delivering the goods to
Evans because of his possession of the bill of lading. The cases of
Lickbarrow v. Mason, 1 Smith, Lead. Cas. *838, with annotations;
Dows V. Green, 24 N. Y. 638; Allen v. Williams, 12 Pick. 297, and
others, are cited in support of this claim. It is true that statements
were made in some, if not all, of those cases which, considered apart
from the connection in which they are found, might seem to sustain
the claim ; but when they are considered in connection with the facts
of the cases where found, and the general conclusions of the court
which made them, we think they go no further than to hold that
the delivery of an unindorsed bill of lading would be a good sym-
bolical delivery of the goods it represented, where such was the
intent and purpose of the parties. In Fearon v. Bowers, reported
in 1 Smith, Lead. Cas. *782i cited by appellant, the consignor had
sent two bills of lading, one of which was indorsed to one person
and the other to another, and the court held that a delivery might
be made to the holder of either bill. That case has but little rela-
tion to the principle involved in this. Appellant insists that the
bill of lading is like a promissory note, in that possession is prima
facie evidence of ownership; but we do not think that such is the
case. A bill of lading is a non-negotiable instrument. Garden
Grov* Bank v. Humeston & S. By. Co., 67 Iowa, 534 [569]. The follow-
ing language is pertinent : " Bills of lading are regarded as so much
cotton, grain, iron, or other articles of merchandise. . . . They are
in commerce a very different thing from bills of exchange and
promissory notes, answering a different purpose and performing a
different function." Also: "It is not a representative of money,
used for transmission of money or for the payments of debts or for
purchases. It does not pass from hand to hand as bank-notes or
coin. It is a contract for the performance of a certain duty. True,
it is a symbol of ownership of the goods covered by it, — a represen*
tative of those goods; but if the goods themselves be lost or stolen,
no sale of them by the finder or thief, though to a hona fide pur-
684 CAEEIEES OF GOODS.
chaser for value, will divest the ownership of the person who lost
them, or from whom they were stolen." Shaw v. Eailroad Co., 101
U. S. 557. See, also, Hutch. Carr. sec, 348. In 2 Pars. Cont. 292,
it is said : " The consignor frequently sends to a consignee a bill not
indorsed, and then sends to his own agent in or within reach of the
same port an indorsed bill , — it may be indorsed in blank, or to the
agent, or to the party ordering the goods, — and the consignor sends
to his agent with the bill orders to deliver the bill to the party
ordering the goods, or to receive the goods and deliver them to him,
provided payment be made or secured, or such other terms as the
consignor prescribes are complied with. This course secures to the
consignor, beyond all question, the right and power of retaining
the goods until the price for them is paid or secured to him." This
is not only in point, but seems to be sound in principle. The fact
that Evans presented the bill of lading in this case was not sufficient
to overcome the presumption which the terms of the bill raised, that
the consignor was the owner of the goods. That such is the pre-
sumption is well established. Congar v. Galena, U. By. Co., 17
Wis. 485 ; Krulder v. Ellison, 47 N". Y. 37 [766] ; Lawrence v. Minturn,
17 How. 100; Alderman v. Eastern Ry. Co., 115 Mass. 234. See,
also, Tuttle v. Becker, 47 Iowa, 486; 1 Benj. Sales, sees. 577, 579;
2 Amer. & Eng. Cyclop. Law, 242, 243. The contract with the
canning company required the defendant to deliver the goods to the
consignor. The unindorsed bill of lading presented by Evans was
evidence that the contract was still in force, and that the canning
company was then the owner of the goods. The delivery to Evans
was not authorized, and was made by defendant at its own risk.
Hutch. Carr. sees. 129, 130, 344. But it is said that the canning
company clothed Evans with the apparent right to demand the
goods, and that, since "one of two innocent parties must suffer a
loss from the wrong of another, the loss should fall upon the party
who put it in the power of that other to perpetrate the wrong."
This case does not fall within that rule, for, as we have seen, the
possession of the bill of lading, without indorsement or other evi-
dence of an assignment, did not vest Evans with any apparent right
to the property. The loss resulted from the negligence of defendant
in not insisting upon proper evidence of an assignment before it
surrendered the goods.
III. It is insisted by appellant that the delivery to Evans was
made in accordance with the custom at Pueblo, and that the contract
of shipment must have been made with reference to that custom.
The Superior Court found that by a local custom at Pueblo goods
shipped over railway lines to that place were delivered to the per-
son who held the bills of lading, but that the custom was not general,
and plaintiff had no knowledge of it. The contract of shipment
required defendant to deliver the goods to the canning company,
and we question the right of defendant to vary this by showing a
DELIVEET BY CARRIER. 685
custom in conflict with it. The contract was not ambiguous, and
required no explanation. But where a custom may be shown it
must appear that it was so general that the parties to the contract
will be presumed to have contracted with reference to it. Couch ■;;.
Watson Coal Co., 46 Iowa, 20; Berkshire Woolen Co. v. Procter,
7 Cush. 422 [232] ; Fay v. Insurance Co., 16 Gray, 461 ; Wilson v.
Bauman, 80 111. 494 ; 2 Greenl. Ev. sec. 261. The court below not only
found that the custom pleaded was local, but that plaintiff had no
knowledge of it. How the knowledge of plaintiff would affect the
contract does not appear, but knowledge on the part of the canning
company when the shipping receipt was taken is not pleaded nor
is it shown. Therefore this defence is not maintained. Walls v.
Bailey, 49 N. Y. 473; Higgins v. Moore, 34 N. Y. 425; North Penn.
Ey. Co. V. Commercial Bank, 123 U. S. 727; 8 Sup. Ct. Eep. 266;
Clarke's Browne, Usages & Cust. 134, note 4. The further exami-
nation which we have given this case on rehearing leads us to con-
clude that the first decision of this court was erroneous. The_
judgment of the Superior Court is
Affirmed.
SHAW V. EAILROAD CO.
101 U. S. 557. 1879.
Erbob to the Circuit Court of the United States for the Eastern
District of Pennsylvania.
This is an action of replevin brought by the Merchants' National
Bank of St. Louis, Missouri, against Shaw & Esrey, of Philadel-
phia, Pennsylvania, to recover possession of certain cotton, marked
"WD I." One hundred and forty-one bales thereof having been
taken possession of by the marshal were returned to the defendants
upon their entering into the proper bond. On Nov. 11, 1874, Norvell
& Co., of St. Louis, sold to the bank their draft for $11,947.43 on
M. Kuhn & Brother, of Philadelphia, and, as collateral security for
the payment thereof indorsed in blank and delivered to the bank an
original bill of lading for one hundred and seventy bales of cotton
that day shipped to the last-named city. The duplicate bill of
lading was on the same day forwarded to Kuhn & Brother by
Norvell & Co. The Merchants' Bank forwarded the draft, with the
bill of lading thereto attached, to the Bank of North America. On
November 14, the last-named bank sent the draft — the original bill
of lading still being attached thereto — to Kuhn & Brother by its
messenger for acceptance. The messenger presented the draft and
bill to one of the members of that firm, who accepted the former,
686 CAEEIEES OF GOODS.
but, without being detected, substituted the duplicate for tbe
original bill of lading.
On the day upon which this transaction occurred, Kuhn & Brother
indorsed the original bill of lading to Miller & Brother, and received
thereon an advance of $8,500. Within a few days afterwards, the
cotton, or rather that portion of it which is in controversy, was,
through the agency of a broker, sold by sample with the approval
of Kuhn & Brother to the defendants, who were manufacturers at
Chester, Pennsylvania. The bill of lading, having been depositea
on the same day with the North Pennsylvania Eailroad Company,
at whose depot the cotton was expected to arrive, it was on its
arrival delivered to the defendants.
The fact that the Bank of North America held the duplicate
instead of the original bill of lading was discovered for the first
time on the 9th of December, by the president of the plaintiff, who
had gone to Philadelphia in consequence of the failure of Kuhn &
Brother and the protest of the draft.
The defendants below contended that the bill of lading was nego-
tiable in the ordinary sense of that word ; that Miller & Brother had
purchased it for value in the usual course of business, and that they
thereby had acquired a valid title to the cotton, which was not
impaired by proof that Kuhn & Brother had fraudulently got posses-
sion of the bill; but the court left it to the jury to determine, —
1st, Whether there was any negligence of the plaintiff or its
agents in parting with possession of the bill of lading.
2d, Whether Miller & Brother knew any fact or facts from which
they had reason to believe that the bill of lading was held to secure
payment of an outstanding draft.
The jury having found the first question in the negative and the
second in the afiirmative, further found "the value of the goods
eloigned "to be $7,015.97, assessed the plaintiff's damages at that
sum with costs, for which amount the court entered a judgment.
Shaw & Esrey thereupon sued out this writ of error.
Mr. Justice Steong. The defendants below, now plaintiffs in
error, bought the cotton from Miller & Brother by sample, through
a cotton broker. No bill of lading or other written evidence of title
in their vendors was exhibited to them. Hence, they can have no
other or better title than their vendors had.
The inquiry, therefore, is, what title had Miller & Brother as
against the bank, which confessedly was the owner, and which is
still the owner, unless it has lost its ownership by the fraudulent
act of Kuhn & Brother. The cotton was represented by the bill of
lading given to Norvell & Co., at St. Louis, and by them indorsed
to the bank, to secure the payment of an accompanying discounted
time-draft. That indorsement vested in the bank the title to the
cotton, as well as to the contract. While it there continued, aiid
during the transit of the cotton from St. Louis to Philadelphia, the
DELIVEKY BY CAKKIEK. 687
indorsed bill of lading was stolen by one of the firm of Rubn &
Brother, and by them indorsed over to Miller & Brother, for an
advance of $8,500. The jnry has found, however, that there was no
negligence of the bank, or its agents, in parting with possession of
the bill of lading, and that Miller & Brother knew facts from which
they had reason to believe it was held to secure the payment of an
outstanding draft; in other words, that Kuhn & Brother were not
the lawful owners of it, and had no right to dispose of it.
It is therefore to be determined whether Miller & Brother, by
taking the bill of lading from Kuhn & Brother under these circum-
stances , acquired thereby a good title to the cotton as against the
bank.
In considering this question, it does not appear to us necessary to
inquire whether the effect of the bill of lading in the hands of Miller
& Brother is to be determined by the law of Missouri, jwhere the bill
was given, or by the law of Pennsylvania, where the cotton was
delivered. The statute of both States enact that bills of lading shall
be negotiable by indorsement and delivery. The statute of Pennsyl-
vania declares simply, they "shall be negotiable and may be trans-
ferred by indorsement and delivery ; " while that of Missouri enacts
that "they shall be negotiable by written indorsement thereon and
delivery, in the same manner as bills of exchange and promissory
notes." There is no material difference between these provisions.
Both statutes prescribe the manner of negotiation; i.e., by indorse-
ment and delivery. Neither undertakes to define the effect of such
a transfer.
We must, therefore, look outside of the statute to learn what they
mean by declaring such instruments negotiable. What is negotia-
bility? It is a technical term derived from the usage of merchants
and bankers, in transferring, primarily, bills of exchange and, after-
wards, promissory notes. At common law no contract was assign-
able, so as to give to an assignee a right to enforce it by suit in his
own name. To this rule bills of exchange and promissory notes,
payable to order or bearer, have been admitted exceptions, made
such by the adoption of the law merchant. They may be trans-
ferred by indorsement and delivery, and such a transfer is called
negotiation. It is a mercantile business transaction, and the capa-
bility of being thus transferred, so as to give to the indorsee a right
to sue on the contract in his own name, is what constitutes negotia-
bility. The term " negotiable " expresses, at least primarily, this
mode and effect of a transfer.
In regard to bills and notes, certain other consequences generally,
though not always, follow. Such as a liability of the indorser, if
demand be duly made of the acceptor or maker, and seasonable
notice of his default be given. So if the indorsement be made for
value to a bona fide holder, before the maturity of the bill or note,
in due course of business, the maker or acceptor cannot set up
688 CAEIUEES OF GOODS.
against the indorsee any defence which might have been set up
against the payee, had the bill or note remained in his hands.
So, also, if a note or bill of exchange be indorsed in blank, if
payable to order, or if it be payable to bearer, and therefore nego-
tiable by delivery alone, and then be lost^or stolen, bona fide pur-
chaser for value paid acquires title to it, even as against the true
owner. This is an exception from the ordinary rule respecting
personal property. But none of these consequences are necessary
attendants or constituents of negotiability, or negotiation. That
may exist without them. A bill or note past due is negotiable, if
it be payable to order, or bearer, but its indorsement or delivery
does not cut off the defences of the maker or acceptor against it,
nor create such a contract as results from an indorsement before
maturity, and it does not give to the purchaser of a lost or stolen
bill the rights of the real owner.
It does not necessarily follow, therefore, that because a statute
has made bills of lading negotiable by indorsement and delivery,
all these consequences of an indorsement and delivery of bills and
notes before maturity ensue or are intended to result from such
negotiation.
Bills of exchange and promissory notes are exceptional in their
character. They are representatives of money, circulating in the
commercial world as evidence of money, "of which any person in
lawful possession may avail himself to pay debts or make purchases
or make remittances of money from one country to another, or to
remote places in the same country. Hence, as said by Story, J.,
it has become a general rule of the commercial world to hold bills
of exchange, as in some sort, sacred instruments in favor of bona
fide holders for a valuable consideration without notice." Without
such a holding they could not perform their peculiar functions. It
is for this reason it is held that if a bill or note, indorsed in blank,
or payable to bearer, be lost or stolen, and be purchased from the
finder or thief, without any knowledge of want of ownership in the
vendor, the bona fide purchaser may hold it against the true owner.
He may hold it though he took it negligently, and when there were
suspicious circumstances attending the transfer. Nothing short of
actual or constructive notice that the instrument is not the property
of the person who offers to sell it — that is , aothing short of mala
fides — will defeat his right. The rule is the same as that which
protects the bona fide indorser of a bill or note purchased for value
from the true owner. The purchaser is not bound to look beyond
the instrument. Goodman v. Harvey, 4 Ad. & E. 870; Goodman v.
Simonds, 20 How. 343; Murray v. Lardner, 2 Wall. 110; Matthews
V. Poythress, 4 Ga. 287. The rule was first applied to the case of
a lost bank-note (Miller v. Eace, 1 Burr. 452), and put upon the
ground that the interests of trade, the usual course of business, and
the fact that bank-notes pass from hand to hand as coin, reijuire it.
DELIVERY BY CARRIER. 689
It was subsequently held applicable to merchants' drafts, and in
Peacock v. Ehodes, 2 Doug. 633, to bills and notes, as coming
within the same reason.
The reason can have no application to the case of a lost or stolen
bill of lading. The function of that instrument is entirely different
from that of a bill or note. It is not a representative of money,
used for transmission of money, or for the payment of debts or for
purchases. It does not pass from hand to hand as bank-notes or
coin. It is a contract for the performance of a certain duty. True,
it is a symbol of ownership of the goods covered by it, — a represen-
tative of those goods. But if the goods themselves be lost or stolen,
no sale of them by the finder or thief, though to a bona- fide pur-
chaser for value, will divest the ownership of the person who lost
them, or from whom they were stolen. Why then should the sale
of the symbol or mere representative of the goods have such an
effect? It may be that the true owner, by his negligence or care-
lessness, may have put it in the power of a finder or thief to occupy
ostensibly the position of a true owner, and his carelessness may
estop him from asserting his right against a purchaser who has been
misled to his hurt by that carelessness. But the present is no such
case. It is established by the verdict of the jury that the bank
did not lose its possession of the bill of lading negligently. There
is no estoppel, therefore, against the bank's right.
Bills of lading are regarded as so much cotton, grain, iron, or
other articles of merchandise. The merchandise is very often sold
or pledged by the transfer of the bills which cover it. They are, in
commerce, a very different thing from bills of exchange and promis-
sory notes, answering a different purpose and performing different
functions. It cannot be, therefore, that the statute which made
them negotiable by indorsement and delivery, or negotiable in the
same manner as bills of exchange and promissory notes are nego-
tiable, intended to change totally their character, and 'put them in
all respects on the footing of instruments which are the representa-
tives of money, ' and charge the negotiation of them with all the
consequences which usually attend or follow the negotiation of bills
and notes. Some of these consequences would be very strange if
not impossible, — such as the liability of indorsers, the duty of
demand ad diem, notice of non-delivery by the carrier, etc., or the
loss of the owner's property by fraudulent assignment of a thief.
If these were intended, surely the statute would have said some-
thing more than merely make them negotiable by indorsement. No
statute is to be construed as altering the common law farther than
its words import. It is not to be construed as making any inno-
vation upon the common law which it does not fairly express.
Especially is so great an innovation as would be placing bills of
lading on the same footing in all respects with bills of exchange
not to be inferred from words that can be fully satisfied without it.
690 CARRIERS OF GOODS.
The law has most carefully protected the ownership of personal
property, other than money, against misappropriation by others
than the owner, even when it is out of his possession. This
protection would be largely withdrawn if the misappropriation of
its symbol or representative could avail to defeat the ownership,
even when the person who claims under a misappropriation had
reason to believe that the person from whom he took the property
had no right to it.
We think, therefore, that the rule asserted in Goodman v. Harvey,
Goodman v. Simonds, Murray v. Lardner, supra, and in Phelan v.
Moss, 67 Pa. St. 59, is not applicable to a stolen bill of lading. At
least the purchaser of such a bill, with reason to believe that his
vendor was not the owner of the bill, or that it was held to secure
the payment of an outstanding draft, is not a bona fide purchaser,
and he is not entitled to hold the merchandise covered by the bill
against its true owner. In the present case there was more than
mere negligence on the part of Miller & Brother, more than mere
reason for suspicion. There was reason to believe Kuhn & Brother
had no right to negotiate the bill. This falls very little, if any,
short of knowledge. It may fairly be assumed that one who has
reason to believe a fact exists, knows it exists. Certainly, if he
be a reasonable being.
Judgment affirmed.
d. Delivery to True Owner.
THE IDAHO.
93 U. S. 575. 1876.
The libellants [Hentz, et al., who are the appellants] claim damages
against the " Idaho " for the non-delivery of one hundred and sixty-
five bales of cotton, part of a shipment of two hundred bales for
Liverpool, made by Thomas W. Mann, and consigned to the order
of James Finlay & Co. After the shipment, the libellants pur-
chased the cotton from Mann, who indorsed to them the ship's bill
of lading therefor. On the arrival of the vessel at Liverpool, thirty-
five bales were delivered to Finlay & Co., but the remaining one hun-
dred and sixty-five were delivered to Baring Brothers & Co., in
pursuance of an order from William J. Porter & Co. of New York.
Such a delivery was not in accordance with the stipulations of the
bill of lading; but it is attempted to be justified by the alleged fact
that Porter & Co. were the true owners of the cotton, and as such had
a right, superior to that of the shippers, to control its delivery. . . .
Me. Justice Strong. In determining the merits of the defence
set up in this case, it is necessary to inquire whether the law per-
DELIVERY BY CAREIEB. 691
mits a common carrier to stow, as an excuse for non-delivery pur-
suant to his bill of lading, that he has delivered the goods upon
demand to the true owner. Upon this subject there has been much
debate in courts of law, and some contrariety of decision.
In Eolle's Abr. 606, tit. " Detinue," it is said, " If the bailee of
goods deliver them to him who has the right to them, he is, not-
withstanding, chargeable to the bailor, who, in truth, has no right ; "
and for this, 9 Henry VI. 58, is cited. And so, if the bailee deliver
them to the bailor in such a case, he is said not to be chargeable to
the true owner, id. 607, for which 7 Henry VI. 22, is cited. The
reasons given for such a doctrine, however satisfactory they may
have been when they were announced, can hardly command assent
now. It is now everywhere held, that, when the true owner has by
legal proceedings compelled a delivery to himself of the goods bailed,
such delivery is a complete justification for non-delivery, according
to the directions of the bailor. Bliven v. Hudson River Railroad
Co., 36 N. Y. 403 [736]. And so, when the baUee has actually
delivered the property to the true owner, having a right to the pos-
session, on his demand, it is a sufficient defence against the claim
of the bailor. The decisions are numerous to this effect. King v.
Richards, 6 Whart. 418 ; Bates v. Stanton, 1 Duer, 79 ; Hardman v.
Wilcock, 9 Ring. 382; Riddle v. Bond, 6 Best & S. 225. If it be
said, that, by accepting the bailment, the bailee has estopped him-
self against questioning the right of his bailor, it may be remarked
in answer, that this is assuming what cannot be conceded. Un-
doubtedly the contract raises a strong presumption that the baUor
is entitled; but it is not true that thereby the bailee conclusively
admits the right of the principal. His contract is to do with the
property committed to him what his principal has directed, — to
restore it, or to account for it. Cheeseman v. Exall, 6 Exch. 341.
And he does account for it when he has yielded it to the claim of
one who has ' right paramount to that of his bailor. If there be
any estoppel, it ceases when the bailment on which it is founded is
determined by what is equivalent to an eviction by title paramount ;
that is, by the reclamation of possession by the true owner. Riddle
V. Rond, supra. Nor can it be maintained, as has been argued in
the present case, that a carrier can excuse himself for failure to
deliver to the order of the shipper, only when the goods have been
taken from his possession by legal proceedings, or where the shipper
has obtained the goods by fraud from the true owner. It is true,
that, in some of the cases, fraud of the shipper has appeared ; and
it has sometimes been thought it is only in such a case, or in a
case where legal proceedings have interfered, that the bailee can
set up the jus tertii. There is no substantial reason for the opinion.
No matter whether the shipper has obtained the possession he gives
to the carrier by fraud practised upon the true owner, or whether
he mistakenly supposes he has rights t0 the property, his relation to
692 CAEEIEBS OF GOODS.
his bailee is the same. He cannot confer rights which he does not
himself possess ; and if he cannot withhold the possession from the
true owner, one claiming under him cannot. The modern and best-con-
sidered cases treat as a matter of no importance the question how
the bailor acquired the possession he has delivered to his bailee, and
adjudge, that, if the bailee has delivered the property to one who
had the right to it as the true owner, he may defend himself against
any claim of the principal. In the late case of Biddle v. Bond,
supra, decided in 1865, it was so decided ; and Blackburn, J., in de-
livering the opinion of the court, said there was nothing to alter
the law on the subject in the circumstance that there was no evi-
dence to show the plaintiff, though a wrong-doer, did not honestly
believe that he had the right. Said he, the position of the bailee is
precisely the same, whether his bailor was honestly mistaken as to
the rights of the third person whose title is set up, or fraudulently
acting in derogation of them. In Western Transportation Company
V. Barber, 56 N. Y. 544, the Court of Appeals of New York unani-
mously asserted the same doctrine, saying, "the best-decided cases
hold that the right of a third person to which the bailee has yielded
may be interposed in all cases as a defence to an action brought by
a bailor subsequently for the property. When the owner comes and
demands his property, he is entitled to its immediate delivery, and
it is the duty of the possessor to make it. The law will not adjudge
the performance of this duty tortious as against a bailor having no
title." The court repudiated any distinction between a case where
the bailor was honestly mistaken in believing he had the right, and
one where a bailor obtained the possession feloniously or by force
or fraud; and v/e think no such distinction can be made.
We do not deny the rule that a bailee cannot avail himself of the
title of a third person (though that person be the true owner) for
the purpose of keeping the property for himself, nor in any case
where he has not yielded to the paramount title. If he could, he
might keep for himself goods deposited with him, without any pre-
tence of ownership. But if he has performed his legal duty by
delivering the property to its true proprietor, at his demand, he is
not answerable to the bailor. And there is no difference in this
particular between a common carrier and other bailees.
Eecurring, then, to the inquiry whether Porter & Co. — to whose
order the steamer delivered the one hundred and sixty-five bales of
cotton — were the true owners of the cotton, a brief statement of the
evidence on which their title rests is necessary. It originated as
follows: On the 1st of April, 1869, one J. C. Forbes obtained from
the master of the brig " Colson," then lying at New Orleans, a bill of
lading for one hundred and thirty-nine bales of cotton, described by
specified marks. The bill was indorsed, and forwarded by Forbes to
Porter & Co. ; and drafts against it to a large . amount were drawn
upon them, which they accepted, credited, and paid on or before the
DELIVERY BY CARHIEH. 693
7tli of the month. In fact however, when the bill of lading was given,
no such cotton had been received by the brig ; but on the 6th of April
the agent of Forbes bought one hundred and forty bales, then at the
shipper's press, and directed them to be sent to the " Colson," marked
substantially as described in the bill of lading. These bales were
accordingly delivered from the press to the brig on the 8th of April,
and the first and second mate receipted for them. They were, not
actually taken on board, but they were deposited on the pier, at the
usual and ordinary place for the receipt of freight by the " Colson,"
and an additional bill of lading for one bale only was taken by
Forbes, and by him indorsed and transmitted to Porter & Co.,
together with an invoice of the one hundred and forty bales corre-
sponding with the bills of lading. The marks and numbers on the
bales were the same as those mentioned in the bills of lading, except-
ing only that thirty-five were marked L instead of thirty-six, and
sixteen marked S instead of fifteen. There was also a small dif-
ference in the aggregate weight.
That the cotton thus delivered to the "Colson" was intended to
fill the bills of lading, one of which had been previously given, is
incontrovertible. They were so intended by the shipper. If not,
why were they thus marked? And why was a bill of lading taken
for one bale only, instead of for one hundred and forty ; and why was
the invoice of the whole number sent? Such, also, was plainly the
understanding of the ship. The receipts of the mates, and the fact
that the master gave a bill of lading for one bale marked S, when
there were sixteen bales thus marked, leave this beyond reason-
able doubt. What, then? Why, the one hundred and forty bales
thus shipped became from the moment of shipment the property
of Porter & Co., to whom the bills of lading were indorsed. It is
not only the utterance of common honesty, but the declaration of
judicial tribunals, that a delivery of goods to a ship corresponding in
substance with a bill of lading given previously, if intended and
received to meet the bill of lading, makes the bill operative from the
time of such delivery. At that instant it becomes evidence of the
ownership of the goods. Thus, in Eowley v. Bigelow, 12 Pick. 307,
it is said, a bill of lading operates by way of estoppel against the
master, and also against the shipper and indorser. "The bill
acknowledges the goods to be on board before the bill of lading is
signed. But if, through inadvertence or otherwise, the bill of lading
is signed before the goods are on board, upon the. faith and assurance
that they are at hand, as if they are received on the wharf ready to
be shipped, or in the shipper's own warehouse, . . . and afterwards
they are placed on board, as and for the goods embraced in the bill of
lading, as against the shipper and master the bill will operate on
those goods by way of relation and estoppel." Such is also the doc-
trine asserted in Halliday v. Hamilton, 11 Wall. 565, and it is in har-
mony with the general rules that regulate the transfer of personal
691 CARRIERS OF GOODS.
property. We do not say that a title to personal property may not
be Created between the issue of a bill of lading therefor and its
delivery to the ship, which will prevail over the master's bill, but, in
the absence of any such intervening right, a bill of lading does cover
goods subsequently delivered and received to fill it, and will represent
the ownership of the goods. The cotton delivered on the 8th of April
on' the pier for the " Colson," and received by the mates of the brig,
became therefore, at the instant of its delivery, the property of Porter
& Co., who were then the indorsees of the bills of lading. Its subse-
quent removal by Forbes to the "Ladona," either with or without the
consent of the brig's officers, could not divert that ownership.
The title of Porter & Co. to the one hundred and forty bales must,
therefore, as we have said, be held to have been perfected when they
were delivered to the "Colson" on the 8th of April. No right in
any other person intervened between the issue of the bill of lading
and the brig's receipt of the cotton to fill it. It was after the title of
Porter & Co. had thus become complete that Forbes removed the one
hundred and forty bales from the custody of the " Colson " and shipped
it for New York on the "Ladona," to'gether with twenty-five other
bales, re-marking it, and drawing drafts against this second shipment
upon Schaefer & Co. After carefully examining the evidence, we
cannot doubt that the one hundred and forty bales thus withdrawn
from the " Colson " were shipped on the " Ladona," and that they came
to the possession of Schaefer & Co., in New York, by whom they were
transferred, together with the other twenty-five bales, to Mann, under
whom the plaintiffs claim. The one hundred and sixty-five bales, then,
are the identical bales that were included in the shipment on the
"Idaho,'' and for which the bill of lading was given to Mann. Of
these, one hundred and forty were the property of Porter & Co.,
fraudulently withdrawn from their.possession. It is hardly necessary
to say that the title of the true owner of personal property cannot be
impaired by the unauthorized acts of one not the owner. Taking
possession of the property, shipping it, obtaining bills of lading from
the carriers, indorsing away the bills of lading, or even seeing the
property and obtaining a full price for it, can have no effect upon the
right of the owner. Even a bona fide purchaser obtains no right by a
purchase from one who is not the owner, or not authorized to sell. It
must, therefore, be concluded that Porter & Co. were the owners of at
least one hundred and forty of the bales shipped by Mann on the
" Idaho," and covered by the bill of lading to enforce which this libel
was filed.
All that remains to be determined is whether Porter & Co. had a
right to the possession of the additional twenty-five bales shipped
with the one hundred and forty from New Orleans on the " Ladona,"
and shipped also on the "Idaho" for Liverpool, together with the
thirty-five bales delivered there to Finlay & Co. When the one hun-
DELIVERY BY CARRIER. 695
dred and forty bales were removed from the custody of the " Colson "
and taken to the " Ladona," twenty-five other bales were mingled with
them. On the pier opposite that vessel they were re-marked, and all
shipped as one lot, under one bill of lading. When they reached New
York, they came into the possession of Schaefer, the indorsee of the
bill of lading given by the "Ladona," who knew, when he received
them, that the " Colson " was short eight hundred or one thousand bales.
The newspapers had contained articles about the fraud. He himself
was a sufferer. He held some of the fraudulent bills of lading of the
" Colson," and he had heard that Porter was in the same condition.
So he has testified. With this knowledge he set to work to guard
against the possibility of tracing the cotton. He caused the " Colson "
marks to be removed from the one hundred and forty bales, and the
"Ladona" marks to be removed from both the one hundred and forty
and the twenty-five bales. He then had the whole re-marked, making
no distinction between the lot of one hundred and forty and that of
twenty-five, thus practically making the bales undistinguishable. In
addition to this, by an arrangement between himself and Mann, his
clerk, in the form of a sale, the cotton was shipped en masse by the
"Idaio." It is impossible for us to close our eyes upon the nature
and purpose of this transaction. It was a perfect confusion of the
one hundred and forty bales that belonged to Porter with the other
twenty-five ; and it was not accidental. It was purposely made, with
an intent to embarrass or hinder the owner, and prevent him from
recovering his original property. There is no conceivable motive for
Schaefer's obliterating the marks, both of the " Colson " and " Ladona "
shipment, in so much haste (ordering it done on Sunday), and sub-
stituting new marks, except to destroy the evidence of title in any
other person. That such was Schaefer's purpose may also be inferred
from his conduct in selling the same to Mann ; from Mann's sale on
the same day to the libellants, telling them he did not wish them to
ask whether the cotton was really Schaefer's, stating, also, that he had
bought from Schaefer, and that Schaefer guaranteed the transaction ;
from Mann's turning over the libellants' note immediately to Schaefer,
and Schaefer's giving a guaranty before its payment that the maker
should be held harmless. The whole arrangement was manifestly a
scheme of Schaefer to obscure the title to the cotton, to prevent its
being traced by the true owner, — a scheme in the execution of which
' he was aided by Mann and the libellants. .
Now, what must be the legal effect of all this? What the effect of
intermingling the twenty-five bales with the one hundred and forty
that belonged to Porter, in such a manner that they could not be distin-
guished, and so completely that it is impossible for either party to
identify any one of the one hundred and sixty-five bales as a part of
the lot of twenty-five, or of the larger lot of one hundred and forty-
shipped on the " Colson " ? We can come to no other conclusion
than this : the right of possession of the whole was in Porter, and
696 CABRIEES or GOODS.
neither he who caused the confusion, nor any one claiming under him,
is entitled to any bale which he cannot identify as one of the lot of
twenty-five. It is admitted, the general rule that governs cases of
intermixture of property has many exceptions. It applies in no ease
where the goods intermingled remain capable of identification, nor
where they, are of the same quality or value ; as where guineas are
mingled, or grain of the same quality. Nor does the rule apply where the
intermixture is accidental, or even intentional,- if it be not wrongful.
But all the authorities agree, that if a man wilfully and wrongfully
mixes his own goods with those of another owner, so as to render
them undistinguishable, he will not be entitled to his proportion, or
any part, of the property. Certainly not, unless the goods of both
owners are of the same quality and value. Such intermixture is a
fraud. And so, if the wrong-doer confounds his own goods with goods
which he suspects may belong to another, and does this with intent
to mislead or deceive that other, and embarrass him in obtaining his
right, the effect must be the same
See, upon this subject of confusion of goods, 2 Kent's Com. (11th ed.)
364, 365 ; Hart-y. Ten Eyck, 2 Johns. Ch. 62, 108 ; Weil v.. Silverston,
6 Bush (Ky.), 698 ; Hesseltine v. Stockwell, 30 Me. 370.
It follows from all we have said that the delivery by the " Idaho "
of the one hundred and sixty-five bales, to the order of Porter & Co.,
was justifiable, and that the libellants have sustained no legal injury.
Decree affirmed.
e. Delivery to Wrong Party through Mistake or Fraud.
POWELL V. MYERS.
26 Wend. (N. Y. Ct. of Errors) 591. 1841.
Eeeob froni the Supreme Court. Myers brought an action in the
common pleas of New York against Powell and others as common
carriers, for the loss of a trunk and its contents, taken on boarda
steamboat owned by the defendants, at West Point, by a son of the
plaintiff, who, at the time, was a minor, and took passage in the
boat for New York. The boat usually left Newburg at five o'clock
P.M., and arrived at New York between nine and ten the same even-
ing. Shortly before arriving at the dock, a young man named
Pruyn, who accompanied the plaintiff's son from West Point, in his
presence inquired of the master of the boat whether their baggage
would be safe on board the boat during the night; who answered
that it would be perfectly safe, for they stationed a watch for its
protection until morning. Passengers occasionally stayed on board
during the night, but usually left the boat on arriving at the city.
DELIVERY BY OAKRIEK. 697
Pruyn stayed on board, but the plaintiff's son left the boat soon
after its arrival, and on the next morning, at about eight o'clock,
went to the boat for his trunk, and then learned that it had been
delivered on a forged order. A negro man had come on board and
presented an order for the trunk. The master of the boat pointed it
out to the negro. Pruyn, who was present, observed that the trunk
had been left in his charge. The master of the boat said there was
an order for it, when Pruyn said very well, and told the negro to
take it. The judge charged the jury that the defendants were
responsible for the delivery of the baggage of travellers in their
boat, unless lost by inevitable accident; that if the trunk had not
been delivered to the passenger, and was not so lost, the defendants
remained liable even after the boat arrived at the wharf. To which
charge the counsel for the defendants excepted. The jury found a
verdict for the plaintiff, on which judgment was rendered: which
judgment was afSrmed by the Supreme Court on writ of error, on the
-ground that this case was not distinguishable from those of Hollister
■V. Nowlen, 19 Wendell, 234, and Cole v. Goodwin, id. 251. The
■defendants removed the record into this court by writ of error,
where the case was submitted on printed arguments by : —
By the Chancellor. .......
It appears from the testimony, that the boat usually arrived at
Ifew York in the night, and though the passengers usually landed
with their baggage before morning, they frequently remained on
board through the night. The jury therefore were right in conclud-
ing that the baggage left on board was in the custody of the master
in his capacity of common carrier until it was called for at the usual
time in the morning, after his arrival at his place of destination.
The owners of the boat, in whose custody the trunk was, were there-
fore clearly liable for the misdelivery thereof to the colored man,
upon the forged order, and were rightfully charged with the loss.
Even in the ordinary case of a bank which pays out the money of a
depositor upon a forged check, in his name, the institution and not
the depositor must sustain the loss. So, too, the warehouseman,
who is not liable to the same extent as the common carrier, has
been held liable for delivering the goods intrusted to his care to
the wrong person, where such delivery was by mistake merely and
not intentionally wrong. See Devereux v. Barclay, 2 Barn. & Aid.
Rep. 702.
For these reasons I think the decisions of the judge who tried the
cause and of the Supreme Court were correct, and that the judgment
should be affirmed.
698 CAKKIERS OF GOODS.
AMEEICAN EXPEESS CO. v. STACK.
29 Ind. 27. 1867.
Gbbgoey, J. Stack sued the appellant for the non-delivery of
two bonds. The defendant answered by the general denial, with an
agreement between the parties that all legal defence could be given
in evidence under it. Trial by the court; finding for the plaintifEj
motion for a new trial overruled, and judgment.
The evidence which is made part of the record tends to show that
the plaintiff enlisted as a soldier in the army of the United States,,
in Lockport, Niagara County, New York, in September, 1864, and
received, as a bounty from that county, two hundred dollars in cash
and the bonds described in the complaint, which bonds were imme-
diately sent by express to the plaintiff's wife, Hannah Stack, at
Chicago, Illinois. In July, 1865, the plaintiff was mustered out of
the service near Albany, New York, and arrived home in Chicago'
on the 16th of that month. A few days before the plaintiff got
home his wife appeared at the provost marshal's oflSce in Chicago,
and after a conference with Captain James, the provost marshal,
she was referred by him to the witness, Eveleth, then a clerk in,
the ofB.ce, with a request that he attend to her business. She then
exhibited to Eveleth a paper purporting to be a telegram from her
husband, James Stack, from number 64 Montgomery Street, Albany,
New York, directing her to send those bonds to Albany, New
York, 64 Montgomery Street. She handed Eveleth two bonds, an-
swering the description of those in the complaint referred to,
who thereupon enclosed them properly and directed the package-
"To James Stack, 64 Montgomery Street, Albany, N. Y." He also-
indorsed on the back of the package the amount of the enclosed, and
the words "From Mrs. Hannah Stack, Chicago, Illinois." He, at
the same time, wrote a letter, in the name of Hannah Stack, to be
sent by mail, informing James Stack of the transmission of the bonds:
by express, and addressed the letter to "James Stack, 64 Mont-
gomery Street, Albany, New York." On the 11th of July, John
Staving, then receiving clerk of the United States Express Company
at Chicago, received the package and gave a receipt therefor, in
which that company undertook to forward the package to the-
nearest point reached by it, and that the company should only be
liable as forwarders. The United States Express Company carried
the package to Buffalo, New York (the end of the line), and there
delivered it to the appellant. The package reached Albany, New
York, on the 14th of July, 1865, and was there delivered, by the-
duly authorized agent of the defendant, on the 16th (the next day^
DELIVERY BY CARRIER. 699
to a man representing himself to be James Stack, under these cir-
cumstances : On the day of its arrival, the delivery agent of the com-
pany called with it at 64 Montgomery Street, which was a hotel, or
boarding-house, kept by Lillis, and there found, on inquiry, that
Stack was not then in, whereupon the jjackage was returned to the
defendant's' ofB.ce. On the morning of the 15th of July, a man called
at the office, representing himself to be James Stack, and showed
the agent a letter purporting to come from Hannah Stack, from
Chicago, informing him (Stack) that the bonds had been sent by
express. He was informed by the agent that he must get some one
to identify him — that the letter was not enough. The man left the
office, and shortly after returned with Lillis. The agent was unac-
quainted with the latter, and required some one known to him (the
agent) to be brought to vouch for Lillis. Slevin was then brought
in, who was known to the agent to be a reliable man. Slevin did
not know Stack, and so informed the agent, but did know Lillis, and
represented him to the agent as all right and reliable. The agent
then asked Lillis if the man with him was James Stack, and Lillis
replied that he was, and was staying at his (Lillis') house. Lillis
was asked no other questions and gave no other information. The
man calling himself Stack was asked by the agejit, in the presence
of Lillis, what the package contained, and the man replied, that it
contained a bond for $500, and one for f 300, Niagara County war
bonds, and was from his wife, Hannah Stack, from Chicago. The
agent thereupon delivered the package to the supposed Stack. The
person to whom the package was delivered was not the real James
Stack, but a swindling pretender, who had doubtless sent the false
despatch to Stack's wife. The appellee did not send the despatch
which his wife got, nor had he any knowledge of its being sent.
Lillis' had no other knowledge or information about the pretender
than this : About a week or ten days before the package was delivered,
a man came to his house and said his name was James Stack, and
that he was a soldier, stopping at the barracks, then located between
Troy and Albany, and asked permission of Lillis for a room to write
a letter to his wife, which was given. After the letter was written,
he asked Lillis for his address, which was given thus: "James
Lillis, 64 Montgomery Street, Albany, New York." Stack said he
would have a letter addressed to him at Lillis' house, and requested
that if it came it should be kept. After that he called occasionally
at Lillis' house and took meals, up to the time the package came;
and, in the mean time, a letter came to Lillis' house for him, and he
stated to Lillis that the letter came from his wife, and informed
him of the sending of, a package by express. The agent of ■ the
express company, at the time he delivered the package, was not
aware of the nature or extent of Lillis' knowledge and acquaintance
with the pretender, nor did he ask any question or make any eifort
to acquire such information.
700 CARRIERS OF GOODS.
It is claimed, that, admitting the liability assumed by the appel-
lant to be that of a common carrier, yet that such liability ter-
minated when the package was taken-to 64 Montgomery Street, and
thereafter the appellant was only bound to ordinary diligence in
keeping the package for the owner. It is also urged that the con-
tract entered into between the plaintiff and the United States
Express Company is to govern in fixing the liability of the appellant.
It is not necessary, for the determination of this case, that we
should pass upon either of these propositions. For in any event the
liability of the company could not be less than that of a warehouseman.
In Devereux et al. v. Barclay et al., 2 Bar. & Aid. 702, it was
held that trover will lie for the iuisdelivery of goods by a ware-
houseman, although such misdelivery has occurred by mistake only.
Nor will a delivery on a forged order protect the warehouseman.
Lubbock V. Inglis, 1 Starkie, 104 (2 En. Com. L. 215).
The court below found, under the facts, that there was a want of
ordinary diligence on the part of the company in the delivery of the
package. We think the evidence justifies this conclusion. But we
are not inclined to apply this rule to the delivery of goods intrusted
to warehousemen and others in like condition. There must be a
delivery to the right person. It is always in the power of the
person, having the goods in charge to identify the owner. If he
suffer himself to be imposed on, it is his own fault.
The judgment is affirmed, with costs, and three per cent damages.^
PEICE V. OSWEGO & SYRACUSE E. CO.
50 N. Y. 213. 1872.
Appeal from judgment of the General Term of the Supreme Court
in the fourth judicial department, affirming a judgment in favor of
defendant, entered upon the report of a referee.
The action was brought against defendant as common carrier to
recover the value of three bales of bags shipped by plaintiff at
Syracuse, consigned to S. H. Wilson & Co., Oswego. The facts are
stated sufficiently in the opinion.
Gbover, J. The referee found as a conclusion of law, from the
facts found, that the defendant, having delivered the bags to the
person who made the order for them (although in the name of a
fictitious firm) without notice of the fraud, was not liable to the
plaintiff therefor. To this conclusion the appellant excepted. The
counsel for the respondent insists that if the legal conclusion is not
sustained by the facts found, the court will assume that he found
I Ace. : Pacific Express Co. v. Shearer, 160 111. 216, 43 N. E. R. 816, 37 L. B. A.
177, 62 Am. St. E. 324.
DELIVERY BY CAEEIEE. 701
Buch additional facts as were necessary for that purpose. This posi-
tion is correct, subject, however, to the qualification that it must
appear from the case that such additional findings would have been
warranted by the evidence. Oberlander v. Spiess, 46 N. Y. 175.
In the present case there was no evidence warranting the finding of
any additional facts sustaining the legal conclusion. The ques-
tion, therefore, is whether such conclusion is sustained by the facts
found. The facts (so far as material) found were : That the plain-
tiff, on and prior to September, 1866, was a dry-goods merchant,
doing business in Syracuse. That the defendant was a common
carrier of goods between Syracuse and Oswego. That a few days
prior to the 10th of September, 1866, Caleb B. Morgan, a resident
of Syracuse, received a letter by mail, dated and mailed at Oswego,
directed to him at Syracuse, signed S. H. Wilson & Co., inquiring
the price of bags. That Morgan had been a dealer in bags, but had
given up the business, and upon receipt of the letter he delivered
the same to the plaintiff, who kept bags for sale, and requested the
plaintiff to inform him of the price of the said bags. That Morgan
did not know any person or firm by the name of S. H. Wilson &
Co., nor had he heard of any such person or firm, but delivered the
letter to the plaintiff, believing it had been written in good faith in
the ordinary course of business by a firm wishing to purchase bags.
That the plaintiff upon receipt of the letter gave to Morgan the
prices of bags, who communicated them in a letter, addressed and
mailed by him to S. H. Wilson & Co., Oswego. That afterward,
and on the 10th or 11th of September, the plaintiff received through
the post-office at Syracuse a letter, mailed at Oswego, as follows : —
•* Oswego, Sept. 10, 1866.
" Mr. Milton Price, — Sir : We are in want of some bags, and wrote
Mr. Morgan, supposing he was in the trade, and he has quoted your prices
for stock, etc. Please send us by rail 100 of each, and hope you can make
the price a little less, and will be able to give you a larger order soon. Please
send bill by mail, and we will remit check for amount of same.
"(Signed) - S. H. Wilson & Co."
That on the 13th September, 1866, the plaintiff, with a view of
complying with the order, delivered to the defendant at Syracuse
three bales of bags, of the value of |205, directed to S. H. Wilson
& Co., Oswego, and the defendant undertook as a common carrier to
carry the bags to Oswego, and there deliver them to the consignees,
and also mailed a bill of the bags to S. H. Wilson & Co., Oswego.
That the defendant carried the bags to Oswego the same day, and
soon after their arrival at Oswego and on the same day, a man called
at the office of the defendant there, and asked defendant's agent if
three bales of bags, directed to S. H. Wilson & Co., had arrived.
He was informed that they had, and he then said they were what he
wanted, and offered to and did pay the freight thereon, and they
702 CAREIEKS OF GOODS.
were delivered to him by the agent of the defendant upon signing a
receipt therefor in the name of S. H. Wilson & Co., and they were
taken away. That the plaintiii did not know any person or firm
by the name of S. H. Wilson & Co., and had no information of any
such person or firm, except what was contained In their letter to
him of September 10th and in the letter to Morgan. In fact, there
was no such firm of S. H. Wilson & Co. in business at Oswego or
elsewhere, and the letter written in the name of S. H. Wilson & Co.
and the order were part of a scheme on the part of some person or
persons to defraud the plaintiff of his property, and no part of the
purchase 'price has been paid, nor has the property been recovered
or the person who received the same from the defendant been traced.
That the defendant, when said bags were received and delivered,
did not know any person or firm by the name of S. H. Wilson & Co.,
nor did the defendant know the person to whom the bags were
delivered, nor did they require any evidence of the identity of the
person, or of his being connected with the firm of S. H. Wilson & Co.
That it was the usual custom of the defendant not to deliver goods
to a stranger without his being identified or his satisfying the
defendant by papers or otherwise that he was entitled to receive
them; and further, that reasonable care and prudence required such
precautions to be taken. That the person to whom the bags were
delivered by the defendant was the person who wrote the letters
signed S. H. Wilson & Co. , or his authorized agent to receive said
bags in case they should be sent pursuant to the order of September
10th. That there was no evidence from which it could be found
whether his name was S. H. Wilson or not. That when the plaintifE
sent the bags he supposed that S. H. Wilson & Co. was the name of
a firm at Oswego, and when the" defendant delivered them at Oswego
they had no knowledge of the fraud, and supposed that the person
to whom they were delivered was a member of or represented the
firm of S. H. Wilson & Co. It is the duty of a carrier to carry the
goods to the place of delivery and deliver them to the consignee.
When goods are safely conveyed to the place of destination and the
consignee is -dead, absent, or refuses to receive, or is not known and
cannot after reasonable diligence be found, the carrier may be dis-
charged from further responsibility as carrier by placing them in a
proper warehouse for and on account of the owner. Fisk v. Newton,
1 Denio , 45. The responsibility continues as carrier until discharged
in the manner above stated. Hence, a delivery to a wrong person,
although upon a forged order, will not exonerate the carrier from
responsibility. Powell v. Myers, 26 Wend. 591 [696]. In examin-
ing the cases, the distinction between the liability of carriers and
warehousemen must be kept in mind. The former is responsible as
insurer; the latter for proper diligence and care only, in the pres-
ervation of the property and its delivery to the true owner. The
former must, at their peril, deliver property to the true owner, for
DELIVERY BY C AERIE R. 703
if delivery be made to the wrong person, either by an innocent mis-
take or through fraud of another, they wiU be responsible, and the
wrongful delivery will constitute a conversion. McEntee v. The New
Jersey Steamboat Co., 45 N. Y. 34 [678]. It is of the liability of a
warehouseman after the responsibility as carrier had terminated that
the chief judge is speaking in the opinion in Burnell v. The N. Y.
Central E. E. Co. , 46 N. Y. 184, where he holds that the defendant
was responsible only for due care and diligence. In the present
■case the goods were consigned to S. H. Wilson & Co., Oswego.
This plainly indicated some person, or, rather, persons, known by
and doing business under that name. But as there was no- such
firm, and so far as the findings or case show, never had been,
delivery could not be made to the consignees. Then, as already
seen, it became the duty of the carrier to warehouse the goods for
the owner. Instead of this, the defendant delivered them to a
stranger without making any inquiry as to who or what he was,
simply upon his inquiring if such goods for Wilson & Co. had
arrived, and upon being informed that they had, saying that he
wanted them. If the case had been determined by the referee upon
the question whether due care had been used by the defendant, it
would have been necessary to determine whether the goods were at
the time held as carrier or as bailee of another character, as in the
latter case only will the exercise of proper care exonerate from
liability for the loss of the property. But as the legal conclusion
of the referee shows that the judgment was not based upon any
finding upon that question, but upon the legal conclusion of the
referee, that the defendant was discharged from liability by having
delivered the goods to the person who wrote the letters and orders,
or his authorized agent, it is unnecessary to determine whether the
defendant at the time held the goods as carrier or warehouseman,
because if the legal conclusion is correct, a delivery to this person
or his agent would have discharged the defendant in either case,
entirely irrespective of the degree of care exercised in making
delivery. The entire findings of the referee show that he would
have held the defendant liable had the delivery under a like state of
facts been made to any other than this person. The opinion of the
learned judge, given at the General Term, shows that the judgment
was affirmed by that court upon the same ground, and that the case
would have been differently decided had the delivery been made to
some other person. Indeed, this is the only reason that can with
any plausibility be given for the judgment. As a finding, that
proper care had been exercised by a bailee of goods whose duty it
was to keep them for the owner, when he had delivered them to an
entire stranger, who claimed to be the owner, and gave no evidence
of his right except to make inquiry if they had arrived for the con-
signee, and saying that he wanted them, would be wholly unsup-
ported by the evidence. The question is whether the person who
704 ■ CAEKIEES OF GOODS.
wrote the order acquired a right, so far as the defendant was con*
cerned, to a delivery of the goods; in other words, whether as to
it he was the consignee. If he was, the conclusion of the referee
was correct. In that case, delivery to him discharged the carrier
upon the principle that any delivery, valid as to the consignee, is a
defence for the carrier as to all persons. It would hardly be claimed,
in case there had been a firm doing business at Oswego under the
name of S. H. Wilson & Co., a swindler would make himself con-
signee of goods or acquire any right whatever thereto, which were
in fact consigned to such firm, simply by showing that he had forged
an order in the name of the firm directing such consignment. If he
would not thereby acquire any right to the goods, delivery to him
would not protect the carrier any more than if made to any other
person. In the American Express Co. v. Fletcher, 25 Indiana, 492,
the facts were that a person claiming to be J. O'Riley presented
himself to a telegraph operator, who was also agent of the express
company, and presented a despatch to be forwarded to the plaintiff,
signed J. O'Riley, requesting him to send $1,900, which the oper-
ator sent through. That in due time the operator, in his capacity
of agent for the express company, received a package purporting to
contain valuables, addressed to J. O'Riley, whereupon the same per-
son who had sent the despatch presented himself and demanded the
package, which was delivered to him. It turned out that this per-
son was not J. O'Riley, but a swindler. Held, that the express
company was liable to the plaintiff for the money. The case is
silent as to whether J. O'Riley was a fictitious name, but I infer
that it was not, as the plaintiff would not be likely to forward that
amount of money to a person unknown to him. It will be seen that
this was a much stronger case for the company than is that of the
present defendant, so far as care was concerned, for the delivery
was made to the person known by the company to be the one who
sent the despatch, while the defendant knew nothing whatever about
the letters or order, or how the goods came to be forwarded, con-
signed as they were. But the case directly decides that no right to
the ■ package was acquired by the swindler by sending a despatch
therefor in the name of another. If no right is acquired by sending
a despatch in the name of a real person, it is a little difficult to see
how any is acquired by writing in the name of a firm having no
existence, especially when the facts show, as in the present case,
the consignor supposed he was dealing with a substantial business
firm, and the consignment showed that it was intended to be made
to such a firm.
In Ward v. The Vermont & Mass. R. R. [42 Vt. 700] one Collins
represented to the plaintiff that there was a person of the name of J.
F. Roberts residing at Roxbury, Mass., and fraudulently induced the
plaintiff to consign goods to him. In fact, no such person resided
there. Upon the arrival of the goods Collins went to a truckman an(i
DELIVERY BY CAKEIER. 705
personated Roberts, and as such sent the truckman for the goods, to
whom they were delivered by the company. Held, that the com-
pany was liable to the plaintiff therefor. That, in principle, is like
the present case. In this the swindler had in substance represented
to the plaintiff that there was a business firm at Oswego wishing to
purchase bags, and had fraudulently procured a consignment of bags
from the plaintiff to this firm, when in fact there was no such firm.
This gave the defendant no right to deliver the goods to any one
else. The argument for the defendant is that the plaintiff consigned
the goods to S. H. Wilson & Co., and there being no such firm, the
person signing the name of the firm to the letter and order was in
respect to the goods to be regarded as the firm for the purpose of
delivery by the defendant. This is in direct conflict with the
intention of the plaintiff, apparent from the consignment. That
authorized a delivery to S. H. Wilson & Co. , and to no other.
There was not a particle of proof that the person who wrote the
letter was ever known to any one by that name. The consignment
did not, therefore, authorize a delivery to him. The defendant had
no knowledge whatever of the letters, and his writing them furnished
no evidence to it of his doing business in that name.
Duff V. Budd, 7 Eng. Com. Law, 399, was a case much like the
present. The evidence that the person who received the goods was
the same straiiger who ordered them in a fictitious name, was equally
strong as in the present case, yet there is no intimation that by
this fraud he acquired any right to the goods or the defendant any
authority to deliver them to him, and the plaintiff was held entitled
to recover of the carrier therefor. See also Birkett v. Willan, 4
Eng. Com. Law, 540. Heugh v. The London Railway Co., 5 Law
Exch. Reports, 51, and McKean v. Ivor, 6 id. 36, are relied upon
by the defendant. In the former, one Nurse, who had been in the
employ of a rubber company which had ceased to do business, wrote
and sent to the plaintiff an order for goods in the name of the
company. The plaintiff forwarded the goods by the defendant, a
common carrier, consigned to the company. The defendant ten-
dered the goods at the place where the company had carried on
business. The persons in possession refusing to receive, they were
taken away by the defendant, who, according to the course of 'busi-
ness, wrote a letter addressed to the company, advising of the
receipt of the goods and requesting their removal. ISTurse there-
after came and presented this letter, with an order for the delivery
of the goods, signed in the name of the company by him to the de-
fendant, who thereupon delivered the goods to him. Held, that the
liability of the defendant as carrier was terminated by the tender,
and that whether the defendant had been negligent in the delivery
was a question of fact for the jury. The latter was a case where
goods had been sent to a fictitious firm upon a fraudulent order, by
the plaintiff, consigned to the firm at 71 George Street, Glasgow,
706 CARRIERS OF GOODS.
that being the address specified in tlie order by the defendant, a car-
rier, -who upon the arrival of the goods followed the usage universal
among carriers at Glasgow, which was to send notice of the arrival
of the goods, with a request for their removal. This notice was
received by the one giving the order, who indorsed the name of the
firm thereon and presented it to and obtained the goods from the
defendant, Held, that the defendant having delivered the goods
according to the universal usage of carriers, had complied with the
directions of the consignor, which must be taken as including such
usage, and was therefore not liable.
In Stephenson v. Hart, 4 Bing. 476, it was expressly held that
the carrier had no right to make delivery to the writer of the ficti-
tious order. But it is said that the plaintiff intended the goods
should be, delivered to the writer of the order. Not at all. He did
not consign them to the writer of any order, but to Wilson & Co.
This is the only evidence of his intention as to the persons to whom
delivery should be made. It is further said that it was the plain-
tiff's negligence in forwarding the goods without ascertaining that
there was in fact such a firm. I am unable to see what the defend-
ant had to do with this. Its duty was to deliver to the firm, and if
that could not be found, to warehouse and keep for the owner. The
same might be said in every case where goods were forwarded to a
consignee supposed to be at a particular place, but who in fact was
not there. The usage of the defendant cannot avail him in this
case. The referee has found just what was done. This accords
with the evidence, in which there was no conflict.
The judgment appealed from must be reversed, and a new trial
ordered, costs to abide event.
SAMUEL V. CHENEY.
135 Mass. 278 ; 46 Am. K. 467. 1883.
Tort, against a common carrier, for the conversion of a quantity
of cigars. At the trial in the Superior Court, before CoLBaRN, J.,
the jury returned a verdict for the defendant; and the plaintiff
alleged exceptions. The facts appear in the opinion.
Morton, C. J. The principal facts in this case, regarded in the
light most favorable to the plaintiff, are as follows: —
In June, 1881, a swindler, assuming the name of A. Swannick,
sent a letter to the plaintiff asking for a price list of cigars, and
giving his address as "A. Swannick, P. 0. box 1595, Saratoga
Springs, N. Y." The plaintiff replied, addressing his letter accord-
ing to this direction. The swindler then sent another letter order-
ing a quantity of cigars. The plaintiff forwarded the cigars by the
DELIVERY BY CAEEIEK. 707
defendant, who is a common carrier, and at the same time sent a
letter to the swindler addressed " A. Swannick, Esq. , P. 0. box 1595,
Saratoga Springs, N. Y.," notifying him that he had so forwarded
■the goods.
There was at the time in Saratoga Springs a reputable dealer in
groceries, liquors, and cigars, named Arthur Swannick, who had his
.shop at the corner of Ash Street and Franklin Street, and who issued
his cards and held out his name on his signs and otherwise as "A.
Swannick." He was in good credit, and was so reported in the
books of E. Eussell and Company, a well-known mercantile agency,
of whom the plaintiff made inquiries before sending the goods. No
•other A. Swannick appeared in the Saratoga Directory for 1881, oi
was known to said mercantile agency. But in June, 1881, a man
hired a shop at No. 16 Congress Street, Saratoga Springs, under the
name of A. Swannick, and also hired a box, numbered 1596, in the
post-office, and used printed letter-heads with his name printed as
"A. Swannick, P. O. box 1595." This man wrote the letters to the
plaintifp above spoken of, and received the answers sent by the
plaintiff. He soon after disappeared.
The plaintiff supposed that the letters were written by, and that
lie was dealing with, Arthur Swannick. He sent the goods by the
"defendant, the packages being directed, "A. Swannick, Saratoga
-Springs, N. Y.''
The defendant carried the packages safely to Saratoga Springs.
On July 1, the defendant, by his agent, carried a package of cigars
■directed to A. Swannick to said Arthur Swannick, who refused to
Teceive it on the ground that he had ordered no cigars. Afterwards,
'On the arrival of the packages, the value of which is sought to be
recovered in this suit, the defendant carried the same to the shop
No. 16 Congress Street, and delivered them to the person appearing
"to be the occupant of the shop, and took receipts signed by him as
"A. Swannick."
We assume that his real name was not A. Swannick, but that he
fraudulently assumed this name in Saratoga Springs and in his
dealings with the plaintiff.
The question whether, under these circumstances, the property in
the goods passed to the swindler, so that a bona fide purchaser could
hold them against the plaintiff, is one not free from difficulty, and
upon which there are conflicting decisions. The recent case of
Cundy v. Lindsay, 3 App. Cas. 459, is similar to the case at bar in
many of its features ; and it was there held that there was no sale,
that the property did not pass to the swindler, and therefore that
the plaintiffs could recover its value of an innocent purchaser. That
this case is very near the line is shown by the fact that such emi-
nent judges as Blackburn and Mellor differed from the final decision
of the House of Lords. Lindsay v. Cundy, 1 Q. B. D. 348.
But it is not necessary to decide this question, because the lia-
708 CAEKIEKS OF GOODS.
bility of the defendant as a common carrier does not necessarily
turn upon it. The contract of the carrier is not that he will ascer-
tain who is the owner of the goods and deliver them to him, but
that he will deliver the goods according to the directions. If a man
sells goods to A, and by mistake directs them to B, the carrier's
duty is performed if he delivers them to B, although the unexpressed
intention of the forwarder was that they should be delivered to A.
If, at the time of this transaction, the man who was in correspon-
dence with the plaintiff had been the only man in Saratoga Springs
known as, or who called himself, A. Swannick, it cannot be doubted
that it would have been the defendant's duty to deliver the goods to-
him according to the direction, although he was an impostor, who
by fraud induced the plaintiff to send the goods to him. Dunbar v.
Boston & Providence Eailroad, 110 Mass. 26. The fact that there-
were two bearing the name made it the duty of the defendant ta
ascertain which of the two was the one to whom the plaintiff sent
the goods.
Suppose, upon the arrival of the goods in Saratoga Springs, the
impostor had appeared and claimed them; to the demand of the
defendant upon him to show that he was the man to whom they
were sent, he replies, "True, there is another A. Swannick here,
but he has nothing to do with this matter; I am the one who ordered
and purchased the goods; here is the bill of the goods, and here is
the letter notifying me of their consignment to me, addressed to
me at my P. 0. box, 1595." The defendant would be justified in
delivering the goods to him whether he was the owner or not, because
he had ascertained that he was the person to whom the plaintiff had
sent them. It is true the defendant did not make these inquiries ia
detail; but if, by a rapid judgment, often necessary in carrying on
a large business, he became correctly satisfied that the man to whom
he made the delivery was the man to whom the plaintiff sent the
goods, his rights and liabilities are the same as if he had pursued
the inquiry more minutely.
The plaintiff contends that he intended to send the goods tO'
Arthur Swannick. It is equally true that he intended to send
them to the person with whom he was in correspondence. We think
the more correct statement is, that he intended to send them to the-
man who ordered and agreed to pay for them, supposing, erro-
neously, that he was Arthur Swannick. It seems to us that the-
defendant, in answer to the plaintiff's claim, may well say, we have
delivered the goods intrusted to us according to your directions, to.-
the man- to whom you sent them , and who, as we were induced to
believe by your acts in dealing with him, was the man to whom you;
intended to send them ; we are guilty of no fault or negligence.
The case at bar is in some respects similar to the case of M'Kean-
V. M'lvor, L. R. 6 Ex. 36. There the plaintiffs, induced by a fic-
titious order sent to them by one Heddell, an agent of theirs to-
DELIVERY BY CARRIER. 709
procure orders, sent goods by the defendants, who were carriers, ad-
dressed to "C. Tait & Co., 71 George Street, Glasgow." There was
no such firm as C. Tait & Co., but Heddell had made arrangements
to receive the goods, at No. 71 George Street. Upon the arrival of
the goods, the defendants, in the usual course of business, sent a
notice to 71 George Street for the consignee to call for the goods,
the notice saying that it ought to be indorsed so as to operate as a
delivery order. Heddell indorsed the notice in the name of "C.
Tait & Co. ," and sent it to the defendants by a carter, to whom the
goods were delivered. It was held that the defendants were not
liable, upon the ground that no negligence was shown, and that,
having delivered the goods according to the directions of the plain-
tiff, they had performed their duty; and the fact that they delivered
to some person to whom the plaintiff did not intend delivery to be
made, was not sufficient to make them liable for a conversion. See
Heugh V. London & North Western Eailroad, L. E. 5 Ex. 51;
Clough V. London & North Western Eailroad, L. E. 7 Ex. 26.
The cases of Winslow v. Vermont & Massachusetts Eailroad, 42
Vt. 700, American Express Co. v. Fletcher, 25 Ind. 492, and Price
V. Oswego & Syracuse Eailway, 50 N. Y. 213 [700], differ widely in
their facts from the case at bar, and are distinguishable from it.
Upon the facts of this case, we are of opinion that the defendant
is not liable, in the absence of any proof of negligence; and there-
fore that the rulings at the trial were sufficiently favorable to the
plaintiff.^
Exceptions overruled.
* The plaintiff requested the judge to rule that on the facts, which were undisputed
and agreed, he was entitled to a verdict. The judge refused so to rule. The plaintiff
then requested the judge to rule that, if the jury believed that in shipping these
goods the plaintiff intended as the consignee A. Swanniok, the person who was well
rated in the commercial agency hooks, and that that intent was properly expressed in
the address on the packages, and that the name of the person to whom delivery was
in fact made was not A. Swannick, they must find a verdict for the plaintiff. The
judge refused so to rule, and instructed the jury that, the intent of the plaintiff being
uncommunicated to the defendant, except so far as expressed in the address on the
packages, was of itself of no importance ; and that if the delivery was made to a per-
son who was known at Saratoga Springs by that name and no other, that was enough,
so far as the question of name affected the legal result. The judge then left the single
question to the jury, as to whether the defendant acted negligently in making the de-
livery he did, instructing them further that, although there was no question that there
was a misdelivery of the goods in suit, the only question was, whether the defendant
was guilty of negligence in making this misdelivery.
710 CAEKIERS OF GOODS.
EDMUNDS V. MERCHANTS' DESPATCH TEANSP. CO.
135 Mass. 283. 1883.
Three actions of tort, with counts in contract, against a com-
mon carrier, to recover the value of certain goods intrusted to the
defendant by the plaintiffs, at Boston, for carriage to Dayton, Ohio.
At the trial in the Superior Court, before Eockwell, J., the jury
returned verdicts for the plaintiffs ; and the defendant alleged excep-
tions. The facts appear in the opinion.
Morton, C' J. These three cases were tried together. In some
features they resemble the case of Samuel v. Cheney, ante, 278 [706].
In other material features they differ from it. They also, in some
respects, differ from each other. In two of the cases a swindler,
representing himself to be Edward Pape of Dayton, Ohio, who is a
reputable and responsible merchant, appeared personally in Boston,
and bought of the plaintiffs the goods which are the subject of the
suits respectively. In those eases we think it clear, upon principle
and authority, that there was a sale, and the property in the goods
passed to the purchasers. The minds of the parties met and agreed
upon all the terms of the sale, the thing sold, the price and time of
payment, the person selling and the person buying. The fact that
the seller was induced to sell by fraud of the buyer made the sale
voidable, but not void. He could not have supposed that he was
selling to any other person ; his intention was to sell to the person
present, and identified by sight and hearing; it does not defeat the
sale because the, buyer assumed a false name, or practised any other
deceit to induce the vendor to sell.
In Cundy v. Lindsay, 3 App. Cas. 459, 464, where the question
was whether a man , who in good faith had bought chattels of a
swindler who had obtained possession of them by fraud, could hold
them against the former owner, Lord Chancellor Cairns states the
rule to be that, " if it turns out that the chattel has come into the
hands of the person who professed to sell it, by a de facto contract,
— that is to say, a contract which has purported to pass the property
to him from the owner of the property, — there the purchaser will
obtain a good title."
In the cases before us, there was a de facto contract, purporting,
and by which the plaintiffs intended, to pass the property and pos-
session of the goods to the person buying them; and we are of
opinion that the property did pass to the swindler who bought the
goods. The sale was voidable by the plaintiffs; but the defendant,
the carrier by whom they were forwarded, had no duty to inquire
into its validity. The person who bought them, and who called
himself Edward Pape, owned the goods, and upon their arrival in
DELIVEEY BY CAKEIEK. 711
Dayton had the right to demand them of the carrier. In delivering
them to him, the carrier was guilty of no fault or negligence. It
delivered them to the person who bought and owned them, who went
by the name of Edward Pape, and thus answered the direction upon
the packages, and who was the person to whom the plaintiffs sent
them. Dunbar v. Boston & Providence Eailroad, 110 Mass. 26.
The learned judge who tried the cases in the Superior Court based
his charge upon a different view of the law; and, as the three cases
were tried together, there must be a new trial in each.
It seems to have been assumed that the same questions are raised
in each case. It is proper that we should add that the third case
differs materially from the others. In that case, the contract did
not purport, nor the plaintiffs intend, to sell to the person who was
present and ordered the goods. The swindler introduced himself as
a brother of Edward Pape of Dayton, Ohio, buying for him. By
referring to the mercantile agency, he tacitly represented that he
was buying for the Edward Pape who was there recorded as a man
of means. The plaintiffs understood that they were selling, and
intended to sell, to the real Edward Pape. There was no contract
made with him, because the swindler who acted as his agent had no
authority, but there was no contract of sale made with any one else.
The relation of vendor and vendee never existed between the plain-
tiffs and the swindler. The property in the goods, therefore, did
not pass to the swindler; and the defendant cannot defend, as in
other cases, upon the ground that it has delivered the goods to the
real owner. Hardman v. Booth, 32 L. J., N. S., Ex. 105; Kings-
ford V. Merry, 26 L. J., N. S., Ex. 83; Barker v. Dinsmore, 72
Penn. St. 427.
Whether the defendant has any other justification or excuse for
delivering the goods to the swindler is a question not raised by this
bill of exceptions, and not considered at the trial; and therefore we
cannot express an opinion upon it.
Exceptions sustained.
WEKNWAG V. PHIL., W. & B. E. CO.
117 Penn. St. 46. 1887.
[Agreed statement of facts.] The defendants are common car-
riers of goods between Philadelphia, Pa., and Washington, D. C.
William P. Wernwag and T. Eussell Dawson, trading as Wernwag
& Dawson, are dry-goods commission merchants, doing business in
the city of Philadelphia. The firm of E. F. Witmer & Co., of
Baltimore, were the plaintiffs' agents for the sale of their goods in
the city of Washington, D. C. The said fii-m of E. F. Witmer &
712 CAEEIEES OF GOODS.
Co. employed one Wilbur V. Murphy to take orders for plaintiffs'
goods in Washington, D. C. The said Murphy visited one Leopold
Behrend, doing a dry -goods business in said city, and took an order
for certain goods of plaintiffs. This order was entered by the said
Murphy on one of the blanks of E. F. Witmer & Co., and was trans-
mitted to the plaintiffs. When it was received by them it read as
follows : —
Baltimore, Nov. 3d. 1883.
Messrs. Wernwag & Dawson,
Philadelphia :
Ship to L. Behrend,
Washington, D. C,
By East Freight.
Terms 5 | 30 — 30 days extra dating.
4 1 5
&c., &c., &c.
(Signed) E. F. Witmeb & Co.
When plaintiffs received this order, for the purpose of ascertain-
ing the financial responsibility of L. Behrend, they examined the
volume of commercial reports in their possession, which purported
to give a full list of merchants doing business in Washington,
D. C, but the name of L. Behrend was not on the list. They had,
however, previously sold goods to one A. Behrend, doing a dry-goods
business in said city of Washington, who had been satisfactory to
them as a customer in every respect; and in consequence of not
finding the name of L. Behrend in the commercial report, they sup-
posed that the salesman had made a mistake in entering the name of
the purchaser on the order, and had written L. Behrend instead of
A. Behrend, intending to write the latter.
Being of this opinion, the plaintiffs determined to ship the goods
ordered to A. Behrend, and on November 5, 1883, shipped to him
by the defendant railroad five pieces of black cashmere and one piece
of worsted, of the total value of $242.37. The goods were charged
to A. Behrend, in the books of the plaintiffs; the box was marked
"A. Behrend, Washington, D. C. ;" the bill of lading or receipt
given for the goods by the defendant describes the goods as marked
A. Behrend, and a bill was made out by plaintiffs in the name of A.
Behrend, and was sent by post addressed to A. Behrend.
The firm of E. F. Witmer & Co. were agents of the plaintiffs only
for the purpose of soliciting orders for goods. The plaintiffs reserved
to themselves the right to determine, on the receipt of an order
from E. F. Witmer & Co., whether or not they would ship the
goods ordered, to the party ordering the same ; and the said E. F.
Witmer & Co. had nothing whatever to do with the delivery of the
goods shipped on orders forwarded by them. That was controlled
entirely by plaintiff's.
When the package of goods aforesaid arrived in Washington over
DELIVERY BY CARRIER. 713
the line of the defendant's road, it was claimed by the said Leopold
Behrend. The said A. Behrend, to whom the plaintiffs supposed they
were selling the goods, and whose name was on the box, was not then
in business in Washington, though he was living there at the time.
Before delivering the goods to the said Leopold Behrend, the agent
■of the railroad company defendant inquired of the said Wilbur F.
Murphy, the agent who had taken the order, whether he had sold any
goods to Leopold Behrend, and what class of goods they were; and
after Murphy had said that he had sold goods to Leopold Behrend,
and had described them, the agent of the defendant delivered them
to Leopold Behrend. The goods so delivered were the same goods
which plaintiffs had shipped to A. Behrend as aforesaid.
After the plaintiffs had delivered the said goods to defendant for
transportation on November 5, 1883, they heard nothing concerning
them until they received a notice, dated January 14, 1884, that
Leopold Behrend had assigned his property for the benefit of his
creditors, and requesting them to forward a statement of their claim
to his assignee.
The assigned estate of the said Leopold Behrend never paid any
dividend to the general creditors, and the goods so shipped by them
and delivered by the defendant to the said Leopold Behrend were
totally lost to plaintiffs.
If the court be of the opinion that on the above facts their judg-
ment should be for the plaintiffs, then judgment is to be entered for
plaintiffs for $242.37, with interest from November 5, 1883; but, if
not, then judgment to be entered for the defendant, the costs to
follow the judgment, and either party reserving the right to sue out
a writ of error.
The judgment of the court was for the defendant, no opinion
being iiled. Thereupon the plaintiffs took this writ, assigning for
error the entry of said judgment.
Mr. Justice Green. From the facts appearing in the case stated
it is manifest that the plaintiS intended to sell, and In point of
fact did consign, the goods in question to A. Behrend and not to L.
Behrend. They knew the former and were featisfied to sell to him.
They did not know the latter and did not intend to sell to him.
They supposed that A. Behrend was intended as the purchaser in
the order, though L. Behrend was named. Granting this to be a
mistake of theirs in the reading of the order, it does not in the
least alter the fact that A. Behrend was the person to whom they
supposed they were selling. However that may be, they certainly
consigned the goods to A. Behrend, and there was then such a per-
son living in Washington, the place to which the goods were
shipped.
It cannot be questioned for a moment that it was the duty of the
carrier to deliver the goods to the person to whom the owner con-
signed them. If the carrier does not so deliver them, he acts at his
714 CARRIEKS OF GOODS.
peril, and the whole risk of a wrong delivery rests upon him. Iq
Shenk v. Steam Propeller Co. , 60 Pa. 109, we said, Sharswood, J. :
" Whatever doubt may hang over the question as to the terminatioD
of a carrier's or other bailee's responsibility, there is one point
which is indisputable, that he must take • care at his peril that the
goods are delivered to the right person, for a delivery to a wrong
person renders him clearly responsible though innocently and by
mistake."
In the present case the goods were delivered to L. Behrend, and,
as between the plaintiffs and the carrier, that was undoubtedly a
wrong delivery. But it is argued that the delivery to L. Behrend
was made in consequence of the direction of Murphy, who it is said
was the plaintiffs' agent. If, in the case stated, it appeared that
Murphy did direct the delivery to L. behrend, this contention would
have great force; because it was Murphy who sold the goods and
sent'the order; and it would be difficult for the plaintiffs to escape
the consequences of his act in directing the delivery. But the only
averment upon this subject which the case stated contains, is in the
following words : " Before delivering the goods to the said Leopold
Behrend, the agent of the railroad company defendant inquired of
the said Wilbur P. Murphy, the agent who had taken the order,
whether he had sold any goods to Leopold Behrend and what class
of goods they were; and after Murphy had said that he had sold
goods to Leopold Behrend, and had described them, the agent of
th'e defendant delivered them to Leopold Behrend. The goods s»
delivered were the same goods which plaintiffs had shipped to A.
Behrend as aforesaid." From this it appears that Murphy gave no
directions to deliver the goods to any one. He merely said he had
sold goods to L. Behrend and described them. Granting that they
were the same kind of goods, and even the same goods, which Murphy
had sold to L. Behrend (and this important fact is not mentioned in
the case stated), yet that was as far as Murphy went, or as he was
asked to go, in giving information. The effect of that information,
as sufficing to exonerate the defendant from liability for a wrong
delivery, was a matter of which the defendant through its agent
took the entire risk. In this at least the plaintiffs were in no fault.
Their agent, if Murphy was their agent, simply told the defendant's
agent that he had sold goods to L. Behrend and described them, and
thereupon the defendant's agent delivered these particular goods to-
L. Behrend. By what authority did he do this? The goods were
consigned to another person, and the defendant's duty was to deliver
to that person. Surely that duty was not discharged by a delivery
to one who was not the consignee, merely because the plaintiffs''
agent had sold similar goods to such a person. The fact still re-
mained that the goods were not delivered to the one to whom they
were consigned. The entire risk of a delivery to the right person
was assumed by the defendant, and a wrong delivery was made by
DELIVERY BY CARRIER. 715
the mistake of the defendant's agent, which, of course, is their mis-
fortune. We are clearly of opinion that the plaintiffs were entitled
to judgment on the case stated.
SINGEK V. MERCHANTS DESPATCH TEANSP. CO.
191 Mass. 449 ; 77 N. E. R. 882 ; 114 Am. St. R. 635. 1906.
Contract or tort for the value of three cases of boots and shoes en-
trusted to the defendant for transportation to Springfield, Illinois.
Writ in the Municipal Court of the City of Boston dated December 2,
1901.
On appeal to the Superior Court the case was tried before Wait, J.,
without a jury. The following facts were agreed for presentation to
this court.
[Plaintiff, Louis Singer, a. wholesale shoe dealer in Boston, on
November 21, 1900, delivered to the defendant for transportation to
Springfield, Illinois, three cases of boots and shoes directed to him-
self and marked " L. Singer, Springfield, Illinois," accepting a bill of
lading therefor containing the condition that the carrier might, at its
option, deliver the goods to the person named as consignee without
requiring the production or surrender of the bill of lading. This
bill of lading, or receipt as it was designated by its terms, was in-
dorsed by plaintiff in blank and attached to a draft on the State Bank
of Chicago, and sent with the draft to Springfield, Illinois, through
the Shoe and Leather National Bank of Boston, with directions on
the draft to notify one Guralnik, a customer of plaintiff's in Spring-
field, who had sent to plaintiff an order for the boots and shoes
accompanied with a deposit of $10 on the purchase price. It ap-
peared that about six or seven times a year for five years said
Guralnik had ordered goods from the plaintiff in the same manner
and received them without difficulty, although his name never ap-
peared as consignee on the direction or shipping papers. When the
goods reached Springfield, Illinois, and before any request for them
had been made by Guralnik, they had been delivered by the de-
fendant to the Samuel Transfer Company in the ordinary course of
business, being taken by that company under a general authority
from Lena Singer, who was doing business in Springfield, Illinois,
under the name of L. Singer and for whom the Transfer Company
had frequently received goods bearing that address from the de-
fendant. Plaintiff had no knowledge that there was any person of
the name of Lena Singer or any person doing business under the
name of L. Singer in Springfield, Illinois. On being advised by
Guralnik that the goods had been delivered to some one else, plaintiff
gave Guralnik a power of attorney to demand and receive the goods.
On demand being made for the goods under this power of attorney,
716 CAEKIEES OF GOODS.
defendant was unable to deliver them and this action for their value
was instituted. There was a finding and judgment for plaintiff and
defendant alleged exceptions.]
LoKiNG, J. The contract of the defendant in the case at bar was
to deliver the cases in question to L. Singer, Springfield, Illinois, with-
out requiring the production of a receipt or bill of lading.
By accepting the receipt, which states the conditions upon which
the property is received, the plaintiff accepted those terms as part of
the contract. Grace v. Adams, 100 Mass. 505 [548]. Hoadley v.
Iforthern Transportation Co., 115 Mass. 304. Fonseca v. Cunard
Steamship Co., 153 Mass. 553. The receipt in question states on its
face that these conditions are to be found on the back. Such a
receipt comes within that rule. See in this connection Pemberton
Co. V. New York Central Railroad, 104 Mass. 144 ; Doyle v. Fitch-
burgh Eailroad, 166 Mass. 492. By force of this contract between
the parties the case at bar is brought within the rule applied on proof
of custom in Forbes v. Boston & Lowell Eailroad, 133 Mass. 154.
The defendant performed this contract by delivering the goods to
L. Singer, Springfield, Illinois.
Whether the consignor in the case at bar meant L. Singer of Boston,
Massachusetts, or L. Singer of Springfield, Illinois, is not material.
What a consignor in fact means if not communicated to the carrier is
not material. The rights of the parties depend upon what is com-
municated to the carrier. Samuel v. Cheney, 135 Mass. 278 [706].
The carrier in making delivery is bound to follow that direction
whatever it may mean under all the circumstances of the case.
It is agreed that the Lena Singer to whom the goods were de-
livered was before and at the time in question doing business in
Springfield, Illinois, under the name of L. Singer, and was so known
to the defendant's representatives in Springfield; also that she had
been receiving goods over the defendant's line "nearly every week,
addressed to L. Singer,'' and that "these cases were marked and
billed in the same manner as other goods received at Springfield
for said Lena Singer." It does not appear that there was any other
L. Singer in Springfield.
Under these circumstances we see no ground for saying that the
defendant did not follow the instructions given to him in delivering
the goods to Lena Singer.
We cannot accede to the plaintiff's argument that because the de-
fendant's agebt in Boston had notice of the name of the consignor
and consignee being the same he had notice that the goods were to
be delivered to the consignor and therefore that L. Singer, Spring-
field, Illinois, meant L. Singer of Boston. If any inference ought to
have been drawn from this fact we think it was that L. Singer of
Springfield was the consignor acting through an agent in making the
consignment.
Neither is it material that " the plaintiff had been doing business
DELIVERY BY CARRIER. 717
in Boston for eleven years, and liad been sending goods to Springfield,
Illinois, for about five years previous to November 21, 1900, about
six or seven times a year to tbe same Guralnik, and had always sent
his goods addressed in the same way, namely, L. Singer, Springfield,
111., and through the defendant company, and he never had any
trouble before this time." The defendant's agent in Springfield
was not bound to remember and was not chargeable with knowledge
of these facts. See in this connection Eaphael v. Bank of Eng-
land, 17 C. B. 161; Vermilye v. Adams Express Co. 21 Wall.
138 ; Seybel v. National Currency Bank, 54 N. Y. 288, where it
is held that previous notice of loss to a subsequent purchaser of
a negotiable security does not charge him with knowledge of the
facts stated in the notice. Whether this is the law in Massachusetts
■was left open in Hinckley v. Union Pacific Eailroad, 129 Mass-
52, 59.
The issues of negligence on the part of the plaintiff and on the
part of the defendant, on which the judge below tried the case, were
not the issues on which the rights of the parties in the case at bar
depend. Where the instructions as to delivery are doubtful under
the circumstances known to the carrier, he is put on his inquiry, and
the question of negligence arises. But the instructions here were not
doubtful under the circumstances known to the defendant. The
judge in the court below apparently acted on Samuel v. Cheney, 135
Mass. 278 [706]. There was ground for arguing that the instruc-
tions there were doubtful under the circumstances known to the
carrier. It is to be observed that the charge to the jury in that case
was held to have been "sufficiently favorable to the plaintiff"; it
was not held to have been correct.
The conclusion to which we have come is supported by Dunbar v.
Boston & Providence Eailroad, 110 Mass. 26 ; Samuel v. Cheney,
135 Mass. 278 [706] ; M'Kean v. M'lvor, L. E. 6 Ex. 36 ; Stimson v.
Jackson, 58 N. H. 138 ; Conley v. Canadian Pacific Eailway, 32 Out.
258; The Drew, 15 Fed. Eep. 826; Nebraska Meal Mills v. St. .Louis
Southwestern Eailway, 64 Ark. 169.
The plaintiff evidently intended to make the goods shipped se-
curity for his draft for the unpaid balance of the purchase money
due him. To do that he should have had the goods billed to his
own order and then indorsed the bill of lading to the bank discount-
ing his draft. By mistake he billed the goods " straight " and is now
seeking to make the defendant liable for his own blunder.
In the opinion of a majority of the court the entry must be
Exceptions sustained.
718 CAEEIEKS OF GOODS.
f . Stoppage in Transitu.
NEWHALL V. CENTRAL PACIFIC EAILEOAD CO.
51 Cal. 345 ; 21 Am. E. 713. 1876.
Crockett, J. This case comes up on the findings, and there is,
therefore, no controversy as to the facts; the only question being,
■whether the plaintiffs are entitled to judgment on the facts found.
The facts necessary to a correct understanding of the only question
of law in the case are, that a mercantile firm in New York sold certain
merchandise on credit to a similar firm in San Francisco, and shipped
the same in the usual course of business, by railway, to the vendees
as consignees, under bills of lading in the usual form. The bills of
lading were received at San Francisco by the consignees before the
goods arrived ; and while the merchandise was in transit, in the cus-
tody of the defendant as a common carrier, the consignees failed, and
became insolvent, and thereupon the vendors notified the defendant
in writing that they stopped the goods in transitu; that the vendees
had become insolvent, and the goods were not paid for, and that they
must not be delivered to the consignees, but to the vendors. The
plaintiffs then were, and for many years had been, auctioneers and
commission merchants, doing business in San Francisco, and had been
in the habit of receiving from the consignees bills of lading, and goods,
under them, for sale on commission. About two hours after the
notice of stoppage in transitu was served upon the defendant, the con-
signees indorsed and delivered the bills of lading to the plaintiffs,
who, on the faith thereof and of the goods named therein, " advanced
a sum of money to the consignees in the usual course of business ; "
and the sum so advanced was to be reimbursed out of the proceeds of
the goods, which were to be sold at auction by the plaintiffs. At the
time of the indorsement and transfer of the bills of lading to the
plaintiffs, they had no notice that the consignees were in failing cir-
cumstances, or had failed, or that any notice of stoppage in transitu
had been served upon the defendant. While the goods were still in
the possession of the defendant as a common carrier, the plaintiffs, as
holders, exhibited to the defendant the bills of lading, tendered the
charges, and demanded a delivery of the goods, which was refused,
and the action is to recover their value.
The question involved being one of great practical importance, it
has been discussed by counsel, both orally and in printed arguments,
with learning and ability. But after the most careful research, they
have failed to call to our attention a single adjudicated case in which
the precise question uiider review has been decided or discussed.
There are numerous decisions, both in England and America, to the
DELIVERY BY CARRIER. 719
effect that where goods are consigned by the vendor to the vendee,
under bills of lading in the usual form, as in this case, an attempt by
the vendor to stop the goods in transitu -will be unavailing as against
an assignee of the bill of lading, who took it in good faith, for a valu-
able consideration, in the usual- course 'of business, before the
attempted stoppage. The leading case on this point is Lickbarrow v.
Mason (2 Term E. 63), the authority of which has been almost uni-
versally acquiesced in by the courts and text-writers, in this country
and in England. There being little or no conflict in the authorities
on the point adjudicated in that case, it would be useless to recapitu-
late them here. But it is important to ascertain the principles which
■underlie these decisions, that we may determine to what extent, if at
all, they are applicable to the case at bar. The first, and, as I think,
the controlling point .determined in these cases, is, that by the bill of
lading the legal title to the goods passes to the vendee, subject only
to the lien of the vendor for the unpaid price ; which lien continues
only so long as the goods are in transit, and can be enforced only on
condition that the vendee is or becomes insolvent while the goods are
in transit.
On the failure of each of these conditions, the right of stoppage is
gone, and the lien ceases, even as against the vendee. But it is fur-
ther settled by these adjudications, that if the bill of lading is assigned,
and the legal title passes to a bona fide purchaser for a valuable con-
sideration before the right of stoppage is exercised, the lien of the
vendor ceases as against the assignee, on the well-known principle
that a secret trust will not be enforced as against a bona fide holder
for value of the legal title. In such a case, if the equities of the
vendor and assignee be considered equal (and this is certainly the
light most favorable to the vendor in which the transaction can be
regarded), the rule applies that where the equities are equal the legal
title will prevail. But in such a case it would be difficult to main-
tain that the equities are equal. The vendor has voluntarily placed
in the hands of the vendee a muniment of title, clothing him with the
apparent ownership of the goods ; and a person dealing with him in
the usual course of business, who takes an assignment for a valuable
consideration, "without notice of such circumstances as render the
bill of lading not fairly and honestly assignable," has a superior equity
to that of the vendor asserting a recent lien, known, perhaps, only to
himself and the vendee. (Brewster v. Sime, 42 Gal. 130.)
These being the conditions which determine and control the rela-
tive rights of the vendor and assignee, where the assignment is made
before the notice of stoppage is given, precisely the same principles, in
my opinion, are applicable when the assignment is made after the
carrier is notified by the vendor. Notwithstanding the notice to the
carrier, the vendor's lien continues to be only a secret trust as to a
person, who, in the language of Mr. Benjamin, in his work on Sales,
section eight hundred and sixty-six, takes an assignment of a bill of
720 CAREIERS OF GOODS.
lading "without notice of such circumstance as renders the bill of
lading not fairly and honestly assignable." The law provides no
method by which third persons are to be affected with constructive
notice of acts transpiring between the vendor and the carrier ; and in
dealing with the vendee, whom the vendor has invested with the legal
title and apparent ownership of the goods, a stranger, advancing his
money on the faith of this apparently good title, is not bound, at his
peril, to ascertain whether, possibly, the vendor may not have notified
a carrier — it may be on some remote portion of the route — that the
goods are stopped in transitu. If a person, taking an assignment of a
bill of lading, is to encounter these risks, and can take the assignment
with safety only after he has inquired of the vendor, and of every
carrier through whose hands the goods are to come, whether a notice
of stoppage in transition has been given, it is quite certain that prudent
persons will cease to advance money on such securities, and a very im-
portant class of commercial transactions will be practically abrogated.
In my opinion the judgment should be affirmed, and it is so ordered.
Mr. Chief Justice Wallace did not express an opinion.
ALLEN V. MAINE CENTRAL RAILROAD CO.
79 Maine, 327 ; 1 Am. St. K. 310. 1887.
[Action on the case for the value of four bales of woolen rags shipped
by plaintiffs from Philadelphia to William Beatty at Gray, Maine.
Soon after plaintiffs parted with the goods they learned that Beatty
was insolvent and notified the station agent of the defendant company
who had charge of receipts and delivery of freight at point of destina-
tion, to stop the transit. Plaintiffs' request that the goods be stopped
before delivery and returned to them, though made in different forms,
did not state any ground for such request. The defendant- delivered
the goods to Beatty and plaintiffs institute this action for their value.]
Emeky, J. The only mooted question in this case is, whether the
plaintiffs effectually exercised against the carrier their clear right of
stopping the goods in transitu.
The plaintiffs seasonably telegraphed and wrote the proper officer
of the defendant company (the carrier) to stop, and return the goods.
The defendant company contend the notice was insufficient, because
there was no statement of the nature or basis of the claim, te have the
goods stopped. While such a statement is probably usual, it does not
seem necessary in this case. The carrier is presumed to know the law,
and by such a notice as was given here, is effectually apprised of a
claim adverse to the consignee, as well as of a claim upon himself. In
Benj. on Sales, 1276, while it is said that the usual mode is a simple
notice to the carrier, stating the vendor's claim, &c., it is also stated,
DELIVERY BY CARKIER. 721
that, " all that is required is some act, or declaration of the vendor
countermanding the delivery." Brewer, J., in Rucker v. Donavan, 13
Kan. 261 (19 Am. E. 84), said, " a notice to the carrier to stop the
goods is sufficient. No particular form of notice is required." In
Cleminston v. G. T. Ey. Co., 42 U. C. Q. B. 42, while it was held that
the notice was faulty in not identifying the goods, it was said that a
specification of the basis of the claim was not necessary.
The defendant further contends, that the plaintiffs' omission to
afterward prove to the carrier their right to stop the goods, when re-
quested by the carrier to do so, has vacated their claim, and released
the carrier from liability. But the carrier is not the tribunal, to de-
termine the rights of the consignor and consignee. Neither of these
parties can be required to plead or make proof before the carrier. No
man need prove his case to his adversary. It is sufficient if he prove
it to the court. The carrier cannot conclusively adjudicate upon his
own obligations to either party. He is in the same position as is any
man, against whom conflicting claims are made. If, as is alleged here,
the circumstances are such, that he cannot compel them to interplead,
he must inquire for himself, and resist, or yield at his peril.
It is reasonable, however, that the person assuming the right to stop
goods in transit, should act in good faith toward the carrier. He
should, if requested, furnish him in due time, with reasonable evidence
of the validity of his claim, though it may not amount to proof.
Should 'the consignor refuse such reasonable information as he may
possess, such refusal might be construed as a waiver of his peculiar
right, and might justify the carrier after a reasonable time, in no longer
detaining the goods from the consignee. But there was no such refusal
here. The plaintiffs sent forward the invoice and their affidavit within
a reasonable time.
The plaintiffs have now proved their right to stop the goods, and
the defendant company having denied that right without good reason,
must respond in damages.
Judgment for plaintiffs for §176.41, with interest from the date of the
writ.
PENNSYLVANIA E. CO. v. AMEEICAN OIL WOEKS.
126 Pa. St. 485 ; 17 Atl. R. 671 ; 12 Am. St. R. 885. 1889.
[On a case stated for judgment of the lower court it appeared that
the American Oil Works, prior to January 1, 1888, had shipped several
consignments of oil to the Philadelphia Lubric Company under bills
of lading in which it was stipulated that the owner or consignee should
pay freight at time of delivery and that the carrier might retain the
goods covered by such bill " for all arrearages of freight and charges
due thereon and also on any other goods by the same consignee or
722 CABEIEHS OF GOODS.
owner ; and such arrearages and the freight and charges on said goods
and merchandise shall be a lien thereon until the same shall have
been paid." On a shipment of oil made on January 4, 1888, the
plaintiff exercised his right of stoppage in transitu on account of the
insolvency of the consignee, offering to pay the freight charges on
such shipment ; but the defendant claimed a right to hold the consign-
ment not only for freight due thereon but also for unpaid freight
charges on prior consignments which had been delivered without the
freight having been paid. The trial judge held that the stipulation
in the bill of lading was ineffectual as against plaintiff and rendered
judgment in its favor from which the defendant appeals.]
Mr. Justice Williams : A vendor of goods has a right to retain
them in his own possession until the price has been paid. If he waives
this right, and sells upon credit, it is an implifed condition of such
•sale that the buyer shall continue in good credit until the goods come
into his actual possession. When that happens the lien of the vendor
is gone, and he must depend upon the ultimate solvency of his customer
at the expiration of the term of credit. If, while the goods are in the
hands of the carrier, in transit, or in store at the end of the journey,
with no intervening right in the way, the buyer becomes insolvent, the
implied condition on which credit was given is broken, and the vendor
may resume the possession of the goods. The exercise of this right
of stoppage is not a rescission of the contract of sale, as the court
below seemed to think, but a resumption of possession which enables
the seller to insist on his lien as a vendor which he had waived by
the delivery to the carrier: Patten's Appeal, 45 Pa. 151; 2 Benj. on
Sales, § 1295. The parties are then in the same position as before the
seller parted with the possession by delivery to the carrier.
So far the law is well settled. The seller having exercised his
right of stoppage as against the buyer, has then to consider his relation
to the carrier. The goods having been delivered into the possession
of the carrier, he may retain them by virtue of his lien for carriage,
until his charges and expenses are paid. As between the carrier and
the consignee who is owner, we see no reason' why this lien may not
be extended by a contract to cover a general balance due by the con-
signee for the carriage of other goods. There would be no injustice or
oppression in asking the consignee to pay what he honestly owed,
before allowing him to remove the goods from the possession of his
creditor, whether that creditor was a natural or an artificial person.
But that question is not raised in this case, for the goods never
came to the end of the journey where the rights of the consignee and
the carrier could be adjusted. The seller intervened and exercised
his right of stoppage. This lestored the possession to him, subject
to the charges of the carrier for his services and expenses between
the consignment and the stoppage. For these charges, the carrier
had a lien which was not divested by the stoppage, and which could
be asserted against the seller notwithstanding his exercise of that
DELIVERY BY CARRIER. 723
right : Hays v. Mouille, 14 Pa. 48. But as between the carrier and
the seller, there -was no balance of accounts for carriage of former
consignments, for the delivery of the goods to the consignee without
payment of the freight was a voluntary surrender of the lien upon
them, and the security which the lien afforded. The carrier by such
■delivery gave credit to the consignee, and undertook to look to his
solvency and integrity. The former bills were therefore paid so far
as the consignor was concerned, and the carrier had no legal or moral
ground for calling upon him to pay any balances due upon them.
The clause in the bill of lading which has been brought to our
attention, and on which the plaintiff in error relies, is not according
to its own terms applicable to a case like the present one. That clause
provides that the consignee or owner shall pay the freight on the goods
■consigned to him at the time of their delivery, and that the goods
may be retained by the carrier for the charges due thereon, and also
for any charges due from him for other goods. As there was no
carriage of these goods to the consignee, the special lien provided for
could not attach to them. When the consignor exercised his right of
stoppage, the goods were deliverable to him, and the carrier's right of
detention depended on the relations thus created. If the consignor
was not debtor for previous carriage, and had not contracted that these
goods might be retained from him for such debt, then the carrier's
lien did not extend beyond the charges applicable to the goods stopped,
and on payment or tender of these he was entitled to a delivery of
the goods. If the right of the carrier to extend its lien by contract
•with the owner to the general balance due from such owner be con-
ceded, as it may be, still the lien is confined to the goods of such
owner. The goods which by the exercise of the right of stoppage
become those of the consignor, cannot be made subject to a lien for
the debt of the consignee. We concur in the conclusion reached by
the court below, although we reach it by a somewhat different route.
The judgment is aifirmed.
BRANAN V. ATLANTA & WEST POINT RAILROAD CO.
108 Ga. 70; 33 S. E. R. 836 ; 75 Am. St. R. 26. 1899.
Little, J. Branan Brothers instituted an action in trover against
the Atlanta and West Point Railroad Company and C. V. Truitt, to
lecover ten boxes of tobacco. The evidence made substantially the
following case : Spencer, Traylor & Co. sold to Cunningham, a mer-
chant in La Grange, ten boxes of manufactured tobacco on a credit,
and delivered the same to the Richmond & Danville Railroad Com-
pany at Danville, Virginia, to be forwarded to Cunningham, taking
irom the railroad company an ordinary bill of lading, which the con-
signors transmitted to the consignee. The tobacco arrived in La
724 CAEEIEES OF GOODS.
Grange over the Atlanta & West Point Eailroad, and was placed in
the warehouse of the company for delivery. Cunningham became'
insolvent, and was indebted to the firm of Branan Brothers in the
sum of one hundred and seventy-six dollars. A member of that firm
called on Cunningham for the payment of the debt; the latter pro-
posed to pay the bill with the tobacco, which was then in the ware-
house of the railroad company and had not been delivered. The
proposition was accepted. Cunningham gave an order on the agent of
the Atlanta & West Point Railroad, to deliver to C. I. Branan the
tobacco then in the carrier's possession, consigned to him, being the
tobacco which had been shipped by Spencer, Traylor & Co. At the
time of the delivery of the order, Cunningham also delivered to
Branan Brothers the bill of lading for the tobacco, which was an
ordinary contract of affreightment, specifying the name of the con-
signor and the goods shipped, and stipulating that they were to be
transported to La Grange and delivered to Cunningham. There was
no indorsement or assignment of the bill of lading, nor did Branan
Brothers know that the tobacco had not been paid for. After receipt
of the order and bill of lading, the representative of the firm presented
the order and bill of lading to the agent of the railroad company, paid
the freight on the same, went to the place in the depot where the
tobacco was deposited, put his hands upon it and told the agent that
he desired to mark it to his firm at Atlanta. The agent said that he
would take charge of it for Branan Brothers and ship it to Atlanta,
consigned to that firm as directed, and in pursuance of such under-
standing gave to Branan Brothers a receipt in the following words :
« Atlanta & West Point K. R., La Grange, 4/21/92. Received from
Branan Bros, ten boxes tobacco, 550. Consignor, Branan Bros. Des-
tination, Atlanta, Ga. A. R. Ravencroft, Agent." The purchase was
in payment of an antecedent debt, and the price was reasonable.
Cunningham did not go to the depot with the representative of the
firm. Later on in the day, and while the tobacco was in the ware-
house awaiting shipment to Atlanta, Spencer, Traylor & Co. notified,
the railroad company not to deliver the tobacco to Cunningham, but
to deliver the same to Truitt, one of the defendants in error. This-
was done, and the action was brought by Branan Brothers to recover
the tobacco. On the trial the jury, under the charge of the court,
rendered a verdict in favor of the defendants. A motion for a new
trial was made on several grounds, and overruled. The plaintiffs
excepted. A number of grounds are set out in the motion for a new
trial ; but inasmuch as the case turns upon the question of a proper
construction of the law regulation a vendor's right of stoppage in
transitu, we find it more satisfactory to discuss and apply to the facts
of the present case the rules of law which govern such stoppage, than
to formally pass upon the several grounds of the motion.
There are several definitions of this right given by text-writers, as
well as made by adjudicated cases, which we have examined with
DELIVERY BY CAEBIEE. 725
some interest. Chancellor Kent, in the second volume of his Com-
mentaries, page 702, defines the right of stoppage in transitu to be
that which the vendor has, when he sells goods on credit to another,
of resuming possession of the goods while they are in the possession
of the carrier or middleman in the transit to the consignee or vendee
and before they arrive into his actual possession or the destination he
has appointed for them, on his becoming bankrupt and insolvent.
The supreme judicial court of Massachusetts (Stone v. Simonds, 131
Mass. 457), declares that the right of stoppage in transitu is an equi-
table extension, recognized by the courts of common law, of the seller's
lien for the price of goods of which the buyer has acquired the prop-
erty but not the possession. Mr. Hutchinson in his Law of Carriers,
section 409, says that this right is based on the plain reason of justice
and equity, that one man's goods shall not be applied to the payment
of another man's debts, and that if after the vendor has delivered the
goods out of his own possession, and has put them into the hands of
the carrier for delivery to the buyer, he discovers that the buyer is
insolvent, he may retake the goods, if he can, before they reach the
buyer's possession, and thus avoid having his property applied to pay-
ing debts due by the buyer to other people. An interesting discussion
of the seller's right of stoppage in transitu is found in Professor
Burdick's Treatise on the Law of Sales of Personal Property, page
217. This author declares that this right is not founded on any con-
tract between the parties, nor on any ethical principle, but upon the
custom of merchants ; that while it is analogous to the right of lien,
the two differ in some important respects. That is, the right of lien
is not available unless the seller is in possession of the goods in the
character of an unpaid former owner, and this right is determined as
soon as the buy^.r or his agent lawfully obtains possession. On the
other hand, the right of stoppage in transitu does not come into exist-
ence until the goods have passed out of the vendor's possession into
the hands of a carrier for transmission. It is immaterial, however,
for the purposes of this discussion, to ascertain whether the right is
in the nature of a lien, or whether it arises from the custom of mer-
chants. Certainly, it exists under certain well-defined rules and
regulations, and it is a right which is favored by the courts. It is
essential, however, to the exercise of the right, that the goods should
be in transit at the time. Mr. Parsons, in his Law of Contracts,
volume 1, bottom page 624, says that it is sometimes difSoult to
determine whether the goods which it is sought to stop are still in
transitu, and declares that it is well settled that goods are in transitu,
not only while in motion, and not only while in the actual possession
of the carrier, but also while they are deposited in any place distinctly
connected with the transmission or delivery of them, or, rather, while
in any place not actually or constructively the place of the consignee,
or so in his possession or under his control that the putting them
there implies the intention of delivery. And again, on page 626 of
726 ' CAKEIEES OF GOODS.
the same volume, this author declares that they are in transit until
they pass into the possession of the vendee.
Our Civil Code, section 2285, declares that the right continues until
the vendee obtains the actual possession of the goods ; and it is also
declared in section 3552 of the same code that, if the goods are de-
livered before the price is paid, the seller cannot retake because of
failure to pay, but, until actual receipt by the purchaser, the seller
may at any time arrest them on the way and retain them until the
price is paid. Again, it is provided by section 3653 of the same code,
that a bona fide assignee of a bill of lading of goods for a valuable
consideration, and without notice that the same were unpaid for, and
the purchaser insolvent, will be protected in his title against the
seller's right of stoppage in transitu. These three sections of the
code, taken together, seem to declare the proposition that until the
goods actually come into the possession of the consignee the right
of stoppage in transitu continues, and the only exception made is
that a bona fide assignee of the bill of lading for a valuable con-
sideration, who has no knowledge that the same have not been paid
for, and the purchaser insolvent, will be protected against this right.
While the cases passed on by this court which bear on this subject
are few, the principles on which they were ruled are plainly and
explicitly stated. In the case of Macon etc. E,. E. v. Meador, 65 Ga.
705, the plaintiffs undertook to stop in transit certain boxes of to-
bacco which they had shipped from Atlanta to Macon, consigned to
Carlos. After the goods had arrived in Macon, the treasurer of the
railroad company, under an agreement with the consignee, set the
tobacco aside to be sold by the company to pay past due freights, and,
if any balance remained, to pay the same to the consignee. The
consignee having been forced into bankruptcy, the question arose
whether the tobacco had been so delivered into the possession of
Carlos as to defeat the right of stoppage in transitu. In dealing with
this question, the court calls attention to the fact that the consignee
did not go with Brantley, the treasurer, and have the boxes of to-
bacco set apart, but gave orders in relation to the same, and they
were set apart under such orders by being moved from one part of
the carrier's warehouse to another, and that actual possession was
never in Carlos at all, but that possession in him was only con-
structive. It also calls attention to the fact that the bill of lading
had not been delivered nor transferred, nor the freight paid. Under
these circumstances, it was ruled that there never was any actual
possession in Carlos, the consignee, nor any actual delivery to him or
to anybody for him. There are a number of decisions of other courts,
which, had they been followed, would have constrained the ruling
that such a constructive delivery of the tobacco as appears in Macon
etc. E. E. V. Meador, 65 Ga. 705, would have defeated the right of
stoppage; but this court, in construing the principles of law con-
tained in the three sections of the code which we have quoted above
DELIVERY BY CAEHIEB. 727
in pari materia, held the rule to be, that the right would not be de-
feated until actual possession of the goods had been secured by the
consignee, except only in the case of an assignee of the bill of lading,
without notice that the goods had not been paid for, and the fact of
the insolvency of the consignee.
That such was the construction of our code is made manifest by
the ruling in the case of Ocean S. S. Co. v. Ehrlich, 88 Ga. 502, 30'
Am. St. Kep. 164. In that case, goods were consigned in New York
to be delivered to Epstein & Wannbacher at Savannah, and shipped,
by the Ocean Steamship Company. On arrival they were placed on
the wharf of the steamship company, the freight and wharfage had
been paid, and nothing remained to be done to change the actual
possession from the carrier to the consignee except to remove the
goods. It was shown that it was the custom of the carrier to deliver
goods so placed, when the freight and wharfage were paid, without
requiring the bills of lading. The consignees sold the goods to
Ehrlich and exhibited to the purchaser the bills of lading, but exe-
cuted no assignment of such bills. They delivered to him the re-
ceipted freight and wharfage bills and also an order on the carrier
for the goods, and Ehrlich paid the agreed purchase price. On
exhibition of the order to the carrier, a part of the goods were de-
livered and carried away. On returning for the remainder, it was
found that the consignor in New York had notified the carrier not
to deliver the goods to the consignee. The carrier, acting under the
notice, refused to make further delivery of the goods ; and the ques-
tion was, Were the consignors in time ? After citing the provisions
of the code above referred to, Chief Justice Bleckley, delivering the
opinion of the court, said : " Under these provisions nothing defeats
the right of . stoppage but actual possession in the vendee, or bona
fide assignment of the bill of lading. . . . The actual possession
of the goods not removed from the wharf was certainly never in [the
consignees], and what they did not have they could not confer on
their vendees. ... As the consignors were not too late relatively
to the consignees, they were not too late as to purchasers .from the
consignees who had not obtained actual possession. ... If these
bills had been assigned, that would have been equivalent to an actual
delivery of the goods. The law recognizes no substitute for such
assignment. . . . This right is regulated by law, and is terminated
or defeated only in the way which the law recognizes." It is not
necessary, for a proper decision of the question which arises in the
present case, to add anything to this adjudication, but an examina-
tion will show that the same principles are ruled and adhered to in
very many adjudicated cases emanating from other jurisdictions.
In the case of Calahan v. Babcock, 21 Ohio St. 281, 8 Am. Eep. 63,
the supreme court of Ohio ruled : " The right of stoppage in transitu
is regarded with favor, and the engrafting of further restrictions
upon the rule governing it is not warranted by public policy. The
72S CABKIEES OF GOODS.
right of stoppage in transitu is extinguished only by the actual and
complete delivery of the goods consigned, to the vendee or to some
agent of and for him." Again, in the case of McElwee v. Metropoli-
tan Lumber Co., 37 U. S. App. 268, 69 Fed. Eep. 302, the circuit
court of appeals ruled : " No subsale during transit will defeat the
right, unless the bill of lading be transferred." In the case of Loeb v.
Peters, 63 Ala. 243, 35 Am. Eep. 17, the supreme court of Alabama
ruled : " The right of stoppage by the seller is lost, when, before it is
exercised, the purchaser has sold the goods, and indorsed the bill of
lading, to a subpurchaser for value in good faith." To the same
effect see Becker v. Hallgarten, 86 N. Y. 167, and a large number of
cases cited in 5 Lawson's Eights, Eemedies, and Practice, section 2495,
mote 4.
The claim of the plaintiffs in error in this case is, that the sale made
to them by the consignee, and the subsequent recognition of such sale
by the carrier, and the agreement on its part to reship the goods, was
such a delivery as vested in them title to the goods free from the right
of stoppage in transitu. It must be remembered, however, that noth-
ing will defeat this right, except actual possession of the goods by the
consignee, or an assignment of the bill of lading, which is a sym-
bolic delivery of the property. Neither of these things was done.
Cunningham never did have possession of the goods. The bill of
lading was never assigned by him to plaintiffs in error. It cannot be
doubted, under the facts which appear in the record, that Branan
Brothers purchased the goods in good faith from Cunningham, the
consignee, but it cannot be insisted that by such purchase they ob-
tained any better title than Cunningham, the consignee, had when the
goods were delivered to the carrier in Danville, Virginia. The legal
effect of such delivery was to vest the title in Cunningham, and it so
remained, but the title which he held was subject to the right of the
vendor to stop the goods before actual delivery. He could convey to
the purchaser from him no more than he had ; and therefore Branan
Brothers, taking Cunningham's title, took the tobacco subject to the
right of the vendor to stop it so long as it remained in the hands of
the carrier: Holbrook v. Vose, 6 Bosw. 76. If it be said that the
•goods were not in the hands of the carrier for delivery to the consignee,
the reply is, that as long as the company, in any capacity, except as
agent of the consignee, has control of the goods, whether carrier or
warehouseman, the vendor's right is not terminated; for as long as
anything remains to be done in order to complete a delivery to the con-
signee, that long the right of stoppage in transitu endures : 4 Elliott,
E. 2395, and note 3, making reference to a large number of adjudi-
cated cases. There had been no actual delivery of the goods either to
the consignee or Branan Brothers. Under the authority of Macon etc.
E. E. V. Meador, 65 Ga. 705, the delivery to the latter was construc-
tive, not actual. Without actual delivery or the legal symbol of it, the
purchaser could not defeat the right. Subject to this right, the pur-
DELIVERY BY CAEEIER. 729
chaser changed the destination, to which change the carrier assented,
but while in its hands as carrier, before the goods had been started to
their new destination, the right to stop was exercised ; and so long as
they remained in the possession of the carrier and it had control over
them, the right existed in the original vendor as against the consignee
who had never had them, and a purchaser from them who bought sub-
ject to the right. In our judgment, the court committed no error in
the charge of which complaint was made. The verdict is in accord-
ance with the law and evidence, and the court committed no error in
overruling the motion for a new trial.
Judgment affirmed.
BREWER LUMBER CO. v. BOSTON & ALBANY R. CO.
179 Mass. 228 ; 60 N. E. E. 548 ; 54 L. E. A. 435. 1901.
Replevin for a car load of lumber sold by the plaintiff to one George
A. Paul and claimed by right of stoppage in transitu, the action being
defended by the trustee in bankruptcy of Paul. Writ dated August
30, 1898.
In the Superior Court the case was tried without a jury before
R.ichardson, J., who found for the plaintiff, and, with the assent of
iDoth parties, reported the ease for the determination of this court.
The terms of the reservation, as well as all the material facts and
rulings, are stated in the opinion of the court.
Lathrop, J. This case comes before us in a somewhat unsatisfac-
tory manner. It is a report of a justice of the Superior Court, before
whom the case was tried without a jury. The report sets forth certain
facts, certain evidence and requests for rulings by both parties, which
were passed upon, and a general finding for the plaintiff, without any
findings of specific facts As this is an action at law, the only
question can be whether the evidence warranted the finding. We have
BO right, if the testimony of witnesses is conflicting, to decide the case
upon a view of the testimony which we might take, if the evidence
were before us for our decision.
The action is replevin of a carload of lumber sold by the plaintiff
to George A. Paul, a lumber dealer at Boston, and forwarded by the
plaintiff over the defendant's railroad from East Saginaw, Michigan,
to him. The plaintiff claimed the lumber by reason of the exercise of
the right of stoppage in transitu; and the action was defended by the
trustee in bankruptcy of Paul.
The lumber was sold on January 26, 1898, for the sum of $678.28,
Paul to pay the freight, and to deduct it from the amount of the in-
voice. The terms of the payment were to be two per cent oif for cash,
if paid within ten days, or a three months' note from date of invoice.
On January 31, 1898, the lumber was duly shipped, consigned to Paul,
730 CAEKIEES OF GOODS.
and the invoice forwarded to him. On February 19, 1898, the lumber
arrived at the Huntington Avenue yard of the defendant in Boston^
and Paul was notified of the fact by the agent of the defendant, by a-
postal card, which, in addition to the notice of the arrival of the car,
contained the following: "If not unloaded within ninety-six hours,
from February 19, six o'clock p.m. of this date, Sundays and legal
holidays not included, the freight will be subject to storage charges,,
as per rules of the Massachusetts and the New Hampshire Car Service-
Association." On March 4, 1898, the defendant stored the lumber
in one of its sheds at its Huntington Avenue yard, and notified Paul
of the fact. On March 10, 1898, Paul sent a promissory note for $300^
dated the same day, and payable to the plaintiff's order at any bank in
Boston. This note was indorsed by the plaintiff payable to order of
Second National Bank, and under the name of the plaintiff were the
letters "B. D." This note was protested on June 10, 1898. On
March 11, 1898, the plaintiff sent a letter to Paul, stating that it had.
placed the $300 note to his credit, and calling his attention to the fact
that the date of the note, March 10, was not in accordance with the
contract, which called for a three months' note from the date of the
invoice, and requested a settlement for the balance. On March 26,.
1898, Paul sent the plaintiff a promissory note for $313.68, dated,
that day, and payable to the order of the plaintiff at any bank in
Boston. This note was indorsed in the same way as the other, and it-
was protested on June 28, 1898.
These notes, the report states, were sent to the plaintiff in payment
for the full value of the lumber, with interest added from the date of
the invoice to the dates of the notes, less freight, which was to be
deducted from the amount of the invoice. On receipt of the second
of the notes, the plaintiff sent to Paul a statement of account, dated
January 31, 1898, stating the terms of sale, the items of the lumber,
and the amount due less freight, being $607.61. Across the face of
the paper was written " Received settlement as follows : —
" 3 mos. note from March 10/98 $300.00
"Smos. « " " 28/98 313.68
613.68"
This paper also contained a request for the freight receipt, which.
was not sent, nor was the freight paid by Paul.
On April 9, 1898, Paul made a common law assignment of all his
property for the benefit of his creditors, and the assignee accepted the
trust. The plaintiff was notified of the assignment, and a representa-
tive of the plaintiff attended the first meeting of Paul's creditors.
On April 16, 1898, the plaintiff gave notice to the defendant not to-
deliver the lumber to Paul, and requested the defendant to keep it
on storage for it, claiming the right of stoppage in transitu.
On July 27, 1898, the plaintiff's attorney tendered the notes of
March 10 and March 28 to Paul's assignee, who refused to receive-
DELIVERY BT CARRIER. 731
them; and at the trial of this case they were again tendered and
refused.
This action was brought on August 30, 1898, and before obtaining
the lumber the plaintiff was obliged to pay the defendant its claim
for freight and storage. . . .
There being no contention that Paul was not insolvent, the principal
questions of law in the case are whether the transit had ended, and
what the effect was of giving and receiving the notes.
1. As to the first question, we are of the opinion that the transit
was not ended when the plaintiff asserted its right to the lumber.
It makes no difference whether the goods are in the hands of the
carrier qtta carrier, or whether he puts them at the journey's end in a
warehouse. In other words, the transit does not terminate until the
goods arrive in the possession actual or constructive of the purchaser.
Seymour v. Newton, 105 Mass. 272, 275. Mohr v. Boston & Albany
Railroad, 106 Mass. 67. Durgy Cement & Umber Co. v. O'Brien,
123 Mass. 12. Inslee v. Lane, 57 N. H. 464. So long as the carrier
or a warehouseman acting for him is in possession 'of the goods, he
has a lien for the freight or other charges. The purchaser is not in
possession or entitled to possession until he discharges the liens, and
the right of stoppage in transitu remains. See Benjamin on Sales,
(7th Am. ed.) 915, (2), and cases cited.
While the position of the carrier may be changed to that of bailee
or agent for the purchaser of the goods, yet that is a question of an
agreement between the carrier and the purchaser. Jackson v. Nichol,
5 Bing. N. C. 508. James v. Griffin, 2 M. & W. 623. Ex parte Bar-
row, 6 Ch. D. 783. Ex parte Cooper, 11 Ch. T>. 68. Kemp v. Falk,
7 App. Cas. 573, 584. McLean v. Breithaupt, 12 Ont. App. 383. Cal-
ahan v. Babcock, 21 Ohio St. 281. Jeffris v. Pitchburg Railroad,
93 Wis. 250. Symns v. Schotten, 35 Kans. 310.
In the case before us an attempt was made by the trustee in bank-
ruptcy to show that such an agreement was made, but the testimony
of Paul falls far short of this. He testified that within a few days
after receiving the postal card of February 19, he telephoned to the
defendant to store the lumber. He was then asked, " What did they
say to you ? " and his answer was : " ' All right,' or something to that
effect." He was then asked, " Will you say that they said anything ? "
and answered: "They probably said, 'All right.' They might say,
' Yes, all right,' or something like that." He was again asked, " What
did they say ? " and answered, " I don't know." On re-direct exam-
ination he testified that he did not know whether he received any
reply to his telephone message, and, in answer to the next question
but one, testified that he did receive a reply. It seems to us that the
judge might well disregard this testimony as too uncertain and vague
for consideration. But if it was to be taken into consideration, the
testimony of Turner, the freight agent of the defendant in charge of
the Huntington Avenue yard, was contradictory to that of Paul. He
732 CAEBIEKS OF GOODS.
testified that he remembered the car of lumber, and stored it in the
ordinary course of business ; and that he received no directions from
any one to store it. If the testimony of Paul can be said to contra^
diet this, it was for the judge sitting without a jury to decide what
the fact was.
We are therefore of opinion that the judge rightly refused to rule,
as requested by the defendant, that the plaintiff had lost the right of
stoppage in transitu, or had not seasonably exercised that right.
It follows, from what we have said, that the third ruling given at
the request of the plaintiff was correct. This ruling was as follows :
" The storage of the lumber in question by the defendant, whether
according to the custom of storing after the expiration of the limit
of time set forth in the notice given by the defendant to the con-
signee, or in accordance with the notice to store given by the consignee,
does not terminate the transit, without evidence of the attornment by
the defendant to the consignee, or an agreement to hold as the agent
of the consignee."
The fourth ruling given was as follows: "The existence of the
defendant's lien for the unpaid freight raises the presumption that
the defendant continued to hold the merchandise as carrier, and in
order to rebut this presumption there must be some proof of some
agreement or arrangement between the defendant and Paul, whereby
the defendant, while retaining its lien, became the agent of Paul to
keep the goods for him."
While we do not think that this ruling is well expressed, we are of
opinion that no harm was done in giving it. We have already stated
the law bearing on this subject, and need not repeat it. The undis-
puted facts in the case showed that the defendant was holding the
lumber fbr the freight and other charges ; and it made no difference
whether the goods remained in the car or in the warehouse, unless
there was proof of some agreement or arrangement, whereby the de-
fendant became the agent of Paul. Taking the ruling as a whole, we
are of opinion that it means no more than this.
2. The next question is as to the effect of the giving of the notes.
The instructions requested by the defendant on this point are the
first and second, and are as follows :
" 1. If the consignee, intending to pay for the lumber according to
agreement, gave to the plaintiff his negotiable promissory notes, dated
at Boston, Mass., and payable on time at said Boston, and thereupon
the plaintiff receipted its bill for the lumber, and there was no agree-
ment that said notes were accepted as conditional payment, then the
law presumes that such notes were given and accepted as absolute
payment, and in that case the plaintiff is not an unpaid vendor and
has no further right on the lumber, and must seek his remedy on the
notes.
2. " The notes constituted a contract to be construed according to
the law of Massachusetts. It is the law of Massachusetts that a
DELIVERY BY CAERIEE. 733
negotiable promissory note, given in payment of an obligation, is to
be deemed to be given and taken as absolute payment of such obliga-
tion in the absence of evidence that the parties intended it to operate
only as a conditional payment."
On these requests the judge ruled " that while the rules of law in
the 1st and 2d requests were correct as general statements, they did
not, on the evidence, require a finding for the defendant."
The rule in Massachusetts, in simple contract debts, is that a
promissory note given by a debtor to his creditor is presumed to be a
payment ; that the presumption is one of fact and not of law, which
may be rebutted and controlled by evidence that such was not the
intention of the parties.
In Curtis v. Hubbard, 9 Met. 322, 328, it is said by Chief Justice
Shaw : " The rule adopted in Massachusetts, that a negotiable promis-
sory note, given for a simple contract debt, shall be deemed payment,
is to be taken with considerable qualification. It is founded on the
consideration, that when a note is given for goods, even if it is not
negotiated, it is equally convenient to the creditor (and generally more
so) to sue on the note, as on the original consideration, and so there
is no reason for considering the original simple contract as still sub-
sisting and in force ; and therefore a presumption arises, that it was
intended by the parties that the note should be deemed a satisfaction.
But this is a presumption of fact, which may be rebutted by evidence
showing that it was not so intended ; and the fact, that such presump-
tion would deprive the party who takes the note of a substantial
benefit, has a strong tendency to show that it was not so intended."
In a late case the reason of the rule was stated to be for the pro-
tection of the debtor, who might otherwise be compelled to pay both
the note and the debt, and it is further said : " But full protection is
given to him if, in the proceedings to enforce the original debt, it is
shown that he has not paid the note, and that it is then owned by the
creditor, and if it is surrendered in court for the benefit of the maker."
Davis V. Parsons, 167 Mass. 584, 588.
It is obvious that the rule can have little or no application, where a
person has a lien, which is a valuable right, and that the court would
te slow to deprive a lien creditor of the right to enforce his claim on
the ground that he had taken a worthless negotiable promissory note,
•where the note was produced at the trial and tendered to the maker
•or to his representative, whether the above-mentioned reasons for the
xule are the final ones or not.
Thus in Arnold v. Delano, 4 Gush. 33, a vendor's lien at common
law was enforced, notwithstanding a promissory note was given, and
also a receipt for the price ; and it was said by Chief Justice Shaw
that a lien for the price is incident to the contract of sale ; that when
a credit is given, the vendee has a right to take possession of the goods,
and if he does so the lien is gone. It was then added : " But the
law, in holding that a vendor, who has thus given credit for goods,
734. CARRIERS OF GOODS.
waives his lien for the price, does so on one implied condition, which is,
that the vendee shall keep his credit good. If, therefore, before pay-
ment, the vendee become bankrupt or insolvent, and the vendor still
retains the custody of the goods, or any part of them ; or if the goods
are in the hands of a carrier, or middleman, on their way to the vendee,,
and have not yet got into his actual possession, and the vendor, before
they do so, can regain his actual possession, by a stoppage in transitu;
then his lien is restored, and he may hold the goods as security for the
price." In respect to the contention that the note was payment, it
was said : " We think the answer is, that a promissory note, even if
in form negotiable, whilst it remains in the hands of the vendor and
not negotiated, but ready to be delivered up on the discharge of the
lien, is regarded as the evidence in writing of a promise to pay for
the goods purchased, and does not vary the rights of the parties."
If this is true of a vendor's lien, it is equally true of the right of
stoppage in transitu, which is merely an extension of the vendor's lien.
Grout V. Hill, 4 Gray, 361, 366, per Shaw, C. J. See also 1 Pars.
Mar. Law, 340, and cases cited in n. 2.
In Seymour v. Newton, 105 Mass. 272, the goods were to be paid for
by a draft at three days' sight. The draft was accepted but was not
paid, and it was held that neither the acceptance of the draft, nor the
sending to the purchasers of an account, in which they were credited
with the draft, prevented the plaintifEs from stopping the goods in
transitu. To the same effect is Mohr v. Boston & Albany Eailroad,
106 Mass. 67. See also Ee Batchelder, 2 Lowell, 245, 248.
There is some contention on the part of the trustee in bankruptcy
that the notes were negotiated. There was no evidence in the case
to show the meaning of the letters "B. D.," and the fact that the
notes were indorsed by the plaintiff to the order of the Second
National Bank is not important. Whether they were sent to the
bank for collection or were discounted by it is immaterial. They
were not paid by Paul, and were tendered by the plaintiff to the
common law assignee, and to the trustee in bankruptcy. The facts
that the plaintiff was then in possession of the notes and tendered
them is all that' is required. Davis v. Parsons, 157 Mass. 584, 688.
. It follows that the second ruling requested by the plaintiff, as modi-
fied by the judge, was rightly given. This ruling so modified was as
follows : " That the giving of the two notes in payment for the
lumber according to the agreemeat, while in form negotiable does not
prevent the right of stoppage in transitu, as they remained in the
hands of the vendor, and ready to be delivered up."
Nor do we regard it of importance that on receipt of the last note
the plaintiff sent to Paul a statement of the account between them.
The report does not show that this statement was signed by the
plaintiff. But, if it were so signed, the case would stand no stronger
for the defendant than if the statement had been " Received payment
by two notes." Then the case would have fallen within the case of
DELIVERY BY CARRIER. 735
Arnold v. Delano, 4 Cush. 33, 34. See also Seymour v. Newton, 105
Mass. 272, 273.
Judgment for plaintiff.
g. Seizure under Legal Process.
STILES V. DAVIS.
1 Black (U. S.) 101. 1861.
Mr. Justice Nelson. The case was this: The plaintiffs below,
Davis and Barton, had purchased the remnants of a store of dry-
goods of the assignee of a iirm at Janesville, Wisconsin, who had
failed, and made an assignment for the benefit of their creditors.
The goods were packed in boxes, and delivered to the agents of the
Union Despatch Company to be conveyed by railroad to Ilion,
Herkimer County, New York.
On the arrival of the goods in Chicago, on their way to the place
of destination, they were seized by the sheriff, under an attachment
issued in behalf of the creditors of the insolvent firm at Janesville,
as the property of that firm, and the defendant, one of the propri-
etors and agent of the Union Despatch Company at Chicago, was
summoned as garnishee. The goods were held by the sheriff, under
the attachment, until judgment and execution, when they were sold.
They were attached, and the defendant summoned on the third of
November, 1857; and some days afterwards, and before the com-
mencement of this suit, which was on the sixteenth of the month,
the plaintiffs made a demand on the defendant for their goods,
which was refused, on the ground he had been summoned as gar-
nishee in the attachment suit.
The court below charged the jury that any proceedings in the State
court to which the plaintiff's were not parties, and of which they
had no notice, did not bind them or their property; and further,
that the fact of the goods being garnished, as the property of third
persons, of itself, under the circumstances of the case, constituted
no bar to the action; but said the jury might weigh that fact in
determining whether or not there was a conversion.
We think the court below erred. After the seizure of the goods
by the sheriff', under the attachment, they were in the custody of
the law, and the defendant could not comply with the demand of
the plaintiffs without a breach of it, even admitting the goods to
have been, at the time, in his actual possession. The case, how-
ever, shows that they were in the possession of the sheriff's officer
or agent, and continued there until disposed of under the judgment
736 OAREIEES OF GOODS.
upon the attachment. It is true, that these goods had been delivered
to the defendant, as carriers, by the plaintiffs, to be conveyed for
them to the place of destination, and were seized under an attach-
ment against third persons; but this circumstance did not impair
the legal effect of the seizure or custody of the goods under it, so as
to justify the defendant in taking them out of the hands of the
sheriff. The right of the sheriff to hold them was a question of
law, to be determined by the proper legal proceedings, and not at
the will of the defendant, nor that of the plaintiffs. The law on
this subject is well settled, as may be seen on a reference to the
cases collected in sections 453, 290, 350, of Drake on Attach't, 2d
edition.
This precise question was determined in Verrall v. Eobinson,
Turwhitt's Exch. E. 1069; 4 Bowling, 242, S. C. There the plain-
tiff was a coach proprietor, and the defendant the owner of a car-
riage depository in the city of London. One Banks hired a chaise
from the plaintiff, and afterwards left it at the defendant's deposi-
tory. While it remained there, it was attached in an action against
Banks; and, on that ground, the defendant refused to deliver it
up to the plaintiff on demand, although he admitted it to be his-
property.
Lord Abingbk, C. B., observed that the defendant's refusal ta
deliver the chaise to the plaintiff was grounded on its being on his
premises, in the custody of the law. That this was no evidence
of a wrongful conversion to his own use. After it was attached as
Banks' property, it was not in the custody of the defendant, in such
manner as to permit him to deliver it up at all. And Alderson, B.,.
observed: Had the defendant delivered it, as requested, he would
have been guilty of a breach of law.
The plaintiffs have mistaken their remedy. They should have
brought their action against the officer who seized the goods, or
against the plaintiffs in the attachment suit, if the seizure was made
under their direction. As to these parties, the process being against
third persons, it would have furnished no justification if the plain-
tiff could have maintained a title and right to possession in them-
selves.
Judgment of the court below reversed.
BLIVEN V. HUDSON EIVER E. CO.
36 N. Y. 403. 1867.
Paekeb, J. On the second day of September, 1859, the plaintiffs
delivered to the defendants, at their depot, in the village of Sing
Sing, Westchester County, twenty-nine cases of saw plates and
DELIVEEY BY CAEEIEE. 737
iandles, of the value of f 4,3.38.82, for transportation to the city of
New York, which were on that day placed by the defendant in their
freight cars for that purpose.
Before the regular hour for the departure of the train in which
they were to go, a complaint was made on oath by one Cheeseman,
to a justice of the peace at Sing Sing, to the effect that the said
merchandise had been stolen or embezzled from the Eagle Saw
Manufacturing Company at Sing Sing (of which company Cheese-
man claimed to be the secretary), and that he suspected that the
said property was concealed in a railroad car at the Sing Sing depot.
The magistrate thereupon issued a warrant to search for the prop-
erty, and delivered it to a constable of the town, who, in proceeding
under it, on the morning of the 3d of September, forcibly opened
the car in which the merchandise was locked, and seized, and took
the same before the justice, who thereupon sent the same to the
place of business of the said manufacturing company, and there
delivered the same to said Cheeseman, for said company. The
plaintiff, Bliven, was at such place of business on the morning of
the day on which the merchandise was so delivered, and was then
made acquainted with, and fully knew, all the circumstances attend-
ing the taking of said merchandise out of the possession of the
defendants, as before stated.
It further appears, by the findings of the referee before whom the
cause was tried, that the certificate, by the filing of which on the
28th of November, 1858, the company became incorporated, provided
for the management of its affairs by five trustees, of whom plaintiff
Bliven was one, and Cheeseman one; and that by the by-laws, three
trustees constituted a quorum ; that on the organization of the com-
pany, a president, treasurer, and secretary were chosen from the five
trustees, Bliven being the treasurer. The manufacturing carried on
by the company was done in the Sing Sing prison, by the hired labor
of convicts, in shops provided for the company and under a superin-
tendent employed by the company. Immediately upon the organiza-
tion, a contract was made by the company with the plaintiffs, by
which plaintiffs were to have the sale of all articles made by the
company, on a commission, and were to make advances to the com-
pany, and hold all the articles consigned to them as security for
such advances. And subsequently, on the 30th of June, 1869, the
company gave the plaintiffs a chattel mortgage on all their fixtures
and stock, manufactured and unmanufactured, and all their other
goods and chattels then or thereafter to be at the works in Sing Sing
prison, as security for the payment to plaintiffs on demand, of all
advances made, or to be made, by them to the company.
On the 31st of August, 1859, at an adjourned meeting of the trus-
tees, the said Cheeseman and one other trustee, in the absence of
the others, assumed to remove the president, and declare his office
as trustee, vacant, and to elect one Francis trustee in his place; and
738 CAERIEES OF GOODS.
at a subsequent time in New York, to which, they adjournea, assumed
in conjunction with said Francis, to remove the secretary from his
ofSce, as such, and to appoint Cheeseman in his place.
Cheeseman thereupon proceeded to Sing Sing, to the works of the
company in the prison, and took possession as secretary, notifying
Hawley, the secretary, of his removal.
On the 2d of September, in the absence of Cheeseman and the
superintendent, Hawley, still claiming to be secretary, went with
Bliven to the premises, and caused the articles of merchandise in
question, which were not in a state of completeness for the market,
to be boxed up and delivered to Bliven for the plaintiffs, and he
thereupon delivered them, as before stated, to the defendants, for
transportation to New York, where was the plaintiffs' place of busi-
ness for selling the merchandise received by them for sale. It does
not appear from the findings of the referee that the plaintiffs had
made any advances to the company, or that the company was at that
time indebted to the plaintiffs.
There is no dispute that the ownership of the goods was in the
manufacturing company, and the facts found fall short of showing
that the plaintiffs had any lien upon them. The taking of them by
Bliven, on the 2d of September, was not warranted by the original
contract, for that contemplated only the consignment to the plain-
tiffs of articles fitted for the market. Neither was it warranted by
the subsequent mortgage, for there was no indebtedness, so far as
appears, on which to rest a lien, by virtue of it. The description
of the mortgage given by the referee, is that it was upon " all the
engines, shafts, tools, anvils, and fixtures, stock manufactured and
unmanufactured, or in course of manufacture, and all other goods
and chattels of the company now or hereafter to be at the works in
Sing Sing prison, as security for the payment to the plaintiffs, on
demand, of all advances made, or to he made, by them to the com-
pany." The fact of the existence of such a mortgage does not carry
with it the presumption of an existing indebtedness, as between the
plaintiffs and the company; therefore, so far as appears, not only
the ownership, but the right of possession belonged to the company.
The goods, then, belonging, in fact, to the company, without any
right of possession in the plaintiffs, the delivery of them by the jus-
tice at the company's shop, from which they had been taken, to a
person having the actual possession of it for the company, was a
delivery to the company.
The defendants, then, are entitled to take the ground that the
goods were taken from them by valid legal process, and under such
process delivered to the true owner.
If it is said that the evidence shows an indebtedness from the
company to the plaintiffs, we are not at liberty to go into the evi-
dence for the facts, but must take them from the findings of the
referee. If we were at liberty to examine, the evidence, and form
DELIVERY BY CXEEIER. 739
our own conclusions of fact, we should see Bliven present at, or
immediately after, the delivering up of the goods at the company's
Tooms, claiming them under plaintiifs' mortgage, and as agent of
■the company, and directing Kooney, the superintendent, who was in
•charge of the establishment for the company, to keep them, and let
no one take them without his (Bliven's) consent, and that Eooney
"thereupon put them back where they belonged, and where they had
been the day before, and that they remained there about a mouth.
This, I think, we should have to consider, either as a taking of
them into his own possession, or as consenting to the possession of
"the company, either of which would exonerate the defendants.
But as the case stands upon the findings of the referee, I think it
may well be considered a case of delivery to the true owners, through
"the regular process of the law; so that, even it the mere taking of
them out of the defendants' possession by valid legal process would
not alone be a defence, there can be no doubt that, on this ground,
a good defence was made to the action. It is well settled that the
Tight of the true owner may be set up by the carrier as a defence
■against the shipper or bailor, in all cases where the property has
been delivered up to him by the carrier, whether voluntarily on
demand, as in Bates v. Stanton, 1 Duer, 79, or taken by process in
a suit instituted for that purpose. Van Winkle v. U. S. Steamship
■Co., 37 Barb. 122; Barton v. Wilkinson, 18 Vern. 186.
But my associates, not passing upon the question whether the
property was delivered to the true owners, desire to put this case
upon the doctrine that the common carrier is exonerated from his
•obligation to his bailor, where the property of the latter is taken
from him by due legal process, provided the bailor is promptly
notified of such taking.
It is to be remembered that 'the plaintiff Bliven had notice of the
taking of the merchandise from the defendants, with all the circum-
stances attending itj on the morning when it occurred; so that the
.case is fully within the doctrine just referred to.
The judgment of the Supreme Court should therefore be affirmed.
All affirm, on the ground that when the property is taken from
the carrier by legal process, and he gives notice thereof, he is
•discharged.
OHIO & MISSISSIPPI E. CO. v. YOHE.
51 Ind. 181. 1875.
Downey, J. This was an action by appellees against the appel-
lant as a common carrier.
It is alleged in the complaint that the plaintiffs' consignors, on
740 CAKRIEES OF GOODS.
the 3d of November, 1873, delivered to the appellant, at Bridgeport,
Illinois, a quantity of wheat, to be carried to Vincennes, Indiana,
and delivered to the appellees. The appellant signed and delivered
a bill of lading evidencing the contract, and this is the foundation
of the action.
It is alleged that the company failed to deliver the wheat accord-
ing to the contract, etc. A demurrer to the complaint was filed and
overruled.
The defendant moved the court, on affidavit, to stay the action
until the determination of an action of replevin in Illinois, involv-
ing the title and ownership of the property, brought by one Johnson.
This motion having been overruled, the defendant asked that John-
son be made a party to the action, which request was also refused.
Thereupon the defendant pleaded, in substance, that while the
wheat was in a car of the company, at Bridgeport, awaiting the
coming of a train and engine to transport it to Vincennes, in accord-
ance with the bill of lading, without any act, fault, or connivance
of the defendant, or of any of her agents, servants, or employees,
Johnson sued out of the office of the clerk of the Circuit Court of
Lawrence County, Illinois, a writ of replevin, the said Johnson then
and there claiming to be the owner and entitled to the possession of
said wheat, and, by virtue of said writ, the sheriff of said county
seized and took the same out of the possession of the defendant, and
delivered the same to said Johnson, according to law and the com-
mand of said writ, and the said Johnson toofc possession thereof j
that said action is yet pending, by reason whereof the defendant
was prevented from transporting said wheat to said city of Vin-
cennes, and delivering the same to the plaintiffs. It is averred that
said Lawrence Circuit Court had jurisdiction, and certified copies
of the papers and process in the action of replevin, etc., are filed
with the answer.
A demurrer to this answer, on the ground that it did not state
facts sufficient to constitute a defence to the action, was filed by the
plaintiffs and sustained by the court. The defendant declining to
answer further, there was judgment for the plaintiffs.
It is objected to the complaint that it does not show that the
plaintiffs own the wheat, or that they are the consignees mentioned
in the bill of lading. There is no foundation for these objections.
The complaint alleges that the plaintiffs purchased the wheat of the
consignors; that the consignors delivered the same to the defendant j
and that the defendant executed the bill of lading to the plaintiffs.
It is further assigned as error, that the court improperly sustained
the demurrer to the answer.
The question presented is this, Is a common carrier of goods
excused from liability for not carrying and delivering the goods,
when they are, without any act, fault, or connivance on his part,
seized, by virtue of legal process, and taken out of his possession?
DELIVERY BY CARRIER. 741
It is impossible for the carrier to deliver the goods to the con-
signee when they have been seized by legal process and taken out of
his possession. The carrier cannot stop, when goods are offered to
him for carriage, to investigate the question as to their ownership.
Nor do we think he is bound, when the goods are so taken out of
his possession, to follow them up, and be at the trouble and expense
of asserting the claim thereto of the party to or for whom he under-
took to carry them. We do not think it material what the form of
the process may be. In every case the carrier must yield to the
authority of legal process.
After the seizure of the goods by the ofBcer, by virtue of the
process, they are in the custody of the law, and the carrier cannot
comply with his contract without a resistance of the process and a
violation of law.
The right of the sheriff to hold the goods involved questions which
could only be determined by the tribunal which issued the process
or some other competent tribunal, and the carrier had no power to
decide them. If the goods were wrongfully seized, the plaintiffs
have their remedy against the officer who seized them, or against
the party at whose instance it was done. As between these parties,
the process would be no justification if the plaintiffs were the owners
and entitled to the possession of the goods.
It makes no difference, we think, that the process was issued by a
tribunal of a State different from that in which the plaintiffs reside.
The rule must be the same as in a case where the process emanates
from a court in the State of the plaintiff's residence.
It cannot be denied that the carrier must obey the laws of the
several States in which it follows its calling. The laws of Illinois
which give force and effect to a writ of replevin must be obeyed. It
cannot say to the sheriff, who is armed with a writ issued in due
form of law, commanding him to take the property, that it has exe-
cuted a bill of lading, and thereby agreed to transport the property
to another State, and therefore he cannot have it. The sheriff would
have the right, and it would become his duty, to call out the power
of the county to aid in serving his lawful process.
The carrier is deprived of the possession of the property by a
superior power, the power of the State, — the vis major of the civil
law, — and in all things as potent and overpowering, as far as the
carrier is concerned, as if it were the "act of God or the public
enemy." In fact, it amounts to the same thing; the carrier is
; equally powerless in the grasp of either.
In Eedf. Eailw., vol. 2, p. 158, the learned author says that it is
settled that the bailee may defend against the claim of the bailor,
by showing that the goods have been taken from him by legal process.
And in a note he adds, "If this defence were not valid, it might
compel the party" to resist the acts of a public officer in the discharge
of his duty, which the law will never do."
742 CARRIERS OF GOODS.
In New York, where property was forcibly seized by a constable,
on a complaint that the property had been stolen, the court said,
"But my associates, not passing upon .the question whether -the
property was delivered to the true owners, desire to put this case
upon the doctrine that the common carrier is exonerated from his
obligation to his bailor, where the property of the latter is taken
from him by due legal process, provided the bailor is promptly
notified of such taking. . . . The judgment of the Supreme Court
should therefore be affirmed. All affirm, on the ground that when
the property is taken from the carrier by legal process, and he gives
notice thereof, he is discharged." Bliven v. Hudson Eiver R. E.
Co., 36 N. Y. 403 [736].
In this same case, in the Supreme Court, it was held that "the
bailee must assure himself, and show the court that the proceedings
are regular and valid, but he is not bound to litigate for his bailor,
or to show that the judgment or decision of the tribunal issuing the
process, or seizing the goods, was correct in law or in fact. This is
the rule as to bailees in general, and it includes the case of common
carriers." Bliven v. Hudson River R. R. Co., 35 Barb. 191.
In a case where goods were seized on attachment, the court held,
" If goods are taken from a bailee or carrier by authority of law, in
any case coming within these exceptions, there is no doubt that it
is a good defence to an action by the bailor or shipper, for a non-
delivery." Van Winkle v. United States Mail Steamship Co., 37
Barb. 122.
In Vermont, where goods in the hands of a wharfinger were seized
under legal process, the court held that if they are taken from the
wharfinger or warehouseman by lawful process, the wharfinger or
warehouseman can protect himself in a suit brought against him by
the owner. Burton v. Wilkinson, 18 Vt. 186.
In the Supreme Court of the United States, where goods in the
hands of a carrier had been attached by a third party, in a suit
brought -by the consignees on a bill of lading, Mr. Justice Nelson,
in delivering the opinion of the court, said : —
" After the seizure of the goods by the sheriff, under the attach-
ment, they were in the custody of the law, and the defendant could
not comply with the demand of the plaintiffs without a breach of
it, even admitting the goods to have been, at the time, in his actual
possession. The case, however, shows that they were in the pos-
session of the sheriff's of&cer or agent, and continued there until
disposed of under the judgment upon the attachment. It is true
that these goods had been delivered to the defendant, as carriers, by
the plaintiffs, to be conveyed for them to the place of destination,
and were seized under an attachment against third persons ; but this
circumstance did not impair the legal effect of the seizure or custody
of the goods under it, so as to justify the defendant in taking them
out of the hands of the sheriff. The right of the sheriff to hold
DELIVERY BY CAKEIEE. 743
them was a question of law, to be determined by the proper legal
proceedings, and not at the will of the defendant nor that of the
plaintiffs. The law on this subject is well settled, as may be seen
on a reference to the cases collected in sections 453, 290, 350, of
Drake on Attachment, second edition." Stiles v. Davis, 1 Black,
101 [735].
The above case is the same as the case at bar, with the single
exception that in Stiles v. Davis the, goods were seized under an
attachment, while in this case they were seized under a writ of
replevin.
There is a defect, however, in the answer, which justified the Cir-
cuit Court in holding it bad, and that is the want of an averment
that the defendant gave immediate notice to the plaintiffs that the
goods had been seized and taken out of its possession. That the
carrier should do this seems to be a necessary and reasonable quali-
fication of the rule. The rule is laid down with this qualification
in Bliven v. The Hudson River E. E. Co., supra. The only aver-
ment as to notice in the answer is this : " And the defendant further
avers that said plaintiffs had notice before the commencement of
this suit, that said action of replevin was pending," etc. The
bill of lading bears date November 3d, 1873. The writ of replevin
bears date November 5th, 1873. The wheat was taken and delivered
to Johnson on the 6th day of November, 1873. The record does not
show when this action was commenced. The first date given is that
of the filing of the amended complaint, February 7th, 1874. There
is nothing from which we can find that proper diligence was used by
the carrier in giving notice of the seizure of the goods.
It may be repeated that the wheat was received by the defendant
on the 3d day of November, 1873, and was not seized until the 6th.
It is probable that a satisfactory excuse or reason should be alleged
why the wheat was not moved before the seizure. The answer
admits the receipt of the wheat and the execution of the bill of
lading, on the 3d of November, and then alleges, "and thereupon
said wheat was loaded into a car of defendant then standing upon
her side track, at said town of Bridgeport, and while said wheat was
in said car, and so upon said track, and awaiting the arrival of a
train and engine to transport the same to the city of Vincennes afore-
said, in accordance with the terms of said bill of lading, and with-
out the act, fault, or connivance of the defendants or of any of her
agents, servants, or employees, one Benjamin F. Johnson sued out,"
etc. It is very questionable whether this shows proper diligence on
the part of the carrier. We need not, however, decide this ques-
tion. Clearly, we think, the carrier cannot make use of the fact
that the property has been seized by legal process to shield himself
from liability for his own negligence, or to justify any improper
confederation with the party or oiScer seizing the goods.
The rulings of the court on the motions to stay the proceedings in
744 CAEEIEES OF GOODS.
the action, and to cause Johnson to be made a party to the action,
were proper, for the reasons stated in determining the validity of
the answer.
A question is made concerning the publication of a deposition
taken by the plaintiffs, which, it is contended, was not properly
directed on the envelope. But as the deposition was not used on
the trial, the defendant could not have been injured by this ruling.
The judgment below is affirmed, with costs.
EDWAEDS V. WHITE LINE TRANSIT CO.
104 Mass. 159. 1870.
CoNTBACT against common carriers for breach of their agreement
to carry safely from Cincinnati to Providence, and deliver to the
plaintiffs a car-load of middlings. Another count on a contract to
carry corn is now immaterial.
Wells, J. The only exception relied on here is that which relates
to the car-load of " middlings " taken from the carriers by attach-
ment, and sold on execution, in a suit brought in New York against
the plaintiffs' consignors, David Schwartz & Company, by parties
from whom they had previously obtained the property.
The court held, and we think correctly, that there was a sufficient
transfer and delivery from David Schwartz & Company to vest the
title in the plaintiffs ; that the suit against David Schwartz & Com-
pany, the judgment therein, and levy upon the property, were suffi-
cient to show a waiver of the condition of the sale by which David
Schwartz & Company obtained possession of it from the former
owners. Aside from that consideration, any defect in the title of
the bailor could not be set up against him or against his consignee,
by the bailee, unless the superior title had been asserted against the
bailee. In this case the property was not taken from the carrier
by virtue, or upon the assertion, of any superior title in the former
owners. It was taken as the property of David Schwartz & Com-
pany, by means of legal process against them. Tor all purposes of
this decision, therefore, we may lay out of view the claim that
Schwartz & Company had not acquired title and right to transfer
the property, and regard the plaintiffs as having become the absolute
owners of it before the attachment.
The judge who tried the case decided, that, " as under the attach-
ments the goods were taken out of the possession of the defendants "
without collusion, negligence, or fraud on their part, "the perform-
ance of their contract to carry and deliver the goods was thus ren-
dered impossible by the intervention of a superior power, which
DELIVERY BY CARRIER. 745
necessarily excused them from such performance; that, upon the
attachment by the sheriff of the goods, the same came into the cus-
tody of the law ; whether they were the property of the plaintiffs
or of David Schwartz & Company, they were in the custody of the
law for adjudication ; " and that the defendants could not be held
liable for not transporting and delivering goods so taken from them.
This ruling is in accordance with what might seem, at first sight,
to be the decision of the Supreme Court of the United States in
Stiles V. Davis, 1 Black, 101 [735]. The defendants' counsel insists
that to hold otherwise would be in direct conflict with that decision.
We do not so regard the matter. In Stiles v. Davis the action
was not brought upon the contract of carriage; nor for a violation,
by the defendant, of his obligations as carrier. It was an action of
trover for the conversion of the goods. The failure to deliver the
goods at another place than that of their destination, upon a demand
made there, with no denial of the plaintiffs' right, but merely for
the reason that they were detained under attachment by legal process,
would not be a conversion of the property. The case decides noth-
ing more. The question, whether the same facts would constitute
a good defence to a suit against the defendant for breach of his con-
tract or obligation as common carrier, was not decided, and was not
raised by the form of the action. The opinion, by Mr. Justice
Nelson, does, indeed, assign, as a reason for the decision, that the
goods " were in the custody of the law, and the defendant could not
comply with the demand of the plaintiffs without a breach of it;"
that "the right of the sheriff to hold them was a question of law, to
be determined by the proper legal proceedings, and not at the will
of the defendant, nor that of the plaintiffs." But this language
must be interpreted with reference to the precise question then
under consideration. In one sense, the property was in the custody
of the law; so far, at least, that the surrender of its possession to
the officer claiming to attach it upon legal process was not tortious
on the part of the carrier, so as to subject him to the charge of con-
verting it to his own use. But that custody was of no effect against
any one having an interest in the property, not made party to the
suit in which the process issued. It was not in the custody of the
law in the sense in which property that is the subject of proceedings
in rem is in the custody of the law, or property actually belonging
to the party against whom the suit is brought. In personal actions,
the attachment of property of another than a defendant in the suit
is a trespass ; and, as the true owner, the property is not regarded
as in the custody of the law. It may be reclaimed by replevin;
except where the replevin would bring State and federal authorities
into conflict, as in Howe v. Preeman, 14 Gray, 666; s. c. 24 How.
450. The officer may always be held liable as a trespasser for' its
full value, notwithstanding the pendency, and without reference to
the suit in which the attachment was made. The liability is ex-
746 CARRIBKS OF GOODS.
pressly recognized in the closing paragraph of the opinion of Mr.
Justice Nelson. See also Buck v. Colbath, 3 Wallace, 334. It
does not appear, from the report, how far, if at all, the decision in
Stiles V. Davis was affected by the fact that the carrier was made a.
party to the proceedings, as garnishee.
The present suit is brought against the defendants upon their
contract as carriers. Assuming that the title to the property had
vested in the plaintiffs, according to the finding of the facts at the
trial, the attachment by the of&cer, in a suit against David Schwartz^
& Company, was a mere trespass. As against the plaintiffs, it was
of no more validity than a trespass by any other unauthorized pro-
ceeding, or by an unofficial person. The carrier is not relieved from
the fulfilment of his contract, or his liability as carrier, by the inter-
^ention of such an act of disposition, any more than he is by
destruction from fire, or loss by theft, robbery, or unavoidable acci-
dent. In neither case is he liable in trover for conversion of the
property; but he is liable on his contract, or upon his obligations
as common carrier. The owner may, it is true, maintain trover
against the oflBcer who took the property from the carrier; but he
is not obliged to resort to him for his remedy. He may proceed
directly against the carrier upon his contract, and leave the carrier
to pursue the property in the hands of those who have wrongfully
taken it from him.
It will not be understood) of course, that these considerations
apply to the case of such an attachment in a suit against the owner
of the property. If the present plaintiffs had been defendants in
the suit in which the attachment was made, the case would have
stood differently. In that state of facts, the property would have
been strictly in the custody of the law, so far as these parties were
concerned, and the intervention of those legal proceedings would
have deprived the plaintiffs of the right to require the delivery of
the property to themselves until released from that custody.
But it is not so upon the state of facts shown by this report; and
the ruling of the court against the plaintiffs upon this branch of the
case was wrong. They are therefore entitled to a new trial upon the
counts of their declaration relating to the car-load of "middlings;"
and for that purpose the Exceptions are sustained.
KIFF V. OLD COLONY & NEWPORT E. CO.
117 Mass. 591. 1875.
ToET, with a count in contract, against the defendant as a com-
mon carrier, for a failure to deliver certain property described in
the declaration as spirituous liquors, and alleged to be of the value
of $713.
DELIVERY BY CAKRIEE. 747
At the trial in the Superior Court, before Bacon, J., the plaintiff
offered evidence tending to show that the property was his, was
shipped by him, and came into the possession of the defendant as
a common carrier, and was so in its possession at Boston in due
course of transportation to Belfast, Maine ; that the defendant failed
to deliver it to him at Boston on demand.
The defendant then offered evidence tending to show that on the
day the goods were received by it at Boston, they were taken from.
its possession by Robert 8. Carroll, a duly appointed and qualified
constable of the city of Boston, without fraud or collusion on it»
part, against its will, and with no knowledge that they were
spirituous liquors, on a legal and valid writ of attachment, having
an ad damnum of three hundred dollars, against the plaintiff, in the
case at bar and in favor of William F. Nye.
The defendant then requested the judge to rule that if the goods
were taken from its possession on a legal and valid writ of attach-
ment against the plaintiff, by a proper officer, without fraud or col-
lusion on its part, against its will, and with no knowledge that they
were spirituous liquors, it was not liable for a failure to deliver the
goods to the plaintiff. The judge declined so to rule, and ruled
that the goods were not liable to be taken on a writ of attachment
against the owners ; that the facts offered to be shown by the defend-
ant constituted no defence to this action, and that the only question
for the jury was the value of the property at the time the defendant
failed to deliver it to the plaintiff, to which the defendant alleged
exceptions.
The judge, after verdict, reported the case for the consideration
of this court; if the rulings for the plaintiff were sustained, judg-
ment to be entered on the verdict; if not, the verdict to be set aside.
Gray, C. J. In Ingalls v. Baker, 13 Allen, 449, it was adjudged
by this court, upon full consideration of the provisions of the
General Statutes and of the previous legislation of the Common-
wealth upon the subject now before us, that the Gen. Sts. c. 86,
§ 28, prohibiting the sale of intoxicating liquors, directly or in-
directly, except as authorized in that chapter, and containing no
exception of sales by oflBcers under legal process, manifested the
intention of the legislature that intoxicating liquors should not be
sold on execution, and therefore such liquors could not be lawfully
attached on mesne process.
In 1868, the legislature passed a new act to regulate the sale of
intoxicating liquors, which provided that "nothing herein contained
shall apply to sales made by sheriffs, deputy sheriffs, coroners, con-
stables, collectors of taxes, executors, administrators, guardians,
assignees in insolvency or bankruptcy, or any other person required
by law to sell personal property; " and that "the eighty-sixth chap-
ter of the General Statutes, and all acts and parts of acts inconsis-
tent herewith, are hereby repealed." St. 1868, e. 141, §§ 1, 26.
748 CAEEIEES OF GOODS.
But in 1869, the legislature again revised the whole law upon the
subject, re-enacted the provision of the Gen. Sts. c. 86, § 28, and
expressly repealed the previous statutes, including the St. of 1868,
c. 141. St. 1869, c. 415, §§ 30, 65.
These statutes of 1868 and 1869 were passed after, and it must
be presumed with full knowledge of, the decision in Ingalls v. Baker.
The conclusion is inevitable that the legislature, when they re-
pealed the St. of 1868, c. 141, and re-enacted the provision of the
Gen. Sts. c. 86, § 28, intended that the exception introduced by the
St. of 1868, and which had been held by this court not to exist under
the General Statutes, should not exist for the future, and that the
law of the Commonwealth should be as declared in Ingalls v. Baker.
Low V. Blanchard, 116 Mass. 272, 274.
It follows that the plaintiff's liquors were not liable to attach-
ment, the attachment of them was illegal, and the ofBcer who
attached them a trespasser. Bean v. Hubbard, 4 Cush. 85; Deyo
V. Jennison, 10 Allen, 410, 413.
Every common carrier of goods being in the nature of an insurer,
liable — upon grounds of public policy, and to guard against the
possibility of fraud and collusion on his part — for all losses, even
by accident, trespass, theft, robbery, or any kind of unlawful tak-
ing, and excepting only those arising by act of God or of public
enemies, it also follows that it was rightly ruled at the trial that
the facts offered to be shown by the defendant corporation constituted
no defence to this action against it as a common carrier. 2 Kent
Com. (12th ed.) 597; Coggs v. Bernard, 2 Ld. Eaym. 909, 918 [4];
s. c. 3 Salk. 11; Edwards v. White Line Transit Co., 104 Mass.
159 [744] ; Adams v. Scott, id. 164, 166 [748].
Judgment on the verdict for the plaintiff .
ADAMS V. SCOTT & Trustees.
104 Mass. 164. 1870.
Contract on a promissory note. The principal defendant, whose
residence was at Norwich in Connecticut, appeared, answered, and
filed a declaration in set-off. The parties summoned as trustees
were an express company. In the Superior Court, " upon motion to
charge them as trustees, it appeared that they as common carriers
had taken a package securely sealed up, containing money, and
directed to a person of the same name as the defendant at Norwich,
Connecticut. The plaintiff filed allegations that the person to whom
the package was addressed was in fact the principal defendant, and
that the package was his property when intrusted to the carriers
DELIVERY BY CAEEIEE. 749
and also wlien process was served. Issue being joined, the facts
were found as alleged by tbe plaintiff. While the package was thus
in transit and in the cixstody of the trustees in Boston, this process
was served upon them . " Lord , J. , ordered the trustees to be charged,
and they alleged exceptions.
MoBTON, J. The answers of the trustees disclose that they have
in their possession a package supposed to contain money, sealed up,
and directed to a person of the same name as the defendant at
Norwich, Connecticut. Upon the trial of an issue upon additional
allegations filed by the plaintiff, it was proved that the person to
whom the package was addressed was in fact the defendant; that
the package contained money ; and that it was the property of the
defendant when it was intrusted to the trustees and when the process
was served upon them. The case thus differs from Battom v. Clarke,
7 Cush. 487, in which the trustees were discharged because it did
not appear that the locked trunk in their hands contained any goods,
effects, or credits of the principal defendant which were attachable.
In the case at bar, the sealed package is proved to contain money
belonging to the defendant, and thus the trustees are brought within
the provisions of the Gen. Sts. c. 142, § 21, "having goods, effects,
or credits of the defendant intrusted or deposited in their hands or
possession." They are therefore chargeable as trustees, unless the
fact that the money was in their hands as common carriers, in
transitu, exonerates them.
There is no reason why a common carrier should not be liable to
the trustee process, in the same manner as other bailees are, unless
the nature of his contract is such that a judgment charging him as
trustee would not protect him against a claim of the defendant for
a non-delivery of the goods at their place of destination. But we
are of opinion that such judgment would be a sufQcient excuse to the
trustee for a failure to deliver according to his contract. The doc-
trine of the common law, that a carrier is responsible for all losses,
except those occurring by the act of God or a public enemy, has no
application to a case like the present. There has been no loss, but
the defendant's property has been sequestrated by the law, to be
applied to his use and benefit. Every man holds his property sub-
ject to be attached, and whenever property is attached in a suit
against the owner, and taken into the custody of the law, it excuses
the person having possession of it from performing his promise,
express or implied, to deliver it to the owner. The law substitutes
the delivery to its of&cers for a performance of his contract.
It is not a sound argument, therefore, to urge that these trustees
should be discharged because otherwise they cannot perform their
contract to deliver at Norwich. The necessary effect of every trus-
tee process is, by diverting the property to the payment of the cred-
itor, to prevent the trustee from strictly performing his contract with
the defendant.
750 CAEEIEES OF GOODS.
In the case at bar, the Superior Court has jurisdiction over the.
subject-matter and the parties, the defendant having appeared, A
judgment against him and against the trustees will be valid and
binding, and by the provisions of our statutes will acquit and dis-
charge the trustees from all demands by the defendant for all goods,
effects, or credits paid or delivered by them by force of such judg-
ment. Gen. Sts. c. 142, § 37. We may reasonably presume that
the same effect would be given to it in every other jurisdiction.
Whipple V. Eobbins, 97 Mass. 107.
This case is clearly distinguishable from Edwards v. White Line
Transit Co., ante, 159 [744]. In that case, the property of the plain-
tiff, while in the hands of a common carrier, in transitu, was attached
upon a writ against a third person. The attachment was clearly
illegal, and the plaintiff thereby lost his property. The officer,
though acting under color of legal process, was a mere trespasser j
and the defendants were liable, under the rule of the common law,
in the same manner as if they had allowed any other trespasser to
take the goods out of their custody.
The ease of Clark v. Brewer, 6 Gray, 320, cited by the trustees,
is clearly distinguishable from the case at bar. In Clark *.'. Brewer
the alleged trustee had no goods or effects of the defendant in his
hands. He had contracted to deliver to the defendant in New York
goods to a fixed amount at the market price; which goods would
become the property of the defendant when delivered, and not
before. The plaintiff sought to charge him as trustee by reason of
this contract. But the court held that, as the provisions of the
statute charging as trustee one who is bound by cpntract to deliver
specific goods to the defendant at a certain time and place were not
applicable to contracts for the delivery of goods at any place out of
the State, the alleged trustee could not be charged. There was no
provision of the statute by which he was chargeable.
The case at bar is different. The trustees have in their hands
goods belonging to the defendant ; they are not chargeable by reason
of any contract to deliver goods to the defendant, but because they
have in their possession his goods and effects and are thus brought
directly within the provisions of the twenty-first section of chapter
142 of the General Statutes. The fifty-fourth section of the same
chapter does not apply to this case ; but it comes within the pro-
vision contained in the fifty-second section, that, when a person is
charged as trustee by reason of goods of the defendant which he
holds, he shall deliver the same to the officer who holds the
execution.
For the reasons we have stated, we are of opinion that the trustees
must be charged.
Exceptions overruled.
DELIVEKT BY CAKBIEE. 751
MONTROSE PICKLE CO. v. DODSON & HILLS
MANUF, CO.
76 Iowa, 172. 1888.
This is an action upon an account for merchandise sold and
delivered by the plaintiff to the Dodson & Hills Manufacturing
Company, defendant. An attachment was issued upon the ground
that the defendant was a non-resident of the State ; and the Diamond
Jo Line of steamers, a corporation, was garnished in the action,
upon the claim or supposition that it had property in its possession
belonging to the defendant, which was liable to attachment. The
garnishee answered, denying that it had any property in its custody
subject to the writ. Issue was taken upon the answer of the gar-
nishee , and a trial was had by the court, and a judgment was ren-
dered discharging the garnishee. Plaintiff appeals.
RoTHBOCK, J. At the time the action was commenced the plain-
tiff was a resident of this State. The defendant was a non-resident
of the State, and a resident of the State of Missouri. Service of
the original notice and of the notice of garnishment was made per-
sonally on the defendant in St. Louis, in that State. The defendant
made no appearance in the action, and a default was entered against
it, and what appears to have been a personal judgment was rendered
upon the default. It is not important to determine the effect of the
judgment rendered upon service of the original notice out of the
State. It is not a material question in the case. The Diamond Jo
Line of steamers is an Iowa corporation, with its principal place of
business at the city of Dubuque. It is a common carrier of freight
and passengers upon steamers to and from all points on the Mis-
sissippi Eiver between St. Paul, Minn., and St. Louis, Mo. On the
thirtieth day of September, 1887, said steamer company received on
board of one of its boats, at Alexandria, Mo., some five hundred or
six hundred barrels of pickles, for transportation to St. Louis. The
property was shipped by the Dodson & Hills Manufacturing Com-
pany, at Alexandria, to the Dodson & Hills Manufacturing Company
at St. Louis. The pickles were loaded on the steamer on the fore-
noon of that day. On the same day, and while the steamer, with
the property in dispute on board, was on its way down the river to
its destination, the garnishment notice was served on the steamer
■company at Dubuque, and on one of its agents at Keokuk.
The question to be determined is whether the property was liable
to attachment by garnishment. The Superior Court held that the
garnishee was not liable, because the property was not within the
jurisdiction of that court; that the defendant's title thereto was not
■doubtful; that it was capable of manual delivery, and, if within the
752 CAERIEES OF GOODS.
jurisdiction of the court, it should have been levied upon and taken
into custody by the officer executing the writ of attachment; and
that it was not the subject of garnishment. This is the sole ques-
tion presented to this court for determination. The ground of the
attachment was that the defendant was a non-resident of this State.
An attachment issued upon this ground avails nothing, unless the
defendant has property or debts owing to him within this State.
Without such property or debts, there could be no' service of the
attachment, either by actual levy, or by the process of garnishment.
It is not claimed by appellant that any jurisdiction of the property
could be obtained by seizing it outside the State. The contention
is that, as the garnishee is a resident of the State, the situs or loca-
tion of the property in question must be held to be in this State.
This rule has been held to apply to debts owing by the garnishee
to the defendant. Mooney v. Union Pac. Ey. Co., 60 Iowa, 346.
That was a case of garnishment of the wages of a railroad employee.
The garnishee was held to be a resident of this State, and there was
no contract that the wages due were to be paid in the State of
Nebraska, where the employee resided and the garnishee had its
principal place of business. It appears to us that the right to
garnish the steamer company, and hold it for the value of the prop-
erty in question in this case, presents a very different question.
The law of attachment in this State does not contemplate that
property not actually within the State, but located in another State,
shall be the subject of garnishment. We need not cite the various
sections of the statute upon the subject of attachment and garnish-
ment. Its whole scope and tenor lead to the conclusion that the
claim made by counsel for appellant cannot be sustained. The
argument of the appellant is grounded upon the thought that when
the garnishment notice is served, the relation of debtor and creditor
at once arises between the garnishee and the defendant. It is true
the statute provides that a judgment may be rendered against the
garnishee if he does not deliver the property to the sheriff. This is
a right given to the garnishee. He may at any time, after answer,
exonerate himself by placing the property at the disposal of the
sheriff. Code, sec. 2986. If property in a distant State may be
reached by process of garnishment, in order to avail himself of this
right the garnishee must transport the property to the sheriff hold-
ing the writ, and deliver it to him. The garnishee cannot be
deprived of this right, and as he is an innocent party, he cannot be
compelled to bring the property within the jurisdiction of the court.
The facts in this case are as good an illustration of the fallacy of
this claim as can be given. The steamer company had taken this
property upon one of its boats, and was under way, bound under its
contract of affreightment to deliver the same at St. Louis. To avail
itself of its right under the above statute, it would be required to
ship the goods back to Keokuk, make its answer, and deliver the
KEMEDIES AS AGAINST CAKEIEE. 753
property to the sheriff. The law imposes no such an obligation
upon a garnishee; and yet, under the claim made by appellant, the
garnishee must either do this or become the debtor of the defendant
for the value of the property. The law puts no such a hardship
upon a garnishee. It is very different where a debt is garnished.
It is a debt first and last. In such case the process of the law does
not practically compel the garnishee to become a debtor against his
consent. This identical question was determined by the Supreme
Court of Wisconsin in the case of Bates v. Railway Co., 60 Wis.
296; 19 N. W. Rep. 72. In an elaborate opinion, in which many
of the authorities cited by counsel in this case are reviewed, it was
held that personal property under the control of a garnishee, but
situated out of the State where suit is brought, cannot be reached
by the process of garnishment. In that case, as in this, the prop-
erty was in actual transit, and out of the State, when the garnish-
ment notice was served. We do not think it necessary to do more
than refer to that case, and the authorities therein cited. It ap-
pears to us in its reasoning to be eminently sound, and that no other
conclusion could have been fairly reached; and the rule adopted has
peculiar force when applied to an attempt to garnish a common
carrier while transporting goods outside of the State where suit is
commenced. As was said by Chief Justice Breese in Railroad Co.
V. Cobb, 48 111. 402 : " When the property has left the county, and
is in transit to a distant point, though on the same line of railway,
it would be unreasonable to subject the company to the costs, vexa-
tion, and trouble of such process, merely because it had received
that to be carried which the law compelled it to receive and carry."
It will be understood that we do not determine the question as to
the right to garnish a carrier of property, where the same is within
this State. Affirmed.
8. REMEDIES AS AGAINST CARRIER.
a. JVho may sue.
DAVIS V. JAMES.
King's Bench. 5 Burr. 2680. 1770.
This was an action against a common carrier, for not delivering
goods sent by him; and the only question was, "In whose name the
action ought to have been brought."
The fact was that Davis and Jordan, the present plaintiffs, were
manufacturers of cloth, at Shipton-Mallet. And their declaration
charged, that they being possessed of cloth, as of their own proper
754 CAKKIERS OF GOODS.
«
goods, delivered the same to tlie defendant, being the common car-
rier, etc., and requested him to deliver it safely and securely, for
them, to one Elizabeth Bowman at the Three Nuns, at White Chapel;
which they undertook to do, for a reasonable price payable and paid
by the said plaintiffs to the defendant : but the goods were lost, and
never delivered. The defendant pleaded "Not guilty; " and the
plaintiffs obtained a verdict.
The defendant's counsel (Mr. Sergeant Davy, Mr. Sergeant Bur-
land, and Mr. HotcMns) moved for a new trial; objecting that the
action ought to have been brought in the name of the consignee oi the
goods, and not in the name of the consignors : for that the consignors
parted with their property, upon their delivering the goods to the
carrier ; and that no property remained in them after such delivery.
And they cited as to the point of property, the case of Knight v.
Hopper, Tr. 8, W. 3, cases tempore. Holt, Ch. J., pa. 8, and the
case of Godfrey v. Furzo, 3 Peere Williams, 185, and Lee and
others v. Prescott and some other cases.
Mr. Sergeant Glynn and Mr. Mansfield, of counsel for the plain-
tiffs, answered that the present question does not turn upon the
strict property. The carrier has nothing to do with the vesting of
the property : it does not lie in his mouth to say that the consignor
is not the owner. He is the owner, with respect to the carrier; who
has undertaken to him, and was paid by him. He was therefore
servant to the consignor, but had no connection at all with the
consignee. And many such actions have been brought by the
consignor.
Lord Mansfield said, there was neither law nor conscience in
the objection. The vesting of the property may differ according to
the circtimstances of cases ; but it does not enter into the present
question. This is an action upon the agreement between the plain-
tiffs and the carrier. The plaintiffs were to pay him. Therefore
the action is properly brought by the persons who agreed with him
and were to pay him.
Rule discharged unanimov^ly.
DAWES V. PECK.
King's Bench. 8 Term R. 330. 1799.
This was an action on the case by the consignor of goods against
the defendant, a common carrier, for not safely carrying, according
to his undertaking in consideration of a certain hire and reward to
be therefore paid, two casks of gin from London to one Thomas
Odey at Hillmorton in Warwickshire within the time limited by
two excise permits, in consequence of which the casks of gin became
KEMEDIES AS AGAINST OAKKIEE, 755
forfeited to the Crown and were seized. This case came on to be
teied at the sittings in London after last Easter Term, when the
plaintiff proved his case by showing the delivery of the casks to a
person employed by the defendant at the usual place, where they
-were booked to be sent by the defendant's wagon and the usual
price paid for booking by the plaintiff's servant. The casks were
•directed to "Mr. Odey Hillmorton, near Eugby, Warwickshire, by
Peck's wagon." It appeared that they were afterwards sent by the
■wagon, and were left at the Crown Inn at West Haddon, which
was the nearest place to Hillmorton in the road which the wagon
travelled; and where, after laying some time, they were seized in
consequence of the time mentioned in the permit for their removal
being expired. The merits of the case as between the plaintiff and
•Odey the consignee, or in respect of the legality of the seizure, were
not entered into; but the defendant's counsel in opening his case to
the jury read a letter from the plaintiff to Odey, after the seizure
was known, in which he said that the liquors sent "were in quan-
tity and prices exactly conformable to your (Odey's) order; but by
•what authority they were ever left at the Crown Inn at West
Haddon remains for the innkeeper or the carrier to explain or
account for. All I have to observe is this, that the goods having
ieen sent conformably to your orders and by the carrier you directed,
I shall certainly look to you for their amount," etc. Upon reading
this letter, which was admitted to be genuine. Lord Kenyon was of
opinion that the action by the present plaintiff could not be sup-
ported ; for that the legal right to the goods after such delivery was
vested in the consignee, to whom alone the carrier was answerable,
if at all ; and therefore the plaintiff was nonsuited.
A new trial was moved for in Trinity Term last, and a rule nisi
for setting aside the nonsuit was obtained which stood over till this
term. And now
Ershine and Baine showed cause against the rule. A delivery of
goods to a carrier named by the consignee, as in this ease, is tanta-
mount to a delivery to the consignee himself, and divests the con-
signor of the legal property in them, though he still retains an
equitable right of stopping them while in transitu in case of the
failure of the consignee. After such a delivery the property in these
goods was altered and the goods were at the risk of the consignee ;
and so it was considered by the plaintiff himself, as appears by his
letter to Odey; consequently the plaintiff can maintain no action for
any loss or injury which happened to them after they became the
property of another. In the cases of Davis v. James [5 Burr. 2680]
[753] and Moore v. Wilson [1 Term E. 659] the ground of the
decisions, that the consignors might maintain the action, was that
they had made themselves responsible to the carriers for the price
of the carriage. In the former of those Lord Mansfield said that
there was no question in the case as to the vesting of the property;
756 CAKRIERS OF GOODS.
for the action was founded on the agreement between the carrier
and the plaintiffs who were to pay him. But there is nothing in
this case from which any property in the plaintiff can be inferred
whereon to found his action; because his own letter shows that he
had renounced all property in the goods.
Garrow and Yates, contra. It does not follow that because the
consignee may maintain an action against a carrier for the loss of
goods, the consignor may not also have his remedy. The cases show
that the action may be maintained by either. The reason of the
thing is more in favor of the action by the consignor, for there is
a privity of contract between him and the carrier; but there is no
such privity between the latter and the consignee. Here, too, the
booking was paid for by the consignor, which is evidence of a con-
tract between him and the carrier. The carrier is ignorant of the
particular agreement between the consignor and the consignee; and
at all events the consignor is liable to the carrier for the price of
the carriage, if the consignee do not accept the goods. Davis v.
James, 5 Burr. 2680 [753]. The liability of the consignor to the car-
rier is a sufficient ground to maintain this action. Both the case in 5
Burr, and that of Moore v. Wilson proceeded on the admission that
the legal property passed to the vendee by the delivery to the car-
rier. All the cases of stopping in transitu show that until a
delivery in fact to the consignee a latent right to the goods remains
in the vendor even as against the vendee; but whatever the question
may be as between those, it ought not to be permitted to the carrier
to dispute the property of the person from whom he received the
goods.
Lord Kenyon, C. J. I cannot subscribe to one part of the argu-
ment urged on behalf of the plaintiff; namely, that the right of prop-
erty on which this action is founded is to fluctuate according to the
choice of the consignor or consignee, and that consequently either
of them may, at his pleasure, maintain an action against the carrier
for the non-delivery of the goods. In my opinion the legal rights
of the parties must be certain, and depend upon the contract between
them, and cannot fluctuate according to the inclination of either.
This question must be governed by the consideration, in whom the
legal right was vested ; for he is the person who has sustained the
loss, if any, by the negligence of the carrier; and whoever has sus-
tained the loss is the proper party to call for compensation from the
person by whom he has been injured. The facts are these : a man
in Warwickshire gave an order for goods from London, which he
directed to be sent by a certain carrier, and the dealer in London
delivered them, accordingly, to that carrier to be conveyed to the.
vendee. Upon this short statement there can be no doubt but that
after such a delivery the vendee must stand to the risk. Then here
the damnum et injuria are to him and not to the vendor, the
plaintiff. I do not find that anything which I have advanced is
REMEDIES AS AGAINST CARRIER. 757
broken in upon by tbe two cases wliicb bave been relied upon in the
argument: the distinction which is there taken I fully adopt. In
the one case the action brought by the consignor against the carrier
was sustained, because the consignor was to be answerable for the
price of the carriage; he stood, therefore, in the character of an
insurer to the consignee for the safe arrival of the goods. And the
subsequent case of Moore v. Wilson proceeded on the same ground.
It is not disputed but that the consignee might have maintained the
action in this case : then if the consignee had recovered a verdict
against the carrier how could such recovery by a stranger have been
pleaded in bar to this action? And if it could not, and yet this
action could be maintained, the consequence would be that the car-
rier would be liable to answer in damages to both for the same loss.
Therefore common sense and justice as well as strict law are in
favor of the objection made against the plaintiff's recovering in this
action.
Grose, J. The plaintiff, who was at one time the owner of these
goods, delivered them by the order of Odey to the defendant, a com-
mon carrier, for the purpose of having them conveyed to Odey. By
such delivery they became the property of Odey ; he was liable to
be sued for the value of them; and it is admitted that he might
have maintained an action for any loss or injury happening to them
by the default of the defendant. It is true that, while the goods
remained in the hands of the carrier, there was a latent right in the
plaintiff to stop them in transitu : but that is in its nature an equit-
able right, though now grown into law ; but the legal right was by
the delivery to the carrier vested in the consignee, by whose order
they were so delivered. But cases have been cited, wherein it was
holden that the consignor might maintain the action: on looking
into them, however, it appears that they proceeded on the ground of
special agreements between the respective consignors and carriers.
Now here there was no evidence of any such agreement; and the
letter from the plaintiff to Odey excludes the idea of any such agree-
ment, for the former therein insists that the property was vested in
the consignee, whom he considered at all events answerable to him
for the value. Then, after it appears that the plaintiff had renounced
all right and property in the goods at the time, upon what ground
can he claim an indemnity for the loss of what belonged to another?
I am therefore of opinion that the action against the carrier ought
to have been brought by the consignee of the goods, in whom the
property was vested by the delivery to the carrier according to his
own order.
Lawrence, J. Some stress has been laid on the circumstance of
the consignor having paid the carrier for booking the goods, as evi-
dence of a special contract between them, in order to bring this case
within those which were cited at the bar; but that circumstance
would not give a right of action against the carrier to recover
758 CAKKIBRS OF GOODS.
damage for the loss of the goods, if it appeared th.a.t they were the
property of another person. And here it is admitted that the action
might have been brought by the consignee in right of his property
in them. It is true that in some special cases a man may make
himself liable to either of two persons on account of the same
interest: but that is not usual; and it is more consonant to the
general principle of law to refer all transactions of agents to the
principal on whose account they were entered into. Now here I
consider that what was done by the consignor in respect of the
booking was as the agent of the consignee, at whose risk the goods
were sent. And, generally speaking, the carrier knows nothing of
the consignor, but only of the person for whom the goods are
directed, and to whom he looks for the price of the carriage upon
delivery.
Le Blanc, J. It is admitted that the legal property of the goods
was by the delivery to the carrier vested in the consignee, and that
he might maintain the action : and upon examination of the cases
referred to in support of the consignor's right of action, it appears
that they proceeded upon the ground of a special agreement between
the parties that the consignor was to pay for the carriage of the
goods. But as there was no evidence of any such agreement in this
case, I think that the nonsuit was proper.
Bule discharged.
FINN V. WESTEEN E. COEP.
112 Mass. 524. 1873.
Contract against the defendant corporation, as a common carrier,
for its failure to forward and deliver shingles to Joseph S. Clark,
at Westfield. Writ dated June 28, 1867. The declaration alleged
the delivery to the defendant, its neglect to forward, and the destruc-
tion of the shingles while in its possession.
At the second trial in the Superior Court, before Putnam, J.,
after the decision reported in 102 Mass. 283, the plaintiff testified
that May 9, 1861, he received at Clean, in the State of New York,
a written order for a quantity of shingles, from J. S. Clark of
Southampton, Massachusetts, to be forwarded to him at Southamp-
ton; that he filled the order by shipping the shingles ordered on
board the canal-boat " M. White, " at Glean ; that when he shipped
the shingles, he filled in triplicate the following shipping bill:
"Clean, May 13, 1861. Shipped for account of M. W. Finn, on
board canal-boat ' M. White ' of Niagara, N. Y., whereof James
Smith is Master for the present trip, as follows: 100 bunches, 60
M. of 18 in., Sorted Shaved Shingles, marked J. S. C. — Extra.
150 bunches, 75 M. of 18 in., No. 1 Shaved Shingles, marked J. S. C.
REMEDIES AS AGAINST OAEEIEE. 759
360 bunches, 90 M. of 18 in., Extra Sawed Shingles, marked J. S. C.
— Extra. In good order, to be delivered in like good order,
without delay, to the Great Western Eailroad Company or theii
Assignees, at Greenbush, N. Y. Consignee to pay freight on the
delivery at the rate of seventy-five cents per M. for Shaved Shingles,
and sixty-two and one-half cents per M. for the Sawed Shingles,
$2.50 for towing less amount advanced Master, one hundred and
fifty-two and fifty-one hundredths dollars, M. W. Einn, Consignor.
James Smith, Master. $152.50; " that one of the bills was sent by
mail to Clark, one was given to the master of the canal-boat, and
one was retained by him ; that the shingles were put up in bunches
and were branded upon the flat surface of each bunch; that the
brand upon some of the bunches was "J. S. C." and upon the rest
was "J. S. C, Extra; " that upon about one bunch in six, he wrote
with a lumberman's pencil, in letters plainly legible at a distance
of twenty feet, the words " J. S. Clark, Southampton, Mass. ; " that
the shingles were forwarded by canal from Clean to Greenbush, to
be forwarded from thence by the Western Bailroad to Clark ; that
this was the usual mode of conveyance ; that between the years 1858
and 1861 he had sent upon similar orders 6 or 8 lots of shingles to
Clark, to Westfield or Southampton, by the same routes, marked in
the same manner as the lot in question ; that on June 6, 1861, he
received from the agent of the Western Eailroad a letter stating
that the boat " M. White " had arrived at Greenbush with shingles,
and asking for the name of the consignee ; that upon the same day
he wrote a letter in reply, in the post-office at Olean, in the presence
of the postmaster, stating that the shingles were for J. S. Clark, of
Southampton, Mass., and requesting them to be forwarded to him
at once ; that the letter was addressed to " The Agent of the West-
ern Railroad Company, Greenbush, N. Y. ; " that he delivered the
letter to the postmaster personally, in the post-office at Olean; that
by the ordinary course of mail the letter would arrive at Greenbush
on the next day; that at the time of shipping the shingles, he drew
upon Clark for the price of them ; that the draft was duly accepted,
and paid at its maturity, but whether it was paid before the fire or
not, he did not know.
On his cross-examination, the plaintiff stated that with each of
the prior lots of shingles, a shipping bill was given to the master
of the boat, by which they were shipped, in which J. S. Clark, of
Southampton or Westfield, was named as the person to whom the
goods were sent, and a like bill was sent to Clark.
Benjamin Barker, a witness called by the plaintiff, testified that
he helped the plaintiff mark the shingles as they were loaded on the
canal-boat, at Olean, and that he marked, with a lumberman's pen-
cil, on one bunch in every six or eight, the name and address, "J. S.
Clark, Southampton, Mass.," in letters that could be plainly read
at a distance of twenty or thirty feet.
760 OAEKIEKS OF GOODS.
The deposition of the postmaster at Olean was read in evidence,'
who testified to the mailing of a letter by Finn, June 6, 1861,
addressed to the agent of the Western Railroad, but that it was
directed to East Albany, N. Y., and that his register of that day
showed one letter sent to East Albany, N, Y., and that letter was
mailed by the postmaster personally, and by him sent out of the
office by the eastern mail.
It appeared that the proper address for the defendant's agent was
either Greenbush or Albany; that East Albany was a village in the
town of Greenbush, and the western terminus of the defendant's
road, and that Greenbush was sometimes known as East Albany,
and that letters addressed to East Albany had at different times
been received at and delivered from the post-office at Greenbush,
and that letters addressed to Green, the defendant's agent at East
Albany, had been frequently received by him from the post-office at
Greenbush.
The facts as to the shipment of the prior lots of shingles were
also testified to by Clark, substantially as by the plaintiff, though
he did not testify that he received shipping bills with them.
Asa C. Parker, the defendant's station agent at Westfield, tes-
tified that he knew of the receipt of the prior lots over the road,
but that no bills of lading or any shipping bills accompanied any
of these that he ever saw.
Thomas L. Green testified that he was ageut for the defendant at
Greenbush in 1861, and had been for some time prior to 1858, and
was still its agent there; that no one but himself and George H.
Penfield opened letters addressed to him or to the agent of the
defendant at Greenbush or Albany, and that he never received or
saw the letter of June 6, testified to having been sent by the plain-
tiff, and that up to the time of the fire he did not know the name
of the consignee; that when the shingles in controversy arrived at
Greenbush, the master of the canal-boat exhibited to him the ship-
ping bill before mentioned, and there being no person named therein
to whom the shingles were to be delivered, he declined to receive
them until, at the solicitation of the master, he agreed to take them
upon storage, and that he wrote the letter mentioned by the plaintiff
as having been received by him, before he agreed to take them on
storage, and as soon as he saw the way-bill ; that a day or two after-
wards he examined the shingles and turned over one-third of the
bundles, so that he could see all sides of them, in order to see if
there was a name of any consignee, or any direction upon them,
and found no mark or direction upon them except "J. S. C," and
"J. S. C. Extra; " that he had no recollection of having seen either
of the prior lots testified of by Finn and by Clark, that he had no
recollection of any of the prior consignments, and only knew from
the books that they were forwarded ; that it at that time was, and
still is, a custom of the defendant corporation that all freight com-
REMEDIES AS AGAINST CAEEIEK. 761
ing to their road by way of the Erie Canal, as these shingles did,
should be governed by the directions contained in the shipping bill
accompanying them, and not by the marks upon the goods.
On cross-examination, he admitted that he received before the fire
two letters from Clark, and one from Parker, the station agent at
Westfield, in relation to the shingles in controversy.
The plaintiff and William G. Bates both testified that at two
former trials of the case of Einn v. Clark, in which the same facts
were in issue, Green did not testify as to his receiving the shingles
on storage, and did testify that he had seen the name of J. S.
Clark, Southampton, in full, on some of the bunches of the former
consignments.
The foregoing is all the material evidence in the case.
The defendant requested the court to rule that upon the whole
evidence in the case the plaintiff was not entitled to recover.
That if the shingles were sent in pursuance of an order from Clark
in Southampton, to Finn in Olean, to be forwarded by the usual
conveyances to him in Southampton, and the shingles were so for-
warded with proper directions, so that it was the duty of the defend-
ant upon the receipt thereof to forward them, then the shingles
belonged to Clark, and the plaintiff could not recover.
That if the shingles were ordered of Finn at Olean, by Clark, to
be forwarded to him at Southampton, and were forwarded by the
usual means of conveyance, properly directed to Clark, then the
shingles belonged to Clark, and the plaintiff could not recover.
These rulings the court refused to make in the form requested,
but instructed the jury at length as to the duties and liabilities of
common carriers, and their obligations in forwarding freight, as
applicable to the shingles in question, which instructions were not
objected to by either party, and further instructed them that if the
defendant's agent knew, by reason of the receipt of the letter alleged
to have been sent to him, or by reason of his having seen the name
and address of Clark upon the bundles, that the shingles belonged to
and were intended for Clark, it was the duty of the defendant to
forward them within a reasonable time thereafter, and that the
plaintiff could not recover unless he satisfied the jury that the
■defendant's agent received the letter of June 6, or saw the full
name and address of Clark upon the bunches of shingles, and that
the jury might consider the fact of the former shipment from Finn
to Clark as evidence upon the question whether or not the agent
knew for whom the shingles were intended, provided they were
satisfied that in such previous instances the freight was not accom-
panied with proper way-bills, disclosing its destination.
The jury returned a verdict for the plaintiff, and found, especially,
upon the question submitted to them by the court, that Green did
see the full name and address of Clark upon the bunches of shingles.
The defendant excepted.
762 CAKEIEKS OF GOODS.
Wells, J, The only question argued by the defendant, upou
these exceptions, is whether the action for loss of the property can
be maintained by and in behalf of Finn. It is contended that if
there was a delivery, with proper directions for the transportation,
so as to charge the defendant with responsibility as carrier, then the
title in the property had passed' to Clark, the consignee; and the-
right of action for injury to it was in him alone. On the other
hand, if proper directions for its transportation had not been given,
then the defendant is not liable at all as carrier, according to the
former decision in 102 Mass. 283. It is not contended that the
defendant is liable as warehouseman. In either aspect of the case,
upon this view of the law, no recovery could be had by Finn.
The jury having found that the defendant became responsible as-
carrier, the case is now presented only in that aspect. We think
also that the facts , as disclosed by the present bill of exceptions,
show that the title to the property had passed to Clark before the-
loss occurred; leaving in Finn at most only a right of stoppage in-
transitu.
The liabilities of a common carrier of goods are various; and
when not controlled by express contract, they spring from his legal
obligations, according to the relations he may sustain to the par-
ties, either as employers, or as owners of the property. Prima facie,
his contract of service is with the party from whoin, directly or
indirectly, he receives the goods for carriage; that is, with the-
consignor. His obligation to carry safely, and deliver to the con-
signees, subjects him to liabilities for any failure therein, which
may be enforced by the consignees or by the real owners of the-
property, by appropriate actions in their own names, independently
of the original contract by which the service was undertaken. Such
remedies are not exclusive of the right of the party sending the
goods, to have his action upon the contract implied from the delivery-
and receipt of them for carriage. This, in effect, we understand to-
be the result of the elaborate discussion of the principles applicable-
to the case in Blanchard v. Page, 8 Gray, 281. That decision may
not be precisely in point, as an adjudication, to govern the case now
before us ; for the reason that there was a written receipt or bill of
lading for carriage by water, and the plaintiffs were acting in the
transaction as agents for the owners of the goods; yet the general
principles evolved do apply, and are satisfactory to us for the deter-
mination of the present case.
When carrying goods from seller to purchaser, if there is nothing-
in the relations of the several parties except what arises from the
fact that the seller commits the goods to the carrier as the ordinary
and convenient mode of transmission and delivery in execution of
the order or agreement of sale, the employment is by the seller, the-
contract of service is with him, and actions based upon that contract
may, if they must not necessarily, be in the name of the consignor.
REMEDIES AS 'AGAINST CAEEIER. 763
If, however, the purchaser designates the carrier, making him his
agent to receive and transmit the goods; or if the sale is complete
before delivery to the carrier, and the seller is made the agent of
the purchaser in respect to the forwarding of them, — a different
implication would arise, and the contract of service might be held
to be with the purchaser. This distinction, we think, must deter-
mine whether the right of action upon the contract of service,
implied from the delivery and receipt of goods for carriage, is in.
the consignor or in the consignee. In the case of Blanehard v.
Page the action was maintained in the name of the consignors,
who were merely the agents of the owners in forwarding the goods.
But that was explicitly on the ground of the express contract with
them, embodied in the receipt or bill of lading.
As already suggested, the consignee, by virtue of his right of pos-
session, or the purchaser, by virtue of his right of property, may
have an action against the carrier for the loss, injury, or detention
of the goods , though not party to the original contract. Such action
is in tort for the injury resulting from a breach of duty imposed by
law upon the carrier; or, in the language of the early cases, upon
" the custom of the realm."
There are many cases, both in England and in the United States,
in which the doctrine appears to be maintained that, except when
there is a special contract, a remedy for injury resulting from breach
of duty by a carrier can be had only in the name and behalf of some
one having an interest in the property at the time of the breach,
which is injuriously affected thereby.
The rule might well be conceded, if the exceptions were not too
restricted. It will hold good in actions of tort, because they are
founded upon injury to some interest or right of the plaintiff. And
the cases which support this view are mostly, if not altogether,
actions of toit. This is true of the leading early cases from which
the doctrine is mainly derived : Dawes v. Peck, 8 T. E. 330 [754] ;
also of Griffith v. Ingledew, 6 S. & R. 429 ; Green v. Clark, 6 Denio,
497, 13 Barb. 57, and 2 Kernan, 343-, and does not appear from the
report to be otherwise in Krulder v. Ellison, 47 N. Y. 36 [766]. In
discussing the grounds of decision it seems to have been assumed by
various judges, as we think, erroneously, that the right of recovery
necessarily involved the question with whom the original contract
of service was made. And the effort to make the inference of law
as to that contract conform to what was deemed the proper decision
as to the right to recover for the injury, has led to some statements
of legal inference which appear to us to be somewhat overstrained.
Thus in Dawes v. Peck it is said by Lawrence, J. , that, in the pay-
ment of freight by the consignor, he is to be regarded as the agent
of the consignee ; that the carrier generally knows nothing of the
consignor, but looks to the person to whom the goods are directed.
In Freeman v. Birch, 1 Nev. & Man, 420, it is said by Parke, J.,
764 CAREIEKS or GOODS.
" In ordinary cases the vendor employs the carrier as the agent of
the vendee." In Green v. Clark, 13 Barb. 57, it is said by Allen, J.,
that when the consignee is the legal owner, or the property vests in
him by the delivery to the carrier " it is an inference of law, and
not a presumption of fact, that the contract for the safe carriage is
between the carrier and consignee, and consequently the latter has
the legal right of action." But in the same case in the Court of
Appeals, 2 Kernan, 343, it was regarded as immaterial by whom the
contract was made, and whether the plaintiff was consignor or con-
signee, for the purpose of an action of case for negligence by which
his property was injured.
In Grifiith v. Ingledew, the dissenting opinion of Gibson, J.,
assuming that the contract of carriage formed the basis of the
action, combats with great force of reasoning the proposition that a
contract with the consignee is the legal result of the receipt of goods
by a carrier, when no privity with or authority from the consignee
is shown, and none professed by the consignor at the time, unless
the direction of the goods to the address of the consignee can be
taken to be such profession.
The whole force and effect of the reasoning in Blanchard v. Page
is in the same direction. The ordinary bill of lading or receipt,
given to the consignor by the carrier, simply expresses what is the
real significance of the transaction independently of the writing.
There is no reason for giving a different interpretation to, or draw-
ing a different inference from, the acts of parties, because of a
writing which is nothing but a voucher taken to preserve the
evidence of those acts.
Whatever remedy is sought in contract must necessarily be sought
in the name of the party with whom the contract is entered into,
whether it be special, that is, express, or implied. The question
then is simply this : In the absence of an express agreement, with
whom is the carrier's contract of employment and service in respect
of goods delivered to him by the seller to convey to the purchaser,
when there is no privity or relation of agency between the carrier
and the purchaser save that which springs from possession of the
goods, and the seller has no authority to make a contract for the
purchaser except what is to be implied from the agreement of
purchase or the order for the goods?
The law imposes upon the carrier the duty to transport the goods,
allows him a reasonable compensation, and gives him a lien upon
the goods for security of its payment. It also implies a promise
on the one part to carry and deliver the goods safely, and, on the
other, to pay the reasonable compensation. These two promises
form the contract. Each is the counterpart and the consideration
of the other. If the contract of carriage is with the consignee, the
reciprocal promise to pay the freight must be his also. Against this
inference are the considerations that the seller is acting in his own
EEMEDIES AS AGAINST CAERIEK. 765
behalf in making the delivery, and the goods remain his property
until the contract with the carrier takes effect. The title of the
purchaser does not exist until that contract is made. It foUo-ws as
a result. The carrier is not agent for either party, but an inter-
mediate, independent principal. If made an agent of the consignee,
his receipt of the goods cuts off the right of stoppage in transitu on
the one hand, and satisfies the Statute of Frauds on the other. He
has a right to look for his compensation to the party who employs
him. unless satisfied from his lien. The fact that, as between seller
and purchaser, the purchaser must ordinarily pay the expenses of
transportation as a part of the cost of the goods, does not affect the
relations of contract between the carrier and either party. We dis-
cover nothing in the nature of the transaction, and we doubt if there
is anything in the practice or understanding of the community
which will justify the inference that one to whom goods are sent
by carrier, without direction or authority from him, other than an
agreement of purchase or consignment, is the party who employed
the carrier and is bound to pay him ; unless he assumes such liability
by receiving the goods subject to the charge.
The contract is made when the goods are received by the carrier.
If it is then the contract of the consignee, it will not cease to be so ,
and become the contract of the consignor, by reason of subsequent
events. Suppose, then, the seller exercises his right of stoppage
in transitu. Is the purchaser still liable to the carrier for the
unpaid freight ? Suppose the contract of sale to be without writing
and within the Statute of Frauds. The contract of the carrier is
not within the statute, and the authority to the seller to make
such contract in behalf of the purchaser need not be in writing.
Is the carrier to look to the purchaser or to the seller for the
freight? Or does it depend upon the contingency whether the con-
tract of sale is affirmed or avoided? And if afB.rmed, and the carrier
should deliver the goods without insisting on his lien, of whom
must he collect it? The authorities hold, when the agreement of
sale is within the Statute of Frauds, that the contract of the carrier
is with the consignor. Coombs v. Bristol & Exeter Eailway Co., 3
H. & X. 510; Coats v. Chaplin, 3 Q. B. 483.
We do not think the carrier's contract and right to recover his
freight can be made to depend upon what may prove to be the legal
effect of the negotiations between consignor and consignee upon the
title to the property which is the subject of transportation. His
contract must arise from the circumstances of his employment. He
has a right to look for his compensation to the party who required
him to perform the service by causing the goods to be delivered to
him for transportation. And that party, unless he is the mere
agent of some other, may enforce the contract, and sue for its breach
by the carrier.
One who forwards goods in execution of an order or agreement
766 CAEKIERS OF GOODS.
for. sale is not a mere agent of tlie purchaser in so doing. He is
acting in his own interest and behalf, and his dealings with the
carrier are in his own right and upon his own responsibility, unless
he has some special authority or directions from the purchaser, upon
which he acts.
The plaintiff in this case is therefore entitled to maintain his
action upon the contract; and we think there is no sufficient reason
shown to prevent his recovering the full value of the property
destroyed. If Clark was the owner at the time, and his interest has
been in no way satisfied or discharged, the plaintiff will hold the
proceeds recovered in trust for his indemnity. Clark might have
prosecuted an action of tort in his own name, and recovered the
value of his property lost ; in which event the damages in Einn's suit
would have been nominal, or reduced to whatever amount of actual
loss he suffered. But it is not pretended that Clark has ever brought
any suit or made any claim upon the defendant, although knowing
of the pendency of this suit, and having testified as a witness in the
same; and all claim by him is long since barred. It is to be pre-
sumed that he acquiesces in the recovery by Finn. If there were
any doubt upon this point, we might order a new trial upon the
question of damages only. As there is none, the judgment must
be upon the verdict.
Exceptions overruled.
KEULDER V. ELLISON.
47 N. Y. 36. 1871.
Appeal from judgment of the General Term of the Supreme
Court, in the second judicial department, afflrming a judgment in
favor of plaintiff entered upon a verdict.
This action is brought to recover the value of a barrel of spirits,
shellac delivered to defendants, who were common carriers upon the
canal, consigned to Newell & Turpin of Rochester, and alleged to
have been lost by the defendants. The shellac was sent by a boat
of defendants pursuant to the following order: —
"Send us, via canal, one barrel imitation shellac, such as you sent us.
last.
" Nbwell & TuKPiN, Rochester."
Upon the shipment, plaintiff sent a bill of sale to the consignees.
When the barrel arrived at Rochester it was empty, and was re-
shipped to the plaintiff and received by him. Defendants' counsel
asked the court to charge, that if plaintiff sold the barrel of varnish
to Newell & Turpin to be delivered to them upon defendants' boat.
EBMEDIKS AS AGAINST CAEKIEK. 767
upon such delivery the title passed to Newell & Turpin, and the
plaintiff could not recover. The court declined so to charge, and
defendants excepted.
Peckham, J. Had the plaintiff, the vendor of the goods, the .
right to maintain an action for their loss? Here the evidence shows
that Newell & Turpin, of Rochester, had ordered the goods from
plaintiff, of New York City, to be sent to them ''via canal, such as
you sent last." Plaintiff sent them a bill by mail of the purchase,
and shipped the goods "via canal," by defendant's boat. Plaintiff
also remitted to the purchasers a bill of sale of the goods.
The presumption of law is, that the consignee is the owner of the
goods in the absence of any evidence on the subject, and is the proper
party to sue, for their injury or loss. Sweet v. Barney, 23 N. Y.
335 [668]; Price v. Powell, 3 Comst. 322; Everett v. Saltus, 15
Wend. 474; Ang. on Carriers, § 497, and cases cited.
There have been decisions qualifying this rule as to the proper
party to sue, some holding that an action might be maintained by
the consignor where he had made a special contract for the trans-
portation.
In Moore v. Wilson, 1 Tr. E. 659, an action was sustained by the
consignor against a carrier, where it appeared that the consignee had
agreed with the plaintiff to pay for the transportation, BuUer, J.,
holding that the agreement was between the "consignor and the
carrier, the former of whom was, by law, liable." One case only is
referred to ; this was in 1787, in a note, 1 Atk. 248, where the Lord
Chancellor declares the rule to be the other way; and that such an
action would not lie.
In Joseph v. Knox, 3 Camp. 320, where goods had been shipped
by plaintiff, an agent of the owner, who resided abroad, to be for-
warded to a given place, and the freight paid by the agent and con-
signor, a recovery was allowed by Lord Ellenborough, at nisi prius,
on the ground of the special contract. This in 1812. So in Davis
V. James, 5 Burr. 2680 [753], a like rule was held where the eon-
siguor agreed to pay, and paid the carrier in 1770. In Dawes v.
Peck, 8 Durn. & E. 330 [754], it was unanimously held, after full
citation of authorities and consideration, that an action by the con-
signor would not lie for the loss of the goods, when they had been
delivered to a particular carrier by order of the consignee, though
he paid for booking the goods. Lord Kenyon, Ch. J., in deliver-
ing the opinion of the court, observed (K. B.): "This question must
be governed by the consideration in whom the legal right was vested,
for he is the person who has sustained the loss." The court held,
that this booking was done as the agent of the consignee. This in
1799. In Brower v. Hodgson, 2 Camp. 36, a like decision at nisi
prius, by Lord Ellenborough, where the goods were shipped by
order, and on account of the consignee, as appeared by the bill of
lading. So held, on the ground that the property was in the con-
'^^^ CAKEIEKS OF GOODS.
signee, from the time of deliverv, on board the vessel. This m
1809. *"
In Button v. Solomonson, 3 Bos. & Pul. 582, same doctrine
Lord .A.lvanley, Ch. J., expressed his surprise that the point should
be questioned, as he said it appeared to him to be a proposition as
well settled as any in the law, that if a tradesman order goods to be
sent by a carrier, though he names no particular carrier, the moment
the goods are delivered to the carrier it operates as a delivery to the
purchaser. The whole property immediately vests in him; and he
alone can bring an action for any injury done to them.
In 1803, in Freeman v. Birch, 1 Nev. & Man. 420 [^769], a laundress
sent linen she had washed to the owner in London, and paid the
carriage. Lost by the carrier, the action by laundress sustained on
the ground that she had a special property in the linen; but
admitted by both justices, Littledale and Parke, that if there be
a complete sale the property is out of the vendor altogether. There
the vendor transmits as agent for the vendee.
Excepting cases of special contract, where it has formerly been
held that the consignor may bring the action, I think the cases
agree substantially that the action must be brought in the name of
the consignee only, as the owner; and that the owner alone can
bring the action. Angell on Carriers, § 497. In such case, he and
not the consignor must bring the action, for the consignor has his
remedy against the purchaser. Id. Where the contract of pur-
chase and sale is not valid or complete by reason of the Statute of
Frauds, the goods being over the value of £10, and the title, there-
fore, still rests in the consignor, though the goods have been
delivered to the carrier, no acceptance, and all still vesting in parol,
the action must be brought by the consignor. Coombs v. The Br.
and Ex. E. Co. , 3 Hurl. & Nor. 510. But all the judges, in de-
livering opinions, admitted the rule to be, that the consignee must
have brought the action had the order been in writing, and the sale
valid. The question was whether the property passed to the vendee.
If it did, he must sue.
In 1858, see Potter v. Lansing, 1 J. E. 215. That the property
passed to the consignee, in the case at bar on its delivery to the
carrier "via the canal," is entirely clear. People v. Haynes, 14
Wend. 546; Ang. on Car. § 497; Smith's Merc. Law, 290, 5th ed.,
2 Kent's Com. 8th ed., p. in mar., 499, and cases cited. There is
nothing disclosed in the case to qualify or modify that title. In
the language of the books, it is a complete sale. No special con-
tract by the vendor with the carrier, and no payment of the price of
transportation if either could affect the title of the vendee. I think
it clearly could not. The order being positive and in writing, and
stating the mode of conveyance, where the goods were delivered
to the carrier pursuant to that order, the title passed absolutely to
the vendee, subject to the right of stoppage in trmisifv, and it gave
REMEDIES AS AGAINST CAERIEK. 769
no right of action to the vendor to sue for the loss of the vendee's
goods, though the vendor, as agent for vendee, paid the carriage, or
in like character, specially contracted with the carrier to transport.
Had the consignor agreed with the consignees to deliver the goods
to them at Eochester, the rule would be different. Then the con-
signees would not be the owners till delivery at Eochester. But
upon what principle a vendor can sue for the loss of another's goods,
it is difficult to see.
In this case the right of action being in the vendee under the facts
disclosed, the return of the empty barrel to the vendor, and his
sending on another in no manner affected that right, either by
extinguishing or by assigning it to the consignor.
Judgment should be reversed, and new trial ordered, costs to
abide event.
FEEEMAN v. BIECH.
King's Bench. 1 Nev. & Man. 420. 1833.
Case against a carrier for negligence. At the trial before
Patterson, J., at the sittings for Middlesex in this term, the
following facts appeared : —
The plaintiff, a laundress residing at Hammersmith, was in the
habit of sending linen to and from London by the defendant's cart,
which travelled from Chiswick to London. A basket of linen belong-
ing to Spinks was sent by the defendant's cart, and on its way to
London part of its contents were either lost or stolen. Spinks did
not pay the carriage of the linen. It was objected on the part of
the defendant that the present action was misconceived, and that
the action should have been brought by the owner of the linen.
The learned judge overruled the objection, and a verdict was found
for the plaintifi.
Heaton now moved for a new trial on. the ground of misdirection.
The action should have been brought by the owner of the linen, and
not by the laundress. It is laid down in Selwyn's Nisi Prius, p.
405, that the action against a carrier for the non-delivery or loss of
goods must be brought by the person iu whom the right of property
in goods is vested. [Parke, J. The person who employs the car-
rier must bring the action.] The action against the carrier must be
brought by the person in whom the legal right was vested, Dawes v. ■
Peek, 8 T. E. 330 [754]. [Parke, J. The circumstance of the legal
right being in one person, may be evidence of employment by that
person.] In Dawes v. Peck, the action was brought by the vendor
of the goods against the carrier; the vendee had named the carrier,
and it was holden, that because the legal right to the goods had
770 CARKIEES OF GOODS.
vested in the vendee, lie should have brought the action. Again,
in Button v. Solomonson, 3 Bos. & Pull. 584, it was held, that where
goods were ordered by a tradesman to be sent by a carrier, the
delivery to the carrier vested the property in the purchaser, and he
alone could maintain an action against the carrier for the loss of the
goods: King v. Meredith, 2 Camp. 639. This action therefore is
improperly brought.
LiTTLBDALE, J. In the cases cited, the property in the goods
■was entirely gone out of the vendor. In this case the laundress
retained a special property in the goods.
Paeke, J. I am of the same opinion. In the case of the vendor
and vendee, if the goods are, whilst the carrier has the care of them,
to be at the risk of the vendor, he must bring the action against the
carrier. In ordinary cases the vendor employs the carrier as the
agent of the vendee. See Davis v. James, 5 Burr. 2680 [753];
Moore v. Wilson, 1 T. E. 659.
Bvle refused.
ELKINS V. BOSTON & MAINE E.
19 N. H. 337. 1849..
Assumpsit. The declaration alleged that on the twenty-first of
April, 1847, the defendants were common carriers of goods for hire
from Andover, Mass., to Exeter; that the plaintiff delivered to them
an overcoat to be carried from Andover to Exeter, and delivered to
the plaintiff for a reasonable reward to be paid therefor, in consider-
ation of which the defendants received the coat and undertook to
transport and deliver it accordingly, which they have neglected and
refused to do.
At the trial upon the general issue it appeared in evidence that
the overcoat belonging to the plaintiff, whose name is Charles D.
Elkins, was rolled up in a bundle with another overcoat, belonging
to Jonathan Elkins, and a label put upon the bundle with this
address upon it: "Jonathan Elkins, Exeter, N. H." The bundle
was left by Jonathan Elkins in the common room of the depot at
Andover, and the depot-master was requested by him to send the bun •
die by the next passenger train to Exeter, which he said he would do.
The defendants objected that the evidence did not support the
declaration, but varied materially therefrom; but the court ruled it
to be sufficient.
The jury returned a verdict for the plaintiff, which the defendants
moved to set aside.
Gilchrist, C. J. The only question in the case is whether the
evidence supports the declaration. It is alleged that the plaintiff
REMEDIES AS AGAINST CARBIER. 771
delivered to the defendants an overcoat, to be carried from Andover
to Exeter, and delivered to the plaintiff. It appeared that two over-
coats were rolled up in a bundle, one of which belonged to the plain-
tiff and the other belonged to Jonathan Elkins ; that the bundle was
■directed to Jonathan Elkins, and left by him at the depot. The
only question properly raised by the case is whether upon these facts
the plaintiff may maintain an action against the defendants.
In the case ~ of Weed v. The Saratoga and Schenectady Eailroad,
19 Wend. 534, cited by the counsel for the defendants, the declara-
tion alleged that the railroad company promised the plaintiffs to
carry for the plaintiffs a trunk containing certain goods, etc., and
bank bills, but that they carelessly lost the trunk and its contents.
The second count alleged an undertaking to carry the trunk and its
contents. The evidence showed that the plaintiffs' clerk, who was
travelling, directed his baggage to be put into the proper car, but
on his arrival at the place of his destination, he found that one of
his trunks was lost, containing $285 belonging to the plaintiffs,
■which he had retained for his travelling expenses. The trunk
belonged to one Martin. It was said by Cowen, J., that the vari-
«,nce was material. " The contract, as set forth, was to carry the
trunk and money of the plaintiffs. The proof is that the trunk
belonged to Martin, a stranger, nor was it shown that the plaintiffs
Iiad any connection with it. If the trunk were Barnes' (the clerk),
the variance would be the same, and so I think if he had hired or
borrowed it of Martin for his own use. " . . . " The proof is at most
of a contract with the plaintiffs to carry the money only. The
-declaration, then, fails in describing correctly a special executory
-contract, wherein great exactness is always demanded. Where the
'declaration is on a promise to do several things, and only one is
proved, this is a variance. . . . The whole contract in the case at
bar was made ostensibly with Barnes. If in legal construction it
can be turned in favor of the plaintiffs , it must be in respect to their
•ownership of the articles undertaken to be conveyed, and there can
be no pretence that the trunk of a stranger, Martin, or the trunk of
Barnes, in which the plaintiffs had leave to deposit their money,
"would be comprehended within the principle."
Thus far the decision is not an authority for the defendants. The
-question of variance was distinctly raised and decided, although it
finally turned out not to be very material, inasmuch as the plaintiffs
were permitted to amend, by striking out the trunk from the declara-
tion. But the learned judge goes farther, and after raising the ques-
tion whether Barnes was not more than a mere agent, and was not
a bailee, having himself an interest in the money for his travelling
expenses, says, "It is doubtful, at least, whether a promise to carry
for a bailee can enure to the benefit of the bailor," although that
question did not arise in the case. Upon this question there are
several decisions worthy of consideration.
772 CAKKIERS OF GOODS.
In the present case the coat, which is the subject of this action,
being in the possession of Jonathan Elk ins, the latter must be
regarded as the bailee, and the plaintiff as the bailor. It is imma-
terial for what particular purpose the plaintiff's coat was in the pos-
session of Jonathan Elkins. The purpose probably was that the
latter might cause it to be forwarded to the plaintiff. In such a
case it is clear that the bailee has such a continuing interest in the
goods, until their arrival at the place of destination, as to entitle
him to sue the carrier in case they are lost or damaged on their
passage. Thus, in the case of Freeman v. Birch, 1 Nev. & Man.
420 [769], which was an action against a carrier for negligence, it
appeared that the plaintiff, a laundress, residing at Hammersmith,
was in the habit of sending linen to and from London by the
defendant's cart, which travelled from Chiswick to London. A
basket of linen belonging to one Spinks was sent by the defendant's
cart, and on its way to London part of its contents were either lost
or stolen. Spinks did not pay the carriage of the linen. It was
objected on the part of the defendant that the present action was
misconceived, and that the action should have been brought by the
owner of the linen. But the objection was overruled and a verdict
was found for the plaintiff. A motion was made for a new trial,
but refused by the Court of the Queen's Bench on the ground that
ander the circumstances the bailee retained a special property in the
goods sufficient to support the action.
The property in articles bailed is for some purposes in the bailee-
and for some in the bailor. The right of action must partake of the
same properties, and must so continue until it is finally fixed and
determined by one or the other party appropriating it to himself.
The decision in Freeman v. Birch, although it clearly establishes
the right of a bailee to sue, does not necessarily exclude the bailor
from bringing an action, if he chooses to anticipate the bailee in so-
doing. The rule in such cases is stated by Parke, B., to be, that
either the bailor or the bailee may sue, and whichever first obtains-
damages, it is a full satisfaction. Nichols v. Bastard, 2 Cro. Mees.
& Eos. 660.
The principle appears to be well settled, that if it is not expressed-
that an agent contracts in behalf of another, and the name of the
principal is not disclosed by him, a suit may be maintained in the
name of the principal. In the present case, Jonathan Elkins was
clearly the agent of the plaintiff, and the name of the plaintiff was-
not disclosed by him. This principle is recognized in the case of
Sims V. Bond, 5 B. & Ad. 389, where Lord Denman says, "It is a
well-established rule of law, that where a contract, not under seal,
is made with an agent in his own name, for an undisclosed principal,,
either the agent or the principal may sue upon it; the defendant, in
the latter ease, being entitled to be placed in the same situation at
the time of the disclosure of the real principal, as if the agent had
REMEDIES AS AGAINST CAKKIEK. 773
been the contracting party." In the case of Higgins v. Senior, 8
Mees. & Wels. 834, it was held that the suit might be maintained
on the contract, either in the name of the principal or of the agent,
and that, too, although required to be in writing by the Statute
of Frauds. Beebe v. Robert, 1? Wend. 413; Taintor v. Prendergast,
3 Hill, 92. The same principle was adopted by the Supreme Court
of the United States, in the memorable case of the loss of the
steamer " Lexington, " in Long Island Sound. In the case of the New
Jersey Steam Navigation Co. v. The Merchants' Bank, 6 Howard,.
344, the bank had delivered to Harnden, an express agent, a large
amount of specie for transportation, by whom it was delivered to
the Steam Navigation Co., who were then running the "Lexington"'
between New York and Stonington. It was held that, notwith-
standing the contract of affreightment was made by Harnden with
the company personally for the transportation of the specie, it was,
in contemplation of law, a contract between the bank and the com-
pany, and although Harnden made the contract in his own name,
and without disclosing the name of his employers at the time, the
bank might maintain a suit upon the contract directly against the
company. So where the plaintiff agreed with B, a common carrier,
for the carriage of goods, and B, without the plaintiff's directions,
agreed for the carriage with C, who, without the plaintiff's know-
ledge, agreed with D, a third carrier, it was held that the plaintiff
might maintain an action against D, for not delivering the goods,
and that by bringing the action the plaintiff afBrmed the contract
made with D, by C, and could not afterwards recover from B.
Sanderson v. Lamberton, 6 Binn. 129.
Upon the principles alDove stated, our opinion is that the plaintiff
may maintain this action.
Judgment on the verdict.
b. Fo7fn, of Action.
DALE V. HALL.
King's Bench. 1 Wils. 281. 1750.
Action upon the case against a shipmaster or keelman who car-
ries goods for hire from port to port; the plaintiff does not declare
against him as a common carrier upon the custom of the realm, but
the declaration is, that the defendant at the special instance of the
plaintiff undertook to carry certain goods consisting of knives and
other hardware safe from such a port to such a port, and that in
consideration thereof the plaintiff undertook and promised to pay
him so much money, that the goods were delivered to the defendant
774 CARRIERS OF GOODS.
on board his keel, that the goods were kept so negligently by him
that they were spoiled, to the plaintiff's damage; upon the general
issue non assumpsit; this cause came on to be tried before Justice
Burnett, and the plaintiff proved the goods were all in good order
and clean when they were delivered ^on board, and that they were
damaged by water and rusted to the' value of 2U. this was all the
plaintifi's evidence.
For the defendant it was insisted at the trial that as the plaintiff
had proved no particular negligence in the defendant, that he might
be permitted to give in evidence that he had taken all possible care
of the goods, that the rats made a leak in the keel or hoy, whereby
the goods were spoiled by the water coming in, that they pumped
and did all they could to prevent the goods being damaged, which
evidence the judge permitted to be given, and thereupon left it to
the jury, who found a verdict for the defendant.
It was now moved for a new trial by Mr. Clayton and Mr. Ford
for tho plaintiff, who insisted that the evidence given for the
defendant ought not to have been received.
Foster (Justice) reported that Burnett (.Justice) was doubtful
whether the evidence given by the defendant was admissible or not,
and submits that to the court; but if it was admissible, he is very
well satisfied with the verdict.
Sir Thomas Bootle and Sergeant Bootle, for the defendant, insisted
that, this declaration not being upon the custom of the realm, but
upon a particular contract, and that the breach assigned being, that
by the negligence of the defendant the goods were spoiled, that
therefore negligence is the very gist of this action, and the defendant
has proved there was no negligence; indeed, if the declaration had
been that the defendant promised to keep safely the goods as well
as to carry them safely, he must have kept them safely at all
events.
Lee, Chief Justice. This is a nice distinction indeed; I am of
opinion that the evidence given for the defendant was not admis-
sible; the declaration is, that the defendant undertook for hire U
carry and deliver the goods safe, and the breach assigned is that
they were damaged by negligence; this is no more than what the
law says, everything is a negligence in a carrier or a hoyman, that
the law does not excuse, and he is answerable for goods the instant
he receives them into his custody, and in all events, except they
happen to be damaged by the act of God or the King's enemies ; and
a promise to carry safely is a promise to keep safely.
Wright, Justice, of the same opinion.
Denison, Justice. The law is very clear in this case for the
plaintiff; the declaration upon the custom of the realm is the same
in effect with the present declaration; in the old forms it is, that
the defendant susoepit, etc., which shows that it is ex contractu; in
the present case the promise to carry safely need not be proved, the
EEMEDIES AS AGAINST CAKEIER. 775
law raises it, the breacli is very right that he did not deliver them
safely, but so negligently kept them that they were spoiled.
FosTEK of the same opinion ; and a new trial was granted.
BAYLIS V. LINTOTT.
Common Pleas. L. R. 8 C. P. 345. 1873.
This was an application for a rule to tax the costs of the action
under the following circumstances.
The declaration in substance stated that the defendant' was the
proprietor of a certain hackney carriage, which said hackney car-
riage was at the time, etc., under the care, management, and direc-
tion of defendant's servant, and plying for hire within the limits of
the Metropolitan Police District, and thereupon, and after the pass-
ing of the Act of Parliament made and passed in the seventh year
of her present Majesty, " An Act for regulating Hackney and Stage
Carriages in and near London," the plaintiff, at the request of the
defendant, hired the said hackney carriage of the defendant to con-
vey and carry the plaintiff and her luggage from and to certain
specified places, and thereupon, in consideration of the premises,
and that the plaintiff, together with her said luggage, would, at the
request of the defendant, become and be a passenger to be carried
and conveyed in the said hackney carriage as aforesaid, and of cer-
tain reward to the defendant in that behalf, he, the defendant, as
and being such proprietor of the said hackney carriage as aforesaid,
then promised the plaintiff to convey her and her said luggage safely
and securely from and to the places specified, and accepted her and
her said luggage to be so carried; but the defendant, not regarding
his duty as such proprietor of the said hackney carriage as afore-
said, or his said promise, did not nor would carry or convey the
plaintiff and her said luggage safely and securely, but so carelessly
and negligently behaved and conducted himself by his said servant
in that behalf in and about the premises, that by and through the
mere carelessness, negligence, and improper conduct of the defend-
ant by his said servant, and not otherwise, part of the plaintiff's
said luggage became and was wholly lost to the plaintiff. Plea:
payment into court of £15. Eeplication that £15 was not suffi-
cient. The plaintiff at the trial obtained a verdict for £5 above the
amount paid into court, and the question therefore arose whether
the plaintiff having recovered a sum not exceeding £20 was de-
prived of costs by virtue of the Countv Courts Act, 1867, -30 & 31
Vict. c. 142, s. 5.
Ktjdd, in moving for a rule nisi, contended that the action must
776 CARRIERS OF GOODS.
be considered as founded on tort. The case of Tattan v. Great
Western Ry. Co.* decided, with reference to the question of costs,
that an action against a common carrier for not safely delivering
goods is an action of tort founded on the custom of the realm, and
not one of contract. It is submitted that the position of a hackney-
carriage proprietor with respect to the luggage of persons hiring his
carriage is that of a common carrier. The declaration must be
treated as one in tort; the statement in the declaration of the con-
tract is mere inducement, showing the facts from which the duty
arose ; the cause of action is the breach of duty,
BoviLL, C. J. I think there should be no rule. The provisions
of the County Courts Act, 30 & 31 Vict. c. 142, s. 5, deprive the
plaintifE of costs if he does not recover a sum exceeding £20 in
actions founded on contract, or £10 in actions founded on tort.
The defendant paid into court the sum of £15, and the jury
awarded the further sum of £5, so that in the whole the sum
recovered did not exceed £20. The question thus arises whether
the present action is founded on contract within the meaning of the
section. On looking to the form of the declaration, it appears to me
clear that the cause of action therein alleged is one founded on con-
tract. In many cases previous to the introduction of the present
rules of pleading it became material to consider, with a view to pre-
venting misjoinder of counts, whether a count could be framed in
case instead of assumpsit. And it was a common practice to treat
causes of action founded on contract as actions of tort, and to frame
declarations alleging a contract and a duty arising therefrbm, and
complaining of a breach of such duty by neglect to perform the
contract. Here the contract alleged in the declaration would be
implied by law on the hire of the carriage, and the cause of action
is therefore rightly put as founded on the contract. In the case of
Tattan v. Great Western By. Co.,* which was cited, the Queen's
Bench treated the cause of action as one founded on tort; but the
Lord Chief Justice expressed his regret at the anomalous state of
the law, by which an option being given to the plaintiff to sue in
either form, the right to costs depended merely on the form of the
declaration. It is sufficient to say with regard to that case, that the
court considered the form of declaration to amount to case and not
contract. There was no statement there of any promise or con-
sideration as in this case; but the cause of action was founded
wholly on the breach of duty. The case is therefore clearly distin-
guishable from the present, inasmuch as it proceeds on the precise
character of the cause of action as alleged in the declaration, which
was wholly different from that in the present case. In the case of
Legge V. Tucker, "where the action was against a livery-stable keeper
for negligence in the care of a horse, the court thought that the
1 2 E. & E. 844 ; 29 L. J. (Q. B.) 184.
2 1 H. & N. 500 J 26 L. J. (Ex.) 71.
REMEDIES AS AGAINST CAKRIEE. 777
cause of action was founded on contract. This decision preceded
that of Tattaa v. Great Western Ey. Co.,^ and though it appears to
have been cited, the court in delivering their judgment made no
observations upon it. Since both those decisions the case of Morgan
V. Eavey " was decided. In that case an innkeeper's executors were
sued for the not keeping securely the property of a traveller, and
with reference to the difference between their liability in cases of
tort and contract, it became necessary to consider whether the action
was founded on tort or contract, and it was considered that it was
founded on contract, and the executors were therefore held liable.
Mr. BuUen, in his excellent work on Pleading, 3d ed., p. 121, states
that the question of costs depends on the substance of the thing, not
on mere matter of form. Pollock, C. B., says, in delivering the
considered judgment of the court in Morgan v. Eavey:' "We think
that the cases have established that where a relation exists between
two parties which involves the performance of certain duties by one
of them and the payment of reward to him by the other, the law
will imply, or the jury may infer, a promise by each party to do
what is to be done by him." Looking to those authorities, if it
were now necessary to oonside* the case of Tattan v. Great Western
Ey. Co. ,* and to decide upon what seems to amount to a conflict of
authority, I should be disposed to adopt the decisions of the Court
of Exchequer and the principles on which they are based, but it is
not necessary to do so in this case, inasmuch as it is distinguishable
from Tattan v. Great Western Ey. Co.^ on the form of the declaration.
Keating, J. I am of the same opinion. I do not pronounce any
opinion on the question whether the decision in Tattan v. Great
Western Ey. Co.* is right or not, for I think that case is distin-
guishable from the present. There the declaration was against a
common carrier on the custom of the realm ; here a promise is alleged
and a breach of such promise. It seems to me that the cause of
action here is plainly founded on a contract within the meaning of
the section.
HoNTMAN, J. I am of the same opinion. There are many actions
against carriers and other parties in which the declaration may be
framed either in tort or contract. The distinction between the two
was very material in former days. The rule is thus laid down by
Tindal, C. J. , in Boorman v. Brown : * " That there is a large class
of cases in which the foundation of the action springs out of privity
of contract between the parties, but in which, nevertheless, the
remedy for the breach or non-performance is indifferently either
assumpsit or case upon tort, is not disputed; such as actions against
attorneys, surgeons, and other professional men, for want of propel
1 2 E. & E. 844 ; 29 L. J. (Q. B.) 184.
» 6 H. & N. 265 ; 30 L. J. (Ex.) 131,
» 6 H. & N., at p. 276.
* 3 Q. B. 516.
778 CARRIERS OF GOODS.
skill or proper care in the service they undertake to render; actions
against common carriers, against shipowners", on bills of lading,
against bailees of different descriptions, and numerous other instances
occur in which the action is brought in tort or in contract at the
■election of the plaintiff." The decisions on the right to costs in
such cases do not appear to be very easily reconcilable. It does not
seem altogether satisfactory that the plaintiff should by declaring
in one particular form rather than another alter the liability of the
defendant in respect of costs, but many of the authorities seem to
show that he may do so. In this case, however, the form of the
declaration in my opinion is clearly that of a declaration in con-
tract. The duty alleged is alleged as proceeding from the contract
between the parties. The plaintiff having chosen so to frame the
cause of action cannot now, it appears to me, turn round and say
that for the purposes of costs the cause of action is based on tort.
As regards the decision in Tattan v. Great Western Ey. Co.' and
the other decisions that have been referred to, I pronounce no
opinion as to which we ought to follow if it were necessary to decide
between them. It is clear on consideration of the former case that
the declaration there was a declaration on the case, and the present
case is therefore distinguishable.
Sule refused.
POZZI V. SHIPTON.
Queen's Bench. 8 A. & E. 963. 1838.
Case. The declaration stated that, on, etc., the plaintiff caused
to be delivered to the defendants, and the defendants then accepted
and received of and from the plaintiff, a certain package containing a
looking-glass of the plaintiff, of great value, to wit, etc., to be taken
care of, and carried and conveyed by the defendants from Liverpool
to Birmingham in the county of Warwick, and there, to wit, at
Birmingham, to be delivered to one Peter Pensey for the plaintiff,
for certain reasonable reward to the defendants in that behalf; and
thereupon it then became and was the duty of the defendants to take
due care of the said package and its contents whilst they so had the
charge thereof for the purpose aforesaid, and to take due and reason-
able care in and about the conveyance and delivery thereof as afore-
said; yet the defendants, not regarding their duty in that behalf,
but contriving and fraudulently intending to deceive and injure the
plaintiff in that behalf, did not nor would take due care of the said
package and its contents aforesaid, whilst they had the charge
thereof for the purpose aforesaid, or take due and reasonable care
1 2 E. & E. 844 ; 29 L. J. (Q. B. ) 184.
EEMEDIES AS AGAINST CARRIER. 779
in and about the conveyance and delivery thereof as aforesaid ; but
on the contrary thereof, the defendants, whilst they had the charge
of the said package and its contents for the purpose aforesaid, to
wit, on, etc., took so little and such bad and improper care of the
said package and its contents, and such bad and unreasonable care
in and about the conveyance and delivery thereof as aforesaid, and
so carelessly and negligently conducted themselves in the premises,
that the said looking-glass, being of the value aforesaid, afterwards,
to wit, on, etc., became and was broken and greatly damaged. To
the damage of the plaintiff of £10, etc.
Pleas: 1. Not guilty. 2. That plaintiff did not cauSe to be
delivered to defendants, nor did defendants accept from plaintiff,
the said package, etc., to be taken care of and carried, etc., and
safely to be delivered, etc., for reward in that behalf, in manner and
form, etc. , Conclusion to the country. Joinder.
[Verdict for plaintiff and a rule nisi.'\
Patteson, J. This is an action against carriers for negligence.
A. verdict was found for the plaintiff against one of the defendants
only, and, upon a rule for a new trial having been obtained, the
case was argued in last Easter Term before my brothers, Littledale,
CoLEKiDGE, and myself.
The form of the declaration is in ease, and differs from that used
in Bretherton v. Wood [3 Brod. B. 64], in this, that it contains no
positive averment that the defendants were carriers; whereas in
Bretherton v. Wood there was an averment that the defendants were
proprietors of a stagecoach, for the carriage and conveyance of pas-
sengers for hire from Bury to Bolton. The present declaration
states simply that the plaintiff delivered to the defendants , and the
defendants received from the plaintiff, goods to be carried for hire
from A to B. It is therefore consistent with the defendants being
common carriers, or being hired on the particular occasion only.
Upon the trial it was proved satisfactorily that the defendant
against whom the verdict was found was a common carrier ; and it
does not appear to have been objected, at that time, that proof of
an express contract between the plaintiff and the defendants was
necessary in order to sustain the declaration. If such proof was not
necessary, it can only be because the declaration may be read as
founded on the general custom of the realm ; and, if it may be so
read, the court after verdict must- so read it; and then the case of
Bretherton v. Wood is directly in point in favor of the plaintiff.
Upon consideration we are of opinion that the declaration may be
so read. The practice appears to have been in former times to set
out the custom of the realm ; but it was afterwards very properly
held to be unnecessary so to do, because the custom of the realm is
the law, and the court will take notice of it, and the distinction has
for many years prevailed between general and special customs in
this respect. Afterwards the practice appears to have been to state
780 CAEEIEES OF GOODS.
the defendants to be vommon carrier's for hire, totidem verbis. That,
however, was departed from in Bretherton v. Wood to a consider-
able extent, and certainly still farther upon the present occasion.
It may be that the present declaration could not have been sup-
ported on special demurrer for want of some such averment; but on
this point we are not called upon to give any opinion. It does not
state that the goods were delivered to the defendants at their special
instance and request, nor contain any other allegation necessary
applicable to any express contract only, or even pointing to any
express contract. We cannot, therefore, say that it shows the action
to be founded on contract; and it is suflELcient for the present pui-
pose, if the language in which it is couched is consistent with its
being founded on the general custom as to carriers.
Taking this declaration, therefore, to charge the defendants as
common carriers, it follows that it is strictly an action on the case
for a tort, and that one of several defendants may be found guilty
upon it according to the doctrine established in Bretherton v. Wood.
The evidence warrants the verdict which has been found, and we
cannot disturb that verdict. We purposely abstain from giving any
opinion whether the doctrine in Govett v. Eadnidge [3 East, 62]
or that in Powell v. Layton, 2 N. E. 365, be the true doctrine,
as we do not feel ourselves called upon to decide between them,
supposing them to differ.
The rule must be discharged.
S.ule discharged.
SMITH V. SEWARD.
3 Penn. St. 342. 1846.
This was an action on the case for the loss of horses, etc., in
crossing a ferry. The plaintiff declared against A. Smith, as owner
and occupier, and E. Smith being in his employ for conducting said
ferry: "for that they, the said defendants, respectively occupying
and conducting said ferry, offered and undertook, in consideration
that the public, and those desirous of travelling across said river,
should be conveyed across by means of the ferriage of said defend-
ants, and for hire to receive and safely to convey across said river,
by a certain ferryboat, across, etc. ; and also all wagons, etc. ; and,
having thus offered and undertaken, did use, occupy, and conduct
said ferry ; that plaintiff learning said defendants did so use and
occupy, and had offered and undertaken safely to transport, etc.,"
brought certain horses, and a wagon of the value, etc., together with
goods in the care of L. 0. to said ferry. That said horses, etc.,
being on said track, E. Smith, at the instance, and in the employ of
BEMEDIES AS AGAINST CARRIEE. 781
A. Smith, did agree safely to receive and convey, and that plaintiff,
in consideration of such undertaking, committed said property to
the care of said defendants. That defendants contriving, etc., did
not safely convey, but through their carelessness said goods, etc.,
were thrown into the river and lost.
The second count was in substance the same, laying a general
undertaking by defendants to convey. The plea was not guilty.
The evidence showed, according to the finding of the jury, though
there was conflicting testimony whether the negligence of the
wagoner was the cause of the accident, that there was no fall-board
at the end of the flat used as a ferryboat, and it being insecurely
fastened to the shore, the wheels of the wagon striking the side of
the boat, as it was being driven on board under the direction of the
ferryman, the flat was shoved from the shore, and the horses fell
into the river and were drowned, the harness injured, and a whip
and robe lost.
One of the witnesses called by plaintiff to prove these facts, before
any evidence of negligence was given, was the owner of the goods
in the wagon, which were also injured; he had hired the horses of
the plaintiff, and a wagoner to haul them; to his deposition an
exception was taken.
His Honor (Contngham,P. J.) instructed the jury that the action
being for a tort, viz., negligence of defendants, a recovery could be
had against either of the defendants if the evidence justified it, the
owner of the ferry being bound to have the boat and fixtures in
proper order; but as the only ground was defect in the fastenings,
he did not see how a verdict could be found against the hired man.
That ajerryman was a common carrier, and was responsible for all
losses except those occasioned by the act of God, inevitable accident,
or the public enemies. If a fastening was necessary, he was bound to
have it, and if it broke he was liable though he thought it sufficient.
To this there was an exception, and the errors assigned were to
the admission of the testimony excepted to. 2d. In the construc-
tion that a verdict could pass against one defendant. 4th. The
charge as to the extent of the liability. The 3d was for not arrest-
ing the judgment. The reasons in support of the motion were,
1. The declaration sounded in contract, and there being a verdict
in favor of one defendant, no judgment could be entered. 2. That
no sufficient consideration was alleged.
Butler and Wright, for plaintiffs in error. The declaration is in
assumpsit, and the undertaking and agreement of the defendant are
alleged as the gravamen of the action; hence, of course, both or
neither defendants are liable. That this is so, is shown from the
fact that no single requisite to a declaration in contract is
wanting. . . .
Dana, contra. The occupation of defendant implied a general
undertaking and obligation to keep suitable boats and fastenings.
782 CAEKIEES OF GOODS.
the failure in whicli is a tort or violation of his duty, by reason
that it is a breach of his undertaking; and it was long doubted
whether a verdict could pass for one only in a suit against carriers.
Here the misfeasance was distinctly put in issue and canvassed in
the court below; and there must be a clear violation of some rule
of pleading to reverse a judgment under such circumstances. All
actions against carriers ai'e directly on the contract or for a tort
founded in fact on, or deducible from a contract, for wanton injuries,
rarely occur; a declaration must therefore be tinctured with con-
tract. Church V. Munford, 11 Johns. 479; Zell v. Arnold, 2 Penna.
Eep. 292. But the plea cures all defects, provided there be a tort
averred in the declaration; Bac. Abr. 3, Pleas G. 2; and the aver-
ment of a consideration became immaterial.
2. The evidence does not show that he was such a bailee as to be-
liable in the manner now contended for, and if he was, that i&
waived by this action.
Gibson, C. J.
The motion to arrest the judgment for the reason that the verdict
was against but one of the defendants, was properly dismissed, the
declaration being for a tort, which is both joint and several. It
was originally the practice to declare against a carrier only on
the custom of the realm; but it has long been established that
the plaintiff may declare in case or assumpsit at his election ^
and it is usual to declare in the latter, as was done in McCahan w.
Hurst, 7 Watts, 175, Todd v. Figley, id. 524, and Hunt v. Wynn,.
6 Watts, 47. Indeed, his right to do so seems never to have been
questioned by the English courts. On the contrary, the judges in
Powell V. Layton, 2 N. E. 366, and Dale v. Hall, 1 Wils. 282 [773]„
thought that the declaration is essentially founded in contract,
though the word suscepit be not in it. In Powell v. Layton, the
defendant was allowed to plead the non-joinder of his partner in
abatement, though the word duty stood in place of the word promise/
in which the court seems to have gone very far, inasmuch as the
plaintiff may certainly waive the contract and go for a tort. There-
has been a good deal of wavering on the subject, not only as to the
proper remedy, but as to the distinctive feature of the declaration.
In regard to the latter, Corbett v. Packington, 6 Barn. & Ores. 268,
has put the law of the subject on satisfactory ground, by making the
presence or absence of an averment, not of promise only, but of con-
sideration also, the criterion; for it is impossible to conceive of a
promise without consideration, any more than a consideration with-
out promise, as an available cause of action ; and when a considera-
tion is not laid, the word agreed, or undertook, or even the more
formal word, promised, must be treated as no more than inducement
to 'the duty imposed by the common law. Now no consideration is
laid in the count before us. The undertaking of the defendants to
safely pass the team, is stated to be the consideration which moved
REMEDIES AS AGAINST CAEEIEE. 783
the wagoner to commit it to their care ; but no consideration is stated
for anything else: certainly, none for the defendant's undertaking.
As the declaration, therefore, is decisively in case, the verdict
against one of the defendants and for the other is consequently
good.
Judgment affirmed.
c. Burden of Proof ,
TRANSPOETITION CO. v. DOWNER.
11 "Wall. (U. S.) 129. 1870.
Error to the Circuit Court of the United States for the North*
em District of Illinois.
This case was an action against the Western Transportation Com-
pany to recover damages sustained by the plaintiff from the loss of
eighty-four bags of coffee belonging to him which the company had
undertaken to transport from New York to Chicago. The company
was a common carrier, and, in the course of the transportation, had
shipped the coffee on board of the propeller "Buffalo," one of its
steamers on the lakes. The testimony showed that the steamer
was seaworthy, and properly equipped, and was under the command
of a competent and experienced master; but on entering the harbor
of Chicago in the evening, she touched the bottom, and not answer-
ing her helm, got aground, and during the night which followed,
kept pounding, and thus caused the hold to fill with water. The
result was, that the coffee on board was so damaged as to be
worthless. '
The bill of lading given to the plaintiff by the transportation com-
pany at New York exempted the company from liability for losses
on goods insured and losses occasioned by the " dangers of navigation
on the lakes and rivers." The defence made in the case was, that
the loss of the coffee came within this last exception.
Upon the trial the plaintiff having shown that the defendant had
the coffee for transportation, and that the same was lost, the defend-
ant then showed by competent evidence that the loss was occasioned
in manner above stated, — that is, by one of the " dangers of lake
navigation." The plaintiff then endeavored to prove that this dan-
ger and the consequent loss might have been avoided by the exercise
of proper care and skill. The defendant moved the court to instruct
the jury as follows : —
"If the jury believed from the evidence that the loss of the coffee
in controversy was within one of the exceptions contained in the bill
784 CAERIERS OF GOODS.
of lading offered in evidence, that is to say, if it was occasioned by
perils of navigation of the lakes and rivers, then the burden of
showing that this loss might have been avoided by the exercise
of proper care and skill is upon the plaintiff; then it is for him to
show that the loss was the result of negligence."
The court refused to give this instruction and the defendant ex-
cepted, and at the request of the plaintiff, gave instead the follow-
ing, to the giving of which the defendant also excepted, viz. : —
" The bill of lading in this case excepts the defendant from liabil-
ity, when the property is not insured, from perils of navigation. It
is incumbent on the defendant to bring itself within the exception,
and it is the duty of the defendant to show that it has not been
guilty of negligence."
The plaintiff recovered, and the defendant brought the case here
on writ of error.
Mr. Justice Field. On the trial the plaintiff made out a prima
facie case by producing the bill of lading, showing the receipt of the
coffee by the company at New York, and the contract for its trans-
portation to Chicago, and by proving the arrival of the coffee at the
latter place in the propeller " Brooklyn " in a ruined condition, and the
consequent damages sustained. The company met this prima facie
case by showing that the loss was occasioned by one of the dangers
of lake navigation. These terms, "dangers of lake navigation,"
include all the ordinary perils which attend navigation on the lakes,
and among others, that which arises from shallowness of the waters
at the entrance of harbors formed from them. The plaintiff then
introduced testimony to show that this danger, and the consequent
loss, might have been avoided by the exercise of proper care and
skill on the part of the defendant. If the danger might have been
thus avoided, it is plain that the loss should be attributed to the
negligence and inattention of the company, and it should be held
liable, notwithstanding the exception in the bill of lading. The
burden of establishing such negligence and inattention rested with
the plaintiff, but the court refused an instruction to the jury to that
effect, prayed by the defendant, and instructed them that it was the
duty of the defendant to show that it had not been guilty of negli-
gence. In this respect the court erred." In Clark v. Barnwell,*
1 The plaintiff further contends, " that when a risk, for which a common carrier
may be liable, is limited by a special contract, the burden of proof rests upon tha
carrier to show not only that the cause of the loss was within the terms of the limita-
tion, but also upon its own part that there was no negligence." In this we do not
agree with him. It is well settled that when the liability of the common carrier is
limited by a special contract, the carrier is only liable for losses and damages caused
by his own negligence, and the burden of proving the negligence is on the party who
alleges it. Steamboat Emily v. Carney, 5 Kas. 645 ; Mo. Pac. Rly. Co. v. Haley, 25
id. 86 ; Sherman and Redfield on Negligence, § 12 ; Whitworth v. Erie Ely. Co.. 87
N. y. 413. Per Hard, J., in Kiff ». Atchison, &c. E. Co., 32 Kan. 263.
« 12 Howard, 272.
KEMEDIES AS AGAINST CAKRIEE. 785
the precise point was involved, and the decision of the court in that
case is decisive of the question in this. And that decision rests on
principle. A peril of navigation having been shown to exist, and to
have occasioned the loss which is the subject of complaint, the
defendant was prima facie relieved from liability, for the loss was
thus brought within the exceptions of the bill of lading. There was
no presumption, from the simple fact of a loss occurring in this way,
that there was any negligence on the part of the company. A pre-
sumption of negligence from the simple occurrence of an accident
seldom arises, except where the accident proceeds from an act of such
a character that, when due care is taken in its performance, no
injury ordinarily ensues from it in similar cases, or where it is
caused by the mismanagement or misconstruction of a thing over
which the defendant has immediate control, and for the management
or construction of which he is responsible. Thus, in Scott v. The
London and St. Catharine Dock Com'pany,^ the plaintiff was injured
by bags of sugar falling from a crane in which they were lowered to
the ground from a warehouse by the defendant, and the court said,
" There must be reasonable evidence of negligence ; but where the
thing is shown to be under the management of the defendant or his
servants, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care,
it affords reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care."
So in Curtis v. The Rochester and Syracuse Eailroad Company,''
the Court of Appeals of New York held that the mere fact that
a passenger ou a railroad car was injured by the train running off a
switch was not of itself, without proof of the circumstances under
which the accident occurred, presumptive evidence of negligence on
the part of the company. The court said that carriers of passengers
were not insurers, and that many injuries might occur to those they
transported for which they were not responsible; but as railroad
companies were bound to keep their roads, carriages, and all appara-
tus employed in working them, free from any defect which the
utmost knowledge, skill, and vigilance could discover or prevent, if
it appeared that an accident was caused by any deficiency in the
road itself, the cars, or any portion of the apparatus belonging to the
company and used in connection with its business, a presumption of
negligence on the part of those whose duty it was to see that every-
thing was in order immediately arose, it being extremely unlikely
that any defect should exist of so hidden a nature that no degree of
skill or care could have seen or discovered it.
It is plain that the grounds stated in these cases, upon which a
presumption of negligence arises when an accident has occurred,
have no application to the- case at bar. The grounding of the pro-
peller and the consequent loss of the coffee may have been consistent
1 3 Hurktone & Coltman, 596. 2 18 New York, 543.
786 CAKEIERS OF GOODS.
witli the highest care and skill of the master, or it may have resulted
from his negligence and inattention. The accident itself, irrespec-
tive of the circumstances, furnished no ground for any presumption
one way or the other. If, therefore, the establishment of the neg-
ligence of the defendant was material to the recovery, the burden of
proof rested upon the plaintiff.
For the error in the refusal of the instruction prayed, and in the
instruction given, the judgment must be reversed, and the cause
remanded for a new trial.
SHRIVER V. SIOUX CITY & ST. PAUL E. CO.
"24 Minu. 506. 1878.
Appeal by defendant from a judgment of the District Court for
Nobles County.
GiLFiLLAN, C. J. At Tiffin, Ohio, the plaintiff shipped with the
Baltimore & Ohio Eailroad Company two marble slabs, packed in a
close box, consigned to herself at Worthington, in this State, and
upon the requirement of the company executed an agreement releas-
ing the company, and each and every other company over whose line
the goods might pass to their destination, from any and all damages
that might arise from certain specified causes, and " from any cause
not arising from gross negligence of the said company or companies,
its or their officers or agents." The slabs passed to their destination
■over the Baltimore & Ohio, and two other railroads, to St. James,
in this State, and over the road of the defendant from St. James to
Worthington, and when delivered by the defendant to the plaintiff,
at Worthington, were found to have been broken. This action was
brought to recover damages for the injury.
At the trial an objection was made to a question to a witness
accustomed to packing marbles for transportation, calling for his
opinion upon whether these marbles were properly packed. It was
a case for expert testimony, and the objection was properly
overruled.
The court charged the jury, in substance, that common carriers of
goods cannot, by contract, absolve themselves from the consequences
of their own negligence, and that, the contract proved, could not be
allowed to have that operation; that the burden of proof to show
ordinary care was on the defendant, and that the jury might presume
negligence from the fact that the goods were found to be damaged
when delivered to plaintiff at Worthington.
Defendant excepted to these propositions in the charge, and re-
quested an instruction that the contract was reasonable, and that the
plaintiff could not recover without gross negligence of the defendant.
REMEDIES AS AGAINST CAEEIER. 787
"whicli the court declined. Defendant also requested an instruction
that if the marble was so improperly packed by the plaintiff that it
■could not be handled with reasonable care in the transportation
without injury thereto, the plaintiff cannot recover. The court gave
this instruction with the qualification, "unless the injury happened
independent of the defects in the packing.'' To this defendant
excepted. The qualification was correct, for while plaintiff could
not recover for an injury to which her negligence contributed, no
negligence of hers unconnected with the cause of the injury could
defeat a recovery.
The charge presents the question of the power of a common carrier
•of goods to limit by contract his liability as it existed at common
law. It is, perhaps, to be regretted that courts have allowed any
relaxation of the common-law rule of liability. But that a common
tjarrier may by special agreement qualify to some extent his liability
is too well settled by decisions to be denied. How far he may do it
the authorities are not entirely agreed. The greater number of
authorities in the United States hold, and, since Christenson v.
American Express Co., 15 Minn. 270, it is to be taken as the settled
■doctrine of this court, that a common carrier of goods shall not be
permitted to exonerate himself by contract from liability for his
own negligence, or the negligence of the agents whom he employs to
perform the transportation. The contract in question seeks to
exonerate the carrier from liability for all except gross negligence,
and is obnoxious to the rule. The charge of the court upon it, and
upon the rule, was correct.
When there is a contract limiting the liability to injuries caused
by the negligence of the carrier, which party, the owner or the car-
rier, must show from what cause the injury or loss arose, is a ques-
tion upon which there is some conflict of authorities. Harris v.
Packwood, 3 Taunt. 264 [456] ; Marsh v. Home, 5 B. & C. 322;
Prench v. Buffalo, N. Y. & E. E. Co., 43 N. Y. 108; Sager v. 8. &
P. & E. E. Co., 31 Me. 228, and Kallman v. United States Express
Co., 3 Kan. 205, afiirm the rule, without giving any reason for it, to
be that the burden is on the owner. On the other hand, in 2 Greenl.
Ev. § 219, the rule is stated, " and if the acceptance of the goods
were special, the burden of proof is still on the carrier to show not
•only that the cause of the loss was within the terms of the exception,
but also that there was on his part no negligence or want of due
<3are." And this rule is followed in Swindler v. Hillard, 2 Eich.
(S. C.) 286; Baker v. Brinson, 9 Eich. 201; Davidson v. Graham,
2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; and Whitesides
^>. Eussell, 8 W. & S. 44. The latter cases are most consistent with
principle ; for, where there is no contract, there has never, so far as
we know, been any question that the carrier, to escape liability,
must show the case to have occurred from one of the causes which
the law excepts from his liability. No good reason can be given why
788 CAEEIEES OF GOODS.
the burden should be changed because he has by contract added other
exceptions to those made by the law. As to where the burden of
proof was, the charge was correct.
There was some evidence from which the jury might find that when
delivered to the B. & 0. E. Co., the slabs were in good condition.
Between that company and the defendant there were two interme-
diate carriers. There was no direct evidence showing upon what
part of the line, composed of the four railroads, or in the hands of
which of the four carriers, the slabs were broken ; and there was noth-
ing to charge the breaking upon the defendant, unless the jury might
presume that the slabs continued, until they came into the hands of
defendant, in the same condition as when delivered to the B. & 0.
K. Co. That, where goods pass over a line of several different car-
riers, the jury, there being no direct evidence to the contrary, may
presume that they reached the last carrier in the same condition as
when delivered to the first, as discussed at length, and aflBrmed, in
Smith V. The New York Central E. Co., 43 Barb. 225, and Laughlin
i>. The Chicago & Northwestern E. Co., 28 Wis. 204, — the only cases
we find in which the point is considered. Although the question is
not free from doubt, we think the conclusion reached by the courts
in these two cases correct. It is a rule of evidence that things once
proved to have existed in a particular state are presumed to have
continued in that state until the contrary is shown; but it is not a
rule of universal application. The probabilities in a particular case
may prevent its application. The courts in New York and Wiscon-
sin, there being nothing in the ease to render the presumption improb-
able, apply it_to a case like this, mainly because the carrier may
ordinarily know, while ordinarily the owner cannot know, what
happens to the goods, and what care is taken of them in their pas-
sage, and if they are lost or injured, when and how it occurred, and
in what condition they came from the hands of a prior carrier into
his. It is in part because of his superior ability to furnish the proof
that the onus of showing the cause of a loss or injury to be within
the exceptions to his liability is imposed on the carrier. For the
same reason we think that ordinarily a subsequent carrier should be
required to show in what condition goods came into his hands, or
that their condition did not change while, they were in keeping.
The rule may seem hard, and so may seem the rule regulating the
liability of the carrier, and fixing the burden of proof on him ; but
public policy, and the due protection of owners, require that common
carriers should be held to a severe liability.
Judgment affirmed.
EEMEDIES AS AGAINST CARRIER. 789
MAEQUETTE, HOUGHTON & ONTONAGON E. CO. v.
P. KIEKWOOD.
45 Mich. 51. 1880.
Gase. Defendants bring error. Eeversed.
Campbell, J. Defendants in error sued plaintiffs in error and
recovered damages for breakage of two marble soda fountains, taken
by the railroad agents at Marquette and carried, one to Negaunee,
and one to Ishpeming. The fountains were packed in New York
and forwarded by the New York Central Railroad, and by that com-
pany, as is claimed, turned over at Buffalo to the Lake Superior
Transit Company, which is a connecting line. The Transit Com-
pany delivered the property at Marquette to the plaintiff in error,
with which it had no business arrangements, but which was the
proper carrier from Marquette to the destination of the articles.
The boxes which were marked to be handled with care were then
apparently sound, except that a handle of one, consisting of a strip
of board, was injured. Each box, when opened at its destination,
was found to contain a fountain of which some of the marble was
broken.
The testimony for plaintiffs, as well as that for defendants, indi-
cates that there was no appearance in either package which would
indicate damages at any time, except the broken handle. There
was no evidence of neglect on the part of the railroad company, and
there was affirmative evidence to the contrary. It was conceded that
the railroad company had no means of inspecting the property.
Under these circumstances the Circuit Court told the jury that if the
goods were delivered in New York in good order to the first carrier,
they would have a right to infer that they continued so when received
by defendants below, unless evidence was given which showed the
contrary. ' The court also told the jury that if they found it neces-
sary to consider the testimony given by the agents and employees
of the railroad, they should bear in mind the interest they have in
protecting their company and shielding themselves from blame. In
doing this a very similar statement was made concerning the testi-
mony of the packers in New York.
While there may appear on the trial on direct or cross-examination
such bias or behavior as would authorize comment by counsel to the
jury, we think it is not within the province of a court to instruct a
jury, or suggest to them, that any suspicion attaches to the testi-
mony of agents or servants of a corporation or individual by reason
of their employment, or that they have any such interest as requires
them to be dealt with differently from other witnesses. Even inter-
790 CAEEIEES OF GOODS.
ested witnesses are now let in by statute, and the policy pointed out
by the statute indicates that the old presumption that interest will
necessarily or probably lead to falsehood, was unjust and untrue.
But none of these witnesses could have been excluded under the
most rigid common-law rules ; and whatever license of criticism may
be allowed to counsel, it was not, we think, legally justifiable to
invite the jury to look upon such testimony with disfavor. There
is no legal presumption against it.
Upon the other question we think that the ruling was also wrong.
The case comes directly within the principle laid down by this
court in M., H. & 0. R. R. v. Langton, 32 Mich. 251, where it was
sought to hold these same parties responsible for delivering hay in a
damaged condition, by showing that it was in good condition when
delivered to a previous carrier at Sheboygan. In that case, as in
this , the court below held that such a showing shifted the burden of
proof upon the railroad company, and he held that this was error,
and that the plaintiff ■ was bound to show affirmatively that the hay
was delivered in good order at Marquette to the railroad.
We think this rule is just, and are not at all disposed to depart
from it. A carrier has no means in a case like this of opening pack-
ages and examining their contents. Unless there is some outward
token which is suspicious, he may and must take the articles and
forward them on the usual terms. He is bound in law to deliver
them in the condition in which he receives them. But there can be
no further responsibility; and any rule of law which would make
him responsible actually or presumptively for the conduct of pre-
vious independent carriers, would be grossly unfair, and subject
him to losses against which he could have no protection. He has
nothing to do with any of the previous dealings with the property,
and no means of informing himself about them. We cannot see how
this ease is different from what it would have been if the plaintiffs
themselves had delivered the boxes to the company at Marquette.
In law the Transit Company acted merely as plaintiffs' agent in turn-
ing them over, and cannot be treated as representing the Marquette
Railroad Company for any purpose without reversing the whole
order of business. Fitch v. Newberry, 1 Doug. (Mich.) 1.
In view of our previous decision we should not feel justified in
going into this question at all, if it did not seem to be imagined that
if the case of Laughlin v. Railway, 28 Wis. 204, had been fully
called to our attention it might have changed our views. The other
cases cited on the argument, except one from North Carolina follow-
ing it, do not have any particular bearing. In that case the court,
treating it as a question not directly covered by previous precedents,
held that it would be more convenient and less onerous to the owners
of goods to adopt such a rule as is contended for by the plaintiffs
below. The only ground discovered for it was the presumption that
things remain as they once have been shown to exist. The oases
REMEDIES AS AGAINST CARRIER. 791
cited as resting on that presumption were not at all in point except
by some assumed analogy.
We certainly have the highest respect for the decisions of the
court which so decided. But we cannot convince ourselves that the
decision is well founded on legal analogies, or correct in principle.
The presumption that things remain unchanged applies in such a
case as the present just as forcibly backward as forward. It may
quite as reasonably be presumed that the goods were delivered at
Negaunee and Ishpeming in the condition in which they were
received at Marquette, as that they came to Marquette as they left
New York. The goods were certainly damaged when they reached
their destination. To assume that they were damaged after they
left Marquette, and not on any of their previous removals, is to
make a very arbitrary assumption which has no more foundation in
probability than any other. If it were worth while to enlarge on
what is confessedly a presumption not resting on any sure foundation
in experience, it might very well be questioned whether such a pre-
sumption is admissible at all as applied to things the position of
which does not remain either fixed in place or free from disturbance
by hurtian agencies. But we need not enlarge on this because the
nature of the suit itself raises different presumptions which are well
recognized.
This suit is based on the negligence of the carrier. It can only be
maintained on the theory that the carrier or its servants did not
properly care for or handle the goods. There is no rule better
established or more righteous than the rule that any one who claims
a right to damages for negligence must prove it. The presumption
that a party sued has done no wrong must prevail till wrong is
shown. A carrier's obligatiori to carry safely what he received
safely is independent of care or negligence. But in the absence of
proof that there was property delivered to him, or safely delivered
to him, any presumption that he received it is one which goes beyond
and behind the duty of a carrier and enters 4nto the origin and
making of the contract. Until such property comes into his hands
there is nothing for a contract to act upon, and the contract is not
proved until that is proved.
In a somewhat similar case, Muddle v. Stride, 9 C. & P. 380, Lord
Denman told the jury that if it were left in doubt what the cause of
damages was, the defendants were entitled to their verdict, "because
you are to see clearly that they were guilty of negligence before you
can find your verdict against them. If it turns out, in the consider-
ation of the case, that the injury may as well be attributable to the
one cause as the other, then also the defendants will not be liable for
negligence."
In Gilbert v. Dale, 5 Ad. & El. 543, the same rule was laid down,
and it was held that there could be no recovery without proof, and
tnat the presumption could not be raised without foundation. And
792 CAEEIERS OF GOODS.
in Midland Eailway v. Bromley, 17 Q. B. 372, the same principle
was affirmed, and it was held that if the evidence was as consistent
with the claim of one side as with that of the other, the plaintiff
must fail, because he must make his proof preponderate.
There is no reason for presuming that the Marquette Eailroad did
the mischief, that would not arise with equal force, according to the
Wisconsin decision, against either of the previous carriers had they
been sued instead. Had the first carrier been sued, it would unques-
tionably have been bound to show a safe transit, because that carrier
received the articles in actual good order. A presumption that has
no better foundation, and that applies to one as readily as to
another, ought not to prevail to raise a further presumption of negli-
gence without proof.
The judgment must be reversed with costs and a new trial granted.
MONTGOMERY & EUEAULA K. CO. v. CULVER.
75 Ala. 578. 1884.
Clopton, J. . . . The plaintiff, in April, 1883, procured from the
Mobile & Girard Railroad Company through tickets for the trans-
portation of himself and members of his family, and through checks
for the transportation of his baggage from Columbus, Georgia, to
Birmingham, Alabama, over the respective roads of the Mobile &
Girard Railroad Company, of the defendant, and of the South and
North Alabama Railroad Company, which were connecting lines, the
defendant's being the intermediate road. When the baggage reached
Union Springs, the place at which the road of defendant connects
with the road of the Mobile & Girard Company, it was in good
condition; but when it was delivered to the plaintiff at Birmingham,
one of the trunks had been broken, and the contents abstracted.
On these facts, the court instructed the jury, if the trunk was deliv-
ered to and received by the defendant in good order, and when it
was delivered to the plaintiff at Birmingham, it was badly broken
and its contents taken out, it devolved on the defendants to show
that it was delivered in good condition to the South and North Ala-
bama Railroad Company ; and if it failed to show this, the plaintiff
is entitled to recover. There was no evidence, other than the trunk
was in good order at Union Springs, showing when or where it was
damaged, or what was its condition when delivered by the defendant
at Montgomery to the South and North Alabama Railroad Company.
The instruction presents the direct question: Where baggage, for
the transportation of which over three connecting roads, operated
by separate and independent companies, through checks have been,
KEMEDIBS AS AGAINST OAKEIEE. 793
issued by one of the terminal roads, is found damaged when delivered
at the place of destination by the other terminal road, does the
burden of proof, in the absence of any special contract or arrange-
ment between the companies, rest on the intermediate road to show
not only a delivery to the connecting terminal road, but also that
the baggage was in good condition when so delivered, it being shown
to have been in good order when received by the intermediate road?
While the transportation of baggage, as such, is incidental to the
carriage of the owner as a passenger, and while the railroad com-
panies are only responsible to passengers for injuries sustained from
some neglect or wrong, they are liable for the safe delivery of their
baggage in the same manner and to the same extent as the carriers
of merchandise. 2 Rorer E. K. 991. The question will therefore
have to be determined on the same principles as if the baggage had
been shipped as freight over the connecting roads. If the defendant
were both the receiving and delivering carrier, or liable for the safe
delivery of the baggage at the point of destination, proof that it was
in good condition when received, and in a damaged condition when
delivered, would cast on the defendant the onus of showing that the
damage was occasioned by some cause, which excepts from the abso-
lute liability of safe delivery.
An arrangement, express or implied, between companies operating
several roads, by which either terminal road can issue through
tickets and through checks for baggage, each being entitled only to
the fare for transporting over its own line, does not render each one
liable for the loss or damage sustained on any of the roads. Ells-
worth V. Tartt, 26 Ala. 733. Such arrangement is not operative to
impose on the intermediate carrier the absolute liability of safe
delivery. M. & W. P. E. Co. v. Moore, 51 Ala. 394. An arrange-
ment, such as the one shown by the evidence, imposed on the defend-
ant the duty to receive from the terminal road, safely carry over its
own road, and deliver to the other connecting terminal road. In-
surance Co. V. Eailroad Co., 104 U. S. 146. The receiving terminal
road has no power or authority, in the absence of_ a special contract,
to bind the intermediate road to transport beyond its terminus.
When the goods have been safely carried to its terminus, its duty
as a carrier ceases, and the duty of forwarding arises.
In England, the courts generally have held that the duty and
obligation of the carrier, who first receives, continues through the
entire route of transportation. In this country there has existed a
diversity of opinion. In Eailroad Co. v. Manufacturing Co., 16
Wall. 318 [642], Mr. Justice Davis, while regretting this diversity
of opinion as unfortunate for the interests of commerce, says: "But
the rule that holds the carrier only liable to the extent of his own
route, and for the safe storage and delivery to the next carrier, is in
itself so just and reasonable that we do not hesitate to give it our
sanction." In Lindley'j;. Eailroad Co., 88 N. C. 547, it was held.
794 CAKEIEKS OF GOODS.
that in the absence of explanation as to how or where the loss or
damage occurred, or which of the roads on the route is culpable, th&
receiving carrier must be held responsible for the injury, and that
the non-delivery, or delivery in bad condition by the last of the-
connecting lines, is prima facie evidence of default in the receiving-
carrier. In Mobile & Girard E. Co. v. Copeland, 6-3 Ala. 219, it is.
said : " It must be regarded as settled, that a carrier, though a cor-
poration, chartered by the laws of a particular State, having a known
and defined line of transportation, may contract for the safe carriage;
and delivery of goods to a point beyond the terminus of his line,,
within or without the State ; and if such a contract is made, all con-
necting lines stand in the relation of his agents, for whose default
he is responsible to the owner of the goods ; " and it was held, that
in such case it was the known and established duty of the carrier to-
jleliver them at that place, and to the person who has the right tO'
receive them. This rule is conceded, where the contract is for de-
livery beyond the terminus of the line ; but the special agreement
in this case was, that the receiving carrier would safely transport
the baggage to Union Springs and deliver it in good condition to the-
defendant, the next connecting road. When this was done, the duty-
and responsibility of the receiving carrier were at an end. In cas&
of a non-delivery at the point of destination, or a total loss, the lia-
bility is prima facie on the receiving carrier, and casts on him the
onus of showing a delivery in good condition to the next connecting-
road. The expression in S. & N. E. Co. v. Wood, 71 Ala. 215, if
otherwise understood, are explained and modified as here stated..
In case of delivery in bad order by the last carrier, the presumption
against the first carrier does not arise.
A different rule applies in the case of the discharging or deliver-
ing carrier. From the necessities of trade and commerce, or of
successful competition, or from other causes, it has become common
to establish long routes of transportation by successive and connect-
ing roads. Under such circumstances it' would generally be difficult
and oftentimes impossible for the owner to show on which road they-
were injured. One of the roads is certainly responsible; and the-
last carrier has the means of showing the condition of the goods,
when received by him. The safety and protection of the commercial
and travelling public require the recognition of the presumption, in
the absence of evidence, that the goods continued in the same condi-
tion as when received by the first carrier, unless it may be excep-
tional goods of a perishable nature, and casts on the discharging
carrier, who delivers them in a damaged condition, the burden of
showing their condition when received by him. It has been held in
some cases that no such presumption arises, but the rule we approve
is ably and elaborately considered and sustained in the following-
cases: Laughlin v. C. & N. Ry. Co., 28 Wis. 204; Smith v. N. Y.
Cent. R. Co., 43 Barb. 225. This presumption harmonizes with the
KEMEDIES AS AGAINST CARRIER. 795
spirit, and promotes the policy of the statute, defining the duty and
liability of common carriers in respect to the reception of goods for
transportation, and their delivery. Code of 18T6, § 2139.
No case has been cited to our attention, and we have found none
which clearly and expressly determines the rules of presumption in
an action against the intermediate carrier. The case of Lindley v.
E. Co. , 88 N. C, supra, has been mentioned as sustaining the rule
that delivery in bad condition by the last of successive lines is prima
facie evidence of default in the intermediate line ; but an examina-
tion of the opinion shows that the defendant, the Eichmond &
Danville Eailroad Company, was managing and operating the road
that received the freight, with other connecting roads, under the
general name of the Piedmont Air-Line Eailway, and was treated
and regarded as the first or receiving carrier. There is no question
of the liability of an intermediate carrier for a loss or injury occur-
ring on its own road. Chi. & E. I. E. Co. v. Fahey, 62 111. 81.
Though the intermediate carrier occupies to some extent relations
different from those of the first and last carriers, the principles
applicable to them, and to carriers in general, will serve to elucidate
the question we are considering.
When goods are received by a common carrier for transportation,
and are lost or damaged while in custody, the presumption is, that
it was occasioned by his default; but the owner must offer some
evidence tending to show a non-delivery or delivery in a damaged
condition, — in other words, some evidence of the loss or injury
while in the custody of the carrier. Proof of the mere reception of
goods by a carrier, and of their condition when received, without
more, does not create the presumption of loss or damage. S. & N.
Ala. E. Co. V. Wood, 71 Ala. 215, supra. We have said that the
duty of. the intermediate carrier is to transport safely the goods to
his terminus, and deliver in the same condition in which they were
received to the next connecting line. A delivery, in such case, to
the next connecting line is tantamount to, and must be governed by,
the same rules as a delivery to the consignee, where the goods are to
be so delivered at the terminus of the line of the intermediate car-
rier. Had the contract of the defendant been to transport the bag-
gage to Montgomery, the terminus of the road, to be there delivered
to the plaintiff, proof of the reception of the baggage, in good order,
by the defendant, and a delivery to the plaintiff in apparently like
order, though it were subsequently discovered it had been damaged,
would not, without more, cast on defendant the burden of showing
it was in good condition when delivered. The plaintiff must intro-
duce some evidence of the damaged condition of the goods at the
time of delivery. On like principles, when the baggage was deliv-
ered by the defendant to, and received by, the next connecting road,
proof that it was in a damaged condition when delivered by the last
carrier does not operate, in the absence of other evidence, to cast on
796 CAEKIERS OF GOODS.
the intermediate carrier the onus of showing that it was in good
condition when delivered to the next connecting road.
We have shown that when goods are received in good condition by
the first carrier, to be transported by successive and connecting
lines, the presumption is they continue in the same condition until
the contrary is made to appear. This presumption is indulged to
place a. prima facie liability on the carrier who delivers the goods in
bad order, and who knows their condition when received. To hold
that a delivery in bad order by the last carrier raises also the pre-
sumption of default in the intermediate carrier will present the
anomaly of two inconsistent legal presumptions, — that the same
damage was occasioned by the default of the last carrier, and the
intermediate carrier while the goods were in their respective cus-
tody at different times.
Were there no evidence of a delivery to the next connecting road
by the defendant, who had received the baggage, or evidence that it
was in bad order when delivered, the onus would be on the defend-
ant to show that the loss or injury was occasioned by some cause
which exempted from liability. But it appearing from the evidence
that the trunk was delivered by the last carrier to the plaintiff —
thereby making manifest a delivery by the defendant to such carrier,
if the plaintiff would hold the defendant liable for the damage, he
must offer some evidence showing the condition of the trunk at the
time of delivery by the defendant.
A presumption should be the natural, usual, and probable infer-
ence from the facts proved. A duty having been performed, the
presumption of deficient performance will not arise from a subse-
quent event, no direct relation or donnection between such event and
the act of performance being shown.
It may be said that this rule will operate to force the owner to
successive suits against the different carriers. Any rule of pre-
sumption may have the same effect. If the instruction of the Circuit
Court were sustained, and the defendant should show the baggage
was in good condition when delivered, the plaintiff would be driven
to a suit against the last carrier. No rules can be adopted which
would avoid such effect, other than to hold each carrier responsible
for the damage without respect to the line on which it occurred,
which would violate well-settled principles of law. The formation
of long routes of transportation by successive roads is in the interest
of cheaper transportation and rapid transit; and if shippers adopt
this mode of shipping, they accept its difSculties with its bene-
fits. We have endeavored to formulate the rule applicable to each
carrier, which best accords with established legal principles. Dar-
ling V. B. & W. E. Co., 11 A-Uen, 295.
Reversed and remanded.
REMEDIES AS AGAINST CAREIEE. 797
d. Evidence of Negligenee.
EMPIRE TRANSPORTATION CO. v. WAMSUTTA OIL
REFINING AND MINING CO.
63 Penn. St. 14. 1869.
Errok to the Court of Common Pleas of Venango County.
This was an action on the case by the Wamsutta Oil Refining and
Mining Company against the Empire Transportation Company, to
recover damages for the negligence of the defendants as carriers, by
which refined oil of the plaintiffs that the defendants were carrying
had been destroyed by fire. The case was tried June 5, 1869, before
Trunkey, p. J. The plaintiffs gave evidence that they had shipped
67 barrels of refined oil in the defendants' cars, and that a car of
crude oil was loaded for another person at the same time ; " the oil
was standard light, 110° or upwards." Standard will not ignite by
flame at lower than 110°, crude oil will ignite at 65° and below; that
2862 gallons of oil were destroyed.
Wm. Best testified : " I was foreman on the freight train on the
10th of March, 1868. On that morning, about a mile and a half below
Wetmore Station, I discovered fire in the front car next to the
engine. There was an engine attached to the rear of the train as a
pusher. We either cut the front engine from the train first, or the
first two ears from the rest of the train. The train was stopped,
and then the engineer reversed the rear engine and backed off all
but the first two cars. We then tried to separate these two ears.
We could not do it, because we could not get the pin out. The pin
was fast in some manner, I do not know how. We then broke into
the second car and unloaded all the oil we could on account of the
heat. The heat was coming in from the front car. The second car
caught fire from the first. I do not know how the first car caught.
Know of no other cause than sparks from the engine, and I do not
know that. I think the train was on schedule time going at its
usual speed. The engine was supposed to be in good condition.
The fire, when I first discovered it, was at the end next the engine.
We had not much time to take the pin out before the flames inter-
fered with us. We were going up a grade. I do not think the
brakes were down on the first car. Every effort was made to save
the oil after the fire was discovered. We had no difficulty in getting
the pin between the second and third cars out."
Geo. 0. Downer testified: "Was conductor on this train. The
train was going about ten or twelve miles an hour, had been on time
all the way. T first discovered that the forward car on the end next
the forward engine was on fire. The train was stopped. I tried to
798 CARRIERS OF GOODS.
pull the pin between the first and second cars out. It stuck for some
reason or other, I do not know what. We then pulled the pin be-
tween the second and third cars. The first and second cars were
burned. The engine was not throwing any more sparks than usual.
The first attempt to cut the train was to separate the first and second
cars. The link might have slipped by, and it might be that the
links were not slacked ; in that case we could not take the pin out.
I do not know what was the reason we could not take the pin out. I
do not know whether there was any difference in this pin or coup-
ling from other pins and couplings or not. The front engine did
emit sparks. I know it took fire from the sparks from the engine."
Wm. H. Burton testified: " I was brakesman on this train. I tried
to take the pin out between the first and second cars, but could not
do it. I could not get the pin out because the link was jammed.
The first or second cars were not coupled as cars are usually coupled.
The coupling link could not have got in the shape it did by sudden
stopping. It must have got in that shape by going around a curve."
The defendants gave in evidence their receipt to the plaintiffs for
the oil, subject to conditions following, the third of which was
"that the owner or consignee (in consideration of the extremely
hazardous nature of such merchandise, which is not covered by any
extra charge for transportation) hereby assumes all risk for leak-
age, evaporation, and loss by fire, while in transit, or at depots or in
stations, or on board boats, vessels, or lighters, from any cause what-
ever, and all dangers and delays of railroad and water transportation
to destination, and in any claim or demand, suit at law or equity,
against this company or transportation company, or agent, for loss
or damage thereby, this bill of lading shall be deemed and taken as
a release in full therefor." They gave evidence also that crude oil
and refined oil were usually carried in the same train; that there
was not enough refined oil shipped for trains exclusively of that
kind. They gave evidence also by the engineer on the train, viz.,
" the fire caught in rear end of front car. The train was running on
time. The engine was in good condition, with new spark arrester.
The fire communicated with second car so quick we could not cut it
off. It was almost instantaneous."
The second point of the plaintiffs was : " If the jury believe that
the defendant placed the car containing plaintiff's refined oil in a
train composed in part of cars loaded with crude oil, and the said
car containing plaintiff's refined oil was coupled with a car contain-
ing crude oil, and the said crude oil was greatly more combustible
than the refined oil — and the said crude oil was ignited by sparks
from the engine, and communicated the fire to the car containing
plaintiff's oil, by which it was destroyed — which sparks would not
have ignited the refined oil — and that the coupling of the said
refined oil car and the crude oil car in which the fire originated was
defective, and that the defendant's servants endeavored to uncouple
REMEDIES AS AGAINST CAKEIEK. 799
the said cars and could and would have uncoupled the said cars and
saved the refined oil but for the said defective coupling, the plaintiff
is entitled to recover."
This point was afBrmed.
The verdict was for the plaintiffs for $678.18. The defendants
took a writ of error, and assigned for error the answer to the
plaintiffs' point. .
Shabswood, J. As a common carrier cannot, by a special notice
•or limitation in the contract or bill of lading, protect himself from
liability for the negligence of himself or his servants, Pennsylvania
Kailroad Co. v. Henderson, 1 P. F. Smith, 315, the only question
in this cause was, whether the defendants had been guilty of such
negligence. The error assigned is, that the court below took that
question from the jury, by affirming the plaintiff's second point, by
which they were instructed, that if they were satisfied that certain
facts were proved, the plaintiffs were entitled to recover. The rule
upon this subject was very clearly laid down in McCully v. Clarke,
4 "Wright, 399, in which it was said: "There are some cases in
which a court can determine that omissions constitute negligence.
There are those in which the precise measure of duty is determinate,
the same under all circumstances. When a duty is defined, a failure
to perform it is, of course, negligence." Other cases fully corrob-
orate this doctrine: Powell v. Pennsylvania Eailroad Co., 8 Casey,
414; Pennsylvania Railroad Co. v. Ozier, 11 id. 60; Pittsburg &
Connellsville Eailroad Co. v. McClurg, 6 P. F. Smith, 294; Glassey
V. Hestonville Passenger Eailway Co., 7 id, 172.
The duty of a common carrier is to provide a vehicle in all respects
adapted to the purposes of carriage, and so constructed as to be able
to encounter the ordinary risks of transportation. Story on Bailments,
§ 509. It must be perfect in all its parts, in default of which he
becomes responsible for any loss that occurs m consequence of any
defect, or to which it may have contributed. Hart v. Allen, 2 Watts,
114; New Jersey Eailroad Co. v. Kennard, 9 Harris, 204. When
merchandise, of whatever character, is carried on the same railroad
train with ears loaded with a combustible substance, easily ignited
by sparks from the locomotive engine, it is the special duty of the
carrier to take every available precaution against the communication
and spreading of the fire, if it should occur. An evident and simple
measure is to have the coupling of the cars in such perfect order
that auy one or more of them can be easily detached from the others
in time to be saved from the consequences. If the fact be that the
coupling was defective, unless such defect was the result of an
inevitable accident, and, in consequence of it, the car containing the
plaintiff's merchandise could not be detached in time to be saved,
the negligence and liability of the carrier are inferences of law
from the facts.
But it is said that the onus in this case was on the plaintiffs below,
800 CAEEIEES OF GOODS.
to show that the defect of the coupling arose from the negligence or
want of care of the defendants. We think not. When the carriage
is proved to have been defective at the time of the injury, and
that the defect contributed to the loss, the onus is then necessarily-
shifted to the carrier. He must rebut it by evidence that the defect
arose, not from the insufSciency of the vehicle into which the goods
were loaded, but from some subsequent accident beyond his control.
This puts the burden where it ought most properly to rest. The
carrier ought to be able to show, with ease, by his servants, that
the vehicle was inspected before the commencement of the trip, and
everything found to be in good order. It would be very difficult for
the plaintiffs to prove the contrary, — that it had not been examined,
or that it was in bad order when it started. On the trial of this
case, in the court below, there was no evidence to show when or how
the links of the coupling of the cars became jammed, so that they
could not be separated in time. It was surmised by one of the
witnesses, that it must have got into that shape by going around a
curve. Even admitting this to be so, the important question remains
unanswered, and which it was incumbent on the carriers to answer,
when did this occur? Had it been shown to have happened during
the course of the same trip in which the fire took place, and that it
was not known to, or discovered by, the carriers, or their servants,
in time to be remedied, then, indeed, there might have been a ques-
tion of negligence for the jury. But without any evidence as to
this point, there was nothing for them but that which was sub-
mitted, whether the coupling of the car was defective, and that
defect contributed to produce the loss.
Judgment affirmed.
KIEST V. MILWAUKEE, LAKE SHOEE & WESTERN
K. CO.
46 Wis. 489. 1879.
" The complaint avers a failure on the part of the defendant com-
pany to deliver to the consignee three carboys of acid, and alleges
that such carboys, through the negligence and default of the agents
of the defendant, were broken and discharged. The plaintiffs make
a part of their complaint the receipt given by the company on the
delivery of the goods in question for transportation, in which receipt
it is expressly stipulated that the company shall not be responsible
for the breakage of any carboys of acid, unless it can be shown that
such damage or loss occurred through the negligence or default of
the agents of the company.
"The cause was last tried by the county court, a jury being
BEMEDIES AS AGAINST CAEEIEK. gOl
waived. It appeared on the trial that the plaintiffs delivered in
good condition to the defendant, at its depot in Milwaukee, 28 oar-
boys of acid, to be transported to Appleton. One of the plaintiffs
testified that his firm received a letter from the consignees stating
that only 25 carboys were received from the carrier at the place of
consignment. He says that he then went to the general freight
agent, at his office in Milwaukee, to make inquiries about the miss-
ing three. He was informed by the agents of the defendant that
the three missing carboys had been broken by the Chicago & North-
western Eailway Company in Milwaukee, which company did the
switching for the defendant in that city; and that they would
examine into the matter and report. After waiting two or three
weeks and hearing nothing from the company, the same plaintiff
again called upon the agent, and was informed that the matter had
been inquired into, and it was found that the three carboys were
broken by the Chicago & Northwestern Company while switching,
and that, as the latter company refused to pay for the loss, the agent
of the defendant refused to pay. The value of the goods was shown,
and also the contract for transportation. At the close of the plain-
tiff's case, the defendant moved for a nonsuit, mainly on the ground
that, in addition to proving the loss of the goods, the onus was upon
the plaintiffs, under the stipulation in the receipt, of showing that
the breakage occurred through the negligence or default of the
agents of the defendant. The learned county court, however, held
that, as the defendant had failed or neglected to give a full and fair
account as to how the loss occurred, when applied to by the plain-
tiffs, this was sufficient proof from which negligence on the part
of the agents and servants of the company might be inferred. The
correctness of this view is the sole question we have to consider."
Plaintiffs had a verdict and judgment; and defendant appealed.
Cole, J. On the part of the defendant it is claimed, that, under
ihe stipulation in the receipt limiting the liability of the carrier,
the defendant was simply a bailee for hire of the carboys ; and that
therefore negligence or default on its part would not be presumed,
but must be affirmatively shown by the party charging it, and seek-
ing a recovery founded thereon. The general soundness of this
argument may be conceded. But the precise question here is,
whether, when the carboys were shown to be m the possession or
under the control of the defendant, and a breakage occurred from
switching, which, in the ordinary course of things, does not happen
if those who have charge of the train use proper care, this does not
afford reasonable evidence, in the absence of a full explanation by
the carrier, that the loss or breakage did, in fact, occur through the
negligence or default of the agents of the company. We are inclined
to the opinion that the inference of negligence may be made under
such circumstances, and that the ruling of the county court on this
point was right. Here the loss resulted from an act from which,
802 CAEEIERS OF GOODS.
when due care is taken in its performance, loss does not ordinarily
ensue. For it is not reasonable to assume that carboys of acid are
usually broken, when transported on railroads, by switching of the
cars, when that is done in a proper manner. Consequently, when
the plaintiffs showed, as they did by the admission of the agents. of
the company, that the carboys were broken by the Chicago & North-
western Company while switching, a foundation was laid for a rea-
sonable inference of negligence, especially in the absence of explana-
tion upon the subject, and the burden was thrown upon the defendant
to rebut that inference. This was the rule laid down in Scott v.
London Dock Co., 3 H. & C. 596, on a point quite analogous to the
one we are considering. The plaintiff in that case was injured by
bags of sugar falling from a crane, in which they were lowered to
the ground from the warehouse of the defendant. It was claimed
that there was no evidence to go to the jury that the servants of the
defendant were guilty of negligence or want of care in lowering the
crane. Erie, C. J., in stating the conclusion at which a majority
of the court in the Exchequer Chamber had arrived, said : " There
must be reasonable evidence of negligence. But where the thing is
shown to be under the management of the defendant or his servants,
and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from want of care." In Steers v. The Liver-
pool, N. Y. & P. S. Co., 57 N. Y. 1, "the plaintiff took passage on
one of the defendant's steamers for Europe, and received, on pay-
ment of the passage-money, a printed ticket signed by the defend-
ant's agent, containing a clause, in substance, that the company was
not to be held liable for loss or damage to baggage in any sum,
unless the same shall have been proved to have been occasioned by
gross negligence of the company or its agents. ... On going aboard,
the plaintiff's trunk was delivered into the custody of the defend-
ant's agents, who assumed to take charge of it; at the end of the
voyage, the defendant did not produce it, or in any way account for
it. In an action to recover for the loss of the trunk and contents,
held, that the evidence was sufficient to sustain a finding by the jury,
of gross negligence." The facts in regard to the manner in which
the breakage occurred in the present case were more particularly
within the knowledge or reach of the defendant, and, according to
the doctrine of the above cases, it was called upon to give some
explanation of the loss. The agents only said that the carboys had
been broken by another company while switching, and gave no other
account of their loss. Under these circumstances, we concur in
the opinion of the county court, that, because defendant failed or
neglected to give a full statement as to how the loss occurred, its
negligence might be inferred in that regard.
It follows from these views that the judgment of the county court
must be af&rmed.
cakrier's compensation. 803
9. CAREIER'S COMPENSATION.
a. Freight Charges.
CURLING V. LONG.
Common Pleas. 1 Bos. & P. 634. 1797.
Assumpsit for freight claimed under the following circumstances.
The plaintiffs were owners of the ship "The Earl of Effingham,"
and the defendants the consignees of nine hogsheads of sugar shipped
■on board her while lying in Salt Eiver, Jamaica, and bound for
London. The goods were put on board on the 18th of September,
1795, and four several bills of lading were duly signed by the cap-
tain. On the 2d of December following, having completed her lad-
ing, the ship cleared out for her voyage. On the 31st of December,
while waiting for convoy, she was cut out of the river by two French
privateers, and carried out to sea, but was recaptured on the same
day by a British schooner, and carried into Port Royal. The ship
was afterwards libelled in the Admiralty Court of Jamaica, and
appraised and sold under an order of that court. The proceeds of
the sale, after deducting one-eighth for salvage, were remitted to
the defendants as agents for the several owners of goods on board.
The whole of the cargo, including the goods in question, was brought
to the ship in Salt River for the purpose of being loaded, and was
actually put on board at the expense of the plaintiffs as owners of
the ship according to the usage of the Jamaica trade. This amounted
to £310. The plaintiffs also expended £455 18s., according to the
-same usage, for the provisions and wages of the crew, between the
time when the ship began to take in her loading, and the time of
the capture. The plaintiffs' demand was shaped in different ways
so as to recover a proportion of the freight either from the 1st of
September, 1795, when the goods were put on board, to the 1st
of January, 1796, when the ship was recaptured, or from the 2d of
December, 1795, the day the goods were shipped, to the 1st of
January, 1796, the day she was recaptured ; or to recover a propor-
tion of the sums expended by the plaintiffs as above mentioned.
The cause was tried before Etee, Ch. J., at the Guildhall sittings,
after Michaelmas Term, 1796, who directed a nonsuit.
A rule nisi for setting aside this nonsuit and entering a verdict
for the plaintiffs having been obtained on a former day [etc.].
Etee, Ch. J. This is a case of the very first impression; and it
appears to me that the demand of the plaintiffs is neither warranted
by the marine or by the common law. The former has settled what
freight is, what services it includes, and also that it is divisible,
804 CAKKIERS OF GOODS.
whicli is contrary to the principles of the common law. At common
law all the expenses of loading are included in the freight, and if
the party be not entitled to freight he can demand no satisfaction
for loading. The inception of freight is breaking ground. In the
law of insurance, indeed, this doctrine is not holden so strict, for
there, if the goods be so situated as to create a well-grounded expec-
tation of freight being raised, it is decided that the freight is insur-
able and recoverable. But that does not affect the marine law as to
freight in cases between the shipowners and freighters, by which
the case must be decided. According to that law no right to freight
commences till the ship has broken ground; here the ship had not
broken ground,' having been captured in the river. The situation of
the places where cargoes are taken in materially varies the labor,
cost, and pains taken by the shipper and master. In some places
there is little diflS.culty and expense, in others a great deal. On
these circumstances depends the price of freight : if the master incurs
this cost and trouble, he takes a larger freight; if the shipper, a
smaller. In either case the freight is his reward. If, therefore, by
the marine law he be entitled to no freight, he can claim no remun-
eration. So stands the case by the marine law. Let us now view it
upon the principles of the common law. The contract was to load,
these goods on board and bring them to England for a certain price.
Upon this contract, how could a declaration be framed for the plain-
tiff's demand either in assumpsit, or an action on a charter party?
Could the plaintiffs state a part-performance of the contract and
insist on payment for it? This could not be done, for by the law
of England the contract is entire and indivisible. By the marine
law, indeed, parties may recover pro rata, if the voyage be interrupted.
And by the common law, where a contract cannot be performed, such
a meritorious consideration may arise as will sometimes entitle a
party to recover in the form of an action of assumpsit for work and
labor even after the contract has been broken. Such is the case-
where a ship after capture and recapture completes her voyage ; for
there the shipper has his goods with the advantage of carriage; and
upon that, though the original contract be gone, a meritorious con-
sideration arises which entitles the master to a recompense; not,
however, on the foot of the old contract, but on a new contract
which springs out of it. Here the ship never arrived at the port of
destination, but put into a port in Jamaica, without having con-
ferred any benefit on the freighters by the carriage, or bettered the
goods in the smallest degree by the expenses incurred. I am there-
fore of opinion, that neither by the marine or the common law are
these plaintiffs, however unfortunate, entitled to recover.
Heath, J. This is a demand for a proportion of freight. The-
contract for freight is technical in its nature. By the marine law
an inchoate right to freight attaches from the ship's breaking ground,,
and is consummated upon her arrival at the port of destination. If
caeeiek's compensation. 805
the voyage be interrupted the party may claim pro rata. Freight
commences at the same time in all parts, since it depends on the
same principles here and at Jamaica. It is true, indeed, that by
the customs of different ports, duties more or less onerous may be
imposed on the master, and recompensed by the freight. But that
does not vary the principle. This case is only new in its circum-
stances. The law of insurance does not apply to this case ; for the
mere hope or expectation of interest is sufficient to entitle the
assured in a policy of insurance to recover against the underwriters.
EooKE, J. This is a new case, and therefore I take the demand
not to be founded on the usage of trade. The contract in a bill of
lading is for freight. The expression is, "they paying freight;"
and though the master may have been at the expense of loading,
and the freight was higher on that account, yet as it had not com-
menced, the plaintiffs cannot demand a recompense. The text-
writers all agree that freight commences from the breaking ground.
This is clear and intelligible: the ship begins to earn when she
begins to move; and we cannot introduce new principles. The
writers also say, that there may be cases where the shipowners may
be entitled to a proportion of what the ship has earned; but that
cannot include what has been earned by the master before the com-
mencement of the voyage. This doctrine is founded in good policy,
for it tends to expedite the sailing of the ship. Did the freight
commence sooner, it might induce the master to stay a longer time
in port and so delay the voyage. Insurance is a contract of indem-
nity; the eases, therefore, which are founded on such a contract are
not applicable to this case. Upon these grounds I think the non-
suit right.
Rule discharged.
TINDAL V. TAYLOR.
Queen's Bench. 4 El. & B. 219. 1854.
LoED Campbell, C. J. We entirely agree to the law laid down
by Lord Tenterden in his treatise (8th ed.), p. 695, and in Thomson
V. Trail, 2 Car. & P. 334, E. C. L. E. vol. 12, when applied to a
general ship, that ''a merchant, who has laden goods, cannot insist
on having them relanded and delivered to him without paying the
freight that might become due for the carriage of them, and indem-
nifying the master against the consequences of any bill of lading
signed by him." It is argued that there can be no lien on the
goods for freight not yet earned or due ; but when the goods were
laden to be carried on a particular voyage, there was a contract that
the master should carry them in the ship upon that voyage for
freight; and the general rule is that a contract once made cannot be
806 CAERIEKS OF GOODS.
dissolved except -with the consent of both the contracting parties.
By the usage of trade, the merchant, if he redemands the goods in
a reasonable time before the ship sails, is entitled to have them
delivered back to him, on paying the freight that might become due
for the carriage of them, and on indemnifying the master against
the consequences of any bills of lading signed for them;- but these
are conditions to be performed before the original contract can be
affected by the demand of the goods. It would be most unjust to the
owners and master of the ship if we were to hold that upon a simple
demand at any time the goods must be delivered back in the port
of outfit; and Thompson v. Small, 1 Com. B. 328, the case relied
upon by Mr. Willes, is no authority for such a doctrine.
BAILEY V. DAMON.
3 Gray (Mass.), 92. 1854.
Assumpsit on a contract in writing, dated the 7th of February,
1850, whereby the defendants agreed to. ship, and the plaintiffs to
transport, seventy-five thousand feet of lumber from Boston to
Sacramento City, California, at $85 per thousand and five per cent
primage. With dated May 26th, 1850.
Trial before Merrick, J., at November Term, 1853, when the
plaintiffs introduced evidence tending to show that they got the
vessel ready to receive her cargo, and the defendants immediately
put on board 78,875 feet of lumber, the stowing of which was com-
pleted on the 26th of March, 1850, and which made about three-
quarters of a cargo for the vessel; that she lay at the wharf, with
the defendant's assent, until the 21st of May, when the defendants
took away their lumber; and that by this act of the defendants the
vessel was delayed, in procuring other freight, until the 16th of
July, when she sailed for San Francisco.
The plaintiffs also offered evidence that, in place of the defend-
ants' lumber, they carried some goods for other persons at a lower
rate of freight, and some lumber on their own account, their net
earnings upon which were less than the rate of freight agreed to be
paid by the defendants. To this evidence the defendants objected;
but the judge admitted it, for the purpose of showing how much the
plaintiffs ought to deduct from the damages occasioned by the loss
of the freight of the defendants' lumber; and instructed the jury
that the plaintiffs were entitled to recover the amount of freight and
primage which they would have earned if they had takeu the defend-
ants' lumber to Sacramento, adding the demurrage for the time they
cakriee's compensation. 807
were delayed to obtain other freight, and deducting the freight they
received from other shipments of goods of other persons, and their
net earnings on their own shipments.
The jury returned a verdict for the plaintiffs, and assessed damages
at $6,020.75. The defendant moved for a new trial on the ground
that these rulings and instructions were erroneous.
Dewey, J. This case is put by the plaintiffs upon the grounds
upon which damages are given on a contract to ship goods to a given
port, when, through the default of the shipper, the goods, although
the voyage is commenced, do not reach the port of discharge. In
such cases, as appears well established by the cases cited by the
counsel for the plaintiffs, the entire freight is earned, and must be
paid by the shipper. The next inquiry is whether the case at bar
is of like character? It was urged in the argument, that placing
the goods on board ship preparatory to sailing was equivalent to
the actual commencement of the voyage in its consequences as to the
right of the carrier to recover full freight. We find no authority
for that position. Indeed, the rule as to what constitutes the com-
mencement of a voyage, in reference to liability for freight, is well
settled otherwise. That rule is, that the voyage commences upon
breaking ground for the voyage, and not before. Curling v. Long
1 Bos. & Pul. 636 [803] ; Burgess v. Gun, 3 Har. & Johns. 225; Smith's
Merc. Law (Amer. ed.), 308. No freight is due before the com-
mencement of the voyage, and no lien exists therefor.
The case of the plaintiffs is not, therefore, one of a voyage com-
menced, and a subsequent prevention of the carriage of the goods
to the port of delivery through the default of the shipper. It is a
case of an executory contract to ship goods, which the shipper refuses
to fulfil on his part. The defendants agreed to ship on board the
plaintiffs' vessel seventy-five thousand feet of lumber for California,
and to pay the plaintiffs a stipulated sum for the same. The plain-
tiiis aver that they were ready to perform their contract, but were
prevented by the acts of the defendants. Assuming this to be so,
the further inquiry is, what is the rule of damages in such case ?
The measure of damages is full indemnity for all they have lost
through the default of the shippers. The mode of ascertaining the
amount of damages for a breach of an executory agreement must, of
course, differ in different classes of cases. If it were a contract to
employ the plaintiffs to build a house, and pay th'em an agreed price
for the entire work, and the defendants had prevented the perform-
ance, the proper rule would seem to be the difference between the
sum agreed to be paid, and the sum that it would have cost the
plaintiffs to perform the contract. That rule does not meet the cases
of contracts for freight, as they are generally made. It does not
meet the case of a vessel engaged in carrying merchandise generally
for all who may apply, and making up her cargo from various owners
of goods. Such ship usually must sail on or about a given day, to
808 CARRIERS OF GOODS.
fulfil her other contracts, thus leaving no time or opportunity to fill
up the deficient cargo, and also necessarily incurring all the expenses
that would have been incident to the voyage, had the shipper ful-
filled his particular contract to furnish a certain amount of goods
for the voyage.
On the other hand, if the shipper's contract were to fill the entire
ship with his goods at a certain freight, upon his refusal or neglect
to fulfil his contract, the carrier might abandon the whole voyage,
and engage in some new adventure equally or more profitable, and
thus all future expenses incident to the first voyage be saved. Here
it is quite obvious the damages would be much less than in the case
of a voyage that must be performed, notwithstanding the failure of
a single individual customer to ship his goods according to contract.
So, too, if under no obligation to other shippers to sail at a given
day, or if that day was so remote, and the demand for transporta-
tion of goods such as to afford full opportunity to fill up the ship
before the day of sailing, these circumstances would materially affect
the amount required to be paid by the shipper to the carrier, to
indemnify him for the non-performance of the contract on his part.
It seems, therefore, proper that all the attendant circumstances be
brought before the jury in each particular case , to enable them to
estimate the proper sum to be awarded as damages for a breach of
contract of this nature. The carrier is to receive full indemnity for
the breach of contract on the part of the shipper. He is to be made
as good, in a pecuniary point of view, as if the shipper had furnished
the goods according to his contract, if the carrier has been guilty
of no laches as to substituting other freight, or adopting other
available arrangement to mitigate the loss, or avoid the expenditure
incident to the proposed voyage. But if by proper and reasonable
efforts he can substitute other goods, he is bound to do so, and, to
the extent of the freight thus received, this should go in reduction
of the damages. Nor is the reduction necessarily confined to his
receipts from goods actually substituted. The carrier may have
been remiss in his attempts to fill up his ship, or have neglected to
avail himself of opportunities presented by other offers of goods,
and if guilty of negligence in these respects, this may be a ground
for a deduction from the entire sum stipulated to be paid by a
shipper for freight of certain articles which were not furnished to
the carrier.
It may be also that the carrier was under no obligation to others
to prosecute the proposed voyage, and might have abandoned it for
another and more profitable employment of his ship; and in such
case he should not pursue the original voyage for the mere purpose
of charging the defaulting shipper with the gross sum he stipulated
to pay for transporting his goods to a distant port.
It will be perceived, therefore, that a somewhat broader line of
defence should have been permitted to the defendants, than that
cakeiek's compensation. 809
prescribed at the trial. It is true that the plaintiffs are entitled to
the full benefit of their contract, and to the entire damage they have
sustained through the default of the defendants. But the sum the
shippers stipulated to pay for freight is subject to be reduced by
money actually received for substituted freight, and also by the
amount which the carrier might have made, had he availed himself
of all proper opportunities to fill up the vacancy, and to mitigate the
loss that .would attach to the shipper by the payment of the entire
sum stipulated to be paid for freight.
See on this subject, Heckscher v. McCrea,24 Wend. 304; Shannon
v. Comstock, 21 Wend. 457; Costigan v. Mohawk & Hudson Kiver
Eailroad, 2 Denio, 610; Abbott on Shipping, 411; Sedgw. Damages,
,361. iVew; trial ordered.
A new trial was had at this term and resulted in a verdict of
^3,052.99 for the plaintiffs.
SAYWAED V. STEVENS.
3 Gray (Mass.), 97. 1854.
Assumpsit to recover a balance due for freight of an invoice of
lumber from Boston to San Erancisco.
The plaintiffs gave in evidence a bill of lading dated at Boston,
January 18th, 1850, and signed by their agent, of which the material
part was as follows : " Shipped in good order and condition by Hiram
Stevens on board the good bark ' Galileo, ' Sutton, master, now lying
in the port of Boston, and bound for San Francisco, to say, 1,900
feet boards, planed one side; 11,089 feet boards, planed two sides,
more or less; eleven packages window frames and sashes; seven
boxes shingles; two boxes hardware; one package doors; twelve
doors ; four kegs nails ; one package sash (skylight) ; four packages
stair stuff; four packages nine pieces door frames; two thousand
clapboards; four packages blinds; two hundred and forty-eight
pieces house frame; to be received by consignee within reach of the
ship's tackle within ten days after arrival; if not received, the cap-
tain to have the right to sell them :" " And are to be delivered in
like good order and condition at the aforesaid port of San Francisco
(the danger of the seas only excepted) unto H. Stevens or his assigns,
he or they paying freight for said goods $926.39, and five per cent
primage and average accustomed : " " Seven boxes of shingles on
deck."
There was also evidence of the following facts: All the articles
named in the bill of lading were received by the plaintiffs on board
the bark "Galileo" at Boston; and the shingles, as well as some of
810 CAEKIERS OF GOODS.
the packages of door casings, window frames and sashes, and stair
stuff, and a portion of the boards, were stowed on deck. All the
articles so stowed were thrown overboard and lost by stress of
weather. The remainder of the invoice, being stowed in the hold,
arrived in safety at the port of discharge. Notice was immediately
published in the newspapers to consignees to receive their goods.
After waiting thirty days, no one appearing to claim these goods,
they were advertised for sale at public auction, by the description
in the bill of lading, the plaintiffs' agent at San Francisco not know-
ing that the whole had not arrived in safety; and they were sold,.
. Accordingly, by said description, except the boards, which were sold
by the foot. The proceeds of the sale, deducting expenses, were
^662.13, which were credited to the defendant on account of the
freight. Upon delivery of the goods, the loss of about one thousand
feet of boards and of the other articles stowed on deck was ascer-
tained; and the plaintiffs' agent settled with the purchaser for this-
deficiency by repaying him the sum of $75. Goods of the same
kind and quality as those lost could be readily purchased at San
Francisco at that time.
The plaintiffs offered to prove that all the articles stowed on deck
were so stowed with the defendant's knowledge and assistance.
But the judge rejected the evidence, and ruled that the bill of lad-
ing expressed the contract between the parties; that, in the absence
of any fixed usage of trade to carry such freight in a particular man-
ner, the obligation of the carrier, so far as the place of stowing was
concerned, was to carry safely, excepting perils of the seas ; and that
this obligation could not be varied by parol evidence of knowledge
of the owner of the goods of the manner in which they were stowed.
The defendant offered parol evidence that the several articles
named in the bill of lading were originally obtained and prepared
and fitted for one house, and intended to be put together as such in
San Francisco. To this evidence the plaintiffs objected; but the
judge admitted it, and instructed the jury that if they believed that
the articles enumerated in the bill of lading constituted the parts of
one house, and the portions lost were lost by reason of their being
improperly stowed on deck, and were a substantial part of the house,
without which the house would be wholly incomplete, and of no
practical utility as a house, in short, no longer the article which
was shipped, then, the freight being payable on the whole in one
entire sum, the plaintiffs could not recover freight for the lumber
actually carried, and which arrived at San Francisco, although the
lost articles could be easily supplied in the market by the purchase
of others of like character.
The jury -returned a verdict for the defendant, and the plaintiffs
alleged exceptions.
BiGELOW, J. The main question in this case arises on the true
interpretation of the contract between the parties, by which the
cakeiee's compensation. 811
plaintiffs agreed to convey the articles enumerated in tlie bill of
lading from Boston to San Francisco. To arrive at this, it is neces-
sary in the outset to determine whether this contract rests solely in
the bill of lading, and is to depend upon the terms by which it is
therein set forth, or whether it can be varied or explained by parol
proof of the acts and conduct of the parties prior to and at the time
of the shipment of the merchandise.
The rule is well settled, that, under the ordinary forms of bills of
lading, the contract imports that goods are to be stowed under deckj
and if carried on deck, the owners of the vessel will not be protected
from liability for their injury or loss, by the usual exception of
dangers of the sea. Abbott on Shipping (5th Amer. ed.), 345, note.
Whether this is a mere presumption, arising from the usual mode
of conveying merchandise in vessels, and therefore liable to be
rebutted in a particular case by proof of a parol contract between
the owners of the vessel and the shipper that the goods were to be
carried on deck, or by evidence of circumstances from which such
agreement might be properly inferred, such as usage affecting a par-
ticular trade or certain kinds of merchandise, we have no occasion
in the present case to determine. It may, however, be remarked,
that as bills of lading do not usually contain any express stipulation
concerning the place or mode of stowing the cargo, these being left
to the care and discretion of the master of a vessel, the admission of
such evidence would not seem to be a violation of the salutary rule
that written contract cannot be varied or controlled by parol proof.
In the present case, the bill of lading is not in the usual form.
It contains an express agreement or memorandum in writing con-
cerning the stowage of a portion of the articles shipped, which takes
it out of any special rule applicable to contracts of this nature, and
brings it within the general rule by which all contracts in writing
are governed. The memorandum is in these words : " Seven boxes
of shingles on deck." The effect of this stipulation clearly is, that
the parties are not by their contract left to the ordinary presump-
tion concerning the stowage of the cargo, nor to the usage of trade
by which it may have been regulated. They have made it matter
of express agreement. Looking at the nature of the contract, and
taking into view not only what the parties have expressly stipulated,
but also the general duty of the carrier to stow and carry under deck
merchandise destined for a long voyage to a distant port, we think
the bill of lading in this case is equivalent to an express agreement
that the seven boxes of shingles should be carried on deck, and the
residue of the shipment should be stowed under deck. In order to
give any effect to the written memorandum, it necessarily imports
that no part of the merchandise specified in the bill of lading is to
be carried on deck, except the articles expressly included within it.
To a contract thus expressed, the maxim expressio unius exdusio
alferius is peculiarly applicable. The only fair and legitimate
812 CAKEIEBS OF GOODS.
inference from the terms of the contract is, that the parties, before
reducing their agreement to writing, conferred together concerning
the stowage of the cargo, and, as a result of their ultimate inten-
tion, stipulated that only the seven boxes of shingles should be car-
ried on deck. In this view, it is very clear that the parol proof
offered at the trial tended directly to vary the terms of the written
agreement, and was therefore rightly rejected.
The more important question in the case arises upon the true con-
struction of the contract of shipment, as it is expressed in the bill
of lading. The general rule is, that all contracts for the conveyance
and delivery of merchandise for an agreed price are in their nature
entire and indivisible; and unless completely performed by the
carrier, he is not entitled to any compensation. The undertaking is
not only to carry the goods to a particular destination, but it also
includes the duty of delivering them in safety; and no freight is
earned until the contract for delivery, as well as of carriage, is com-
pletely fulfilled. Chit. Con. (8th Amer. ed.), 636; Angell on
Carriers, § 397.
There are exceptions to this general rule, founded on principles
of justice and equity, arising out of particular circumstances; but
the rule itself is elementary, and lies at the foundation of this
species of contract. Indeed, the definition of a bill of lading, as
given by high authority, is, that it is the written evidence of a con-
tract for the carriage and delivery of goods sent by sea, for a certain
freight. Its peculiarity is, that unless freight is wholly earned by
a strict performance of the voyage, no freight is due or recoverable.
The contract of the carrier is indivisible , and he can recover for no
portion of the voyage that has been made, until the whole is finished
and the goods have reached their destination. Mason v. Lickbarrow,
1 H. Bl. 359; Angell on Carriers, § 398. The operation of this
rule is sometimes hard and inequitable. For this reason, courts of
law have, in many cases, readily seized upon any features in con-
tracts for transportation from which it could be fairly inferred that
the parties intended to make them divisible and apporti enable;
while in other cases they have given such interpretation to the acts
of parties as to substitute, in the place of the original entire con-
tract, a new agreement, by which the shipper became bound to pay
a proportional freight, although the carrier had not fulfilled the
whole of the original contract on his part. Within the former class
of cases are comprehended all contracts of affreightment by charter-
party or bills of lading, where the freight is payable by the ton, by
admeasurement, by the package or barrel, or where different por-
tions of the same cargo are shipped upon distinct and separate terms
as to freight. In all such cases, it is held that the delivery of the
cargo is in its nature divisible, and the contract itself furnishes the
means and the measure of apportioning the freight according to
the quantity of the cargo actually delivered. Abbott on Shipping,
carrier's compensation. 813
266; Eitchie v. Atkinson, 10 East, 295. Within the latter class
are included all cases where the shipper or consignee, by a volun-
tary acceptance of his goods at an intermediate port, or by a receipt
of a portion of an entire shipment at the place of destination, is
held to have waived the full performance of the original contract,
and to be liable -pro rata for the carriage of the goods actually
received by him. Abbott on Shipping, 406; Ship "Nathaniel
Hooper," 3 S-umner, 550, 551.
Upon examination of the contract in the present case, it seems to
us very clear that the contract is an entire one, and does not fall
within any of the cases which authorize an apportionment of the
freight. It is an agreement to transport a certain number of articles
from Boston to San Francisco for an entire, aggregate sum as freight.
On the part of the owners of the vessel, it is an agreement to carry
and deliver all the articles enumerated in the bill of lading, for
which the shipper agrees to pay and they agree to receive a sum in
gross. The agreement to carry and deliver goes to the whole con-
sideration to be paid therefor. They are mutual agreements, but
that of the owners of the vessel is precedent to that of the shipper.
The entire carriage and delivery were to be performed before any
title to the freight-money accrued to the owners. Such is the legal
construction of the usual contract for the carriage of goods. That
it is the necessary interpretation of the contract of the parties in the
present case results not only from the entirety of the consideration,
but also from the nature of the merchandise comprised in the ship-
ment. If it had been a contract for the transportation of a cargo of
similar and homogeneous articles, for an entire sum in gross, it might
have been urged with some plausibility that the parties contem-
plated an apportionment of freight, in case of disaster or other
cause, by reason of which a portion of the cargo might fail to reach
its place of destination. If, for instance, a hundred barrels of flour
were shipped under a bill of lading, by which it was stipulated that
the freight to be paid therefor should be five hundred dollars; in
such case, the delivery of an aliquot part thereof at the place of
destination, forming a certain specific and definite proportion of the
entire invoice, would furnish the basis of an accurate division and
apportionment of the entire freight-money, according to the amount
actually carried and delivered. But, in the case at bar, the ship-
ment is made up of a variety of miscellaneous and diverse articles,
unlike in kind, quality, and value, incapable of being packed and
stowed together,- and bearing no definite proportion to each other in
size or in cost of transportation. Having reference, therefore, to
the nature of the shipment, as well as to the consideration agreed to
be paid for the carriage of the articles, it is manifest that the con-
tract affords no basis by which to divide the invoice and apportion
the freight. It is an entire invoice, to be carried for an entire sum,
incapable of apportionment; and where, from the nature of the con-
814 CAEEIEKS OF GOODS.
tract and its subject-matter, it is fair to infer that the parties
intended to make their contract one and indivisible.
It follows as a necessary consequence, that the owners of the ves-
sel, if they failed to transport and deliver the whole of the articles
included in the bill of lading, by reason of the neglect of the master,
are not entitled to recover the balance claimed by them for freight,
unless they can show an acceptance, by the shipper or consignee at
San Francisco, of that portion of the shipment which arrived there
in safety, and thus bring themselves within the second class of
exceptions above stated to the general rule governing entire con-
tracts for the conveyance of merchandise. The case finds that on
the arrival of the vessel at its port of discharge no one appeared to
receive or claim the goods. The consignee, owing, probably, to the
state of the market in San Francisco, by which the merchandise was
rendered of less value there than the sum agreed to be paid for the
freight, failed to receive it. In the absence of an express stipula-
tion in the bill of lading to meet such a contingency, it might have
been the duty of the master, having in his charge an invoice of
goods not perishable in their nature, to store them for the benefit of
the shippers. It is doubtful whether he would have had the right
to sell them. Abbott on Shipping (5th Amer. ed.), 378, note;
Schooner Cassius, 2 Story, E. 81. However this may be, in the
present case there was an agreement in the bill of lading by which
it was stipulated that the articles, if not received by the consignee
on the day after their arrival, might be sold by the master. There
was therefore no receipt of the goods by the regular consignee, from
which an acceptance of them can be inferred to charge him or the
shipper a pro rata freight thereon. It is contended, however, by the
plaintiffs, that this clause in the bill of lading, giving the master,
by reason of their non-acceptance, a right to sell, and a sale by him
in pursuance of it, are equivalent to a receipt of the articles by the
consignee ; that it substituted the master in his place, and conferred
on him the same rights and powers to bind the shipper as his agent,
and render him liable for the freight of the goods sold in like man-
ner as the consignee would have been, if he had taken the goods on
their arrival. But it appears to us that this agreement is based on
too broad a construction of this clause in the bill of lading. The
original intent of the parties in the insertion of this provision for a
sale of the goods, was to give the master the right to realize his
freight-money by a sale of the goods, if they were not received and
the money paid within the time specified in the bill of lading. If
this was the object of the clause, then, there having been no freight
earned, in consequence of the failure to carry the whole shipment,
there was no right on the part of the master to sell. He exceeded
his authority in making the sale, and the owners cannot bind the
shipper by an unauthorized act of their master. But giving to this
stipulation the most liberal construction which in any view it is
carrier's compensation. 815
capable of, it made the master the agent of both parties to sell the
goods for the benefit of whom it might concern, and to hold the
proceeds for those who should be legally entitled to receive them.
It created a special and limited agency only, by which the master
had the right to convert the merchandise into money, but not there-
by to change the right of property in the proceeds, or to waive the
legal rights of the parties under their contract.
We are therefore of opinion that the contract of aifreightment in
the present case was an entire one, by which the plaintiffs under-
took the carriage and delivery of the goods specified in the bill of
lading; and a portion of them having been lost through the fault
of the master, and there being no proof of an acceptance of that
portion which arrived in safety by the shipper or any authorized
agent in his behalf, that the plaintiffs are not entitled to recover the
balance of freight claimed to be due by them.
It is urged that the plaintiffs were entitled to their freight, because
they had replaced the articles lost by payment to the purchasers of
a sum equivalent to their value, and thus virtually made good the
shipment in San Francisco. But the difficulty in this argument is
that the master had no authority from the defendant to change his
rights by any such payment. His authority was confined to a sale
of the goods which arrived. Beyond that, his acts could in no way
affect the defendant, who, if he had been present, would have been
■entitled to the goods free from any charge for freight.
It is further argued that the owners of a vessel are not responsible
for mere abstract and inconsequential negligence on the part of the
master, but only for the actual results of his faults and omissions.
This may be so; but it does not help the plaintiffs in the present
case, because the jury have found, under the instructions given to
them, that the goods were lost by reason of their being improperly
■stowed on deck. It must now, therefore, be assumed that there was
actual negligence and fault on the part of the agent of the owners by
reason of which they failed to fulfil their contract.
In the view we have taken of this case, it becomes unnecessary to
•decide upon the admissibility of the evidence which tended to show
that the articles shipped were parts of an entire structure, intended
to be erected in California. It is quite sufficient, without such
proof, that they formed part of an entire subject-matter in the eon-
tract; and for the reasons already given, not having been delivered
by the plaintiffs according to their agreement, an action cannot be
maintained for the freight-money.
Exceptions overruled.
It is clear that, by the general maritime law, freight, whether by
charter-party or bill of lading, is due only for articles delivered.
The contract, though it consists of two parts, is necessarily one,
unless otherwise provided. It is both to convey and deliver, and is
816 CAKKIEKS OF GOODS.
not completed until the delivery. It may be agreed that freight
shall be paid on all the goods received on board, as is frequently-
done in the case of livestock, which is much exposed in the trans-
portation; but, unless the parties otherwise agree, freight is due
only for that which is delivered, or for which there is a lawful
excuse for non-delivery. 3 Kent, Comm. 225, 226; 1 Pars. Mar.
Law, 142-219. If casks or boxes in which goods have been packed
arrive empty, or nearly so, so that the goods are not worth the
freight, though it was formerly a much-disputed question, it is now
settled that they cannot be abandoned by the shipper for freight
when this is by ordinary leakage or the natural vice of the articles.
3 Kent, Comm. 324; 1 Valin Comm. 670; Poth. Chart. No. 57; Abb.
Ship. (Am. ed.), 433-435. Biit if lost not by ordinary leakage, but
by the dangers of the seas, no freight is due. This will excuse the
carrier from paying the price of the goods, but not from a delivery.
In the case of ordinary leakage, the carrier has performed his con-
tract, so far as depended on him; in the latter his contract is to
carry and deliver the goods, the dangers of the seas excepted, and
as he is prevented from a delivery by these dangers, his freight is
not earned. Ware, D. J., in The Cuba, 3 Ware, 260.
It may happen, however, that goods existing in specie when
brought to the place of destination are so deteriorated in condition
as not to be worth the freight; and then arises the question whether
the merchant is bound to pay the freight, or is at liberty to abandon
the goods to the shipowner for his claim. In considering it, the
causes from which the deterioration in the merchandise may proceed
must be distinguished. If it proceeds from the fault of the masters
or mariners, the merchant is entitled to a compensation and may
recover it against the owners or master. On the other hand, if the
deterioration proceeds from an intrinsic principle of decay naturally
inherent in the commodity itself, whether active in every situation
or only in the confinement and closeness of the ship, the merchant
must bear the loss and pay the freight. The master and owners are
in no fault; nor does their contract, though taken as the contract of
common carriers, contain an insurance or guaranty against such an
event. Maclachlan on Shipping, 469, as quoted with approval in
Seaman v. Adler, 37 Fed. E. 268.
The master has a lien on the property to enable him to earn his
freight. The moment the transportation begins, the lien attaches,
and is not divested so long as the master is proceeding not in default.
The consignor is not bound to pay until the transportation is com-
pleted in accordance with the contract, but he may not prevent the
master's earning his freight. If he takes possession of the goods
cakkibe's compensation. 817
short of their destination, when the master, not in default, is willing
and able to complete the transportation, he must pay full freight.
He has prevented or waived the performance of the condition prece-
dent. The law, therefore, regards it as performed. It is true that
in this case the performance was prevented by the consignee, and
not by the shipper; but in this respect the consignor is represented
by the consignee, and the former is responsible for the acts of the
latter. The consignor has done his full duty to the consignee when
he has paid or agreed to pay freight to a certain point. If the con-
signee sees fit to take the goods at some other place when the trans-
portation is only partially completed, and when the master is able
and willing to perform his contract, he, the consignee, can make no
claim against the consignor , and the latter should therefore pay the
freight which the master was able, willing, and had a legal right to
earn. There can be no action unless delivery is either made or
prevented from being made by the act or fault of the shipper or
consignee. 1 Pars. Shipp. & Adm. 220. Per Corliss, C. J., in
Braithwait v. Power, 1 N. Dak., 455.
WESTEEN TEANSP. CO. v. HOYT,
69 N. Y. 230. 1877.
Appeal from Judgment of the General Term of the Supreme Court,
in the second judicial department, affirming a judgment in favor of
defendants, entered upon an order nonsuiting plaintiff on trial.
This action was brought by plaintiff as a common carrier to recover
freight and charges on a cargo of oats alleged to have been trans-
ported for and delivered to defendants.
Plaintiff received the oats at Buft'alo, giving the following bill of
lading therefor : —
"Buffalo, October 9th, 1869.
" Shipped by Barclay, Bruce, & Co., in apparent good order, on board
canal-boat ' Clio,' of W. T. Co. Line, Captain , the following described
property, to be transported to the place of destination, without unnecessary
delay, and delivered to the consignees, in like good order, as noted below in
the customary manner, free of lighterage, upon payment of freight and
charges, as prescribed in this bill. Consignees to pay all harbor towing,
from and to the usual place of landing. Three week-days, regardless of
weather after arrival, and notice of same, to be allowed consignees to dis-
charge this cargo, after which time the cargo or consignees are to pay demur-
rage, at the rate of one and one-half per cent per day, upon the freight,
including tolls, for each and every day of such demurrage, over the three
days as above specified, until the cargo is fully discharged. All damage,
caused by the boat or carrier, or deficiency in the cargo, from quantity, as
herein specified, to be paid for by the carrier, and deducted from the freight,
and any excess in the cargo to be paid for to the carjier by the consignees.
818 CAKEIERS or GOODS.
In case grain becomes heated while in transit, the carrier shall deliver his
entire cargo, and pay only for any deficiency, caused by heating, exceeding
five bushels, for each one thousand bushels. The freight, charges, and de-
murrage, payable to or order, at the place of destination, who is the
only party authorized to collect the same, and whose receipt shall be in full,
for all demands on this cargo or bill of lading.
" Tolls on this cargo having been advanced by shippers, if refunded, must
be to them or their order.
" Ace. Geo. Ellison, 14,650 bush. No. 2 oats, ex. cargo.
" Care Jesse Hoyt & Co., Bk. Pathfinder, Canal.
" New York, Frt. Buff, to N. Y., 10.
' ' Lake frt. and Buff. Chgs., 5f — 842.38.
*' Subject to Barclay, Bruce, & Co.'s sight draft on Messrs. Jesse Hoyt & Co.,
New York, for fifty-six hundred and three 63-100 dollars for advances.
"The W. T. Co.,
" G. P. Morgan."
The boat witli the oats arrived safely at New York, Friday,
]S"ovember 6th, 1869, and notice thereof was given to the consignees
on the same day at ten minutes past twelve. On the next day, and
on Monday, defendants were requested to give the boat despatch,
and on Tuesday, the 9th November, they were notified that unless
the cargo was discharged it would be put in store. On the 9th,
5,000 bushels were removed from the boat by an elevator procured by
defendants. After the delivery of that amount, the elevator stopped.
Plaintiff's agent thereupon directed that if the boat was not dis-
charged by six P.M. to take it to store. At about that hour, it not
having been discharged, it was by plaintiff's order taken to Brooklyn,
and the oats stored with one Barber, a warehouseman. In March,
1871, Barber delivered the possession of the oats to defendants upon
their demand, they indemnifying against any claim of the plaintiff.
Further facts appear in the opinion.
Chuech, Ch. J. The decision in the case of the present plaintiff
against Barber, 66 N. Y. 544, disposes of some of the questions
involved in this case. That was an action for conversion against
the warehouseman for delivering the oats to the defendants, and it
was there held that the proper construction of the bill of lading was
to give the defendants, who were consignees, three full week-days
to discharge the cargo, and such reasonable time after that period as
the circumstances might require, upon paying the specified demur-
rage, but that the carrier might terminate this additional privilege
or right by a proper notice. It appears in this, as in that case, that
notice of the arrival of a boat, "Clio," was given to the consignees,
on Friday, at ten minutes past twelve, and it was not disputed on
the trial that when the notice is after twelve o'clock, that day is not
to be counted as any part of the three days given absolutely for the
discharge of the cargo, and it appeared, and seems not to have been
disputed, that the three days would not expire until Tuesday night
at twelve o'clock. We held that the act of the carrier in removing
caeeier's compensation. 819
his boat, and storing the grain elsewhere, on Tuesday, prior to the
expiration of the three days, was wrongful, and amounted to a con-
version, and deprived him of his lien for freight. The case was not
materially changed in this respect upon the trial of this action.
The notice which was claimed to have been given was given on
Tuesday morning, to the effect that unless the cargo was discharged
on that day the oats would be stored. Such a notice would not
relieve the plaintiff from the consequences of his wrongful act in
storing the oats, for the reason that the day extended, as was proved,
to midnight, and the plaintiff violated the notice by removing tlie
boat several hours previously. He could not by a notice shorten
"the time fixed by the contract itself. The construction of the bill
■of lading, the character of the act of the plaintiff in storing the oats,
and the effect of the act upon its rights to a lien for freight must be
regarded as adjudged and settled in the case referred to.
Other questions are presented upon this appeal, which must be
considered. About 5,000 of the 14,000 bushels of the oats were
removed from the boat by the elevator procured by the defendants,
and the remainder were stored in Barber's warehouse. Subsequently,
the defendants demanded and obtained possession of the oa);s from
Barber upon giving him indemnity against any claim of plaintiff for
freight or for the oats. It is urged that the defendants taking pos-
session of the property entitled the plaintiff' to the freight. There
is some apparent plausibility in equity in this position, but it must
be observed that a delivery to the consignees is as much a part of
the contract as the transportation. Mr. Angell, in his work on car-
riers, says : " It is not enough that the goods be carried in safety to
the place of delivery, but the carrier must, without any demand
upon him, deliver, and he is not entitled to freight until the contract
for a complete delivery is performed." § 282. When the responsi-
bility has begun, it continues until there has been a due delivery by
the carrier. Id., note 1, and cases cited. Parsons on Shipping,
220. And in this ease, the bill of lading expressly requires the
property to be transported and delivered to the consignees. The
■delivery was as essential to performance as transportation to New
York, and it is a substantial part of the contract. The plaintiff
might as well, in a legal view, have stopped at Albany, or any other
intermediate port, and stored the grain, as to have stored it in
Brooklya. In either case he could not aver a full performance, nor
that he was prevented by the defendants from performing. It fol-
lows that he cannot recover upon the contract. Performance is a
condition precedent to a recovery. As said by Lord EUenborough
in Liddard v. Lopes, 10 East, .526, " The parties have entered into a
special contract by which freight is made payable in one event only,
that of a right delivery of the cargo according to the terms of the
contract, and that event has not taken place, there has been no such
delivery, and consequently the plaintiff is not entitled to recover."
820 CAKEIBRS OF GOODS.
As the plaintifC cannot recover under the contract, if he has any
claim for freight it is only for pro rata freight, which is sometimes
allowed, when the transportation has been interrupted or prevented
by stress of weather or other cause. In such a case, if the freighter
or his consignee is willing to dispense with the performance of the.
whole voyage, and voluntarily accept the goods before the complete
service is rendered, a proportionate amount of freight will be due
as "freight pro rata itineris." This principle was derived from the
marine law, and it is said that the common law presumes a promise
to that effect as being made by the party who consents to accept his
goods at a place short of the port of destination, for he obtains his
property with the advantage of the carriage thus far. The principle
is based upon the idea of a new contract, and not upon the right to
recover upon the original contract. The application of this principle
has been considerably modified by the courts. In the early case of
Luke V. Lyde, 2 Burr. 889, a contract was inferred from the fact of
acceptance, and the rule was enunciated without qualification that
from such fact, without regard to the circumstances, and whether
the acceptance was voluntary or from necessity, a new contract to
pay pro rata freight might be inferred. Some later English cases,
and the earlier American cases, apparently followed this rule ; but
the rule has been in both countries materially modified, and it is
now held that taking possession from necessity to save the property
from destruction, or in consequence of the wrongful act of the
freighter, as in Hunter v. Prinsey, 10 East, 394, and in 13 M. &
Wels. 229, where the master caused the goods to be sold, or when
the carrier refused to complete the performance of his contract, the
carrier is not entitled to any freight. Parke, B., in the last case,
stated the rule with approval, that to justify a claim for pro rata
freight there must be a voluntary acceptance of the goods at an
intermediate port, in such a mode as to raise a fair inference that
the further carriage of the goods was intentionally dispensed with;
and Lord Ellenhorough, in Hunter v. Prinsey, supra, said: "The
general property in the goods is in the freighter; the shipowner
has no right to withhold the possession from him unless he has
either earned his freight or is going to earn it. If no freight be
earned, and he decline proceeding to earn any, the freighter has a
right to the possession."
Thompson, Ch. J., in 15 J. R. 12, said: "If the shipowner will
not or cannot carry on the cargo, the freighter is entitled to receive
his goods without paying freight." It was unnecessary to review
the authorities. The subject is considered in Angell on Carriers,
§ 402 to 409, and Abbott on Shipping, 5th Am. ed. 547, and in the
notes and numerous cases referred to, and the rule as above stated
seems to have been generally adopted by nearly all the recent
decisions, and its manifest justice commends itself to our judgment.
,In this case no inference of a promise to pay pro rata or any freight
caeriee's compensation. 821
can be drawn. The circumstances stron"gly repel any such inten-
tion. The carrier doubtless acted in accordance with what it believed
to be its legal rights, but the act of storing was a refusal to deliver,
and, as we held in the Barber case, supra, a wrongful act amounting
to conversion, quite equal in effect to the sale of the goods in the
cases cited. The carrier must therefore be regarded as refusing to
deliver the oats. Neither the owner nor his consignee intended to
waive a full performance or to assume voluntarily to relieve the
plaintiff from non-performance. They claimed the possession of
the property and the right to possession discharged from all claim
for freight, and indemnified the warehouseman against such claim.
Every circumstance repels the idea of a promise to pay^ro rata freight.
The case stands, therefore, unembarrassed by the circumstance that
the consignee took possession of the property under the circumstances,
and it presents the ordinary case of an action on contract where the
party seeking to enforce it has not shown a full performance.
The next question is, whether the plaintiff is entitled to freight
upon the 5,000 bushels delivered. The contract for freight is an
entirety, and this applies as well to a delivery of the whole quantity
of goods as to a delivery at all, or as to a full transportation. Par-
sons on Shipping, 204. There are cases where this rule as to quan-
tity has been qualified, but they have, I think, no application to the
present case. The delivery of the 5,000 bushels was made with the
Understanding and expectation that the whole quantity was to be
delivered, and no inference can be drawn of an intention to pay
freight in part without a delivery of the whole. The quantity
delivered must be regarded as having been received subject to the
delivery of the whole cargo. There was no waiver. The principle
involved is analogous to a part delivery from time to time of per-
sonal property sold and required to be delivered. If the whole is
not delivered, no recovery can be had for that portion delivered.
18 Wend. 187; 13 J. E. 94; 24 N. Y. 317.
The claim for lake and Buffalo charges stands, I think, upon a
different footing. These are stated in the bill of lading at 5f cents
a bushel, amounting to $842.38. It must be presumed, as the case
appears, that the plaintiff advanced these charges; and, if so, it
becomes subrogated to the rights of the antecedent carrier. The
claim for these charges was complete when the plaintiff received the
property to transport, and was not merged in the condition requir-
ing the performance of the contract by the plaintiff to transport the
property from Buffalo. That contract was independent of this
claim. The bill of lading is for transportation and delivery upon
payment of freight and charges ; but if the plaintiff had a right to
demand any part of the charges independent of the bill of lading,
that instrument would not deprive him of such right. We have
been referred to no authority making a liability upon such an ad-
vance dependent upon the performance of the contract for subse-
822 CAREIEES OF GOODS.
quent carriage. If the action had been by the lake carrier to
recover for the freight to Buffalo, it is very clear that the defend-
ants could not have interposed as a defence that the carrier from
Buffalo had not performed; and why is not the plaintiff entitled to
the same rights in respect to this claim as the former carrier?
I am unable to answer this question satisfactorily, as the case
now appears.
If these views are correct, a nonsuit was improper, and there
must be a new trial with costs to abide event.
Judgment reversed.
WOOSTER V. TAER,
8 Allen (Mass.), 270. 1864.
Contract to recover for the carriage of mackerel from Halifax
to Boston.
It was agreed in the Superior Court that the defendants shipped
the mackerel at Halifax, upon a vessel of which the plaintiffs were
part owners, said Wooster being master, under a bill of lading in
the usual form, to be delivered at Boston " unto Messrs. E. A. Howes
& Co., or to their assigns, he or they paying freight for said goods,"
etc. On the arrival of the vessel at Boston, Wooster was informed
by Howes & Co. that the mackerel had been sold "to arrive," to a
person to whom they requested him to deliver them. The mackerel
were accordingly delivered, and payment demanded of Howes & Co.,
but refused. Howes & Co. were then and still are insolvent. The
mackerel, at the time of their delivery on board the vessel, had been
purchased and paid for by the defendants for and on account of
Howes & Co., at whose risk they were after shipment; but this fact
was unknown to the- plaintiffs. The mackerel were entered at the
custom-house in Halifax in the name of the defendants.
Upon these facts judgment was rendered for the plaintiffs, and
the defendants appealed to this court.
BiGELOw, C. J. The question raised in this case is very fully
discussed in Blanchard v. Page, 8 Gray, 28.1, 286, 290-295. It is
there stated to be the settled doctrine that a bill of lading is a
written simple contract between a shipper of goods and the ship-
owner; the latter to carry the goods, and the former to pay the
stipulated compensation when the service is performed. Of the cor-
rectness of this statement there can be no doubt. The shipper or
consignor, whether the owner of the goods shipped or not, is the
party with whom the owner or master enters into the contract of
affreightment. It is he that makes the bailment of the goods to be
carried, and, as the bailor, he is liable for the compensation to be
paid therefor. The dictum of Bayley, J., in Moorsom v. Kymer,
carrier's compensation. 823
2 M. & S. 318, subsequently repeated by Lord Tenterden in Drew v.
Bird, Mood. & Malk. 156, that in the absence of an express contract
by the shipper to pay freight, when the goods are by the bill of lad-
ing to be delivered on payment of freight by the consignee, no
recourse can be had for the price of the carriage to the shipper, has
been distinctly repudiated, and cannot be regarded as a correct
statement of the law. Sanders v. Van Zeller, 4 Q. B. 260, 284 ^
Maclachlan on Shipping, 426.
It is contended, on the part of the defendants, that the omission
of the master to collect the freight of the consignees of the cargo or
their assigns, under the circumstances stated, was a breach of good
faith towards the shippers, which operates as an estoppel on him
and the other owners of the vessel, whose agent he was, to demand
the freight-money of the defendants. But there are no facts on
which to found an allegation of bad faith against the master. He
did not act contrary to his contract or inconsistent with his duty
towards the shippers. It is true that he omitted to enforce his lien
on the cargo for the freight, by delivering it without insisting on
payment thereof by the consignees. This was no violation of any
obligation which he had assumed towards the defendants as shippers
of the cargo. A master is not bound at his peril to enforce payment
of freight from the consignees. The usual clause in bills of lading
that the cargo is to be delivered to the person named or his assignees,
"he or they paying freight," is only inserted as a recognition or
assertion of the right of the master to retain the goods carried until
his lien is satisfied by payment of the freight, but it imposes no
obligation on him to insist on payment before delivery of the cargo.
If he sees fit to waive his right of lien and to deliver the goods with-
out payment of the freight, his right to resort to the shipper for
compensation still remains. Shepard v. De Bernales, 13 East, 565;
Domett V. Beckford, 5 B. & Ad. 521, 525; Christy v. Eow, 1. Taunt.
300. Although the receipt of the cargo under a bill of lading in the
usual form is evidence from which a contract to pay the freight-
money to the master or owner may be inferred, this is only a cumu-
lative or additional remedy, which does not take away or impair the
right to resort to the shipper on the original contract of bailment
for the compensation due for the carriage of the goods.
Judgment for the plaintiff's.
MERIAN V. FUNCK.
4 Denio (N. Y. Sup. Ct.), 110. 1847.
Eebor to the Superior Court of the city of New York. Punck
and the other defendants in error sued Merian & Benard in the court
below, in assumpsit, for freight and primage on a quantity of goods
824 CAKKIEKS OF GOODS.
shipped at Havre, and brought to the port of New York in the packet-
ship "Baltimore," of which the plaintiffs were the owners. The
first parcel, consisting of nine packages, was received into the pub-
lic store in New York, on a general order to discharge the ship, on
the 11th of November, 1839, and was delivered therefrom to Messrs.
Mainon & Bonnay on the 22d of February thereafter. The other
parcel, consisting of ten packages, was brought on a subsequent
voyage of the ship "Baltimore," five of which were received into the
store on a like order on the 26th of March, 1840j and delivered to
Mainon & Bonnay on the 22d of April thereafter, and the remaining
five packages were delivered to the same persons from the ship.
The bills of lading signed by the master were produced, and by
them it appeared that the goods were shipped at Havre by one
J. Troussel, and that the master engaged to carry them to the port
of New York and there to deliver them to the defen,dants or to their
order, on paying freight and ten per cent, primage. When the ship
arrived at New York upon each of the voyages, the plaintiffs' agent
caused a bill of the freight of these goods, and of other goods
imported by the defendants in the same vessel, to be made out and
presented to the defendants. They requested that the freight now
in question should be made out by the agent in separate bills against
Mainon & Bonnay, which was done; and the bills for such freight
were presented to them, and they repeatedly promised to pay the
amount. They failed in July, 1840, without having paid the bills,
having on that day executed a general assignment for the benefit of
their creditors, to the defendants, to whom they owed a considerable
amount. The goods for which freight is claimed in this suit, or a
considerable part of them, passed under this assignment. The bills
of lading were severally indorsed by the defendants, with a direc-
tion to deliver the goods to Mainon & Bonnay. The indorsement
on the bill of lading of the first parcel was dated February 21, 1840;
the other indorsement was without date.
Pierre Bonnay, one of the firm of Mainon & Bonnay, was examined
on the part of the defendants, and testified that the goods on which
the freight was charged were ordered and purchased by the witness's
house of a house in France, and that the defendants had no interest
in them; that they were forwarded to the witness through the
defendant's house, in order that the witness might settle for the
purchase price with the defendants, according to a practice which
prevailed in respect to importations by the witness through the
defendant's house; that the invoices of the goods were made out to
the witness's house, but the bill of lading was sent to the defend-
ants, to be transferred on their receiving payment of the cost of the
goods.
The court charged the jury that the defendants were liable for the
freight claimed, unless there was an express agreement on the part
of the plaintiffs to look to Mainon & Bonnay for the same, and to
cakkiee's compensation. 825
absolve the defendants from their obligation. The defendants'
counsel excepted, and the jury gave a verdict for the plaintiffs,
upon which the court below rendered judgment. A bill of excep-
tions having been signed, the defendants brought error.
Jewbtt, J. The obligation to pay freight rested on the bill of
lading, by which its payment was made a condition of delivery to
the consignee or to his order. The master was not bound to part
with the goods until the freight was paid; but he did not, by deliver-
ing the goods before payment, waive or discharge his legal right to
demand payment of the person who, by the principles of law, was
primarily liable to pay. It is well settled that when the goods , by
the terms of the bill of lading, are to be delivered to the consignee
or to his order, on payment of freight, the party receiving them,
whether the consignee or an indorsee, to whom the bill of lading
has been transferred by the consignee, makes himself responsible
for the payment of the freight. The law implies a promise on his
part to pay the freight, such being the terms on which, by the bill
of lading, the goods were to be delivered. The person who accepts
and receives the property thereby makes himself a party to the con-
tract. In this case the goods were consigned to the defendants, or
to their order. They indorsed the bills of lading and ordered a
delivery to Mainon & Bonnay, to whom the goods were delivered.
They, and not the defendants, were therefore bound to pay the
freight. Cock v. Taylor, 13 East, 399; Trask u. Duval, 4 Wash.
C. C. E. 184.
In Tobin v. Crawford, 5 Mees. & Wels. 235, affirmed on error in
the Exchequer Chamber, 9 id. 716, the bills of lading made the goods
deliverable to the shipper's order, or to his assigns, on paying
freight; the shipper indorsed the bills of lading and forwarded
them to the defendants, who indorsed them to their agents, and the
agents received the goods. It was held that the defendants were
not liable for the freight, because the contract was with the shipper
in the first instance, and afterwards with the agents receiving the
goods, but not with the defendants, they having given no authority,
express or implied, to pledge their credit for the freight. The only
authority which could be implied was to receive the goods, paying
the freight on delivery. The case establishes the principle that the
party who actually receives the goods under the bill of lading
becomes thereby a party to its stipulations respecting freight. The
charge of the court below was therefore erroneous, and the judgment
must be reversed.
Judgment reversed.
826 CAEEIEKS OF GOODS.
SCAIPE V. TOBIN.
King's Bench. 3 Barn. & Ad. 523. 1832.
This was an action by the plaintiffs as surviving pwners of the
brig "Solon," against the defendant as consignee at Liverpool of
goods shipped on board the "Solon "at Demerara, upon a voyage
from that place to Liverpool, for average loss. At the trial before
Bayley, J., at the summer assizes for Cumberland, 1830, the jury
found a verdict for the plaintiffs, subject to the opinion of this-
court on the following case : —
The brig " Solon " sailed from Demerara on a voyage to Liverpool,,
on the 6th of January, 1829, having on board goods shipped by one
Cramer on his own account, and other goods shipped by J. J. Starkey
on his own account, and on the several accounts of two other par-
ties. They were consigned to the defendant by four several bills of
lading, each expressing the goods mentioned in it were to be delivered
to the defendant or his assigns, paying freight for the same with
primage and average accustomed. The goods were so consigned at
the risk of the consignors. The course of dealing between the con-
signors and the defendant was, that the former, upon making ship-
ments, drew bills upon the defendant, who sold the consignment on.
their account, carried the proceeds of the sale to their credit, and
debited them with the amount paid by him upon their bills, charg-
ing a commission upon the sales. Accounts of these were rendered
from time to time as they occurred, and accounts current were
usually rendered half yearly to January and July. The defendant
sometimes paid charges for general average upon the goods so con-
signed, and debited the consignors with the amount. Whilst the
" Solon " was proceeding on her voyage, the masts were cut away in
a storm for the preservation of the ship and cargo, and the loss
which gave rise to the present' claim for average was thereby occa-
sioned. The vessel put into Holyhead on the 26th of February,
and remained there till the 28th, and she then sailed for Liverpool ,.
where she arrived on the 3d of March. Whilst she was at Holyhead,
the master wrote a letter to the defendant and the other consignees
of the goods on board the vessel, informing them of the damage sus-
tained, and requesting instructions. This letter was received by the
defendant before the "Solon" arrived at Liverpool, but no answer
was sent. The defendant had also received bills of lading and
invoices of the goods consigned to him, on the 25th of February.
On the 9th of June he was called upon to pay the average in ques-
tion. The goods consigned to the defendant were delivered to him
after the arrival of the ship, and were sold by him on account of the
caeeiee's compensation. 827
consignors, and an account of the sale of Mr. Cramer's goods was
rendered to him on the 13th of April, 1829, but no accounts of the
sale of the goods of the other consignors were rendered to them
until after the 9th of June, when the claim for average was made
upon the defendant. The " Solon " was chartered by Mr. Starkey at
Demerara, and the defendant gave no orders for the consignment of
the goods to him, nor did he know that any goods were consigned
to him by the "Solon," till he received the bills of lading and the
invoices.
LiTTLEDALE, J.' There is no doubt that an absolute owner of
goods is liable to pay general average. But a mere consignee, who
has a special property in the goods, is not so chargeable. He could
not even pledge the goods before the late Act of Parliament. The
question of liability here depends entirely on the maritime law. It
is said that general average bears an analogy to freight, and that if
goods be delivered to a consignee, he is liable to pay freight. There
is no doubt that a consignee, not the owner of goods, who receives
them in pursuance of a bill of lading, in which it is expressed that
they are to be delivered to him, he paying freight or demurrage, is
liable to those charges; but then he is so liable by reason of a
special contract implied by the law from the fact of his having
accepted goods which were to be delivered to him only on condition
of his paying freight and demurrage. In Jesson v. Solly, 4 Taunt.
52, it was said by the court that the consignee by taking the goods
adopted the contract; that is, the contract in the bill of lading,
whereby the master agreed with the shipper to deliver the goods to
the consignee, he paying demurrage and freight. Here, if it had
been stated in the bill of lading that the goods were to be delivered
to the defendant or his assigns, he or they paying freight and
general average, he, by receiving the goods, would have adopted this
as his contract, and would be presumed to have contracted to pay to
the shipowner those charges, the payment of which was made a con-
dition precedent to the delivery; but here general average is not
mentioned. The argument that it would be for the convenience of
commerce that a mere consignee, not the owner, should be liable to
general average, applies equally to demurrage; but neither the law
of England nor the general law of the world makes him so liable.
It is said that the defendant is liable because he had notice, before
he received the goods, that they were subject to this charge. But
the law will not imply a contract to pay general average merely
because the defendant, before he received the goods, knew that they
were subject to it. As, then, there was no contract, express or
implied, to pay general average, the plaintiff cannot recover.
Judgment for the defendant,
i Opinion of Parke, J., is omitted.
828 CARRIERS OF GOODS.
WEGENEE V. SMITH.
Common Pleas. 15 C. B. 285. 1854.
This was an action by the master of a ship called the "Gustave
Adolphe," against the defendant, a merchant at Sunderland, for
demurrage. Plea, amongst others, never indebted.
The cause was tried before Crowdee, J., at the last assizes at
Durham. The plaintiff put in a charter-party between one Schreber,
a merchant at Stettin, and himself, for the hire of the ship for a
voyage to Sunderland with a full cargo of timber. The charter-
party provided that the cargo should be brought alongside and put
free on board, to be delivered at the port of discharge on payment
of a certain measurement freight; and, in case of detention, the
captain to be paid £5 for every provable lay -day.
The bill of lading, for the whole cargo, which was indorsed to
the defendant, made the goods deliverable to order "against pay-
ment of the agreed freight and other conditions as per charter-
party."
The defendant received the timber under the bill of lading, but
refused to pay the demurrage claimed by the plaintiff, alleging that
he was not liable for demurrage; and it was insisted, on his behalf,
at the trial, that the action was not maintainable, that the master
could not sue, and that the defendant as assignee of the bill of lad-
ing was not liable for demurrage, in the absence of a contract on his
part, express or implied, to pay it, and that there was no evidence
to go to the jury of any such implied contract.
On the other hand, it was insisted, that the reference to the charter-
party in the bill of lading incorporated therein all its terms, and
amongst others the contract for demurrage.
The learned judge, reserving the points, left the case to the jury,
who returned a verdict for the plaintiff, damages £60.
Jbrvis, C. J.* As far as regards the evidence, the whole was a
question for the jury : they found for the plaintiff; and I do not under-
stand my brother Crowder to express himself dissatisfied with the
verdict. The only question is as to the construction of the words in
the bill of lading, " against payment of the agreed freight and other
conditions as per charter-party." That refers to the charter-party,
which stipulates for demurrage at £5 per day. I think the defendant
was clearly liable to demurrage.
1 Opinions of other judges are omitted.
caekier's compensation. 829
ASHMOLE V. WAINWEIGHT.
Queen's Bench. 2 Q. B. 837. 1842.
Assumpsit for money had and received and on account stated.
The particular claimed £5 5s., paid on, etc., by plaintiff to defend-
ants, "in order to obtain possession of certain goods belonging to
the plaintiff then in the custody of the defendants, and which said
sum," etc., "was paid by the plaintiff under the protest that he was
not liable to pay the same or any part thereof; or, if liable to pay
some part thereof, that the sum claimed by the defendants, namely,"
etc., "was an exorbitant and unreasonable claim."
Plea: Non-assumpsit. Issue thereon.
On the trial before Coleridge, J., at the Westminster sittings
after Hilary Term, 1841, it appeared that, in October, 1839, the
defendants, who were common carriers, conveyed certain goods for
the plaintiff from Walpole to London, under circumstances which
induced the plaintiff to expect that they would make no charge for
so doing. The goods, being brought to London, remained some
time in the defendants' warehouse, after which, on the plaintiff
sending for them, the defendants refused to give them to him except
upon his paying £5 5s. for carriage and warehouse room. The
plaintiff insisted that he was not liable to pay anything; and that if
he was liable to pay anything, the demand was exorbitant. In an
interview which the plaintiff's attorney had with one of the defend-
ants at their place of business, the latter declared that he would
receive nothing less than the whole sum demanded. The attorney
called again a few days afterwards, and said to the same defendant,
"I suppose you still refuse to take anything less than the whole
sum; " to which the defendant said, " Of course I do." The attorney
then paid him the £5 5s., and told him that he paid it under protest
as to both points. The goods were then given up to the plaintiff.
The learned judge put three questions to the jury: 1. Was the
plaintiff' to pay anything? 2. Was £5 &s. an unreasonable sum?
5. If £5 5s. was unreasonable, what was a reasonable sum? The
jury found that the plaintiff ought to pay something; that the
demand of £5 5s. was unreasonable; that the reasonable charges
were 18s. for carriage, and 12s. &d. for warehouse room. The learned
judge was of opinion that the plaintiff ought to have tendered that
or a larger sum ; and a verdict was entered for the defendant, with
leave for the plaintiff to move to enter a verdict for £.3 14s. &d. if
the court should be of opinion that a tender was unnecessary. [On
a rule nisi."]
Lord Denman, C. J. As is very commonly the case, each party
has taken pains to put himself in the wrong. After carriage of the
830
CAEEIERS OF GOODS.
goods ■without express bargain, the owner, the plaintiif, says that
the carriers, the defendants, were to carry them for nothing, and
he demands the goods: the defendants claim what must now be
taken to be a very exorbitant charge, and refuse to deliver the goods
except on payment of £5 5s. ; the plaintiff says, I will pay it under
protest that I do not owe you so much. The jury find that the
proper sum is £1 10s. 6d. To the extent of the difference the
defendants have received the plaintiff's money; is there anything
in the circumstances to deprive him of his remedy as for money
received by them to his use? It is said that' he ought to have ten-
dered the proper charges : the answer is, that they ought to have
told him the proper charges. I can see no other circumstance to
deprive the plaintiff of his action in this form : the cases relied on
for the defendants are all distinguishable; the utmost extent to
which they go is that the action does not lie where there is another
adequate remedy; and, as to equity, when the defendants had re-
ceived such notice as they did, both from the attorney and from the
language of the particulars, it was their duty to pay back the sums
which they had no right to retain.
Patteson, J. I should be sorry to throw any doubt upon the
point that an action for money had and received will lie to recover
money paid on the wrongful detainer of goods : it would be very
dangerous to do so, the doctrine being in itself so reasonable, and
supported by so many authorities. In Lindon v. Hooper, 1 Cowp.
414, replevin was as convenient a mode of recovering the money as
the action for money had and received ; but replevin would not lie
here. My only difficulty has arisen from the necessity for a tender.
Astley V. Eeynolds, 2 Strange, 915, at first sight seemed to be
somewhat in favor of the present defendants; for there a tender was
made ; and I am not prepared to go the length of saying that, where
a party simply denies that anything is due, then pays, and after-
wards sues for the whole sum, he may turn round at the trial and
recover part; for his objecting to the whole would be like a decep^
tion. In this ease, therefore, had there been nothing to show that
the plaintiff ever demanded less than to have the goods without any
payment, according to his first claim, I should hardly have said that
the action would be maintainable. But, on the further conversation
and the subsequent applications, an allegation of overcharge is added
to the at first total denial: the defendants always demanded the
whole ; the plaintiff did not altogether insist that nothing at all was
due ; then the particulars of demand distinctly show that the action
was brought, not merely to recover the whole, but to recover the
part overcharged, if the plaintiff was liable at all. After such a
notice the proper course for the defendant was to pay the difference
into court.
CoLEKiDGE, J. I never doubted that an action for money had
and received might be maintained to recover money paid on the
carrier's COMPENSATIOSr. 831
wrongful detainer of goods. Skeate v. Beale, 11 A. & E. 983, is
not inconsistent with this doctrine. That was an action on a written
agreement; duress of goods was pleaded; and the court held that,
for that purpose, there was no distinction between an agreement and
a deed, so that the agreement must be held to have been voluntary.
It is very true that some words in the judgment go beyond the point
decided; but they are not necessary to the decision, which is quite
•consistent with our decision in the present case. Here the only
question is on the necessity of tendering or demanding back a
specific sum. Taking the particulars altogether, they are clearly
meant to convey notice of the plaintiff's intention to recover all or
such part as he might be entitled to; and, after hearing the argu-
ment) I am satisfied that no tender of any specific sum was neces-
sary. The defendants began wrong by making an exorbitant de-
mand : in whose knowledge, if not in theirs, did the proper charges
lie? Surely the duty of ascertaining the proper charge lay on them
in the first instance. Looking at the nature of the demalid, it could
not be for tlie plaintiff to ascertain the specific sum. See Jones v.
Tarleton, 9 M. & W. 675.
Sule absolute.
CHASE V. ALLIANCE INS. CO.
9 Allen (Mass.), 311. 1864.
Contract upon a policy of insurance issued by the defendants,
dated April 25, 1862, by which they insured the plaintiff for one
year in the sum of $20,000 on the freight of the ship " Flying Mist, "
said freight valued at $30,000 on board or not on board. The
following facts were agreed in this court; —
On the day when the policy declared on was issued, additional
insurance was effected at other offices, in the sum of $10,000, under
leave granted in this policy. The ship " Flying Mist " was then
under a charter, executed March 4, 1862, at Glasgow, in Scotland,
to persons living there, by which it was agreed that she should
proceed from London, where she was then lying, "to Glasgow, and
there receive on board a full and complete cargo of sheep and other
cargo, . . . and therewith proceed to Dunedin, New Zealand, or one
other port, as ordered at Otago, . . . freight for the same to be paid
at a lump sum of twenty-six hundred and fifty pounds sterling, . . .
and, on delivery of the outward cargo, the vessel shall at once sail
for Melbourne, Sidney, Launcestown, or Hobart Town, as ordered by
charterer's agent at Dunedin, etc. . . . The freight to be paid as
follows : Two thousand pounds cash on the final clearing of the ship
from Greenock . . . and the balance on right and true delivery of
the cargo at Dunedin."
832 CARRIERS OF GOODS.
Under said charter the ship sailed for Glasgow and arrived there
on April 7th, 1862, completed her loading, and sailed for New
Zealand on the 5th of June, and was totally lost by perils of the
seas on said voyage, at the entrance of the harbor of Otago, in New
Zealand , on the 27th of August, 1862. Due proof of loss was made,
and the defendants paid to the plaintiff the sum of f 13,235.32, under
the policy; and the plaintiff claimed an additional sum as herein-
after stated.
The charterer paid to the master of the ship, on her clearing from
Ureenook, £2,000, as stipulated in the charter, which sum was agreed
to be valued at $10,140.37. It was admitted that no reclamation of
this sum has been made; and the defendants contended that the
plaintiff was not liable to refund it, and that the same should be
deducted from the gross sum insured on the freight, leaving them
liable only for the sum which they had already paid. And the
question submitted to the court was, whether said sum of $10,140.37
should be so deducted ; and it was agreed that the court should enter
judgment for the plaintiff for $6,764.68, with interest, or for the
defendants, as this question should be determined.
Hoar, J. The first question which the case presents is, whether
the payment on account of freight stipulated in the charter-party,
and which was made before the vessel sailed from Greenock, can be
recovered back by the charterer from the insured. If it can, then
the whole valued freight was at risk at the time of the loss, and the
plaintiff is entitled to recover.
" The general rule of law ," as was said by the Chief Justice in the
recent case of Benner v. Equitable Ins. Co. , 6 Allen, 222, " is, that
freight paid in advance is not earned, unless the voyage for which
it is stipulated to be paid is fully performed; and the owner of the
vessel is liable to a claim for reimbursement in favor of the shipper,
if for any fault not imputable to the latter the contract of affreight-
ment is not fulfilled. This rule may be varied or annulled by an
express agreement in the charter-party or bill of lading, by which
it is provided that money paid in advance on account of the freight
shall be deemed to be absolutely due to the owner at the time of its
prepayment, and not in any degree dependent on the contingency
of the performance of the contemplated voyage, and the entire ful-
filment of the contract of carriage. But as such a stipulation is
intended to control the usual rule of law applicable to such con-
tracts, and to substitute in its place a positive agreement of the
parties, it is necessary to express it in terms so clear and unambig-
uous as to leave no doubt that such was the intention in framing the
contract of affreightment. Otherwise, the general rule of law must
prevail." The doctrine thus stated, and which was held upon full
consideration in Minturn v. Warren Ins. Co., 2 Allen, 86, renders
any discussion of the general proposition unnecessary, that a pay-
ment made in advance for freight may be recovered back, if the
cakkiek's compensation. 833
freight is not earned, in the absence of any express agreement to
the contrary.
Judgment for the plaintiff.
b. Lien.
SKINNEE V. UPSHAW.
King's Bench. 2 Ld. Ray. 752. 1702.
The plaintiff brought an action of trover against the defendant,
being a common carrier, for goods delivered to him to carry, etc.
Upon not guilty pleaded, the defendant gave in evidence, that he
offered to deliver the goods to the plaintiff, if he would pay him his
hire; but that the plaintiff refused, etc., and therefore he retained
them. And it was ruled by Holt, Chief Justice at Guildhall (the
case being tried before him there). May 12, 1 Ann. Reg. 1702, that
a carrier may retain the goods for his hire; and upon direction the
defendant had a verdict given for him.
PHILLIPS V. EODIE.
King's Bench. 15 East, 547. 1812.
In trover for 179 bales of cotton, which was tried at Lancaster,
before Wood, B., a verdict was found for the plaintiffs for £1,955
18s. 2d., subject to the opinion of the court on the following case.
On the 16th of October, 1810, White, the bankrupt, entered into a
charter-party with the defendants for the hire of the ship "Tlora,"
of which the defendants are owners, on a voyage from Liverpool to
Surinam and back again.
[By the charter-party. White was to pay for the return cargo at
specified rates of freight for certain-named kinds of goods, and if
the vessel should not be fully laden with the return cargo, he was to
pay for so much in addition as the vessel would have carried ; and if
he should not furnish any return cargo, then he should pay full
freight for the vessel as if she should have been fully laden. He
was also to pay a certain rate of demurrage for each day's delay
beyond a stipulated time for putting on board the cargo. There
was delay by White's agent at Surinam in furnishing a cargo, and
then the vessel was only partially loaded. White having become
834 CAEKIEES OF GOODS.
insolvent before the return of the vessel to Liverpool, the plaintiffs,
his assignees, tendered the freight and charges as to the goods
shipped, but defendant demanded an additional sum for demurrage
and for freight on the deficiency of the cargo, usually called dead
freight, arid detained the goods under claim of a lien therefor.
Verdict was for plaintiffs for the agreed value of the goods detained,
less the charges thereon. If plaintiffs were found not to be entitled
to a verdict a nonsuit was to be entered.]
LittUdale, for the plaintiffs, contended that the defendants had
no lien either for the demurrage or dead freight; the claim of a lien
on the cargo for demurrage was neither warranted by the charter-
party, by any usage of trade found, or by any legal precedent. But
even if such a lien could exist, it would have been waived in this
case by the defendants having taken a bill payable at a future day
for it. Next, there can be no lien for dead freight, as it is called,
which is a mere nonentity, the only satisfaction for which rests on
the covenant, which is personal. A lien is properly a right to detain
specific property for something due in respect of it until payment
be made; such as artificers have for the value of their work on the
goods of another; carriers for the carriage of goods; though liens
may exist in other cases by express contract, or implication. So
owners of ships have a lien for freight ; that is, for the actual car-
riage of the goods. ^ If the freight had been agreed to be paid at so
much a ton on the ship's measurement, the defendants would have
had a lien for it on the goods actually shipped, whether more or
less ; but here it was made payable according to different rates upon
specific goods; and if they could detain the goods on board for
freight not earned, it would exclude the freighters from pleading
that they were ready to have loaded a complete cargo but for the
captain, who refused to take it in. Upon this contract for different
rates of freight on different goods the amount is uncertain, where
the freight was not in fact earned; so that the freighters could
not tell for how much they were to give their bill ; and it must be
equally doubtful by what rule the compensation is to be made; it
rests therefore in damages, to be assessed with reference to the
usage of trade.'' Perhaps it might be too much to say that there
was no lien in this case upon the goods unshipped at the docks : the
unloading is an act going on from day to day; and perhaps White
might not be bound to give the bill till the last package was ready
to be delivered.
Eichardson, contra, as to the last observation, said that the master
might continue his lien by landing the goods in the docks at L. in
his own name, and might make an entry in his own name in the
dock-books, to continue his lien; and therefore the cargo being
several days in landing could make no difference in this case. But
1 Rooeus, p. 1, and Blakey v. Dixon, 2 Bos. & Pull. 321, were cited.
2 Bell V. Puller, 2 Taunt. 299, and Abbot on Merch. Ship. 274.
CAKBIEE'S COMPENSATION. 835
the sole question intended to be made was upon the fair meaning of
the charter-party, which goes further than the common form, in
stipulating that if the vessel should not be fully laden with the
return cargo, White should not only pay freight for the goods on
board, but for so much in addition as the vessel would have carried.
And it also provides that in case of there being no cargo put on
board, he shall still pay full freight, as if she had been fully laden
with goods of the above description. [Le Blanc, J. Must not the
amount depend upon the description of the cargo?] That is regu-
lated by usage, and the proportions are understood by the parties.
The payment in any case is reserved to be made as freight, and the
■contract of the parties must be construed with reference to the state
of things if the ship had been fully laden, so far as there is any
subject-matter for the accustomed lien to act upon. [Lord Ellen-
borough, C. J. If any lien were established in this case, it must
be to the extent which the arbitrators should award ; for the amount
must be a subject of reference ; ' and that would be a novel species
of lien at common law.] It may be calculated by usage, as easily as
"the value of work in ordinary cases. [Lord Ellenbokough, C. J.
We must then assume that there existed a known usage in these
•cases, and that both parties were cognizant of it at the time when
the contract was entered into, and contracted with reference to it.
Does not a lien for freight mean for goods actually carried? but this
Is a lien upon air ; for goods not carried. Baylet, J. What terms
are there in the charter-party from whence it can be collected that
the freighters were bound to carry such a proportion of each com-
modity; for example, what was there to oblige them to load coffee?]
Usage regulates the proportions ; and as there is no doubt that an
action of covenant would lie to recover damages for the breach
in not loading fully, the amount must be capable of reasonable
■certainty. If the goods were not loaded by the master's fault, that
would be an answer to the demand ; and whatever would be a defence
to an action on the covenant would take away the lien; and the
plaintiffs might have discharged the lien by tendering a sum sufficient
to discharge the demand.
Lord Ellenbo ROUGH, C. J. It is impossible in this case, without
the intervention of a jury or an arbitrator, to settle what is the sum
to be tendered : it would be taking a leap in the dark. Where there
is no custom to regulate the proportions and the amount, the case
must necessarily rest in damages. What is a lien for freight but a
right to detain the goods on board until the freight which has been
•actually earned upon them, which is always capable of being calcu-
lated and ascertained, has been paid, and where the owner of the
:goods knows what he is to tender? But here the claim to retain is
for the amount of damages upascertained, which the parties are
entitled to recover for the non-completion of the cargo, commonly
1 See a case of this sort, Harrison v. Wright, 13 East, 343.
836 CARRIERS OF GOODS.
called dead freight; but it is that term, freight, which has misled
the defendants; for it is not freight, but an unliquidated compensa-
tion for the loss of freight, recoverable in the absence and place of
freight. The covenant is in effect to load the vessel fully, or if not,
to indemnify the shipowner by paying so much in addition as the
vessel would have carried : the covenant, in the event of no loading,
is to pay full freight for the vessel (not for goods not loaded), as if
she had been loaded with goods of the description before mentioned;
that must depend on the tonnage of the vessel. In order to found
the argument, the covenant should have been to pay full freight as
if the goods had been actually loaded on board, and that the master
should have the same lien upon the goods actually on board as if
the ship had been fully laden with all the goods covenanted to be
loaded. But if we were to put this construction upon the contract
as it now stands, it would be making a new contract for the parties.
There is no pretence or color for the lien now claimed; it is a lien
to attach upon a nonentity: the plaintiffs' action of trover, there-
fore, is not met by any defence.
Grose, J. A lien must attach upon some certain thing; and here
there is nothing for it to attach upon.
Postea to the plaintiffs^
CHICAGO & NOETHWESTEKN E. CO. v. JENKINS.
103 111. 588. 1882.
Mb. Justice Walker.
It is claimed that appellant had the right to hold the property
until its charges for demurrage were paid, — that they were a lien
on the property, and it was not required to make delivery until
they were paid. The claim is based on rules and regulations,
adopted and published by the company. It will be conceded that
all liens are created by law, or by contract of the parties. Where'
the law gives no lien, neither party can create it without the con-
sent or agreement of the other. Noyes & Messenger were there-
fore not bound by these rules unless they assented to them when
the contract for shipping the goods was entered into by the parties,
and such a contract is not claimed. But it is insisted that as-
the rules were public, and generally understood, it must be pre-
sumed they assented. For the purpose of creating such a lien on
property the law will never indulge such presumptions. There is
no evidence or agreement that either the consignor or consignee ever
had notice or knew of such regulations. But even if they had,
unless they agreed to be bound by them the rule could create no
such lien.
carkiee's compensation. 837
We held, in the case of Illinois Central E. E. Co. v. Alexander,
20 111. 23, that railroad companies, when they had carried goods to
their destination, if not removed by the consignee, might store them
in their warehouses, and thus terminate their liability as common
carriers, and thereby assume the relation and liabilities of ware-
housemen. To the same effect is the case of Eichards v. Michigan
Southern and Northern Indiana E. E. Co., id, 404; and in the case
of Porter v. Chicago and Eock Island E. E. Co., id. 407, it was held
it was their duty to do so, or remain liable for loss as common car-
riers. It was held in the former of these cases, that when stored,
and they had placed the goods in their warehouse, they were entitled
to charge the customary price for such services, and on such charges;
being paid or tendered, and a refusal by the company to deliver on
demand, it became liable for a conversion.
The right to demurrage, if it exists as a legal right, is confined
to the maritime law, and only exists as to carriers by sea-going
vessels. But it is believed to exist alone by force of contract. All
such contracts of affreightment contain an agreement for demurrage
in case of delay beyond the period allowed by the agreement or the
custom of the port allowed the consignee to receive and remove the
goods. But the mode of doing business by the two kinds of carriers
is essentially different. Eailroad comp&,nies have warehouses in
which to store freights. Owners of vessels have none. Eailroads
discharge cargoes carried by them. Carriers by ship do not, but it
is done by the consignee. The masters of vessels provide in the
contract for demurrage, while railroads do not, and it is seen these
essential differences are, under the rules of the maritime law,
wholly inapplicable to railroad carriers.
Perceiving no error in the record, the judgment of the Appellate
Court is affirmed.
Judgment affirmed.
POTTS V. NEW YOEK & NEW ENGLAND E. CO.
131 Mass. 455. 1881.
ToKT for the conversion of a quantity of coal. Answer, a general
denial. The case was submitted to the Superior Court, and, after
judgment for the defendant, to this court, on appeal, upon an
agreed statement of facts in substance as follows : —
The plaintiff, a coal merchant, sold to a firm in Southbridge, in
this commonwealth, a large quantity of coal, and shipped 205 tons
thereof by a schooner to Norwich, Connecticut, to be thence trans-
ported by the defendant over its railroad to the consignees at South-
bridge. The defendant received the coal at Norwich, paying the
water freight to discharge the schooner's lien, amounting to $20^
838 CAEEIEES OF GOODS.
and then carried the coal to Southbridge, and delivered to the con-
signees all but 119 tons thereof, no part of the advances for water
freight nor the defendant's freight being paid. On the arrival at
Southbridge of the 119 tons, which is the coal in controversy, the
consignees having failed, the plaintiff duly stopped it in transitu,
and demanded it of the defendant. The defendant refused to deliver
it, claiming a lien on it for the entire amount of the water freight
on the whole cargo paid by the defendant, and for the whole of the
defendant's freight on the cargo, amounting in all to $513. The
plaintiff tendered to the defendant f 297, which was enough to cover
the water freight and the defendant's freight on the coal in ques-
tion. The value of the coal in controversy was $696.
If the defendant had no right to hold the coal as against the plain-
tiff for the advances and freight on the whole cargo, judgment was
to be entered for the plaintiff for f 398, with interest from the date
of the writ; otherwise, judgment for the defendant.
Gbay, C. J. A carrier of goods consigned to one person under
one contract has a lien upon the whole for the lawful freight and
charges on every part, and a delivery of part of the goods to the
consignees does not discharge or waive that lien upon the r€st with-
out proof of an intention so to do. Sodergren v. Flight, cited in
6 East, 622; Abbott on Shipping (7th ed.), 377; Lane v. Old
Colony Eailroad, 14 Gray, 143; New Haven & Northampton Co.
V. Campbell, 128 Mass.- 104. And when the consignor delivers
goods to one carrier to be carried over his route, and thence over the
route of another carrier, he makes the first carrier his forwarding
agent; and the second carrier has a lien, not only for the freight
over his own part of the route, but also for any freight on the goods
paid by him to the first carrier. Briggs v. Boston & Lowell Rail-
road, 6 Allen, 246, 250.
The right of stoppage in transitu is an equitable extension, recog-
nized by the courts of common law, of the seller's lien for the price
of goods of which the buyer has acquired the property, but not the
possession. Bloxam v. Sanders, 4 B. & C. 941, 948, 949, and 7 D.
& R. 396, 405, 406; Rowley v. Bigelow, 12 Pick. 307, 313. This
right is indeed paramount to any lien, created by usage or by agree-
ment between the carrier and the consignee, for a general balance of
account. Oppenheim v. Russell, 3 B. & P. 42; Jackson v. Nichol,
5 Bing. N. C. 508, 518, and 7 Scott, 577, 591. See also Butler -v,
Woolcott, 2 N. R. 64; Sears v. Wills, 4 Allen, 212, 216. But the
common-law lien of a carrier upon a particular consignment of goods
arises from the act of the consignor himself in delivering the goods
to be carried; and no authority has been cited, and no reason offered,
to support the position that this lien of the carrier upon the whole of
the same consignment is not as valid against the consignor as against
the consignee.
Judgment for the defendant.
carrier's COMPEl^SATION. 839
CAMPBELL V. CONNER.
70 N. Y. 424. 1877.
Appeal from judgment of the General Term of the Superior Court
of the city of New York, affirming a judgment in favor of plaintiff,
entered upon a verdict.
This action was brought by plaintiff as owner of the bark " John
Campbell," against defendant, sheriff of the city and county of New
York, to recover damages for unlawfully taking and removing from
said vessel a quantity of flour, and for detention of the vessel. The
sheriff sought to justify by virtue of certain warrants of attachment
against the shipper of the flour to whom bills of lading had been
delivered. The flour was shipped to Hamburgh. At the time of
the seizure the attention of the sheriff was called by plaintiff's coun-
sel to the fact that no bond of indemnity was given, as required by
the statute, chap. 242, Laws of 1841, and he was forbidden to take
the goods; he, however, persisted in so doing, detained the vessel,
unloaded and carried away the flour. Upon the vessel being re-
leased, the master procured a quantity of rosin to make up the cargo,
and employed a stevedore to restow the cargo.
The seizure of the vessel and flour was made April 30, 1874; at
that time the vessel was ready and about to go to sea, and on May 10,
1874, as soon as able after the flour was removed, she left port.
The bills of lading, which had been issued for the flour, were
outstanding at the time of trial.
On the trial, plaintiff's counsel stated that, unless a satisfactory
bond of indemnity was given to indemnify plaintiff from any lia-
bility on the bills of lading, he would require to be indemnified, by
a verdict, for the value of the flour, and requested defendant to fur-
nish such bond, which his counsel declined to do.
The court directed a verdict for $9,207.57, composed of the
following items : —
Further facts appear in the opinion.
Church, Ch. J. The principal question in this case is, whether
the value of the property seized and removed from the ship was
properly included as an item of damages, which the plaintiff was
entitled to recover. The goods had been shipped, bills of lading
issued, and were outstanding, and the vessel was ready to sail when
the attachments were levied and the goods taken. The freight and
charges were not paid, nor was any bond of indemnity given. The
sheriff refused to give any bond at the time or since. It did not
appear on the trial that the plaintiff had paid but a small amount,
by reason of the bills of lading, although they were still outstanding.
840 CARRIERS OF GOODS.
It is well settled at common law that a shipper cannot insist upon
having liis goods relanded and delivered to him at the port of outfit,
without paying the freight and indemnifying the master against the
consequences of any bill of lading signed by him. Abbott on Ship-
ping, 531, 596 [4th ed.]; Bartlett v. Carnley, 6 Duer, 195.
An assignee of the bills of lading for value would be entitled to
the property, and the master or owner would be estopped from deny-
ing that he had the goods. 28 L. & Eq. R. 216. Neither creditors
nor the sheriff can acquire, through attachment or other process,
any better right to the property than the shipper had. 6 Duer,
supra.
The Act of 1841, chapter 242, carries out, to some extent, the
common-law rule, by making it lawful for the master to proceed on
the voyage, notwithstanding the issuing of any attachment unless
a bond is given conditioned to pay all expenses, damages, and charges
which may be incurred, or to which they may be subjected for un-
loading the goods, and for all necessary detention.
Both the common law and the statute recognize the right of the
master or shipowner to a lien for freight, expenses, and charges, and
for his liability upon outstanding bills of lading, and they are neces-
sarily co-extensive with the value of the goods. It follows, I think,
that neither the owner of the goods nor any creditor can take the
goods, without first giving the indemnity which the common-law
rule and the statute prescribe.
An attachment cannot be levied. The sheriff is commanded to
levy the goods of the defendant in the action. The goods in ques-
tion were not his property. A lien, in the nature of a special prop-
erty, existed in favor of the plaintiff to their full value. Neither
the shipper nor sheriff had any more right to seize the goods, with-
out furnishing indemnity, than any stranger. The plaintiff was
entitled to hold the goods as his security ; and, if taken by a stranger,
it would have been a trespass, for which the plaintiff could recover
their value, and hold the proceeds in lieu of the goods. The con-
tention of the defendant is that the plaintiff has not been damnified.
He insists that the rights of parties are the same as if the action
was upon the bond, if one had been given. In this, I think, he is
in error. The condition precedent to his right to interfere with the
property was the indemnity which the law requires, and, without
furnishing this indemnity, he had no right and was a trespasser,
unless, perhaps, he could show bad faith on the part of the carrier.
The plaintiff held the property as his security, and, when unlawfully
taken, he is entitled to recover its value, and hold the amount for
the same purpose and to the same extent as he held the property.
If he escapes liability upon the bills of lading, the equitable powers
of the court, upon motion or by action, can be invoked to award
restitution to the owner of his creditors, but, until this is ascer.
tained, he has a right to retain the property or its value. Any other
carrier's compensation. 841
rule would destroy the protection which the law affords. If the
plaintiff could not recover the value of the goods in this action, he
might be remediless, if his liability upon the bills of lading should
afterward be enforced against him.
I assume that the bond required, at common law and by statute, is
an indemnity only. If the defendant had complied with the law
and furnished the bond, he would have been in a condition to invoke
the rule which he claims, in respect to damages, but this he has
deliberately refused to do. He was, therefore, a wrong-doer in
taking the property, and the legal consequences follow.
The judgment must be afi&rmed.
STEAMBOAT VIKGINIA v. KRAFT.
25 Mo. 76. 1857.
Oke Whiting, acting as a forwarding merchant in New Orleans,
shipped for St. Louis, per the steamboat "Virginia," five cases of
scythes. When said goods were received on board of sai^ steam-
boat, the said Whiting demanded, and the clerk of said steamboat
paid to said Whiting the sum of $153.42. Said sum was entered
as "charges" in the bill of lading. Of said sum of $153.42, a por-
tion— $147.92 — formed no part of the charges paid by or due
Whiting on account of the said merchandise shipped on the " Vir-
ginia ; " it was a charge made by Whiting on account of the former
advances, travelling expenses, lawyer's charges for collecting, etc.
The merchandise shipped by said Whiting as forwarding agent was
delivered to E. E. Kraft & Co., the owners thereof, at St. Louis,
who refused to pay to said steamboat the said item of $147.92,
alleging that they were not liable therefor, but admitting their lia-
bility to the extent of the remaining advances. This suit was
brought in behalf of said steamboat to recover said sum of $153.42.
The jury returned a verdict for plaintiff for the whole amount
sued for.
Scott, Judge. In the case of White v. Vann, 6 Hump. 73, the
court said it was "proved by several enlightened merchants and
well-informed owners of steamboats, that it is the long and well-
established custom and usage of trade, not only on the Tennessee
Eiver, but throughout the United States, for freighters of goods to
advance to the forwarding agents the existing charges upon them,
which the consignees and owners are liable to refund; that this
usage is indispensable to the successful prosecution of commercial
operations, and of great and mutual advantage to all parties." We
842 CAEKIERS OF GOODS.
have copied tlie above exbract as showing the usage, because upon
examination we have not been enabled to find much, if anything, in
relation to it. The advantages resulting from this usage are so-
obvious that it must commend itself to every one ; and we should
regret to see it a stranger to our courts. But advantageous as this.
iTsage is shown to be, we do not know, nor can we conceive anything-
that would more effectually render it odious than such an extension
of it as would make it cover advances for claims or demands on the-
owner or consignees wholly foreign to and disconnected with any
cost or charge for transportation. If this were tolerated, not only
^he forwarding agent, but every one who would collude with him,
might obtain payment of demands, whose justice the owners or con-
signees refused to recognize. It would be the introduction of a
novel mode for the collection of debts where payment had been
denied on the ground of their invalidity, and a means of compelling;
the owner to submit to unjust exactions or to refuse him his goods.
As the debt paid by the plaintiff through her agent was in nowise
incurred by, or in any way connected with, the transportation of
the merchandise, she could not by such voluntary payment, unsup-
ported by any usage, make herself a creditor of the defendant. Nor
can the officers of the plaintiff, by any custom or usage, protect her
from the consequences of their neglect in not ascertaining whether
their advances were the costs of transportation. Would they
advance any amount, however enormous, and expect to save her
from loss by a usage which did not require them to ascertain the
validity of the charges? A custom to encourage negligence at the
expense of others would scarcely be tolerated by the law. Being
familiar in the business of transporting merchandise, if the items
of the charges were produced and examined, the agent could see at
once whether they were usual and proper.
The principle that, where one of two innocent persons must suffer
by the act of a third, be should bear the loss who has placed it in
the power of the third person to do the injury, has no application
here. The plaintiff is not an innocent party. Her agents were
guilty of gross negligence in not informing themselves of the nature
of the charges for which they made an advance. There is no pre-
tence in the circumstances of the case to warrant the instruction to-
the effect that the defendants, by receiving the goods, acknowledged
the justice of the charges, and were liable to pay them, unless the
plaintiff, when she advanced them through her agent, knew that
they were not the ordinary and usual charges incurred in the trans-
portation and shipment of goods.
As the charge was illegal and unjust; as there was no evidence
that the defendants were aware of its nature when they received the
goods ; as they objected to it so soon as it was known ; and as they
could not contemplate that an improper charge would be made against
them, — there is no foundation for the presumption that they acqui-
cakeier's compensation. 843
esced in or acknowledged the justice of the plaintiff's demand. The
defendants, upon tendering the legal advances, would have been
entitled to the possession of their goods, and might by an action
have compelled their delivery. As they have them lawfully with-
out suit, there is no reason why they should be placed in a worse
situation than if they had obtained them by suit. The other judges
concurring, the judgment will be reversed, and the cause remanded.
WELLS V. THOMAS.
27 Mo. 17. 1858.
This was an action for the possession of an omnibus. The cause
was tried by the court without a jury upon an agreed statement of
the facts, of which the following is the substance: Plaintiffs pur-
chased the omnibus mentioned in the petition, of the value of five
hundred dollars, of John Stephenson, in New York, and instructed
him to ship it to them at St. Louis, Missouri. Thereupon said
Stephenson, for the plaintiffs, on the 24th of September, 1865, made
a contract with the New York Central Railroad Company (being
a railroad running from New York to Buffalo, in the State of New
York) to deliver said omnibus to the plaintiffs at St. Louis for
the sum of $49.33. The bill of lading (which was set forth in
the agreed statement) was forwarded to plaintiffs at St. Louis.
Stephenson delivered the omnibus to the New York Central Rail-
road Company to be transported to St. Louis, by which it was car-
ried in the usual mode and time to Buffalo, and there delivered to
the Michigan Central Railroad Company, which transported the
same to Joliet. At Joliet the omnibus was delivered to the Chicago,
Alton, and St. Louis Railroad Company to be transported to St.
Louis. The Chicago, Alton, and St. Louis Railroad Company re-
ceived said omnibus in due course of business, without any notice of
any special contract for its transportation, and paid to the Michigan
Central Railroad Company the sum of seventy-two dollars, the
amount of their bill for the freight on the omnibus from Buffalo to
Joliet, and the charges they had paid on receiving the same. It is
customary for one railroad company, when receiving goods from
another railroad compa,ny, to be carried forward by the former, to
pay the freight and charges upon said goods and property up to the
point where they are so received. Said omnibus arrived in St. Louis,
and was in the possession of defendant, the agent of the Chicago,
Alton, and St. Louis Railroad Company. The defendant notified
plaintiffs of the arrival of the omnibus, and requested them to call
and pay freight and charges, amounting to $102.40. The plaintiffs
844 CAKRIEES OF GOODS.
offered to pay $49.33, and demanded of defendant the omnibus.
The defendant refused to deliver it until the freight and charges
advanced to the Michigan Central Railroad Company and the freight
from Joliet to St. Louis, the latter amounting at the customary rates
to $30.37, should be paid. The plaintiffs refused to pay more than
the amount tendered. There was nothing in the amount or charac-
ter of the charges paid by the Chicago, Alton, and St. Louis Eailroad
Company to the Michigan Central Eailroad Company to excite any
suspicion that the charges were unreasona'ble.
The court decided the cause for the plaintiffs. A motion for a
review was made aiid overruled.
Napton, Judge. Upon the case agreed, our opinion is that the
defendant was entitled to judgment.
We do not see how the contract made with the New York com-
pany is to bind the Alton and St. Louis Railroad Company without
showing some privity between these corporations or a knowledge of
the contract on the part of the Alton and St. Louis company. No
such privity is shown, nor is it pretended that the companies at this
end of the route were apprised of any special agreement about the
freight. The cases of Fitch & Gilbert v. Newberry, 1 Dougl. Mich.,
and Robinson v. Baker, 5 Cush. 137 [852], are not applicable. The
Illinois Railroad Company received the omnibus in the usual course of
trade from the Michigan company, and paid the freight due at Joliet,
as the Michigan company had paid what was due at Buffalo. The
omnibus was transported by the route desired and directed by the
-plaintiffs and indicated by the bills of lading. These transporta-
tion companies received the omnibus from the New York Railroad
Company, who were authorized to give it this destination. It is not
the case of goods shipped on a different line from that directed by
the owner or sent to points not authorized.
It is manifest that if we hold the carriers at this end of the route
not entitled to their freight because of a contract made by the car-
riers at the eastern terminus, of which they had no knowledge, great
injustice is done to the carriers here, and still greater injury inflicted
upon consignees. The carriers must protect themselves by requir-
ing freight in advance, contrary to what has been found in this case
to be the established custom.
What may be the proper construction of the bill of lading for-
warded to the plaintiffs here by the New York Central Railroad
Company is not material to be determined. If the meaning of it be
as intended by the plaintiffs, the New York company is of course
responsible ; but this is no reason why defendants should lose their
lien. If any arrangement or understanding existed among these
corporations relative to through transportation, the rule would be
different.
The judgment is reversed.
cakeiek's compensation. 845
BRIGGS V. BOSTON & LOWELL K. CO.
6 Allen (Mass.), 246. 1863.
Tort for the conversion of sixty-seven barrels of flour. Upon
agreed facts, which are stated in the opinion, judgment was ren-
dered in the Superior Court for the plaintiff, for the amount received
by the defendants upon the sale of the flour by them, deducting the
sum claimed by them as the amount for which they had a lien on
the flour, and the expenses of the sale ; and the defendants appealed
to this court.
Merrick, J. The plaintiff, who resides at Eacine, in the State
of Wisconsin, delivered the flour, the value of which he seeks to
recover in this action, to the Racine and Mississippi Railroad Com-
pany, taking from their agents a receipt, in which they agreed to
forward and deliver it to Franklin E. Foster, at Williamstown, in
this State. By mistake of the . agents of that company, the flour
was erroneously directed or billed to Wilmington, where there is a
freight station on the road of the defendants. It was carried by
the Racine and Mississippi Company over their road, and at its
eastern termination delivered to the carriers next in succession in
the line and route from Racine to Wilmington. And it was thus
transported by the successive carriers in that line and route in their
vessels and cars respectively, according to the bills and directions
under which it was forwarded from Raciae, until it arrived in due
time at Groton, the point of the commencement of the road of the
defendants. And it was there received by them, they paying the
freight earned by all the preceding carriers, and carried to Wil-
mington, where it was duly deposited in, their freight depot. But
Franklin E. Foster, to whom it was directed, did not reside or have
any place of business at Wilmington, and the defendants were
unable to find there any consignee who could be notified of its
arrival, or to whom it could be delivered. The defendants' agents
immediately instituted a diligent inquiry, but they could not ascer-
tain where the consignee or any other person entitled to have pos-
session of the flour was to be found , or could be notified. At the
time of its arrival at Wilmington it was beginning to become sour,
and would soon have greatly deteriorated in value. The defendants
kept it on hand in store for about two months ; and at the expira-
tion of that time, still unable to find either the owner or the con-
signee, and it being out of their power to procure a warehouse in
which they could store it for a longer time, they caused it to be sold
at public auction, and received the proceeds of the sale, which they
have since retained in their possession.
846 CARKIEKS OF GOODS.
Upon these facts, the plaintiff in the first place contends that as
Williamstown was the place of destination of the flour under the
directions which he gave to the Kacine and Mississippi Railroad
Company, and according to their agreement in the receipt given for
it by them to him the defendants had no right to receive the flour
at Groton, and were guilty of the unlawful conversion of it to their
own use by transporting it thence to Wilmington ; although in such
reception and transportation of it over their road they acted in good
faith, and strictly in conformity to the bills and directions which
were made and given by the agents of the Racine and Mississippi
Company, and by which it was regularly accompanied over each and
all the lines and routes of the successive carriers.
The same person may be, and often is, not only a common carrier
but also the forwarding agent of the owner of the goods to be trans-
ported. Story on Bailm. §§ 602, 637. He must necessarily act in
the latter capacity whenever he receives goods which are to be for-
warded not only on his own line, but to some distant point beyond
it on the line of the next carrier, or on that of the last of several
successive carriers on the regular and usual route and course of
transportation, to which they are to be carried and delivered to the
consignee. The owner generally does not and cannot always accom-
pany them and give his personal directions to each one of the suc-
cessive carriers. He therefore necessarily, in his own absence,,
devolves upon the carrier to whom he delivers the goods the duty,
and invests him with authority to give the requisite and proper
directions to each successive carrier to whom, in due course of
transportation, they shall be passed over for the purpose of being
forwarded to the place of their ultimate destination. Otherwise
they would never reach that place. Por the first carrier can only
transport the goods over his own portion of the line ; and if he is
not authorized to give the carrier with whose route his own connects
directions in reference to the further transportation, they must stop
at that point; for although, in general, every carrier is bound to
accept and forward all goods which are brought and tendered to
him, yet he is not so bound unless he is duly and seasonably informed
and advised of the place to which they are to be transported. Story
on Bailm. § 532 ; Judson v. Western Railroad, 4 Allen, 520.
Hence it results by inevitable implication that when an owner of
goods delivers them to a carrier to be transported over his route,
and thence over the route of a succeeding carrier, or the routes of
several successive carriers, he makes and constitutes the persons to
whom he delivers them his forwarding agents, for whose acts in the
execution of that agency he is himself responsible. And therefore
if the several successive carriers carry the goods according to the
directions which are given by the forwarding agents, they act under
the authority of the owner, and cannot in any sense be considered
as wrong-doers, although they are carried to a place to which he did
carriee's compensation. 847
not intend that they should be sent. And in suoh case the last car-
.rier will be entitled to a lien upon the goods, not only for the
freight earned by him on his own part of the route, but also for all
the freight which has been accumulating from the commencement
of the carriage until he receives them, which, according to a very
convenient custom, which is now fully recognized and established
as a proper and legal proceeding, he has paid to the preceding car-
riers. Stevens v. Boston & Worcester Railroad, 8 Gray, 266.
Applying these rules and principles to the facts developed in the
present case, the conclusion is plain and inevitable. It is conceded
hy the plaintiff, and agreed by the parties, that the flour was carried
by the Racine and Mississippi Railroad Company over their road,
and was then delivered to the carrier with whose route their own
connected, and was thence transported in strict compliance with
and exactly according to the directions given by them and contained
in the bills which they forwarded with and caused to accompany
the flour over the whole route from Racine to Wilmington, by the
several successive carriers, and among others by the defendants.
The Racine and Mississippi Company were the duly constituted for-
warding agents of the plaintiff; and as the defendants acted under
their authority, they rightfully received the flour at Groton and
carried it to Wilmington. And having under that authority paid
all the freight which had accumulated in the whole course of the
conveyance, including that which had been charged by the forward-
ing agent, up to the time when they received the flour, they were,
as soon as it was conveyed to and deposited in their own freight
house, entitled to a lien thereon for the entire freight thus paid and
earned. And they cannot, either by the transportation of it under
such circumstances over their own road, or by the detention thereoJE
for the purpose of enforcing their lien upon it, be held to have
^inlawfuUy converted it to their own use.
This conclusion does not at all conflict with the decision in the case
•of Robinson v. Baker, 5 Gush. 137 [852], upon which the plaintiff,
in support of his position, chiefly relies. For there is an essential
•difference between the facts in the present and those which appeared
in that case. There it was shown that the plaintiff, the owner of a
parcel of flour, delivered it at Black Rock, on board of one of their
■canal boats, to the Old Clinton Line Company, who gave for it bills
of lading in duplicate, wherein they undertook and agreed to trans-
port it to Albany, and there deliver it to Witt, the agent of the
Western Railroad.. The plaintiff sent one of these bills of lading
to Witt and the other to the consignee at Boston, thus reserving to
himself the right and assuming the responsibility of giving to Witt
the directions under which he was to act. The service which the
Old Clinton Line Company was to render was exclusively in their
capacity as common carriers. They had only to carry the flour to
Albany' and there deliver it to Witt. They had no other duty to
848 CARRIERS OF GOODS.
perform; no right to exercise any control over it for any other pur
pose. They were not, therefore, the forwarding agents of the
plaintiff, nor invested by him with any authority to give directions
as to further transportation of the flour, or to make any other dis-
position of it than its delivery to Witt. Yet upon its arrival in
Albany, in consequence of the inability of Witt immediately to
receive and take charge of it, the agents of the Clinton Line Com-
pany, without right and in violation of their duty, shipped the flour
to the city of New York, and from there to Boston in the schooner
"Lady Suffolk," whose owners claimed a right to detain it under
lien upon it for the freight. But the court, upon the general prin-
ciple that if a carrier, though innocently, receives goods from a
wrongdoer without the consent of the owner, express or implied, he
cannot detain them against the true owners until the freight or
carriage is paid, determined that they had no lien upon the flour,
and that their claim to that effect could not be sustained. But if
they had been the forwarding agents of the owner he would have
been responsible for their acts, and his consent to the diversion of
the property from its intended route of transportation would have
resulted by implication from their directions, and the respective car-
riers would then have become entitled to hold it under a lien to
secure payment of the freight.
When the flour had been carried over their road to Wilmington
and deposited at that place in their warehouse, the defendants had,
as has been shown above, a lien upon it for all the freight which
had been earned in its transportation from Eacine. But this gave
them only a right to detain it until they were paid; not to sell it to
obtain the remuneration to which they were entitled. In the case
of Lickbarrow v. Mason, 6 East, 21, it is said by the court that an
owner may sell or dispose of his property as he pleases ; but he who
has a lien only on goods has no right to do so; he can only detain
them until payment of the sum for which they are chargeable. And
the rule which is now well established, that a party having a lien
only, without a power of sale superadded by special agreement, can-
not lawfully sell the chattel for his reimbursement, is as applicable
to carriers as it is to all other persons having the like claim upon
property in their possession. Jones v. Pearle, 1 Stra. 56; 2 Kent
Com. (6th ed.), 642; Doane v. Russell, 3 Gray, 382. It is in dis-
tinct recognition of this principle that the legislature have provided
that when the owner or consignee of fresh meat, and of certain other
enumerated articles liable soon to perish for want of care, shall not
pay for the transportation and take them away, common carriers
who have a lien thereon for the freight may sell the same without
any delay, and hold the proceeds, subject to their own lawful
charges, for the use of the owner. And such also is the provision
in relation to trunks, parcels, and passengers' effects left unclaimed
at any passenger station of a railroad company for a period of six
CAREIEK'S COMPENSATION. 849
months after arrival and deposit therein. Gen. Sts. c. 80, §§1,2, 5.
This enumeration of particular cases, in which the right to sell and
dispose of certain goods and chattels transported is conferred upon
common carriers, operates, according to a familiar rule of law, as a
denial or exclusion of their right in all other instances.
None of the provisions of the statute referred to extends to the
case of flour transported in barrels as an article of merchandise.
And therefore the defendants had no authority under the statute
and no right at law to sell the flour which belonged to the plaintiff,
although they had a valid and subsisting lien upon it, and were
unable to find, after diligent inquiry, where the person to whom it
ought to be delivered resided or had his place of business, and there
was danger of its becoming worthless by longer detention of it in
their warehouse. And consequently the sale which they made was
an unlawful conversion of it to their own use which renders them
liable in an action of tort to the owner, for its value, or rather for
the value of all the right and interest which he at that time had in
it, which is the merchantable value less the amount of the lieu upon
it. The plaintiff, therefore, may maintain this action, and is
entitled to recover as damages the balance left after deducting from
the sum which was the fair merchantable value of the flour at the
time of the conversion the amount for which, upon the principles
before stated, they had a lien upon it, with interest from the time
of demand, or the date of the writ. And as the sale was unlawful,
the expenses incurred in making it cannot be proved for the purpose
of diminishing the damages which the plaintiff ought to recover.
Judgment is therefore to be rendered for him. Unless the parties
agree upon the amount, the cause must be sent to an assessor, or
submitted to a jury if either party requires it,' to assess tha
damages.
EGBERTS V. KOEHLER.
30 Fed. R. (U. S. C. C.) 94. 1887.
Dbady, J. This action was brought against the defendant, , the
receiver of the Oregon <& California Railway, to recover damages for
alleged maltreatment of the, plaintiff while travelling on the road
between Portland and Ashland, Oregon. The cause was tried with
a jury, who gave a verdict for the defendant, and is now before the
court on a motion for a new trial. It appeared on the trial that the
plaintiff purchased from the defendant" a combination ticket from
Portland to San Francisco, where he resided, and started on the
south -bound Oregon & California train on July 13, 1885; that about
200 miles south of Portland the conductor cut off from said com-
850 CAERIEES OF GOODS.
binatioa ticket and took up the ooupon, entitling the plaintiff to
transportation on the railway between Portland and Ashland, a
distance of about 300 miles, and gave him his private check for
future identification; that at Grant's Pass, a station some miles
south of Eoseburg, the plaintiff was left behind, and a large leather
valise belonging to him was carried on the train to Ashland. The
next passenger train going south passed Grant's Pass in the evening
of July 14th, and the plaintiff got on the same, when the conductor,
in obedience to the rules of the company, demanded his fare to
Ashland, f 1.79, which the plaintiff refused to pay, alleging that he
had paid his fare once, and had been left behind by the misconduct
of the conductor on the train of the day previous ; to which the con-
ductor replied that he would give him a receipt for the payment,
and, if his statement proved correct, the money would be refunded
to him. The plaintiff still refused to pay, and suggested to the con-
ductor that he might put him off the car, to which the latter replied
that he would hold his valise for the fare. When the train arrived
at Ashland, the plaintiff attempted to take his valise out of the
office where it had been deposited the day before, which the con-
ductor resisted, and, with the aid of a brakeman, finally prevented.
The plaintiff in his testimony attributed his being left at Grant's
Pass to the misconduct of the conductor in starting the train with-
out warning, and without waiting the usual time. But on the whole
evidence it was so manifest that his testimony was grossly and wil-
fully false in this respect, and that he was left in consequence of
his own wilfulness in leaving the train just as it was about to start,
and after he was warned of the fact," and going some distance from
the track to get something to eat, that his 'counsel abandoned the
claim for damages on that account before the jury, and only asked
a verdict for the alleged mistreatment of the plaintiff at Ashland in
■the struggle for the possession of the valise.
The court instructed the jury that, if they believed the plaintiff's
statement about the affray at Ashland arising out of his attempt to
possess himself of the valise, they ought to find a verdict for him,
but if they did not believe it, and were satisfied that the conductor
■used only such force as was necessary and proper to prevent the
plaintiff from taking the valise out of the possession of the defend-
ant without first paying the extra fare, they ought to find for the
defendant. In this connection the court also instructed the jury
that under the circumstances the defendant had a lien on the plain-
tiff's valise for his fare from Grant's Pass to Ashland on July 14th,
and therefore the conductor had a right to retain the possession of
the same until such fare was paid. To this latter instruction coun-
sel for the plaintiff then excepted, and now asks for a new trial on
account thereof.
A carrier of passengers is responsible, as a common carrier, for
the baggage of a passenger, when carried on the same conveyance as
caeeieb's compensation. 851
the owner thereof. The transportation of the baggage, and the risk
incurred by the carrier, is a part of the service for which the fare is
■charged. Hollister v. Nowlen, 19 Wend. 236 [465] ; Cole v. Good-
win, id. 257; Powell v. Myers, 26 Wend. 594 [696]; Merrill v.
Orinnell, 30 N. Y. 609; Burnell v. New York Cent. Ey. Co. 45
N. Y. 186; Thomp. Carr. 520, § 8; Story, Bailm. § 499. Corre-
spondingly, a carrier of passengers has a lien on the baggage that
a passenger carries with him for pleasure or convenience. Overt
Liens, § 142; Thomp. Carr. 524, § 11; Ang. Carr. § 375; 2 Eor.
Eys. 1003, § 11. But this lien does not extend to the clothing or
other personal furnishings or conveniences of the passenger in his
immediate use or actual possession. Eamsden v. Boston & A. Ey.
Co., 104 Mass. 121.
A ticket for transportation on a railway between certain termini,
which is silent as to the time when or within which it may be used,
does not authorize the holder to stop over at any point between such
termini, and resume his journey thereon on the next or any follow-
ing train.. The contract involved in the sale and purchase of such a
ticket is an entire one, and not divisible. It is a contract to carry
the passenger through to the point of his destination as one con-
tinuous service, and not by piecemeal, to suit his convenience or
pleasure. 2 Eor. Eys. 971, § 10; 2 Wood, Ry. Law, § 347; Cleve-
land, &c. Ry. Co. V. Bartram, 11 Ohio St. 467; Drew v. Central
Pac. Ry. Co., 51 Cal. 425.
Admitting these legal propositions, counsel for the plaintiff insists
that the defendant had no lien on the valise in question, and there-
fore no right to retain it; and in support of this proposition he
ingeniously argues that the journey from here to Ashland was
divided into two distinct parts, — one from Portland to Grant's Pass
on July 13th, for which his fare was paid to Ashland, and on which
the valise went through to that point, and one from said pass to
Ashland, on which, although no fare was paid, yet no baggage was
carried.
Before considering this proposition, it is well to remember that
the undertaking of the company to transport this valise, as baggage,
■was only incidental to the principal undertaking to carry the owner
thereof; and, when the latter was performed or discharged, the
former was also. Therefore, if the journey in reference to which
the defendant undertook to carry the same ended, by the act of the
plaintiff, at Grant's Pass, the carriage of the valise from there to
Ashland on the same train was an additional service performed for
him, for which the defendant was entitled to an additional compen-
sation as the carrier of so much freight, and a lien thereon for the
same ; for a traveller is not entitled to have his personal baggage
carried in consideration of the fare paid by him, unless it is on the
same train which carries him. Thomp. Carr. 521, § 8.
But, in my judgment, the transaction must be regarded, for the
852 CAKEIEES OF GOODS.
purpose of this question, as one journey, in the course of which the
plaintiff incurred an additional charge of $1.79 for transportation.
In effect, the plaintiff paid his fare to Ashland on the train of
July 13th, with the privilege of stopping over at Grant's Pass, and
finishing the journey on the next day's train, on the payment of the
extra charge of f 1.79. He saw proper to avail himself of this
privilege, and thereby became indebted to the defendant accord-
ingly. And whether the plaintiff allowed his baggage to be carried
through on the first train, or kept it with him, the defendant had a
lien on it for all the unpaid charges for transportation which the
plaintiff incurred during the journey. There was but one contract
for the transportation of the plaintiff, including his baggage, which
was modified or altered, in the course of its performance, by his own
act or omission.
Suppose there were first and second-class carriages on this road,
and on July 13th the plaintiff paid for and took passage in one of
the latter for Ashland, but, arriving at Grant's Pass, he got into
one of the former, and rode to Ashland, refusing to pay the addi-
tional fare when demanded, can there be any doubt that the defend-
ant would have a lien on his baggage for the same, and might, if he
had or got possession of it, retain it until such fare was paid? Cer-
tainly not. Substantially, this is the parallel of the plaintiff's case.
The defendant was clearly in the right in detaining the valise until
the fare was paid, and the plaintiff was as clearly in the wrong in
attempting to take it without doing so. Indeed, his conduct through-
out this transaction looks very much like he was playing a game to
involve the defendant in a lawsuit out of which he might make some
money.
The motion for a new trial is disallowed.
ROBINSON V. BAKER.
5 Cush. (Mass.) 137. 1849.
r
This was an action of replevin, for six hundred barrels of flour,
tried before Dewey, J., and reported by him for the consideration
of the whole court. The material facts are as follows : * —
The plaintiff, in October, 1847, by his agent, purchased, at
Buffalo, 600 barrels of flour, which the agent caused to be put on
board a canal boat, to be transferred to Albany. The boat was
owned by a company known by the name of the Old Clinton Line,
engaged in the business of common carriers between Buffalo and
Albany. On receiving the flour, the agent of the company executed
1 The statement of facts is abridged.
cakeikr's compensation. 853
and delivered to plaintiff's agent duplicate bills of lading, by which
the company undertook to deliver the flour to the agent of the Wes-
tern Kailroad at East Albany. On the arrival of the flour at Albany,
Nov. 5, 1847, the agents of the Old Clinton Line informed the agent
of the Western Eailroad of the fact, asking him if he would take it
off the boat that day. On his refusal to do so, by reason of the fact
that other boats were to be first unloaded, the agents'" of the Old
Clinton Line shipped the flour to New York City by the Albany and
Canal Line, common carriers engaged in the transportation of mer-
chandise between that city and Albany, requesting that company to
ship the flour from New York to Boston for the plaintiff; which was
done by the agent of the Albany and Canal Line at New York,
placing the flour on board a schooner of which defendant was mas-
ter, consigned to the agents of the Albany and Canal Line at Boston,
with directions to deliver the flour to plaintiff on his paying, or
agreeing to pay, the freight by the Old Clinton Line, and also by
the Boston and Albany Line, and the freight also from New York
to Boston. On the arrival of defendant's vessel at Boston, Nov. 23,
1847, plaintiff demanded the flour which defendant refused to deliver,
on the ground that he had a lien thereon for freight.
Fletchee, J. [After stating the facts, the instructions requested,
and the instructions given.] As the ruling of the judge, that the
defendant, as a carrier, had a lien for his freight, was placed upon
grounds wholly independent of any rightful authority in the agents
of the Old Clinton Line and the Albany and Canal Line, to divert
the goods from the course in which the plaintiff had directed them
to be sent, and to forward them by the defendant's vessel, and
wholly independent of the plaintiff's consent, express or implied,
the simple question raised in the case is whether, if a common car-
rier honestly and fairly on his part, without any knowledge or sus-
picion of any wrong, receives goods- from a wrongdoer, without the
consent of the owner, express or implied, he may detain them against
the true owner, until his freight or hire for carriage is paid; or to
state the question in other words, whether, if goods are stolen and
delivered to a common carrier, who receives them honestly and fairly
in entire ignorance of the theft, he can detain them against the true
owner until the carriage is paid. J^tfd ♦ l^o
It is certainly remarkable that there is so little to be found in
the books of the law, upon a question which would seem likely to
be constantly occurring in the ancient and extensive business of the
carrier. In the case of York v. Grenaugh, 2 Ld. Ray. 866, the
decision was, that if a horse is put at the stable of an inn by a
guest, the innkeeper has a lien on the animal for his keep, whether
the animal is the property of the guest or of some third party from
whom it has been fraudulently taken or stolen. In that case, Lord
Chief Justice Holt cited the case of an Exeter common carrier,
where one stole goods and delivered them to the Exeter carrier, to
854 CARKIERS OF GOODS.
be carried to Exeter; the right owner, finding the goods in posses-
sion of the carrier, demanded them of him; upon which the carrier
refused to deliver them unless he was first paid for the carriage.
The owner brought trover, and it was held that the carrier might
justify detaining the goods against the right owner for the carriage;
for when they were brought to him, he was obliged to receive them
and carry them, and therefore, since the law compelled him to carry
them, it will give him a remedy for the premium due for the car-
riage. Powell, J., denied the authority of the case of the Exeter
carrier, but concurred in the decision as to the innkeeper. There is
no other report of the case of the Exeter carrier to be found. Upon
the authority of this statement of the case of the Exeter carrier, the
law is laid down in some of the elementary treatises to be, that a
carrier, who receives goods from a wrongdoer or thief, may detain
them against the true owner until the carriage is paid.
In the case of King v. Eichards, 6 Whart. 418, the court, in giv-
ing an opinion upon another and entirely diiferent and distinct
point, incidentally recognized the doctrine of the case of the Exeter
carrier. But until within six or seven years there was no direct
adjudication upon this question except that referred to in York v.
Grenaugh of the Exeter carrier. In 1843 there was a direct adjudi-
cation upon the question now under consideration in the Supreme
Court of Michigan, in the ease of Fitch v. Newberry, 1 Doug. 1.
The circumstances of that case were very similar to those in the
present case. There the goods were diverted from the course
authorized by the owner, and came to the hands of the carrier with-
out the consent of the owner, express or implied ; the carrier, how-
ever, was wholly ignorant of that, and supposed they were rightfully
delivered to him ; and he claimed the right to detain them until paid
for the carriage. The owner refused to pay the freight, and brought
an action of replevin for the goods. The decision was against the
carrier. The general principle settled was, that if a common car-
rier obtain possession of goods wrongfully or without the consent of
the owner, express or implied, and on demand refuse to deliver them
to the owner, such owner may bring replevin for the goods or trover
for their value. The case appears to have been very fully con-
sidered, and the decision is supported by strong reasoning and a
very elaborate examination of authorities. A very obvious distinc-
tion was supposed to exist between the cases of carriers and inn-
keepers , though the distinction did not affect the determination of
the case.
This decision is supported by the case of Buskirk v. Purin, 2 Hall,
561. There property was sold on a condition, which the buyer failed
to comply with, and shipped the goods on board the defendant's
vessel. On the defendant's refusal to deliver the goods to the owner
he brought trover and was allowed to recover the value, although
the defendants insisted on the right of lien for the freight.
caeeier's compensation. 855
Thus the case stands upon direct and express authorities. How
does it stand upon general principles? In the case of Saltus v.
Everett, 20 Wend. 267, 275, it is said : " The universal and funda-
mental principle of our law of personal property is, that no man can
be divested of his property without his consent, and consequently,
that, even the honest purchaser under a defective title cannot hold
against the true proprietor." There is no case to be found, or any
reason or analogy anywhere suggested, in the books, which would
go to show that the real owner was concluded by a bill of lading not
given by himself, but by some third person, erroneously or fraudu-
lently. If the owner loses his property, or is robbed of it, or it is
sold or pledged without his consent, by one who has only a tem-
porary right to its use by hiring or otherwise, or a qualified posses-
sion of it for a specific purpose, as -for transportation, or for work
to be done upon it, the owner can follow and reclaim it in the
possession of any person, however innocent.
Upon this settled and universal principle, that no man's property
can be taken from him without his consent, express or implied, the
books are full of cases, many of them hard and distressing cases,
where honest and innocent persons have purchased goods of others,
apparently the owners, and often with strong evidence of ownership,
but who yet were not the owners, and the purchasers have been
obliged to surrender the goods to the true owners, though wholly
without remedy for the money paid. There are other hard and
distressing cases of advances made honestly and fairly by auc-
tioneers and commission merchants, upon a pledge of goods by per-
sons apparently having the right to pledge, but who, in fact, had
not any such right, and the pledges have been subjected to the loss
of them by the claim of the rightful owner. These are hazards to
which persons in business are continually exposed by the operation
of this universal principle, that a man's property cannot be taken
from him without his consent. Why should the carrier be exempt
from the operation of this universal principle? Why should not the
principle of caveat emptor apply to him? The reason, and the only
reason, given is, that he is obliged to receive goods to carry, and
should therefore have a right to detain the goods for his pay. But
he is not bound to receive goods from a wrongdoer. He is bound
only to receive goods from one who may rightfully deliver them to
him, and he can look to the title, as well as persons in other pur-
suits and situations in life. Nor is a carrier bound to receive
goods, unless the freight or pay for the carriage is first paid to
him; and he may, in all cases, secure the payment of the carriage
in advance. In the case of King v. Eichards, 6 Whart. 418, it
was decided that a carrier may defend himself from a claim for
goods by the person who delivered them to him, on the ground that
the bailor was not the true owner, and therefore not entitled to the
goods.
856 OAERIEES OF GOODS.
The common carrier is responsible for tlie wrong delivery of
goods, though innocently done, upon a forged order. Why should
not his obligation to receive goods exempt him from the necessity
of determining the right of the person to whom he delivers the goods,
as well as from the necessity of determining the right of the person
from whom he receives goods? Upon the whole, the court are satis-
fied that upon the adjudged cases, as well as on general principles,
the ruling in this case cannot be sustained, and that if a carrier
receives goods, though innocently, from a wrongdoer, without the
consent of the owner, express or implied, he cannot detain them
against the true owner, until the freight or carriage is paid.
BASSETT V. SPOFFORD.
45 N. Y. 387. 1871.
Appeal from the General Term of the New York Common
Pleas.
The action was replevin for four cases of shoes, which came to
the possession of the defendant's testator from one Careras, to be
carried and conveyed on steamer from New York to Havana, con-
signed to one Oliver. At the time the plaintiff, by his agent,
notified the testator and the master and officers of the steamer of
his claim, and demanded a delivery of the property, the cases were
stowed in the hold of the vessel and difficult of access, and incapable
of delivery, except with considerable labor and at some expense.
The delivery would have delayed the departure of the vessel, which
was about to commence her voyage. There was evidence tending to
show that bills of lading for the property had been issued in the
usual form, before any notice of the plaintiff's claim. The plaintiff
claimed as owner. He was a resident of Boston, and contracted to
sell four cases of shoes to Careras, to be delivered in New York, and
paid for on delivery. The shoes were forwarded to New York by
railroad and steamboat, the plaintiff taking a receipt for their car-
riage and giving the same to a clerk, whom he sent with the goods
to New York, with directions to deliver the goods to the purchaser
on receiving the pay therefor. On his arrival in New York the
clerk called on Careras, and informed him of the arrival of the
goods, and that he was ready to deliver them on receipt of the pur-
chase price. He was informed by Careras that he would be pre-
pared to pay at a later hour of the day ; but as the clerk was leaving,
Careras remarked that he would like to examine the goods, and the
bill of lading or receipt was given him " for the purpose of examin-
caeriee's compensation. 857
ing the goods." The clerk called at one o'clock, the time appointed,
for the payment of the money, and was promised it at three o'clock
of the same day. On calling at the last-named hour, the payment
was again deferred, and he then went to look after the goods and
found they had been removed. They were traced to the testator's
ship, to which they had been taken by Careras, and put on board for
transportation to Havana, consigned to one Oliver. The plaintiff
demanded his goods, and upon their non-delivery this action was
brought.
At the close of the trial the plaintiff asked the court to direct a
verdict for the plaintiff, on the grounds : 1st. That the goods were
feloniously obtained by Careras, and 2d. That there was no evi-
dence for a delivery of the bill of lading, and a verdict was ordered
as requested, to which the defendant excepted. The judgment
entered upon the verdict was affirmed by the General Term of the
Common Pleas of New York City, and from the latter judgment the
defendant has appealed to this court.
A.LLEN, J. By the larcenous taking of chattels the owner is not
divested of his property, and a transfer to a purchaser does not
impair the right of the true owner. A purchase of stolen goods
either directly from the thief or from any other person, although in
the ordinary course of trade and in good faith, will not give a title
as against the owner. In the case of a felonious taking of goods,
the owner may follow and reclaim them wherever he may find them.
A carrier or other bailee can stand in no better situation than a
purchaser who has received them in good faith, on a purchase, for
their full value.
A larceny has been defined as "the felonious taking the property
of another, without his consent and against his will, with intent to
convert it to the use of the taker " (Hammond's Case, 2 Leach, 1089),
or " the wrongful or fraudulent taking or carrying away by any per-
son of the personal goods of another, with a felonious intent to con-
vert them to his (the taker's) own use and make them his own prop-
erty without the consent of the owner. 2 East, P. C. 553; 2 Russ.
on Crimes, 1; Mowrey v. Walsh, 8 Cow." 238.
The fraudulent and wrongful taking being proved with the felo-
nious intent, the aninw furandi, the only question remaining in any
case is whether the taking was with the consent of the owner; for if
so, although the consent was obtained by gross fraud, there is no
larceny. But the consent must be to part with the property, and
not the naked possession for a special purpose. If the owner does
not intend or consent to part with his property, then the taking and
conversion of it with a felonious intent by one having possession of
it, as the property of the owner and for a special purpose, is larceny.
If it appear that although there is a delivery by the owner in fact,
yet there is no change of property nor of legal possession, but the
legal possession still remains exclusively in the owner, larceny may
858 CARRIERS OF GOODS.
be committed as if no such delivery had been made. Mowrey v.
Walsh, supra, and cases cited; and 2 Euss. on Crimes, 22; Lewis
V. Commonwealth, 15 S. & R. 93; Commonwealth v. James, 1 Pick.
375; Gary v. Hotaling, 1 Hill, 311. The general owner of personal
property holds the constructive possession and may maintain tres-
pass, though the actual possession be in another; and one who
obtains the bailment of goods, or the possession for a special pur-
pose, fraudulently intending to deprive the owner of his property,
may be convicted of larceny. But if the owner intends to part with
the property and delivers the possession, there can be no larceny,
although fraudulent means have been used to induce him to part
with the goods. The delivery of the receipt to Careras was to
enable him to examine the goods before paying for them, and for no
other purpose ; and with the consent of the plaintiff he had aecesa
to and possession of the goods for this special purpose. The sale
of the goods was for cash, to be paid on delivery; the condition was.
never waived, and there was no absolute delivery of the goods or of
the receipt for them with intent to part with the property, except
upon the payment of the purchase price. Had the ship-owner
received from Careras the original receipt or bill of lading for the
goods, and dealt with him on the faith of it, as evidence of owner-
ship, a different question might have arisen. But Careras had
availed himself of that document to possess himself of the property,
which he took and removed from its place of deposit to the ship
of the defendant's testator. Careras had the naked possession of
stolen property, and the ship-owner was not misled or induced to
receive it by the production of any other evidence of ownership.
Neither did any question arise upon the trial as to the effect, upon
the right of the plaintiff to demand an immediate delivery, of the
fact that the goods were stored in the hold of the vessel under other
goods, and that a breaking up of the cargo would cause delay and
expense, and that the officers of the vessel offered to deliver the
goods to the owner on the return of the ship from Havana.
There was no conflict of evidence, nor any question to submit, as
to the felonious taking of the goods, to the jury.
The plaintiff being clearly entitled to a verdict upon the ground
that the goods had been feloniously stolen and taken from him, the
other questions made were wholly immaterial. The actual delivery
of a bill of lading to the shipper by the testator would have given
him no better right to retain the goods for his indemnity than a
purchaser in good faith and for value would have done. Neither
could acquire any right to withhold stolen property from the plaintiff,
the rightful owner.
The goods having been stolen there was no question of negligence
or estoppel in the case. A party whose horse is stolen may pursue
and reclaim his property, although he has negligently left his stable
unlocked.
oakeiee's compensation. 859
The question of estoppel would have arisen if the ship-owner had
had knowledge of, and acted on, the faith of the original shipping
receipt delivered to Careras.
The delivery of the goods for the purpose named, although it
enabled Careras to perpetrate a fraud upon the defendant's testator,
did not divest the plaintiff of his title or estop him from reclaiming
them wherever found.
The judgment muBt be afB.rmed.
860 CAKKIEKS OF PASSENGERS.
VIII. CARRIERS OF PASSENGERS.
1. WHO DEEMED.
BOYCE V. AISTDEESON.
2 Pet. (U. S.) 150. 1829.
Writ of error to the Circuit Court of Kentucky.
The case was submitted to the court, on the part of the counsel
for the plaintifE in error, Mr. Eowan, upon the following brief.
This was an action in the Court below against defendants in error,
owners of the steamboat "Washington," to recover from them the
value of four slaves, the property of the plaintifE, who, he alleged,
were delivered to the commandants of said boat, to be carried there-
on, and who, he alleged, were drowned by the carelessness, negli-
gence, neglect or mismanagement of the captain and commandants
of the said steamboat.
[The evidence as set out in the report is omitted. The facts are
sufficiently stated in the opinion.]
Upon this evidence the plaintiff moved the court to instruct the
1. That if they find, from the evidence, that the defendants were
owners of the steamboat, and by themselves, their ofl&cer, or ser-
vants of the boat, did actually receive into their yawl the negroes
of the plaintiff, to be carried from shore on board the steamboat,
they are responsible for neglect and imprudent management, not-
withstanding no reward, or hire, or freight, or wages, were to have
been paid by Boyce to defendants.
2. That if they find from the evidence that the steamboat "Wash-
ington " was owned by defendants, and used by them, on the river,
as a common carrier for wages and freight, and that the slaves of
plaintiff were actually received by the agents and servants of the
defendants, on board of the yawl, of and belonging to the defendants
as a tender of the steamboat, to be carried from the land, and put
on board the steamboat, to be therein carried and transported, that
the defendants were bound to the most skilful and careful manage-
ment ; and if the slaves were drowned in consequence of any omis-
sion of such skilful and careful management by the agents and
servants in the conduct and navigation of the boat and tender, the
defendants are answerable to. the plaintiffs for the value of the
slaves.
WHO DEEMED. 861
3. That if the jury believe the evidence in this case, the defend-
ants would have had a legal right to demand a reasonable compensa-
tion for their undertaking to transport said slaves on board their
boat; and, their afterwards waiving, or declining that right, from
motives of humanity, or any other motive, does not change or
diminish their legal responsibility as common carriers for hire or
reward.
The defendants moved the court " to instruct the jury that if they
find from the evidence that the slaves in controversy were taken on
board of the yawl at the instance and in pursuance of the request
of the captain of the ' Teche, ' from motives of humanity and cour-
tesy alone, that the defendants are not liable, unless they shall be
of opinion that the slaves were lost through the gross neglect of the
captain of the steamboat, or the other servants or agents of the
defendants."
The court gave the first instruction moved by the plaintiff, with
this qualification, "that gross negligence or unskilful conduct was
required to charge the defendants." The second and third instruc-
tion moved by the plaintiff, the court refused to give, and instructed
the jury "that the doctrine of common carriers did not apply to the
case of carrying intelligent beings, such as negroes; but that the
defendants were chargeable for negligence or unskilful conduct."
The court gave the instructions asked for by the defendants.
It is believed and alleged that the court erred in refusing to give
the instructions required by plaintiff and in giving those required
by defendants, and especially in instructing the jury that the doc-
trine of common carriers did not apply to the case.
Mr. Chief Justice Marshall. This was an action brought in
the Court of the United States, for the seventh Circuit and District
of Kentucky, against the defendants, owners, &c.
There being no special contract between the parties in this case,
the principal question arises on the opinion expressed by the court,
" that the doctrine of common carriers does not apply to the case of
carrying intelligent beings, such as negroes."
That doctrine is, that the carrier is responsible for every loss
which is not produced by inevitable accident. It has been pressed
beyond the general principles which govern the law of bailment,
by considerations of policy. Can a sound distinction be taken
beween a human being in whose person another has an interest and
inanimate property? A slave has volition, and has feelings which
cannot be entirely disregarded. These properties cannot be over-
looked in conveying him from place to place. He cannot be stowed
away as a common package. Not only does humanity forbid this
proceeding, but it might endanger his life or health. Consequently
this rigorous mode of proceeding cannot safely be adopted, unless
stipulated for by special contract. Being left at liberty, he may
escape. The carrier has not, and cannot have, the same absolute
862 CAEEIERS OF PASSENGEKS.
control over him that he has over inanimate matter. In the nature
of things, and in his character, he resembles a passenger, not a
package of goods. It would seem reasonable, therefore, that the
responsibility of the carrier should be measured by the law which
is applicable to passengers rather than by that which is applicable
to the carriage of common goods.
There are no slaves in England, but there are persons in whose
service another has a temporary interest. We believe that the
responsibility of a carrier, for injury which such person may sus-
tain, has never been placed on the same principle with his respon-
sibility for a bale of goods. He is undoubtedly answerable for any
injury sustained in consequence of his negligence or want of skill;
but we have never understood that he is responsible farther.
The law applicable to common carriers is one of great rigor.
Though to the extent to which it has been carried, and in the cases
to which it has been applied, we admit its necessity and its policy,
we do not think it ought to be carried farther, or applied to new
cases. We think it has not been applied to living men, and that it
ought not to be applied to them.
The directions given by the Court to the jury informed them that
the defendants were responsible for negligence or unskilful conduct,
but not otherwise.
Sir William Jones, in his Treatise on Bailments, p. 14, says,
"When the contract is reciprocally beneficial to both parties, the
obligation hangs in an even balance; and there can be no reason to
recede from the standard: nothing more, therefore, ought in that
case to be required than ordinary diligence, and the bailee should
be responsible for no more than ordinary neglect." In another
place (p. 144) the same author says, "A carrier for hire ought, by
the rule, to be responsible only for ordinary neglect; and in the
time of Henry VIII. it appears to have been generally holden that
a common carrier was chargeable in case of a loss by robbery only
when he had travelled by ways dangerous for robbing, pr driven by
night, or at any inconvenient hour."
This rule, as relates to the conveyance of goods, was changed as
commerce advanced, from motives of policy. But if the court is
right in supposing that the strict rule introduced for general com-
mercial objects does not apply to the conveyance of slaves, the
ancient rule " that the carrier is liable only for ordinary neglect "
still applies to them.
If the slaves were taken on board the yawl to be conveyed in the
steamboat, solely in consequence of their distress and from motives
of humanity alone, no reward, hire, or freight being to be paid for
their passage, as the first prayer of the plaintiff and the prayer of
the defendant suppose, the carrier would certainly be responsible
only in a case of gross neglect; and the qualification annexed to this
construction was correct.
WHO DEEMED. 863
We think that in the case stated for the instruction of the Circuit
Court the defendants were responsible for the injury sustained, only
in the event of its being caused by the negligence or the unskilful-
ness of the defendants or their agents, and that there is no error in
the opinion given.
SHOEMAKEE v. KINGSBURY.
12 Wall. (U. S.) 369. 1870.
Ebbob to the Circuit Court for the District of Kansas.
Suit for damages for personal injuries happening on a rail car;
the case being thusr —
In 1867 Shoemaker and another were contractors for building the
Eastern Division of the Union Pacific Eailway in Kansas; and in
October of that year they ran a construction train over a portion
of the road, carrying material for it. To this train was attached
what was called a "caboose car," — a car for the accommodation of
the men connected with the train, who had their " sleeping bunks "
in this ear, and who stored their tools there, as also the lamps used
on the cars. The road was not yet delivered over to the Pacific
Eailway Company, and the contractors did rot wish to carry pas-
sengers. Persons, however, were sometimes carried on the caboose
car, and sometimes fare had been charged for their passage, but not
always.
In this state of things, one Kingsbury, a sheriff in Kansas, and a
deputy marshal, wanted to make an arrest on the line of the road,
and he applied for passage as far as to a place called Wilson's
Creek, asking the conductor to stop the train there, in order that
he might make the arrest. He was accordingly taken on the train,
and the train stopped until he had made the arrest.
A part of the fare charged was paid by Kingsbury on the cars,
and the balance afterwards. The train ran from Ellsworth to
Walker's Creek in Kansas. In going towards Walker's Creek the
train was made up and ran in the usual way of making up and run-
ning railway trains, the engine being in front, with the caboose and
flat cars attached in regular order. But on the return from Walker's
Creek, as there was, as yet, no turntable on the road, the usual
order for making up such trains was reversed, and both engine and
tender were backed over the road, a distance of more than fifty
miles: the tender being ahead, the engine next, the caboose and
other cars attached, and following in regular order. When about
three miles from Ellsworth, on this return trip, both the engine and
tender were thrown from the track and upset. At the time this acci-
dent occurred, Kingsbury was riding in the caboose car with the
864 CAEKIEES OF PASSENGERS.
conductor of tlie train, and either jumped out or was thrown out,
which of the two did not exactly appear. Whichever of the two
things was true, he was hurt, and for the injuries which he received
he brought the action below.
The accident was occasioned by the engine running against a
young ox, which leaped on to the track about twenty feet in front
of the advancing train, from grass or weeds five or six feet high,
growing on the sides of the road. The train was running at its
usual rate of speed. The accident occurred just after dark; but it
was a moonlight night, and the engineer testified that he could have
seen an animal two hundred yards distant on the track; that the
animal was only about twenty feet from the engine when first seen.
He continued his testimony thus : —
"As soon as 1 saw the animal I shut off the steam, and seized the
lever to reverse the engine, and had it about half over when the
engine. went off the track. Something struck me on the head and I
did not know anything more. I was injured. I did wh^t I thought
was best to be done to stop the train. The whistle lever was in the
top of the cab. I did not whistle for brakes. I had no time to do
so after I saw the animal and before the engine went off the track.
The train could have been stopped in about one hundred and fifty
yards. When danger appears the first thing to be done is to reverse
the engine and then sound the whistle for brakes. Both could not
be done at the same time. In order to reverse and blow the whistle
two motions are necessary, — first, to cut off the steam, and then
take hold of the lever to throttle valve and move it over. It takes
both hands to reverse. The whistle is sounded by a lever in the
top of the cab. Brakemen would know, by shutting off steam and
reversing, that something was the matter. It would take about ten
seconds to do all this. I did it as quick as I could. I could have
done nothing more than I did do."
There was no fence on the sides of the road. The plaintiff had
been several times before over the road and knew its condition, and
the manner in which the trains were made up and run.
The court, among other instructions, gave the following as a fifth
to the jury, to which the defendants excepted : —
" When it was proved that the car was thkown from the track,
and the plaintiff injured, it is incumbent on the defendants to prove
that the agents and servants in charge of the trains were persons of
competent skill, of good habits, and in every respect qualified and
suitably prepared for the business in which they ivere engaged, and
that they acted on this occasion with reasonable skill, and with the
utmost prudence and caution; and if the disaster in question was
occasioned by the least negligence, or want of skill or prudence on
their part, then the defendants are liable in this action."
There was no evidence in the case in relation to the skill, habits ,
or qualifications of the agents and servants of the defendants, except
WHO DEEMED. 865
what arose from the fact that the engineer had been employed on a
railroad about four years , and had been engineer for more than two
years, and that the fireman had been on a railroad for about eighteen
mouths.
Verdict and judgment having gone for the plaintiff, the defendants
brought the case here on error.
Mr. Justice Field. From the whole evidence in this case it is
plain that the defendants were not common carriers of passengers at
the time the accident occurred, which has led to the present action.
They were merely contractors for building the Eastern Division of
the Union Pacific Railway, and were running a construction train
to transport material for the road. The entire train consisted,
besides the engine and its tender, of cars for such material, and
what is called in the testimony a ".caboose car." This latter car
was intended solely for the accommodation of the men connected
with the train; it contained their bunks and mattresses; they slept
in it, and deposited in it the lamps of the car, and the tools they
used. It was not adapted for passengers, and, according to the tes-
timony of the conductor,- the defendants did not wish to carry pas-
sengers, although when persons got on to ride the defendants did
not put them off, and sometimes, though not always, fare was
charged for their carriage.
The plaintifE, who was sheriif of a county in Kansas, and deputy
marshal of the district, desired to arrest a person on the line of the
road, and, to enable him to accomplish this purpose, he applied to
the conductor for passage on the train as far as Wilson's Creek, and
requested that the train would stop there until the arrest could be
made. His wishes were granted in both respects, and for the ser-
vices rendered he paid at the time a portion of the fare charged, and
the balance subsequently.
In the rendition of these services for the plaintifE the defendants
were simply private carriers for hire. As such carriers, having only
i construction train, they were not under the same obligations and
responsibilities which attach to common carriers of passengers by
railway. The latter undertake, for hire, to carry all persons indif-
ferently who apply for passage; and the law, for the protection of
travellers, subjects such carriers to a very strict responsibility. It
imposes upon them the duty of providing for the safe conveyance of
passengers, so far as that is practicable by the exercise of human
care and foresight. They are bound to see that the road is in good
order; that the engines are properly constructed and furnished; that
the cars are strong, and fitted for the accommodation of passengers,
and that the running gear is, so far as the closest scrutiny can
detect, perfect in its character.
If any injury results from a defect in any of these particulars they
are liable.
They are also bound to provide careful and skilful servants, com-
865 CAKKIEES OF PASSENGERS.
petent in every respect for the positions to which they are assigned
in the management and running of the cars; and they are respon-
sible for the consequences of any negligence or want of skill on the
part of such servants.
They are also bound to take all necessary precautions to keep
obstructions from the track of the road; and although it may not be
obligatory upon them, in the absence of legislative enactment, to
fence in the road so as to exclude cattle, it is incumbent upon them
to use all practical means to prevent the possibility of obstruction
from the straying of cattle on to the track as well as from any other
cause. As said by the Supreme Court of Pennsylvania, in speaking
of the duty of railway companies in this particular:* "Having
undertaken to carry safely, and holding themselves out to the world
as able to do so, they are not to suffer cows to endanger the life of
a passenger any more than a defective rail or axle. Whether they
maintain an armed police at cross-roads, as is done by similar com-
panies in Europe, or fence, or place cattle-guards within the bed of
their road, or by any other contrivance exclude this risk, is for
themselves to consider and determine. We do not say they are
bound to do the one or the other, but if, by some means, they do not
exclude the risk, they are bound to respond in damages when injury
accrues."
It is evident that the defendants in this ease were not subject to
any such stringent obligations and responsibilities as are here men-
tioned. They did not hold themselves out as capable of carrying
passengers safely ; they had no arrangements for passenger service,
and they were not required to make provisions for the protection of
the road such as are usually adopted and exacted of railroad com-
panies. They did not own the road, and had no interest in it
beyond its construction. It was no part of their duty to fence it
in or to cut away the bushes or weeds growing on its sides.
The plaintiff knew its condition and the relation of the defendants
to it when he applied for passage. He had been previously over it
several times, and was well aware that there was no turntable on a
portion of the route; a fact, which compelled the defendants to
reverse the engine on the return of the train from Walker's Creek.
He, therefore, took upon himself the risks incident to the mode of
conveyance used by the defendants when he entered their cars. All
that he could exact from them, under these circumstances, was the
exercise of such care and skill in the management and running of
the train as prudent and cautious men, experienced in that business,
are accustomed to use under similar circumstances. Such care
implies a watchful attention to the working of the engine, the move-
ment of the cars and their running gear, and a constant and vigilant
lookout for the condition of the road in advance of the train. If
such care and skill were used by the defendants, they discharged
1 Sullivan v. Pennsylrania & Reading R. Co., 30 Penn. St. 231.
■WHO DEEMKD. 867
their entire duty to the plaintiff, and if an accident, notwithstand-
ing, occurred, by which he was injured, they were not liable. They
were not insurers of his safety, nor responsible for the consequences
<»f unavoidable accident.
The question should have been put to the jury whether the defend-
ants did, in fact, exercise such care and skill in the management
and running of the train at the time the accident occurred. They
were not responsible to the plaintiff unless the accident was directly
-attributable to their negligence or unskilfulness in that particular.
The evidence in the case shows that the accident was occasioned
by the tender and engine running against a steer. The train was
proceeding at its usual rate of speed when the steer suddenly, from
3, mass of high weeds or grass growing on the sides of the road,
leaped upon the track directly in front of the advancing train, at a
distance from it of about twenty feet. This distance was so short,
-and the movement of the animal was so sudden , that it was impos-
-sible to arrest the train, and a collision followed which threw the
engine and tender from the track. The plaintiff, on the happening
-of the collision, either leaped from the " caboose car," in which he
was at the time sitting, or was thrown from it, it is immaterial
which, and was injured.
The fifth instruction given by the court turned the attention of
"the jury from the simple question at issue for their determination,
.and directed it to the skill, habits, and attainments for their busi-
ness of the agents and servants of the defendants, as well as to their
■conduct on the occasion of the accident. It held proof that the
■agents and servants were possessed of competent skill, of good
habits, and in every respect qualified and suitably prepared for the
business in which they were engaged, as essential as proof that they
acted on the occasion with skill, prudence, and caution. And it
made the occurrence of the accident presumptive evidence that they
were destitute of such skill, habits, and qualifications.
We are of opinion that the court erred in this instruction, and
"that it misled the jury. On this ground the judgment of the court
below must be
Reversed, and the cause remanded for a new trial.
HOAE V. MAINE CENTRAL E. CO.
70 Maine, 65. 1879.
Appleton, C. J. The material and substantive allegations in the
several counts in the plaintiff's writ are that the defendants are
oommon carriers of passengers between Waterville and West Water-
868 CAREIEKS OF PASSENGERS.
ville; that as such carriers they are bound to carry all passengers
and persons lawfully on their road carefully and safely over the
same; that the plaintiff's intestate, being invited by one Potter, a
foreman of a section in their employ and intrusted by them with
the care and control of one of their hand-cars, to ride with him on
said hand-car from Waterville to West Waterville, accepted the
invitation; that the plaintiff's intestate, while riding, was run over
by one of the defendants' engines, to which a paymaster's car was
attached, and injured so that he died, and that this was through the
negligence of the defendants and their servants, the deceased being
in the exercise of due care.
To each count of the declaration the defendants filed a general
demurrer.
I. The liability of a railroad company differs as to their duty ta
their servants and to passengers. They are liable to servants, for
injuries resulting from want of due care in the selection of fellow-
servants, but if duly selected, they do not guarantee against their
negligence. Blake v. M. C. E. E. Co., ante. Not so as to passen-
gers, to whom they are responsible for injuries arising from their
negligence or incapacity, irrespective of the question of more or less
care in their selection. It is obvious that there is no defect in the
declaration so far as it relates to the negligence of the defendants,
if they are to be deemed common carriers by hand-cars.
II. The plaintiff's intestate was to be carried gratuitously. But
that does not place him in a different position, so far as relates ta
his right to protection from neglect, from a pay passenger, — if ha
is to be regarded as a passenger to be carried by the defendants.
Phil. & Bead. R. R. Go. v.. Derby, 14 How. (U. S.) 468. Wilton
V. Middlesex R. R. Co., 107 Mass. 108 [912]. Whar. Neg., § 355.
III. The plaintiff places her right to recover upon a neglect by
the defendants of their duties to the intestate as common carriers.
To impose upon the defendants, the duties and responsibilities of
common carriers, they must be shown to be such. The grave and
important question, then, is whether the defendants, though com-
mon carriers of passengers along their road and in their cars for
that purpose, are common carriers of passengers by their hand-cars
used by their section men. Were the defendants chartered as com-
mon carriers save by their cars for passengers? Have they by their
acts or conduct held out to the public, or authorized their agents to
hold out to the public, that they are common carriers by their hand-
cars? If they have not been chartered, and have not in any way held
themselves out, as common carriers by hand-cars, then the duties,
and obligations resting upon them as carriers have not arisen.
If the defendants were common carriers in relation to the plain-
tiff's intestate, they would be bound to carry all who should apply.
Were, then, the defendants bound to carry on their hand-cars any
one asking to be so conveyed? Assuredly not.
WHO DEEMED. 869
In Graham v. Toronto, Grey & Bruce Eailway Co., 23 Up. Can.
(C. P.) 514, the defendants agreed, with a contractor for the con-
struction of their railway, to furnish a construction train for bal-
lasting and laying the track for a portion of their road then under
construction ; the defendants to provide the conductor, engineer, and
fireman; the contractor furnishing the brakemen. On October 31,
1872, after work was over for the day and the train was returning to
Owen Sound, where the plaintiif, one of the contractor's workmen,
lived, the plaintiff, with the permission of the conductor but with-
out the authority of the defendants, got on. Through the negli-
gence of the person in charge of the train an accident happened,
and the plaintiff was injured. "The fact," remarks Hagarty, C. J.,
" that the defendant's engine-driver or conductor allowed him to get
on the platform, does not alter my view of the case.
" I cannot distinguish it from the case of a cart sent by its owner
under his servant's care to haul bricks or lumber for a house he is
building. A workman, either with the driver's assent or without
any objections from him, gets upon the cart. It breaks down, or
by careless driving runs against another vehicle, or a lamp post, and
the workman is injured. I cannot understand by what process of
reasoning the owner can in such case be held to incur any liability
to the person injured. Nor in my opinion, would the fact that the
owner was aware that the driver of his cart often let a friend or per-
son doing work at his house drive in his cart make any difference.
... It could never be, I think, in the reasonable expectation of
these defendants that they were incurring any liability as carriers
of passengers, or that they should provide against contingencies that
might affect them in that character."
A similar question arose in Sheerman v. Toronto, Grey & Bruce
Eailway Co., 34 Up. Can. (Q. B.) 451, where one of the workmen
was being carried, without reward, on a gravel train, and was injured
so that he died , it was held that the deceased was not lawfully on
the cars with the consent of the defendants, and a nonsuit was
directed. "The workmen," observes Wilson, J., "were not law-
fully on the cars. They were not passengers being carried by the
defendants. They were acting on their own risk, not at the risk
of the defendants, and however unfortunate the disaster may have
been, it is only right the legal responsibility should fall on those
who ought to bear it, and not upon those upon whom it does not
rest." In this case "it appeared that it was not necessary the
defendants should carry the men to and from their work, and that
they never agreed to do more than to provide cars for carrying bal-
lasting and materials for track laying."
The defendants not being common carriers, so far as relates to
their liability to the plaintiff's intestate, the declaration not disclos-
ing facts which show such liability must be adjudged bad. Eaton
V. Delaware, L. & W. R. R. Co., 67 N. Y. 383. Union Pacif. E.
870 CAKRIEES OF PASSENGERS.
R. Co. V. Nichols, 8 Kan. 505. In Dunn v. Grand Trunk R. R. Co.,
58 Maine, 187, the plaintiff was riding in a saloon car attached to
a freight train, and paid the customary fare for conveyance in a
passenger car.
IV. A master is bound by the acts of his servant in the course
of his employment, but not by those obviously and utterly outside
of the scope of such employment. If not common carriers, a section
foreman with his hand-car has no right to impose upon the defend-
ants the onerous responsibilities arising from that relation. He
has no right to accept passengers for transportation and bind the
defendants for their safe carriage, and every man may safely be
presumed to know thus much.
If the risk is much greater by this mode of conveyance, the plain-
tiff's intestate by adopting it assumed the extra risks arising there-
from, and must be held to abide the unfortunate consequences.
No one becomes a passenger except by the consent, express or
implied, of the carrier. There is no allegation of express consent
by the defendants, nor of anything from which consent can be
implied that the plaintiff's intestate should be carried at their risk
by this unusual mode of conveyance.
Declaration bad.
HOUSTON AND TEXAS CENTRAL R. CO. v. MOORE.
49 Tex. 31. 1878.
August 10, 1872, William C. Moore, husband of Maiy A. Moore,
was on a freight train running on the Houston and Texas Central
Railway between Hempstead and Houston. At a point about two
miles and a half west of Hockley station the train ran off the track,
and Moore received injuries, from the effects of which he died.
March 3, 1873, Mary A. Moore brought suit against the railway
company, in her own right, and as mother and natural guardian of
William J. Moore, aged about thirteen years, and Mattie F. Moore,
aged about eight years. The plaintiff alleged that her husband came
to his death by the negligence of the defendants, its agents and ser-
vants, under circumstances such as to make the defendant liable,
and claimed damages to the amount of fifty thousand dollars.
The defendant excepted to the petition, because the proper parties
were not shown to have been made; pleaded the general issue; and
specially alleged in defence that the car or train on which the
deceased was, at the time he received the injury, was a freight
train, and that he was on said train without the consent of the
defendant, and knowingly in violation of defendant's orders and
instructions; that the injuries were the result of the gross negli-
WHO DEEMED. 871
gence and carelessness of the deceased, and not owing to the negli-
gence or carelessness of the defendant, its servants, or agents.
The jury returned a verdict for plaintiff for five thousand dollars,
upon which judgment was rendered.
Writ of error by the defendant.
MooKE, Associate Justice
It appears, on the face of appellee's petition, that the deceased,
when he received the injuries which caused his death, was on a
freight train. The evidence shows that there was no person on said
train but the employees of appellant, except the deceased, who had
been an engine-driver, running a train on appellant's road for a year
or two, until about a month or six weeks previous to his death, and
well knew that passengers were not allowed to travel on freight
trains on appellant's road ; that the ofBcers in charge of such trains
were forbidden to allow parties to ride upon them without a special
pass from the general Superintendent of the road; that no such pass
could be gotten without a release of appellant from damages in case
of accident; that this was the condition upon which permits to ride
upon freight trains were given, because of the greater risk of acci-
dents to passengers on freight trains than on passenger trains, and
because the company would not assume such risks on behalf of per-
sons desiring to travel in this unusual and extra-hazardous manner.
On the other hand, it cannot be doubted that deceased was riding
on the train with the knowledge and consent of the conductor. But
whether he paid fare, or had a pass or permit to travel on a freight
train, is not shown.
Under this state of case, the question to be determined is whether
appellant had assumed the risk of a common carrier of passengers in
respect to the deceased, while thus riding upon its freight train ; or,
in other words, whether deceased was, in contemplation of law, a
passenger on appellant's train; or if not such passenger, strictly
speaking, whether the assent of the conductor to his getting upon
the train gave him the right to ride upon it, and render appellant
responsible for any injury done him while thus on the train, to which
he in no manner contributed.
Appellant, as a railway company, is a common carrier of both
freight and passengers ; but has, unquestionably, the right to make
reasonable regulations for conducting its business ; and parties deal-
ing with it must conform to such regulations. That a regulation of
a railway company, that freight and passengers will be carried on ■
its road in separate trains, is a reasonable regulation, can hardly be
doubted by any one. Indeed, it seems a highly salutary regulation
for the public as well as the company. Nor can it be controverted,
when a railroad company makes other suitable provision for pas-
senger travel, that no one has the right to demand that he shall be
allowed to ride in its trains devoted exclusively to the carrying of
872 CAKEIEES OF PASSENGERS.
freight. If a party, in violation of such regulation, and without the
consent of the company, forces himself into one of its freight trains,
it surely cannot be supposed that the company could be held respon-
sible to him in its character as a carrier of passengers; or that the
party who should thus contribute to the injury which he might sus-
tain while thus wrongfully in the train, may maintain an action
against the company for such injury. Unless he could, an action
cannot be maintained under the statute by his heirs, representa-
tives, and relatives, in case of his death.
It may be true, where a railroad company habitually permits pas-
sengers to travel on its freight trains, notwithstanding it may
by regulation prohibit it, that the company will incur the same
responsibility to such passengers as if they were on the regular
passenger cars. But when it is shown that the regulations of the
company absolutely forbid passengers riding on freight trains, and
where there are no cars attached to such trains except those ordi-
narily accompanying trains exclusively for freight, or such as, by
their appearance and manner in which they are fitted up, could not
be properly regarded as inviting passengers into the train, the bur-
den of proving that the party injured was justified in going upon
such train as a passenger, properly devolves upon those who sue for
damages resulting from injuries sustained by him while on such
train. Do the facts in this case show that appellant permitted pas-
sengers to travel on its freight trains, notwithstanding its regulation
prohibiting it, to an extent or in a manner to warrant the deceased
in supposing that he was authorized to get upon its freight train as
a passenger? Certainly they do not.
If, then, it can be inferred that the deceased was properly on the
train, it must be upon the supposition that he had a special permit;
or that the conductor of the train was authorized to annul or waive
the regulation of the company, prohibiting passengers from travel-
ling in freight trains. But the evidence shows that the conductor
had no such authority, and that the deceased must have known that
he had not.
This is not the case of an ordinary traveller, unacquainted with
the regulations of the railroad, or if acquainted with them at all,
only in a general way; or of one who is uninformed as to the powers
and functions of the officer in charge of the train, and who, if he
knew that passengers had been sometimes carried by such train,
might suppose that the officer in charge of it had authority to relax
or set aside the rule in special cases ; which seems to be the extent
to which the case of Dunn v. Grand Trunk Eailway,, 68 Me., 187,
relied upon by appellee, goes, — but which, even on its facts, seems
to be greatly questioned by Judge Eedfield, the distinguished com-
mentator on railroad law (Eedf . Am. Eailroad Cases, 490) ; and to
have been denied by the New York Commissioners of Appeal, in
the case of Eaton v. The Delaware, &c. [57 N. Y. 382]. Here, the
PUBLIC CALLING. 873
deceased, who, only a short time previously to his going on the
train, had been in the employment of appellant, must have known
that the conductor was forbidden to allow him to travel as a
passenger upon the train.
It cannot, in view of all the facts of this case, be said that appel-
lant had undertaken or contracted with the deceased to carry him as
a passenger over its road, or that we are warranted in saying the
prima facie presumption that the deceased was wrongfully upon
appellant's train, when he received the injuries which caused his
death, has been rebutted; and, if death had not ensued, that he
could have maintained au action against appellant on account of the
injuries which he received by the wreck of the train. The judg-
ment must therefore be reversed and the cause remanded. And it
is so decreed.
2. PUBLIC CALLING.
BENNETT V. BUTTON.
10 N. H. 481. 1839.
The declaration alleged that the defendant was part owner and
driver of a public stage-coach from Nashua to Amherst and Fran-
cestown; that on the 31st January, 1837, the plaintiff applied to
him to be received into his coach, at Nashua, and conveyed from
thence to Amherst, offering to pay the customary fare ; and that the
defendant, although there was room in his coach, refused to receive
the plaintiff.
It appeared in evidence, that at the time of the grievance alleged
there were two rival lines of daily stages, running between Lowell,
in Massachusetts, and Nashua; that Jonathan B. French was the
proprietor of one of these lines, and Nelson Tuttle of the other;
that Tuttle's line ran no farther than from Lowell to Nashua; that
French and the proprietors of the defendant's line were interested
in a contract for carrying the United States mail from Lowell to
Francestown, through Amherst (dividing the mail money in pro-
portion to the length of their respective routes) , so as to form one
continuous mail route from Lowell to Francestown; that French
and the proprietors of the defendant's line had agreed to run their
respective coaches so as to form a continuous line for passengers
from Lowell, through Amherst, to Francestown, and that their
agents and drivers might engage seats for the whole distance, at
such rates of fare as they thought expedient ; and the amount thus
received, in instances where they thought proper to receive less
874 CAKRIEES OF PASSENGEES.
than the regular fare, was to be divided between said proprietors,
in proportion to the length of their respective routes ; that it was
also agreed, that if the defendant's line brought down to Nashua an
exbra number of passengers, French should see them through, and
be at the expense of furnishing extra coaches and horses, if neces-
sary, to convey them to Lowell; and, on the other hand, if French's
line brought up an extra number of passengers from Lowell to
Nashua, the proprietors of the defendant's line were to do the same,
for the conveyance of such passengers above Nashua; and that it
was further agreed (as Tuttle's line ran no farther than from Lowell
to Nashua) by the proprietors of the defendant's line, that they
would not receive into their coaches, at Nashua, passengers for
places above Nashua, who came up from Lowell to Nashua, on the
same day, in Tuttle's line; the time of starting from Lowell and
arriving at Nashua being the same in both lines.
One of the requisitions of mail contracts is, that each line of
stage-coaches running into another, so as to form a continuous mail
line, shall give preference to passengers arriving in the line with
which it connects, and shall forward them in preference to any
others.
There were several other lines which started from Lowell at the
same time with the lines before mentioned, running to other places,
through Nashua; and it was generally the understanding between
their respective proprietors,, that oneJline should not take, for a part
of the distance where the route was the same, passengers who were
going on further in another lin-e; though this understanding had
been occasionally interrupted.
The plaintiff being at Lowell on the 31st of January, 1837, took
passage and was conveyed to Nashua in Tuttle's line; and imme-
diately on his arrival at Nashua applied to be received into the
defendant's coach, and tendered the amount of the regular fare.
There was room for the plaintiff to be conveyed on to Amherst, but
the defendant refused to receive him.
The plaintiff' was notified, by the agent of the line of French and
the defendant, at Lowell, previous to taking passage in Tuttle's
coach for Nashua, that if he wished to go from Nashua to Amherst
on that day, in the regular mail line, he must take the mail line at
Lowell; and that if he took passage in Tuttle's line from Lowell to-
Nashua he would not be received, at Nashua, into the defendant's
coach.
The parties agreed that judgment should be rendered for the
plaintiff, for nominal damages, or for the defendant, according ta
the opinion of this court upon these facts.
Pabker, C. J. It is well settled that so long as a common car-
rier has convenient room, he is bound to receive and carry all goods
which are offered for transportation, of the sort he is accustomed to
carry, if they are brought at a reasonable time, and in a suitable
PUBLIC CALLING. 875
condition. Story on Bailments, 328; 5 Bing. E, 217 [461], Eiley v.
Home (15 Eng. C. L. K. 426).
And stage-coaches which transport goods as well as passengers,
are, in respect of such goods, to be deemed common carriers, and
responsible accordingly. Story, 325.
Carriers of passengers, for hire, are not responsible, in all partic-
ulars, like common carriers of goods. They are not insurers of per-
sonal safety against all contingencies, except those arising from the
acts of God and the public enemy. For an injury happening to the
person of a passenger by mere accident, without fault on their part,
they are not responsible; but are liable only for want of due care,
diligence, or skill. This results from the different nature of the case.
But in relation to the baggage of their passengers, the better opinion
seems to be that they are responsible like other common carriers of
goods.
And we are of opinion that the proprietors of a stage-coach , for
the regular transportation of passengers, for hire, from place to place,
are, as in the case of common carriers of goods, bound to take all
passengers who come, so long as they have convenient accommoda-
tion for their safe carriage, unless there is a suf&cient excuse for
a refusal. 2 Sumner, 221 [891], Jencks v. Coleman; 19 Wend.
K. 239.
The principle which requires common carriers of goods to take all
that are ofEered, under the limitations before suggested, seems well
to apply.
Like innkeepers, carriers of passengers are not bound to receive
all comers. 8 N. H. Eep. 523, Markham v. Brown [245]. The character
of the applicant, or his condition at the time, may furnish just
grounds for his exclusion. And his object at the time may furnish
a sufficient excuse for a refusal; as, if it be to commit an assault
upon another passenger, or to injure the business of the proprietors.
The case shows the defendant to have been a general carrier of
passengers, for hire, in his stage-coach, from Nashua to Amherst,
at the time of the plaintiff's application. It is admitted there was
room in the coach ; and there is no evidence that he was an improper
person to be admitted, or that he came within any of the reasons
of exclusion before suggested.
It has been contended that the defendant was only a special car-
rier of passengers, and did not hold himself out as a carrier of per-
sons generally; but the facts do not seem to show a holding out for
special employment. He was one of the proprietors, and the driver,
of a line of stages from Nashua to Amherst and Francestown. They
held themselves out as general passenger carriers between those
places. But, by reason of their connection with French's line of
stages from Lowell to Nashua, they attempted to make an exception
of persons who came from Lowell to Nashua, in Tuttle's stage, on
the same day in which they applied for a passage for the north. It
876 CAERIEES OF PASSENGERS.
is an attempt to limit their responsibility in a particular case, or
class of cases, on account of their agreement with Erench.
It is further contended that the defendant and other proprietors
had a right to make rules for the regulation of their business, and
among them a rule that passengers from Lowell to Amherst and
onward should take Trench's stage at Lowell ; and that by a notice
brought home to the individual the general responsibility of the
defendant, if it existed, is limited.
But we are of opinion that the proprietors had no right to limit
their general responsibility in this manner.
It has been decided, in New York, that stage-coach proprietors
are answerable, as common carriers, for the baggage of passengers ;
that they cannot restrict their common-law liability by a general
notice that the baggage of passengers is at the risk of the owners;
and that if a carrier can restrict his common-law liability it can only
be by an express contract. 19 Wend. 234 [465], HoUister v. Nowlen.
And this principle was applied, and the proprietors held liable for
the loss of a trunk, in a case where the passenger stopped at a place
where the stages were not changed, and he permitted the stage to
proceed, without any inquiry for his baggage. 19 Wend. 251, Cole
V. Goodwin. However this may be, as there was room in the
defendant's coach, he could not have objected to take a passenger
from Nashua, who applied there, merely because he belonged to
some other town. That would furnish no suificient reason, and no
rule or notice to that effect could limit his duty. And there is as
little legal reason to justify a refusal to take a passenger from
Nashua, merely because he came to that place in a particular con-
veyance. The defendant might well have desired that passengers
at Lowell should take French's line, because it connected with his.
But if he had himself been the proprietor of the stages from Lowell
to Nashua, he could have had no right to refuse to take a passenger
from Nashua, merely because he did not see fit to come to that place
in his stage. It was not for him to inquire whether the plaintiff
came to Nashua from one town or another, or by one conveyance or
another. That the plaintiff proposed to travel onward from that
place could not injuriously affect the defendant's business; nor was
the plaintiff to be punished, because he had come to Nashua in a
particular manner.
The defendant had good right, by an agreement with French, to
give a preference to the passengers who came in French's stage ; and
as they were carriers of the mail on the same route, it seems he was
bound so to do without an agreement. If, after they were accom-
modated, there was still room, he was bound to carry the plaintiff,
without inquiring in what line he came to Nashua.
Judgment for the plaintiff.
PUBLIC CALLING. 877
NEVIN V. PULLMAN PALACE CAE CO.
106 111. 222. 1883.
Mb. Justice Mulket. This was an action on the case, brought
by Luke Nevin, the plaintiff in error, in the Circuit Court of
McLean County, against the Pullman Palace Car Company, the
defendant in error, for refusing to permit him to occupy a sleeping
berth in one of its cars, which had been assigned to him, and which
he was ready and offered to pay for. The Circuit Court sustained
a general demurrer to the declaration, and the plaintiff electing to
stand by his declaration, judgment was entered against him for
costs, which, on appeal, was affirmed by the Appellate Court for the
Third District, and the plaintiff in error brings the record here for
Teview.
The declaration, omitting mere formal averments and unnecessary
verbiage, charges, in substance, that the plaintiff, on the 4th day of
August, 1881, at Dubuque, Iowa, purchased of the Illinois Central
Railroad Company, for his niece, wife, and himself, respectively,
three first-class passenger tickets over that company's railway, from
Dubuque, Iowa, to Chicago, this State; that having provided him-
self with these tickets, he, together with his wife and niece, about
ten o'clock of the night of that day, and just before the train from
Dubuque to Chicago started out, entered a sleeping car called "Kal-
amazoo," belonging to and constituting a part of said train, which
said sleeping car was then in the possession and under control of
the defendant; that upon entering the car he engaged of the conduc-
tor of said car two lower berths, at one dollar and fifty cents each;
that the conductor thereupon assigned one berth to his niece, and
one to plaintiff and his wife, promising to have them made up a
little later in the night; that he and his wife took the seats in the
berth assigned to them, and remained sitting up, in an orderly man-
ner, until about twelve o'clock, frequently, in the mean time, request-
ing the conductor to have the berths made up, so they could retire
to rest, and at the same time tendering to him the price agreed to be
paid therefor ; that on the arrival of the train at Lena, this State,
about the hour just stated, plaintiff temporarily left his seat, and
stepped out on the platform of the sleeper, intending to return
immediately to his berth, when the conductor instantly closed and
secured the outer doors of said sleeper, and thereby prevented him
from again entering the same ; that plaintiff' endeavored to open said
doors and re-enter said car, and frequently requested the conductor
to permit him to do so, but that said conductor, instead of comply-
ing with his request, removed his satchel, coats, and shoes from the
878 CAEKIEES OF PASSENGERS.
berth so assigned to him and his wife, to another car, and ejected
the latter from said sleeper; by means of which plaintiff was com-
pelled to take and occupy a seat in a common passenger car on said
train till its arrival in Chicago, by reason of which plaintiff was
deprived of his rest and sleep, in consequence of which "he became
exceedingly weary and sick, and was greatly humiliated," &c. ; that
his expulsion from his berth in the manner stated was done wilfully
and maliciously, and that the only reason assigned by the conductor
for refusing the price of the berths was, " that they were not made
up."
It is not claimed or pretended, as we understand counsel, that the
facts alleged in the declaration do not show a good cause of action,
but the claim rather is, that they disclose a right to recover in
assumpsit, and not in case, — or, in other words, the contention is,
that the plaintiff has misconceived his action ; that the only wrong-
complained of consists of a breach of an express contract, and there-
fore the action should have been brought in form ex contractu, and
not in form ex delicto, as it was.
We shall not attempt a review of the authorities, with a view of
extracting from them some general principle or rule by which the
question in hand may be satisfactorily solved, but shall content our-
selves with adverting to such general rules and principles relating
to the subject as are fully established by the authorities, and which
we regard as conclusive of the question. We have been led to adopt
this course mainly from two considerations. In the first place, the
cases bearing on the question are so very numerous that a general
review of them would be an almost endless undertaking; and in the
next place, it would be impossible to harmonize all that has been
said by the courts, even of the highest character, in attempting to
define the true and exact limits of an action on the case.
To proceed, then, it is agreed by all the authorities the gravamen
of the charge in an action on the case is the tort or wrong of the
defendant, notwithstanding such tort or wrong may be also a breach
of an express or implied contract, whereas in an action ex contractu
the gist of the action is the breach of the contract, without regard
to the tortious character of the act of the defendant. It follows,
therefore, if there is a right of recovery at all in this case, it must
be upon the ground the defendant has been guilty of some tort or
wrong resulting in damage to the plaintiff. That the conduct of the
defendant was wrong and indefensible, and that the plaintiff was
subjected to great inconvenience and suffering in consequence of it,
is not, and cannot be denied; but the contention is, that all the
defendant did on the occasion was a mere breach of the special con-
tract between the parties, and that the remedy therefore is on the
contract, and not in tort, — and this is the vital question in the
case.
Without stopping, for the present, to inquire whether the posi-
PUBLIC CALLING. 879
tion of the defendant is well founded to the extent claimed, but con-
ceding it to be so for the purposes of the argument, is it true, as a
universal proposition, that this form of action will not lie in any
case where the conduct complained of is a direct breach of an express
tjontract? Certainly not. A simple illustration will demonstrate
the fallacy of such a position. Suppose A contracts with B to keep
the latter's horse for an indefinite period at fifty cents a day, the
horse to be returned to B on demand, and A, after having been paid
all charges for the keep of the horse, should refuse to redeliver him
to B, on demand, no one, in such case, would question for a moment
the right of B to maintain an action of trover against A for the
horse, which is one species of the action on the case, and yet, in the
case supposed, the refusal of A to deliver the horse, the real cause
of action is, in the strictest sense of the term, a direct breach of the
special contract between the parties. While the fact that the act or
acts complained of constitute the breach of a special contract between
the parties may always be looked to, in connection with other ele-
ments that enter into the question, it is by no means conclusive in
determining whether case will lie. An examination of the standard
authors who have treated of this subject, as well as of the decisions
bearing on the questiSn, conclusively shows that there are many
elements that often enter into the question besides the one just men-
tioned, such as the business, profession or calling of the wrong-doer;
the character of the relations between the parties, — whether one
of trust and confidence, or otherwise; whether the defendant rests
under any implied duties or obligations to the plaintiff, arising
either ex contractu or ex lege, and the like. One or more of these
considerations often become important factors in determining whether
the action will lie.
It is a familiar doctrine that case will lie for a mere nonfeasance
against persons exercising certain public trades or employments,
where no contractual relation exists between them and the plaintiff,
as where a common carrier, having the requisite means of transpor-
tation, refuses to carry goods or passengers. Chitty, in discussing
this matter, in his work on Pleadings, says : " There are, however,
some particular instances of persons exercising certain public trades
or employments, who are bound by law to do what is required of
them in the course of their employments without aid of express con-
tract, and are in return entitled to a recompense, and may, there-
fore, be sued in case, as for a breach of duty in refusing to exercise
their callings, — as, where a common carrier, having convenience,
refuses to carry goods, being tendered satisfaction for the carriage ;
or an inn-keeper to receive a guest, having room for him ; or a smith
having materials for the purpose, to shoe a horse for a traveller ; or
a ferryman to convey one' over a common ferry , and the like." (Vol.
I. 136.) It is clear, from the language of this author, the classes of
persons enumerated are intended as mere examples of the applica-
880 CAKRIEKS OF PASSENGEES.
tion of the general principle stated, and not as a limitation of the
rule itself, and by a well-recognized rule of the common law the
same principle should be extended to all other trades and callings
that bear the same relation to the public as those just enumerated,
and the fact that no precedent can be found for it is entitled to but
little consideration, when it is clear the case in hand falls within
the principle. This is particularly true with respect to extending
as a remedy the action we are considering, to new states of facts,
where they clearly fall within the general principle upon which the
action is maintained. To the objection there was no precedent for
the action made on a certain occasion before Pratt, Ch. J. (after-
wards Lord Camden), he is reported to have said: "I wish never to
hear this objection again. The action is for a tort. Torts are
infinitely various, not limited or confined, for there is nothing in
nature but may be an instrument of mischief." Indeed, the writ in
case, as its very name imports, was invented for the express pur-
pose of giving a remedy* where none of the old forms of writs were
applicable, and the British Parliament, by Stat. Westm. 2 C. 24,
with the view of promoting the remedy by this writ, expressly
directed that " where in one case a writ is granted, in like case,
when like remedy falleth, the writ shall be made as hath been used
before ; " and when " in one ease a writ is found, and in like case,
falling under like law, and requiring like remedy, is found none, the
clerks of the chancery shall agree in making the writ." 2 Inst. 404.
Since, as w;e have just seen, certain legal consequences affecting
the question we are considering result from the exercise of certain
public trades or employments, it becomes important to determine,
with some degree of particularity, the true relation which the Pull-
man Palace Car Company sustains to the public, and to point out,
so far as we are able, the difference between it and persons or com-
panies exercising public callings or employments like those above
enumerated , if, indeed, any such difference exists. Like an ordinary
railway company engaged in the transportation of freight and pas-
sengers, this company transacts its entire business, so far as it
relates to this case, over the various railways in this and other
States. Like railway companies, it exercises special privileges and
franchises granted to it by the State, and its business is transacted
almost exclusively with the travelling public. Its ears on the various
lines of road are extensively advertised all over the country, setting
forth, in fitting terms, the accommodations and comforts they afford,
rates of charges, &c., and the public are earnestly invited to avail
themselves of the advantages and comforts they thus offer. In what
respect, then, does this company differ in its relation to the public,
so far as the present inquiry is concerned, from an ordinary rail-
way company? No difference has been pointed out by counsel, and
we are confident none can be. Why, then, should not the same
principles be held to apply to it that apply to common carriers, and
PUBLIC CALLING. 881
others in like employments, in so far as their relation to the public
is the same? To say there is no precedent for it, we have just seen,
is not a sufficient answer. Indeed, it has ever been the boast of the
common law, that, by reason of its elasticity, it adjusts and moulds
itself to meet the constant changes in the afEairs of life, and that it
never hesitates to apply old rules to new cases, when it is clear they
come within the reasons or principles of such rules. The business
of this company in running its elegant and commodious sleepers
over various lines of railways has become one of the great industries
and enterprises of the country, contributing, perhaps, as much or
more, than any one thing to the convenience and comfort of the
travelling public. Indeed, the running of these sleepers has become
a business and social necessity. Such being the case, can it be
maintained the law imposes no obligations or restrictions on this
company in the discharge of its duties to the public? Or, more
accurately put, is it true this company owes no duties to the public
except such as are due from one mere private person to another?
Can it be possible that the common carrier, the ferryman, the inn-
keeper, and even the blacksmith on the roadside, are all, by reason
of the public character of their business, by mere force of law, placed
under special obligations and duties to the public which they are
bound to observe in the exercise of their respective callings, while,
at the same time, this company is entirely relieved from the observ-
ance of all such duties and obligations which are not expressly
contracted for? We think not. To so hold would be to unjustly
discriminate between parties similarly situated, and make the law
inconsistent with itself, to the great detriment of the public.
If, then, this company owes any duties to the community by
reason of its relation to the public, as we hold it does, manifestly
one of them is, that it shall treat all persons whose patronage it has
solicited with fairness and without unjust discrimination. When,
therefore, a passenger, who, under the rules of the company, is
entitled to a berth upon payment of the usual fare, and to whom no
personal objection attaches, enters the company's sleeping car at a
proper time for the purpose of procuring accommodations, and in an
orderly and respectful manner applies for a berth, ottering or ten-
dering the customary price therefor, the company is bound to fur-
nish it, provided it has a vacant one at its disposal. To require
this of the company is merely exacting of it that which is clearly
dictated by the plainest principles of justice and fair dealing. To
construe the law otherwise might lead to great abuses and the
grossest injustice, detrimental alike to public and private interests.
Suppose, for instance, a party who, by reason of advanced age or
feeble health, is unable to travel after night except in a sleeper,
having an important business engagement at a distant point on a
specified day, with a choice of several routes, after having examined
the advertisements relating to them makes his selection of the one
882 CAEEIERS OF PASSENGEKS.
that has through sleepers, and accordingly arranges his time of
departure so as to reach his destination by travelling day and night.
At the appointed time for leaving he provides himself with a first-
■class ticket over the road and enters the sleeper, where he finds
plenty oi vacant berths, and asks the conductor to assign him one,
tendering the customary price therefor, but the conductor, from
some private pique, or from mere wantonness, refuses to let him
liave one, and by reason of such refusal he is unable to meet his
business engagement, whereby he is subjected to great pecuniary
loss. Can it be said there is no remedy in such case? Certainly it
can, if the law does not, under the circumstances supposed, impose
upon the company the duty of furnishing berths when it has them
for disposal. But, as we have already seen, such- is not the law.
Holding then, as we do, where there are sleeping berths not engaged,
it is the duty of the company, upon the payment or tender of the
customary price, to furnish them to applicants when properly called
for by unobjectionable persons, it follows the defendant was not
justifiable in refusing to let the plaintiff have one for himself and
wife, and it is well settled the fact there was a special contract
hetween the company and the plaintiff, upon which an action of
assumpsit might have been maintained, does not at all affect the
light to recover in the present form of action, which is founded
upon the defendant's common law liability, as above stated.
But outside of this view, of the soundness of which we have no
doubt, the same result may be reached by a somewhat different
process, though the principle, perhaps, is the same in both cases.
Let us assume, then, for the purposes of the argument, the defend-
ant owes to the public no common law duties in the absence of any
contract relating to its business. It would then follow the defend-
ant is under no obligation to the plaintiff, except such as grew out
of the contract entered into between them. But it does not follow
that all the duties growing out of the contract on either side must
have been expressly stipulated for. On the contrary, nothing is
hetter settled than that in many contracts, especially those which
establish peculiar relations between the parties, as, those of confi-
dence and trust, the law silently annexes certain conditions, and
imposes mutual obligations and duties, which are not all, in express
terms, provided for in the contract, yet, in contemplation of law,
they are nevertheless regarded as a part of the contract, and the
non-performance of them may, in an action on the contract, be
assigned as a breach thereof. But while assumpsit will certainly
lie for a breach of these implied duties, it is equally well settled
that case will lie also. Strictly speaking, these duties arise ex lege
out of the relation created by the contract. As familiar illustrations
of this class of contracts, which give rise to an almost infinite variety
of implied duties and obligations, may be mentioned those between
client and attorney, physician and patient, carrier and shipper, and,
PUBLIC CALLING. 883
in short, every species of bailment. In all these and analogous
cases it is conceded case is a concurrent remedy with assumpsit for a
breach of the implied duties growing out of any of these relations.
Now, when we look at the contract betvireen the plaintiff and
defendant, the character of the business of the company, the subject
matter of the contract, the relations of the parties with respect to
such subject matter, and all the circumstances attending the transac-
tion, can it be doubted for a moment, that the contract falls within
the same class of contracts as those between carrier and passenger,
.and the like? Can it be questioned that upon assigning the two
berths to the plaintiff upon the terms which he agreed to and offered
to comply with, and which the company agreed to accept, the con-
tract thus made at once became obligatory and binding upon the
parties, and that it established a special relation between them, such
as that between carrier and passenger, and the like, to which the
law, of its own force, annexed certain implied obligations and
duties, to be respectively observed and performed by the parties
towards each other? Clearly not. What were some of these implied
■duties? On the part of the plaintiff, he impliedly agreed to conduct
bimself in a quiet and orderly manner, to take due and proper care
•of the berths while in his possession, and surrender the same at the
end of his journey in as good condition as when assigned to him,
necessary wear excepted. On the part of the company it was im-
pliedly stipulated that it would use all reasonable and proper means
within its power to preserve ordeT and decorum in the sleeper dur-
ing the journey, and especially during sleeping hours, and that it
would furnish and keep on hand such supplies and conveniences as
are usually found in like sleepers, and are necessary to the health
and comfort of passengers, and also that it would permit the plain-
tiff to quietly and peaceably occupy the berth engaged by him dur-
ing the journey, and not expel him or his wife from the car or such
berth, or otherwise attempt to interfere with its proper use and
enjoyment, so long as he and his wife demeaned themselves with
propriety. None of these duties were, or ever are, expressly stipu-
lated for by one engaging a sleeping berth, for the simple reason the
law always implies them from the relation of the parties created
by the contract securing a berth ; and for a breach of any of these
implied duties it is clear, as already shown, case is a concurrent
remedy with assumpsit, and, indeed, is always the more appropriate
remedy where matters of aggravation are relied on as an element of
damage. It is clear, in the present case, the defendant utterly dis-
regarded its duty in not making up the berth of the plaintiff, and
in not permitting him and his wife to occupy it through the night,
and in expelling them from the ear, and for this it must be held
liable.
The view here expressed is believed to be in consonance with the
general principles of the law, and is clearly sustained by some of
884 CAKEIERS OF PASSENGERS.
the best-considered cases, both English and American. Burnett v.
Lynch, 5 Barn. & Cress. 589; 11 Eng. Com. Law, 597; Hancock o.
Coffin, 21 Eng. Com. Law, 318; Dickson v. Clifton, 2 Wils. 319 j
Boorman v. Brown, 3 Addl. & E. (N. S.) 525. In this last case.
Chief Justice Tindal, in delivering the judgment in the Exchequer
Chamber, entered into an extended review of the authorities, and in
summing up used this language : " The principle in all these cases
would seem to be, that the contract creates a duty, and the neglect
to perform that duty, or the nonfeasance, is a ground of action upon
a tort," — and this case was affirmed on appeal to the House of
Lords. 11 CI. & Ein. 44. In this case. Lord Campbell, in deliver-
ing the judgment in the House of Lords, says : " I think the judg-
ment of the Court of Exchequer Chamber is right, for you cannot
confine the right of recovery merely to those cases where there is an
employment without any special contract. But wherever there is a
.contract, and something to be done in the course of the employment
which is the subject of that contract, if there is a breach of the duty
in the course of that employment the plaintiff may recover, either
in tort or in contract." This, subject to the limitation hereafter to
be stated, we regard as the true rule on the subject.
It is often, and indeed generally, stated, the action lies only for
the breach of the common law duty, and this we believe to be
strictly true; yeb there is some confusion in the cases as to what is
meant by a common -law duty, growing out of the fact that it some-
times arises without the intervention of a contract and sometimes
with it, and in the latter case it is often said, as in the case last
cited, "the contract creates the duty," and while this is true and
accurate enough in a certain sense, yet when we attempt to define
with precision just when the action will lie and when it will not,
the statement is not sufficiently definite, for it must be conceded the
law makes it the duty of every one to perform his contract, and it is
clear case will not lie for the breach of every duty created by con-
tract. If one contracts to deliver to another a load of wood, or pay
a specific sum of money on a given day, and fails to do so, an action
on the contract alone will lie, — and yet it is manifest, in the case
supposed, there has been a breach of duty created by the contract.
We think it more accurate, therefore, to say that case lies only for
the breach of such duties as the law implies from the existing rela-
tions of the parties, whether such relations have been established
with or without the aid of a contract; but if created by contract, it
is no objection to the action that the performance of the duty in
question has been expressly stipulated for, if it would have existed
by reason of such relations without such stipulation. This is well
illustrated by the case put in the early part of this opinion, where
B let his horse to A, to be kept at a stipulated price per day, and
returned on demand. Now, in that case, by the mere delivery of
the horse, to be kept at the price agreed upon, the law implied or
PUBLIC CALLING. 885
imposed tlie duty of returning him upon demand, without any agree-
ment to that effect, and the duty being thus implied by law, inde-
pendently of the express stipulation for its performance, case clearly
would lie for its breach.
The general principle seems to be this : Where the duty for whose
breach the action is brought would not be implied by law by reason
of the relations of the parties, whether such relations arose out of
a contract or not, and its existence depends solely upon the fact that
it has been expressly stipulated for, the remedy is in contract, and
not in tort, — when otherwise, case is an appropriate remedy. Of
course, assumpsit is a concurrent remedy with case, in all cases where
there is an express or implied contract.
The judgment of the Appellate Court is reversed, and the cause
remanded, with directions to that court to reverse the judgment of
the Circuit Court, and remand the cause for further proceedings not
inconsistent with the views here expressed.
THE D. E. MARTIN.
11 Blatchf. (U. S. C. C.) 233. 1873.
Hunt, J. On a trial before the district judge, the libellant, David
F. Barney, recovered the sum of $1000 as his damages for ejecting
him from the steamboat "D. E. Martin," on the morning of October
23, 1871. On an application subsequently made to him, the dis-
trict judge reduced the recovery to the sum of $500. A careful
perusal of all the testimony satisfies me that the libellant was pur-
suing his business as an express agent on board of the boat, that he
persisted in it against the remonstrance of the claimant, and that it
was to prevent the transaction of that business by him on board of
the boat that he was ejected therefrom by the claimant.
The steamboat company owning this vessel were common carriers
between Huntington and New York. They were bound to trans-
port every passenger presenting himself for transportation, who was
in a fit condition to travel by such conveyance. They were bound ,
also, to carry all freight presented to them in a reasonable time
before their hours of starting. The capacity of their accommoda-
tion was the only limit to their obligation. A public conveyance of
this character is not, however, intended as a place for the transac-
tion of the business of the passengers. The suitable carriage of
persons or property is the only duty of the common carrier. A
steamboat company or a railroad company is not bound to furnish
travelling conveniences for those who wish to engage on their
vehicles in the business of selling books, papers, or articles of food,
886 CAKEIERS OF PASSENGERS.
or in the business of receiving and distributing parcels orTjaggage,
nor to permit the transaction of this business in their vehicles, when
it interferes with their own interests. If a profit may arise from
such business, the benefit of it belongs to the company, and they
are entitled to the exclusive use of their vehicles for such purposes.
This seems to be clear both upon principle and authority. Story
on Bailm., § 591 a; Jencks v. Coleman, 2 Sumn., 221 [891] ; Burgess
V. Clements, 4 Maule & S., 306; Fell v. Knight, 8 Mees. & W.,269;
Commonwealth v. Power, 1 Am. R'y Cas., 389. These cases show
that the principle thus laid down is true as a general rule. The case
of The New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How,,
344, shows that it is especially applicable to those seeking to do an
express business on such conveyances. It is there held, in sub-
stance, that the carrier is liable to the owner for all the goods
shipped on a public conveyance by an express company, without
regard to any contract to the contrary between the carrier and the
express company. Although the carrier may have no custody or
control of the goods, he is liable to the owner in case of loss if he
allows them to be brought on board. It is the simplest justice that
he should be permitted to protect himself by preventing their being
brought on board by those having them in charge. This rule would
not exclude the transmission, as freight, of any goods or property
which the owners or agents should choose to place under the care
and control of the carrier.
That persons other than the libellant carried a carpet-bag without
charge, or that such bag occasionally contained articles forwarded
by a neighbor or procured for a friend, does "not affect the carrier's
right. The cases where this was proved to have been done were
rare and exceptional, and do not appear to have been known to the
carrier, nor does it appear that any compensation was paid to the
agent. They were neighborly and friendly services, such as people
in the country are accustomed to render for each other. But, if the
service and the business had been precisely like that of the libellant,
the rule would have been the same. The rights of the carrier in
respect to A ate not gone or impaired for the reason that he waives
his rights in respect to B, especially if A be notified that the rights
are insisted upon as to him. If Mr. Prime was permitted to carry
a bag without charge on the claimant's boat, or to do a limited
express business thereon, this gave the libellant no right to do such
business, when notified by the carrier that he must refrain from
it. A carrier, like all others, may bestow favor where he chooses.
Rights, not favors, are the subject of demand by all parties indis-
criminately. The incidental benefit arising from the transaction of
such business as may be done on board of a boat or on a car belongs
to the carrier, and he can allow the privilege to one and exclude
from it another, at his pleasure. A steamboat company, or a rail-
road company, may well allow an individual to open a restaurant
PUBLIC CALLING. 887
or a bar on their conveyance, or to do the business of boot blacking,
or of peddling books and papers. This individual is under their
control, subject to their regulation, and the business interferes in
no respect with the orderly management of the vehicle. But, if
every one that thinks fit can enter upon the performance of these
duties, the control of the vehicle and its good management would,
soon be at an end. The cars or boats are those of the carrier, and,
I think, exclusively his, for this purpose. The sale or leasing of
these rights to individuals, and the exclusion of others therefrom,
come under the head of reasonable regulations, which the courts
are bound to enforce. The right of transportation, which belongs
to all who desire it, does not carry with it a right of traffic or of
business.
It is insisted that the libellant could not legally be ejected from
the boat for any offence, or violation of rules , committed on a former
occasion. It is insisted, also, that, having purchased a ticket from
the agent of the company, his right to a passage was perfect.
Neither of these propositions is correct. In Commonwealth v.
Power, 7 Mete, 596, the passenger had actually purchased his
ticket, and the Chief Justice says; "If he. Hall, gave no notice of
his intention to enter the car as a passenger, and of his right to do
so, and if Power believed that his intention was to violate a reason-
able subsisting regulation, then he and his assistants were justified
in forcibly removing him from the depot." In Pearson v. Duane,
4 Wall., 605, Mr. Justice Davis, in giving the opinion of the court,
held the expulsion of Duane to have been illegal, because it was
delayed until the vessel had sailed. "But this refusal," he says,
" should have preceded the sailing of the ship. After the ship had
got to sea, it was too late to take exceptions to the character of a
passenger, or to his peculiar position, provided he violated no in-
flexible rule of the boa,t in getting on board." The libellant, in this
case, refused to give any intimation that he would abandon his trade
on board the vessel. The steamboat company, it is evident, were
quite willing to carry him and his baggage, and objected only to his
persistent attempts to continue his traffic on their boat. He insisted
that he had the right to pursue it, and the company resorted to the
only means in their power to compel its abandonment, to wit, his
removal from the boat. This was done with no unnecessary force,
and was accompanied by no indignity. In my opinion, the removal
was justified, and the decree must be reversed.
888 CAEEIEKS OF PASSENGERS.
THUKSTON V. UNION PACIFIC K. CO.
4 Dillon (U. S. C. C), 321. 1877,
It was alleged, and not denied, that plaintifE had purchased from
the road, for fifty cents, a ticket for crossing the river on the trans-
fer train, and that when the train was about starting he attempted
to board it, but was prevented. He also purchased, for ninety
cents, from the company a ticket good on another road, but was
forcibly ejected from the train, and obliged to remain in Omaha
several days before he could safely get away, for which he asked
$5000 damages. The defendant admitted that the necessary force
(but no more) was used to prevent his entering the train. It was
claimed that he had been for years a notorious gambler, — a"monte-
man," so-called, — and was then engaged in travelling on the defend-
ant's road for the purpose of plying that calling, and was about to
enter the train for that purpose. This the plaintiff denied. The
question was, whether the defendant has the right to exclude gam-
blers from its trains? Upon this point the charge of the court is
given below.
DuNDT, J. The railway company is bound, as a common carrier,
when not over-crowded, to take all proper persons who may apply
for transportation over its line, on their complying with all reason-
able rules of the company. But it is not bound to carry all persons
at all times , or it might be utterly unable to protect itself from ruin.
It would not be obliged to carry one whose ostensible business might
be to injure the line ; one fleeing from justice ; one going upon the
train to assault a passenger, commit larceny or robbery, or for inter-
fering with the proper regulations of the company, or for gambling
in any form, or committing any crime ; nor is it bound to carry per-
sons infected with contagious disease^, to the danger of other pas-
sengers. The person must be upon lawful and legitimate business.
Hence defendant is not bound to carry persons who travel for the
purpose of gambling. As gambling is' a crime under the State laws,
it is not even necessary for the company to have a rule against it.
It is not bound to furnish facilities for carrying out an unlawful
purpose. Necessary force may be used to prevent gamblers from
entering trains, and if found on them engaged in gambling, and
refusing to desist, they may be forcibly expelled.
Whether the plaintiff was going upon the train for gambling pur-
poses, or whether, from his previous course, the defendant might
reasonably infer that such was his purpose, is a question of fact for
the jury. If they find such to have been the case, they cannot give
judgment for any more than the actual damage sustained.
PUBLIC CALLING. 889
After the ticket is purchased and paid for, the railroad company
can only avoid compliance with its part of the contract by the exis-
tence of some legal cause or condition which will excuse it. The
•company should, in the first case, refuse to sell tickets to persons
whom it desires and has the right to exclude from the cars, and
should exclude them if they attempt to enter the car without tickets.
If the ticket has been inadvertently sold to such person and the
company desires to rescind the contract for transportation, it should
tender the return of the money paid for the ticket. If it does not
do this, plaintiff may, under any circumstances, recover the amount
of his actual damage, viz. : what he paid for the ticket, and, perhaps,
necessary expenses of his detention.
In this case the jury rendered a verdict for actual damages (f 1.74)
and costs, the company not having tendered the money.
Judgment on verdict.
VINTON V. MIDDLESEX E, CO.
11 Allen (Mass.), 304. 1865.
Tort against a street railway corporation to recover damages for
the act of one of their conductors in expelling the plaintiff from a
car in which he was a passenger.
At the trial in the Superior Court, before Mokton, J., it appeared
that the plaintiff was a passenger in one of the defendant's cars,
and was expelled by the conductor. There was no evidence that any
rule or regulation had ever been adopted by the defendants, authoriz-
ing their conductors to expel passengers for any cause. The defend-
ants introduced evidence tending to show that at the time of the
expulsion the plaintiff was intoxicated, and used loud, boisterous,
profane and indecent language towards the conductor and attempted
to strike him, and that he was therefore expelled. But the evi-
dence on this point was conflicting. There were four women in the
car as passengers.
The defendants requested the court to instruct the jury, amongst
t)ther things, as follows : " If the jury find that the plaintiff was in
the defendants' ear in a state of intoxication, so as reasonably to
induce the conductor to believe that the plaintiff would be an annoy-
ance to the passengers, or if the plaintiff so conducted, or used bois-
terous, profane, or indecent language, naturally calculated to annoy
the passengers, and persisted in so doing after being requested to be
■quiet, the conductor would be justified in removing him, using no
more violence than was necessary to affect his removal."
The judge declined so to rule, and instructed the jury as follows:
■" If the plaintiff, by reason of intoxication or otherwise, was, in act
890 CAERIEES OF PASSENGERS.
or language, ofEensive or annoying to the passengers, the conductor
had a right to remove him, using reasonable force. If the conduc-
tor, in the performance of his service as conductor, forcibly removed,
the plaintiff without justifiable cause, or if, having justifiable cause,
he used unnecessary and unreasonable violence, in kind or degree,
in removing him, tbe defendants are liable."
The jury returned a verdict for the plaintiff, with $1000 damages j.
and the defendants alleged exceptions.
BiGELow, C. J. By the instructions under which this case was;
submitted to the jury, in connection with the refusal of those which
were asked for by the defendants, we are led to infer that the learned
judge who presided at the trial was of opinion that the defendants,
and their duly authorized agents had no legal power or authority to-
exclude or expel from the vehicles under their charge a passenger
whose condition and conduct were such as to give a reasonable ground
of belief that his presence and continuance in the vehicle would.
create inconvenience and disturbance and cause discomfort and
annoyance to other passengers. Such certainly were the result and
eifect of the rule of law laid down for the guidance of the jury at-
the trial. We are constrained to say that we know of no warrant,
either in principle or authority, for putting any such limitation on
the right and authority of the defendants as common carriers of
passengers, or of their servants acting within the scope of their
employment.
It being conceded, as it must be under adjudicated cases, that the-
defendants, as incident to the business which they carried on, not
only had the power but were bound to take all reasonable and proper
means to insure the safety and provide for the comfort and con-
venience of passengers, it follows that they had a right, in the exer-
cise of this authority and duty, to repress and prohibit all disorderly-
conduct in their vehicles, and to' "expel or exclude therefrom any
person whose conduct or condition was such as to render acts of
impropriety, rudeness, indecency or disturbance, either inevitable-
or probable. Certainly the conductor in charge of the vehicle was
not bound to wait until some overt act of violence, profaneness or
other misconduct had been committed, to the inconvenience or
annoyance of other passengers, before exercising his authority to-
exclude or expel the offender. The right and power of the defend-
ants and their servants to prevent the occurrence of improper and
disorderly conduct in a public vehicle is quite as essential and impor-
tant as the authority to stop a disturbance or repress acts of violence-
or breaches of decorum after they have been committed, and the
mischief of annoyance and disturbance have been done.
Indeed, if the rule laid down at the trial be correct, then it would
follow that passengers in public vehicles must be subjected to a cer-
tain amount or degree of discomfort or insult from evil disposed
persons before the right to expel them would accrue to a carrier or
PUBLIC CALLING. 891
his servant. There would be no authority to restrain or prevent
profaneness, indecency, or other breaches of decorum in speech or
behavior, until it had continued long enough to become manifest to
the eyes or ears of other passengers. It is obvious that any such
restriction on the operation of the rule of law would greatly diminish
its practical value. Nor can we see that there is any good reason
for giving so narrow a scope t© the authority of carriers of passen-
gers and their agents as was indicated in the rulings at the trial.
The only objection suggested is, that it is liable to abuse and may
become the instrument of oppression. But the same is true of many
other salutary rules of law. The safeguard against an unjust or
unauthorized use of the power is to be found in the consideration
that it can never be properly exercised except in cases where it can
be satisfactorily proved that the condition or conduct of a person
was such as to render it reasonably certain that he would occasion
discomfort or annoyance to other passengers, if he was admitted
into a public vehicle or allowed longer to remain within it.
Exceptions sustained.
JENCKS V. COLEMAN.
2 Sumner (U. S. C. C), 221. 1835.
Case for refusing to take the plaintiff on board of the steamboat
"Benjamin Franklin" (of which .the defendant was commander) as
a passenger from Providence to Newport. Plea, the general issue.
The facts, as they appeared at the trial, were substantially as fol-
lows: That the plaintiff was the agent of the Tremont line of stages,
running between Providence and Boston ; that his object was to take
passage in the boat to Newport, and then go on board the steamboat
"President,"- on her passage from New York to Providence, on
the next morning, for the purpose of soliciting passengers for the
Tremont line of stages for Boston. This the proprietors of the
"President" and "Benjamin Franklin" had prohibited, and had
given notice that they would not permit agents of that line of stages
to take passage in their boats for that purpose. The reason assigned
for such prohibition was, that it was important for the proprietors
of the steamboats, that the passengers from their boats, for Boston,
should find, at all times, on their arrival at Providence, an imme-
diate and expeditious passage to Boston. To insure this object, the
Citizens' Coach Company had contracted with the steamboat pro-
prietors to carry all the passengers who wished to go, in good car-
riages, at reasonable expedition and prices; and the commanders
of the steamboats were to receive the fare, and make out way-bills
of the passengers, for the Citizens' Coach Company. This they
892 CARRIERS OF PASSENGERS.
continued to perform. And, in order to counteract the effect of this
contract, — which had been offered the Tremont line, and declined,
— that line placed an agent on board the boats, to solicit passengers
for their coaches; and, on being complained to by the Citizens'
Coach Company, the proprietors of the steamboats interdicted such
agents from coming on board their boats. And in this instance
refused to permit the plaintiff to take passage in the boat for
Newport, though he tendered the customary fare.
Stoey, Circuit Justice (charging jury). There is no doubt that
this steamboat is a common carrier of passengers for hire; and,
therefore, the defendant, as commander, was bound to take the
plaintiff as a passenger on board, if he had suitable accommoda-
tions, and there was no reasonable . objection to the character or
conduct of the plaintiff. The question then really resolves itself
into the mere consideration, whether there was, in the present case,
upon the facts, a reasonable ground for the refusal. The right of
passengers to a passage on board of a steamboat is not an unlimited
right. But it is subject to such reasonable regulations as the pro-
prietors may prescribe, for the due accommodation of passengers
and for the due arrangements of their business. The proprietors
have not only this right, but the farther right to consult and pro-
vide for their own interests in the management of such boats, as a
common incident to their right of property. They are not bound to
admit passengers on board, who refuse to obey the reasonable regu-
lations of the boat, or who are guilty of gross and vulgar habits of
conduct; or who make disturbances on board; or whose characters
are doubtful, or dissolute, or suspicious; and, a fortiori, whose char-
acters are unequivocally bad. Nor are they bound to admit pas-
sengers on board whose object is to interfere with the interest or
patronage of the proprietors, so as to make the business less lucra-
tive to them. While, therefore, I agree that steamboat proprietors
holding themselves out as common carriers are bound to receive
passengers on board under ordinary circumstances, I at the same
time insist that they may refuse to receive them , if there be a rea-
sonable objection. And as passengers are bound to obey the orders
and regulations of the proprietors, unless they are oppressive and
grossly unreasonable, whoever goes on board, under ordinary cir-
cumstances, impliedly contracts to obey such regulations; and may
justly be refused a passage, if he wilfully resists or violates them.
Now, what are the circumstances of the present case? Jencks,
the plaintiff, was at the time the known agent of the Tremont line
of stage-coaches. The proprietors of the " Benjamin Franklin " had,
as he well knew, entered into a contract with the owners of another
line (the Citizens' Stage Coach Company) to bring passengers from
Boston to Providence, and to carry passengers from Providence
to Boston, in connection with and to meet the steamboats plying
between New York and Providence, and belonging to the proprietors
PUBLIC CALLING. 893
of the "Franklin." Such a contract was important, if not indispen-
sable, to secure uniformity, punctuality, and certainty in the car-
riage of passengers on both routes, and might be material to the
interests of the proprietors of those steamboats. Jencks had been
in the habit of coming on board these steamboats at Providence, and
going therein to Newport; and commonly of coming on board at
Newport, and going to Providence, avowedly for the purpose of
soliciting passengers for the Tremont line, and thus interfering with
the patronage intended to be secured to the Citizens' line by the
arrangements made with the steamboat proprietors. He had the
fullest notice that the steamboat proprietors had forbidden any per-
son to come on board for such purposes, as incompatible with their
interests. A.t the time when he came on board, as in the declara-
tion mentioned, there was every reason to presume that he was on
board for his ordinary purposes as agent. It has been said that the
proprietors had no right to inquire into his intent or motives. I
cannot admit that point. T think that the proprietors had a right
to inquire into such intent and motives ; and to act upon the reason-
able presumptions, which arose in regard to them. Suppose a
known or suspected thief were to come on board; would they not
have a right to refuse him a passage? Might they not justly act
upon the presumption that his object was unlawful? Suppose a per-
son were to come on board who was habitually drunk, and gross
in his behavior, and obscene in his language, so as to be a public
annoyance; might not the proprietors refuse to allow him a pas-
sage? I think they might, upon the just presumption of what his
conduct would be.
It has been said by the learned counsel for the plaintiff that
Jencks was going from Providence to Newport, and not coming back;
and that in going down there would, from the very nature of the
object, be no solicitation of passengers. That does not necessarily
follow; for he might be engaged in making preliminary engage-
ments for the return of some of them back again. But, supposing
there were no such solicitations, actual or intended, I do not think
the case is essentially changed. I think that the proprietors of the
steamboats were not bound to take a passenger from Providence to
Newport wh'ose object was, as a stationed agent of the Tremont line,
thereby to acquire facilities, to enable him successfully to interfere
with the interests of these proprietors, or to do them an injury in
their business. Let us take the case of a ferryman. Is he bound to
carry a passenger across a ferry whose object is to commit a trespass
upon his lands? A case still more strongly in point, and which, in
my judgment, completely meets the present, is that of an innkeeper.
■Suppose passengers are accustomed to breakfast, or dine, or sup at
his house ; and an agent is employed by a rival house, at the dis-
tance of a few miles, to decoy the passengers away, the moment
they arrive at the inn ; is the innkeeper bound to entertain and lodge
894 CARRIERS OF PASSENGERS.
such agent, and thereby enable him to accomplish the very objects
of his mission, to the injury or ruin of his own interests? I think
not. It has been also said that the steamboat proprietors are bound
to carry passengers only between Providence and New York, and
not to transport them to Boston. Be it so, that they are not abso-
lutely bound. Yet they have a right to make a contract for this
latter purpose, if they choose; and especially if it will facilitate
the transportation of passengers, and increase the patronage of their
steamboats. I do not say that they have a right to act oppressively
in such cases. But, certainly, they may in good faith make such
contracts to promote their own as well as the public interests.
The only real question, then, in the- present case, is whether the
conduct of the steamboat proprietors has been reasonable and bona
fide. They have entered into a contract with the Citizens' line of
coaches, to carry all the passengers to and from Boston. Is this,
contract reasonable in itself; and not designed to create an oppres-
sive and mischievous monopoly? There is no pretence to say that
any passenger in the steamboat is bound to go to or from Boston in
the Citizens' line. He may act as he pleases. It has been said by
the learned counsel for the plaintiff that free competition is best for
the public. But that is not the question here. Men may reason-
ably differ from each other on that point. Neither is the question
here whether the contract with the Citizens' line was indispensable
or absolutely necessary in order to insure the carriage of passengers
to and from Boston. But the true question is, whether the contract
is reasonable and proper in itself, and entered into with good faith,
and not for the purpose of an oppressive monopoly. If the jury find
the contract to be reasonable and proper in itself, and not oppres-
sive, and they believe the purpose of Jencks in going on board was
to accomplish the objects of his agency, and in violation of the reas-
onable regulations of the steamboat proprietors, then their verdict
ought to be for the defendant; and otherwise, to be for the plaintiff.
OLD COLONY E. CO. v. TEIPP.
147 Mass. 35. 1888.
ToBT for obstructing the station grounds of the plaintiff at Brock-
ton. At the trial in the Superior Court, before Thommon, J., evi-
dence was introduced tending to prove the following facts.
The plaintiff is a railroad corporation, with all the powers and
subject to all the duties of such corporations in this Commonwealth,
and Brockton is one of the largest stations upon its road. It had
been the practice of the defendant and other owners of job wagons-
PUBLIC CALLING. 895
for several years prior to August 1, 1886, to go to the Brockton
station to wait for trains, and to ascertain if the passengers had any
baggage or other merchandise for them to carry. The plaintiff, on
■or about August, 1886, made a contract with the firm of Porter and
iSons, of Brockton, to provide means for carrying all baggage and
merchandise brought by incoming passengers to such places in the
■city as they might desire, at their expense. Afterwards, the plain-
tiff, through its station master at Brockton, and by the order of its
general manager, and also of its division superintendent, but not
by any by-law or vote of its directors or stockholders, notified the
defendant and all other owners of job wagons not to come upon the
plaintiff's grounds at Brockton to solicit baggage or merchandise
from incoming passengers, and informed them of the contract made
with Porter and Sons, but allowed them, however, to come to the
station to deliver such bagagge and merchandise, and to take away
such as they might have previous orders for. The defendant after
receiving this notice continued to come upon the premises, and to
solicit baggage and merchandise upon the platform of the station
from passengers upon the arrival of trains, and refused to depart
therefrom when requested by the plaintiff's agents, though not there
to deliver baggage or merchandise for outgoing passengers, or to
take it away upon orders received elsewhere.
Upon these facts, the judge ordered a verdict for the plaintiff, and
reported the case for the determination of this court. If the verdict
was correct, judgment was to be rendered thereon; otherwise, judg-
ment was to be entered for the defendant.
W. Allen, J. Whatever implied license the defendant may have
had to enter the plaintiff's close had been revoked by the regula-
tions made by the plaintiff for the management of its business and
the use of its property in its business. The defendant entered under
a claim of right, and can justify his entry only by showing a right
superior to that of the plaintiff. The plaintiff has all the rights of
an owner in possession, except such as are inconsistent with the
public use for which it holds its franchise ; that is, with its duties
as a common carrier of persons and merchandise. As concerns the
case at bar, the plaintiff is obliged to be a common carrier of pas-
sengers. It is its duty to furnish reasonable facilities and accom-
modations for the use of all persons who seek for transporation over
its road. It provided its depot for the use of persons who were
transported on its cars to or from the station, and holds it for that
use, and it has no right to exclude from it persons seeking access
to it for the use for which it was intended and is maintained. It
can subject the use to rules and regulations, but by statute, if not
by common law, the regulations must be such as to, secure reason-
able and equal use of the premises to all having such right to use
them. See Pub. Sts. c. 112, § 188. Fitchburg Eailroad v. Gage,
12 Gray, 393. Spofford v. Boston & Maine Eailroad, 128 Mass. 326,
896 OAKEIERS OF PASSENGERS.
The station was a passenger station. Passengers taking and leav-
ing the cars at the station, and persons setting down passengers
or delivering merchandise or baggage for transportation from the
station, or taking up passengers or receiving merchandise that had
been transported to the station, had a right to use the station build-
ings and grounds, superior to the right of the plaintiff to exclusive
occupancy. All such persons had business with the plaintiff, which
it was bound to attend to in the place and manner which it had pro-
vided for all who had like business with it.
The defendant was allowed to use the depot for any business that
he had with the plaintiff. But he had no business to transact with
the plaintiff. He had no merchandise or baggage to deliver to the
plaintiff, or to receive from it. His purpose was to use the depot
as a place for soliciting contracts with incoming passengers for the
transportation of their baggage. The railroad company may be
under obligation to the passenger to see that he has reasonable facil-
ities for procuring transportation for himself and his baggage from
the station where his transit ends. What conveniences shall be
furnished to passengers within the station for that purpose is a
matter wholly between them and the company. The defendant is
a stranger both to the plaintiff and to its passengers, and can claim
no rights against the plaintiff to the use of its station, either in its
own right or in the right of passengers. The fact that he is willing
to assume relations with any passenger which will give him rela-
tions with the plaintiff involving the right to use the depot, does
not establish such relations or such right; and the right of passen-
gers to be solicited by drivers of hacks and job wagons is not such
as to give to all such drivers a right to occupy the platforms and
depots of railroads. If such right exists, it exists, under the statute,
equally for all, and railroad companies are obliged to admit to their
depots, not only persons having business there to deliver or receive
passengers or merchandise, but all persons seeking such business,
and to furnish reasonable and equal facilities and conveniences for
all such.
The only case we have seen which seems to lend any countenance
to the position that a railroad company has no right to exclude per-
sons from occupying its depots for the purpose of soliciting the
patronage of passengers, is Markham v. Brown, 8 N". H. 523 [245], in
which it was held that an inn-holder had no right to exclude from
his inn a stage-driver who entered it to solicit guests to patronize
his stage, in opposition to a driver of a rival line, who had been
admitted for a like purpose. It was said to rest upon the right of
the passengers, rather than that of the driver. However it may be
with a guest at an inn, we do not think that passengers in a railroad
depot have such possession of or right in the premises as will give
to carriers of baggage, soliciting their patronage, an implied license
to enter, irrevocable by the railroad company. Barney v. Oyster
PUBLIC CALLING. 897
Bay & Huntington Steamboat Co., 67 N. Y. 301, and Jencks v.
Coleman, 2 Sumner, 221 [891] are cases directly in point. See also
Comlnonwealth v. Power, 7 Met. 696, and Harris v. Stevens, 31
Vt. 79.
It is argued that the statute gave to the defendant the same right
to enter upon and use the buildings and platforms of the plaintiff,
which the plaintiff gave to Porter and Sons. The plaintiff made a
contract with Porter and Sons to do all the service required by
incoming passengers in receiving from the plaintiff and delivering
in the town baggage and merchandise brought by them, and pro-
hibited the defendant and all other owners of job wagons from enter-
ing the station for the purpose of soliciting from passengers the car-
riage of their baggage and merchandise, but allowed them to enter
for the purpose of delivering baggage or merchandise, or of receiv-
ing any for which they had orders. Section 188 of the Pub. Sts. c.
112, is in these words : " Every railroad corporation shall give to all
persons or companies reasonable and equal terms, facilities, and
accommodations for the transportation of themselves, their agents
and servants, and of any merchandise and other property upon its
railroad, and for the use of its depot and other buildings and
grounds ; and, at any point where its railroad connects with another
railroad, reasonable and equal terms and facilities of interchange."
A penalty is prescribed in § 191 for violations of the statute.
The statute, in providing that a railroad corporation shall give
to all persons equal facilities for the use of its depots, obviously
means a use of right. It does not intend to prescribe who shall
have the use of the depot, but to provide that all who have the right
to use it shall be furnished by the railroad company with equal con^
veniences. The statute applies only to relations between railroads
as common carriers and their patrons. It does not enact that a
license given by a railroad company to a stranger shall be a license
to all the world. If a railroad company allows a person to sell
refreshments or newspapers in its depots, or to cultivate flowers on
its station grounds, the statute does not extend the same right to all
persons. If a railroad company, for the convenience of its passen-
gers, allows a baggage expressman to travel in its cars to solicit the
carriage of the baggage of passengers, or to keep a stand in its
depots for receiving orders from passengers, the statute does not
require it to furnish equal facilities and conveniences to all persons.
The fact that the defendant, as the owner of a job wagon, is a com-
mon carrier, gives him no special right under the statute; it only
shows that it is possible for him to perform for passengers the ser-
vice which he wishes to solicit of them.
The English railway and canal trafSc act, 17 & 18 Vict. c. 31,
requires every railway and canal company to afford all reasonable
facilities for traffic, and provides that " no such company shall make
or give any undue or unreasonable preference or advantage to or in
898 CAEKIEES OF PASSENGEES.
favor of any particular person or company, or any particular descrip.
tion of traffic, in any respect whatsoever." Marriott v. London &
Southwestern Eailway, 1 C. B. (N. S.) 499, was under this statute.
The complaint was that the omnibus of Marriott, in which he
brought passengers to the railroad, was excluded by the railway
company from its station grounds, when other omnibuses which
brought passengers were admitted. An injunction was ordered.
Beadell v. Eastern Counties Eailway, 2 C. B. (N. S.) 509, was a
complaint under the statute that the railway company refused to
allow the complainant to ply for passengers at its station, it hav-
ing granted the exclusive right of taking up passengers within the
station to one Clark. The respondent allowed the complainant's
cabs to enter the station for the purpose of putting down passengers,
and then required him to leave the yard. An injunction was refused.
One ground on which the case was distinguished from Mariott's
was, that the complainant was allowed to enter the yard to set down
passengers, and was only prohibited from remaining to ply for pas-
sengers. See also Painter v. London, Brighton, & South Coast Eail-
way, 2 C. B. (N. S.) 702; Barker v. Midland Eailway, 18 C. B. 46.
Besides Marriott's case, ubi supra, Palmer v. London, Brighton, &
South Coast Eailway, L. E. 6 C. P. 194, and Parkinson v. Great
Western Eailway, L. E. 6 C. P. 554, are cases in which injunctions
were granted under the statute ; in the former case, for refusing to
admit vans containing goods to the station yard for delivery to the
railway company for transportation by it; in the latter case for
refusing to deliver at the station, to a carrier authorized to receive
them, goods which had been transported on the railroad.
We have not been referred to any decision or dictum in England
or in this country, that a common carrier of passengers and their
baggage to and from a railroad station has any right, without the
consent of the railroad company, to use the grounds, buildings, and
platforms of the station for the purpose of soliciting the patronage
of passengers, or that a regulation of the company which allows
such use by particular persons, and denies it to others, violates any
right of the latter. Cases at common law or under statutes to deter-
mine whether railroad companies in particular instances gave equal
terms and facilities to different parties to whom they furnished
transportation, and with whom they dealt as common carriers, have
no bearing on the case at bar. The defendant in his business of
solicitor of the patronage of passengers held no relations with the
plaintiff as a common carrier, and had no right to use its station
grounds and buildings. A majority of the court are of the opinion
that there should be Judgment on the verdict.
Field, J. The Chief Justice, Mr. Justice Devens, and myself
think that our statutes should receive a different construction from
that given to them by a majority of the court. The Pub. Sts. c.
PUBLIC CALLING. 899
112, sec. 188, provide "that every railroad corporation shall give to
all persons or companies reasonable and equal terms, facilities, and
accommodations for the transportation of themselves, their agents
^nd servants, and of any merchandise and other property upon its
railroad, and for the use of its depot and other buildings and grounds;
^nd, at any point where its railroad connects with another railroad,
reasonable and equal terms and facilities of interchange." Section
189 of the same chapter provides that " every railroad corporation
shall promptly forward merchandise consigned or directed to be sent
over another road connecting with its road, according to the direc-
tions contained thereon or accompanying the same, and shall not
xeceive and forward over its road merchandise consigned, ordered, or
-expressly directed to be received and forwarded by a different route."
By section 191, a railroad corporation which violates these pro-
visions is liable for all damages sustained by reason of such viola-
tion, and to a penalty of two hundred dollars, which may be
recovered to the use of the party aggrieved, or to the use of the
■Commonwealth. These sections are taken from the St. of 1874, c.
-372, sees. 138, 139, 141, and the St. of 1880, c. 258.
Section 188 of the Pub. Sts. c. 112 was first enacted by the St.
•of 1867, c. 339. This section does not, in terms, require that the
persons or companies to whom the corporation is required to give
" reasonable and equal terms, facilities, and accommodations " shall
■own the merchandise which is transported, nor is it limited to the
delivery of merchandise to be transported by the railroad corpora-
tion. In the clause relating to connecting railroads, the section
plainly means that railroads shall give to other railroads connecting
Tvith them, and shall receive with such other railroads, reasonable
und equal terms and facilities of interchange both in delivering pas-
sengers and merchandise to, and in receiving them from, the rail-
roads with which they connect. The provision that every railroad
■corporation shall give to all persons or companies reasonable and
■equal terms, facilities, and accommodations for the use of the depot
and other buildings and grounds, must include the use of the depot
.and other buildings and grounds for receiving passengers and mer-
■chandise from a railroad at the terminus where the transportation
on the railroad ends, as well as for delivering passengers and mer-
chandise to a railroad at the terminus where such transportation
begins.
As the last clause of the section makes provision for carriers con-
necting by railroad, we think that the preceding clause was intended
to make provision for other connecting carriers, and to include pub-
lic or common carriers, as well as private carriers actually employed
by passengers or by the owners or consignees of merchandise. Stages
a,nd expresses are the only common carriers of passengers and of
merchandise to and from many places in the Commonwealth, and in
connection with railroads often form a continuous line of trans-
900 CAKKIEES OF PASSENGERS.
porfcation. The statute, we think, was intended to prevent unjust
discrimination by a railroad corporation between common carriers
connecting with it in any manner, and to require that the railroad
corporation should furnish to such carriers reasonable and equal
terms, facilities, and accommodations in the use of its depot and
other buildings and grounds for the interchange of traffic.
A railroad corporation can make reasonable rules and regulations
concerning the use of its depot and other buildings and grounds,
and can exclude all persons therefrom who have no business with
the railroad, and it can probably prohibit all persons from soliciting
business for themselves on its premises. Whatever may be its rights
to exclude all common carriers of passengers or of merchandise from
its depots and grounds who have not an order to enter, given by
persons who are or who intend to become passengers, or who own
or are entitled to the possession of merchandise which has been or
is to be transported, it cannot arbitrarily admit to its depot and
grounds one common carrier and exclude all others. The effect of
such a regulation would be to enable a railroad corporation largely
to control the transportation of passengers and merchandise beyond
its own line, and to establish a monopoly not granted by its charter,
which might be solely for its own benefit, and not for the benefit of
the public. Such a regulation does not give " to all persons or com-
panies reasonable and equal terms, facilities and accommodations
. . . for the use of its depot and other buildings and grounds," in
the transportation of persons and property. See Parkinson v. Great
Western Railway, L. E. 6 C. F. 554; Palmer v. London, Brighton
& South Coast Kail way, L. R. 6 C. P. 194; New England Express
Company v. Maine Central Railroad, 57 Maine, 188.
3. WHO DEEMED PASSENGERS,
a. Acceptance.
BRIEN V. BENNETT.
Before Lord Abinger, C. B. 8 Car. & P. 724. 1839.
Case. — The declaration stated that the defendant was the pro-
prietor of an omnibus for carrying passengers from Hammersmith
and divers other places to London, and being such owner, the plain-
tiff at the request of the defendant, " agreed to become and became
a passenger by the said omnibus to be safely and securely conveyed "
from Hammersmith to London for reasonable fare and reward to the.
WHO DEEMED PASSENGERS. 901
defendant, "and the defendant then received the plaintiff as such
passenger as aforesaid, and thereupon it became and was the duty
of the defendant to use due and proper care that the plaintiff should
be safely and securely carried and conveyed by the said omnibus,"
yet the defendant, not regarding his duty, did not use proper care,
&c., but on the contrary, neglected it, so that by the negligence of
the defendant and his servant in that behalf, " the plaintiff, whilst
such passenger as aforesaid," fell from the said omnibus upon the
ground, and was greatly hurt, &c. Pleas, 1st, not guilty; 2d, deny-
ing that the defendant was the proprietor of the omnibus ; 3d, " that
the plaintiff did not become a passenger by the said omnibus, nor
did the defendant receive him, the plaintiff, as such passenger in
manner and form as in the said declaration is alleged " (concluding
to the country).
It appeared that the defendant's omnibus was passing on its jour-
ney, when the plaintiff, who was a gentleman considerably advanced
in years, held up his finger to cause the driver of the omnibus to
stop and take him up, and that upon his doing so the driver pulled
up, and the conductor opened the omnibus door; and that just as
the plaintiff was putting his foot on the step of the omnibus, the
driver, supposing that the plaintiff had got into it, drove on, and
the plaintiff fell on his face on the ground, and was much hurt.
Piatt, for the defendant. I submit that the plaintiff never was
a passenger.
Lord Abinger, C. B. I think that the stopping of the omnibus
implies a consent to take the plaintiff as a passenger, and that it is
evidence to go to the jury.
Verdict for the plaintiff — Damages £5.
ALLENDEE v. CHICAGO, ETC., E. CO.
37 Iowa, 264. 1873.
Action to recover damages for injuries received by cars on
defendant's road.
On the 5th day of November, 1870, the defendant operated a rail-
road in Jefferson county, and had a depot at Fairfield, which was
then the terminal station of the road. About half-past four o'clock
in the afternoon of that day plaintiff, a resident of Jefferson county,
eighteen years of age, and who had never ridden on the cars, applied
at the depot of defendant, in Fairfield, for passage to Acheson, the
next station on the road.
She was informed by the ticket agent that the regular train had
gone, but that a freight train would leave about 5 o'clock, which
would have a car on which she could ride. She informed the agent'
902 CAEKIEES OF PASSENGERS.
that she would rather go on that than wait for the passenger train,
and then went to the house of an acquaintance near the depot.
In a short time she returned, went to the door of the ticket office,
asked for a ticket, and inquired how long it would be before she
could go. The agent informed her that the train would start in
about twenty minutes ; told her that she could pay her fare to the
conductor, and that she had better go and get on the car and be ready.
She told the agent that she had never ridden on the cars before, and
asked him if they would not back up to the station. He said the
regular passenger train did.
The caboose attached to this freight train had seats like a passen-
ger car in one end, the other part being for the conductor and train
men. There were steps, a door and a platform at each end, and
doors in the side in the part used by the train men.
At the place in question the defendant's road had three tracks.
The caboose stood on the track farthest from the depot, and about
two hundred and fifty feet north of it. The engine stood up the
track still further north. To the rear or south end of the caboose
was attached a flat car. The bunter of the flat car was out. About
five feet south of the flat car stood a box-car.
The ticket agent went with the plaintiff out on the platform over
the first track to the middle track, in view of the caboose car, pointed
it out with his finger, and directed her to go to it and get on.
The plaintiff passed north up the track until she came to the south
end of the flat car, and then, seeing no means of entering the caboose
car, as she supposed, she undertook to pass between the flat car and
the box-car, a few feet south of it, hoping to find an opening by
which she might enter the car on the other side, first looking up
and down the track, and discovering nothing in motion. At this
time the brakeman and conductor were engaged in making up the
train. Tour freight cars detached from the locomotive, the conduc-
tor upon them, were very slowly coming down from the north to be
attached to the caboose. When they came near the caboose the
conductor got off and walked alonsgide to make the coupling. The
concussion was slight, but was sufficient to carry the caboose and
flat car far enough back to almost close the space through which the
plaintiff was at that moment passing. She was caught between the
flat car and the box-car about the hips, and received the injuries for
which she sues.
Jury trial. Verdict for plaintiff for $.5000. Motion for new trial
overruled. Judgment upon the verdict. Defendant appeals.
Day, J.
III. The court gave to the jury sixteen instructions, which, in
the main, quite fairly present the case. To six of them the defend-
ant makes objection. Some of them are exceptionable because they
suggest to the jury matters outside of the evidence produced. The
sixteenth instruction given is as follows : —
WHO DEEMED PASSENGEKS. 903
"And she may recover not only the amount of damages which she
BufPered prior to the commencement of this suit, but also all the
damages proceeding continuously from the injury complained of,
■which she had suffered up to the present time, and which it is reas-
onably certain she will suffer in the future. There must, however,
be a reasonable certainty as to such future damages. Yet she can-
not recover for the damage which she might have avoided by the
exercise of slight care and diligence after she became aware of the
injury of which she complains."
This instruction is erroneous. It is bhe duty of a person placed
in the condition of plaintiff to exercise not slight, but reasonable
care and diligence to effect a speedy and complete cure. And for
injuries or suffering caused or enhanced by the neglect to use such
care she cannot recover. Collins v. City of Council Bluffs, 32
Iowa, 324.
Evidence was introduced which, appellant claims, shows a failure
to exercise such care, as her failure to consult a physician or take
medicine after the lapse of about one week from the injury, and her
going to work soon after the injury was received.
It was the right of the defendant to have the verdict of the jury
as to whether plaintiff exercised ordinary care in the means employed
to effect a cure. And we cannot say that it has not been prejudiced
by the failure to submit this question under the proper instruction.
For the error in this instruction the cause must be reversed, but
as the questions raised in the other instructions complained of, may
arise upon the new trial, it is necessary that we should consider
and determine them.
Whilst in the main, the instructions given very fairly present the
case, yet some of them have objectionable features which should be
avoided on the new trial.
The seventh instruction is as follows : —
" If you believe that the plaintiff entered into an office or waiting
room provided by defendant for passengers, and informed the depot
or ticket agent of her intention and desire to become a passenger ;
that she placed herself in good faith, under his direction as such ;
that such agent directed her in getting on (attempting to get on)
the car; these facts, if established to your satisfaction by the evi-
dence, would be sufficient to justify you in finding that the relation
of passenger existed although she had not purchased a ticket, and
had not entered a car." This instruction is not only right in prin-
ciple, but it is supported by authority.
If the actual purchase of a ticket, or the entering of a car is neces-
sary in order to constitute the relation of a passenger, then no one
taking passage on a railway at a way station where, no tickets are
sold, can demand of the company the exercise of that high degree of
care which a common carrier owes a passenger, until he had actually
obtained admission to the car. If the doctrine of the instruction be
904 CAKEIEKS OF PASSENGERS.
not right, then a person taking passage at a way station, witliout
the means of procuring a ticket, might be precipitated under the
wheels and injured, from a defect in the steps, and yet could demand
of the company the exercise of only ordinary care.
The rule given by the court is distinctly recognized in Shearman
& Eedfield on Negligence, section 262, and cases cited, and we have
no doubt of its correctness.
Reversed.
b. Persons pursuing Special Callings.
NOLTON V. WESTERN E. CO.
15 N". Y. 444. 1857.
Demuerek to Complaint. The complaint stated that the plain-
tiff was a mail agent on the defendant's railroad, in the employment
of the United States, and the defendant a carrier of passengers and
freight, for fare and reward, by railroad and cars, between Green-
bush and Boston. That defendant was bound by contract between
it and the United States, for a stipulated time and price, to carry
the mails, and also the mail agent, without further charge; that in
pursuance and in consideration of such contract, the defendant
received the plaintiff into a car fitted up for the accommodation of
the mail and mail agent; and the plaintiff, for the consideration
aforesaid, became and was a passenger in the said cars, to be by the
defendant, thereby, safely and with due care and skill, carried and
conveyed to Worcester, which the defendant then and there under-
took and was bound to do. It then states a bodily injury received
by the plaintiff, by the running of the car, containing the plaintiff,
off the track, and breaking it, through defectiveness of machinery,
want of care, skill, &c. The defendant demurred, and after final
judgment for the plaintiff, by the Supreme Court at general term,
appealed to this court. The case was submitted on printed briefs.
Seldbn, J. As the only objection which can be taken to the
complaint upon this demurrer is, that it does not contain facts suffi-
cient to constitute a cause of action, it is entirely immaterial whether
the action be considered as in form ex contractu or ex delicto. The
only question is whether, upon the facts stated, the plaintiff can
maintain an action in any form.
The plaintiff cannot, I think, avail himself of the contract be-
tween the defendant and the government, so as to make that the
gravamen of his complaint, and the foundation of a recovery. This
is not like the cases in which a third person has been permitted to
WHO DEEMED PASSENGERS. 905
recover upon a contract made by another party for his own benefit.
The distinction between them is plain. Those were cases where the
defendant, for a consideration, received from the party to the con-
tract, had undertaken to do something ostensibly and avowedly, for
the direct benefit of the plaintiff, and when the advantage to the
latter was one object of the agreement. Here the parties had no
such intention. In contracting for the transportation of the mail
agent, the parties had no more in view any benefit or advantage to
him, than if the contract had been to transport a chattel. The
government took care of the public interests, and left those of the
mail agent to such protection as the law would afEord.
Another distinction is, that in the eases referred to, the party
claiming the benefit of the ' contract and seeking to enforce it, was
one who was specifically mentioned and pointed out in the contract
itself, while here no one is designated; and to entitle the plain-
tiff to recover upon it, it must be regarded as a shifting contract,
which can be made to enure to the benefit of any person who may
temporarily assume the duties of mail agent. I think there is no
precedent for such a construction of such a contract.
If, then, the plaintiff can recover at all, it must be upon the
ground of some implied contract, or of some legal obligation or duty
resting upon the defendants, to exercise proper care and skill in the
transportation of passengers, and the question is, whether, under
the circumstances of this case, such a contract is implied, or such a
duty imposed for the benefit of the plaintiff.
It would seem a startling proposition, that in all those cases where
persons travel upon railroads engaged not in their own business,
but that of others, and where their fare is paid by their employer,
they are entirely at the mercy of the railroad agents, and without
redress, if injured through their recklessness and want of care and
skill. If, however, railroad companies are liable, in cases like the
present, it is important to ascertain the precise nature and extent
of that liability.
In the first place, then, it is clear that they are not liable, by vir-
tue of that custom or rule of the common law which imposes special
and peculiar obligations upon common carriers. Persons engaged
in the conveyance of passengers are not common carriers within the
meaning of that rule, which applies solely to those whose business
it is to transport goods. Bac. Abr., tit. carriers; 2 Kent's Com.,
§ 40; Story on Bail., § 498, and note.
If the complaint in this case, after stating that the defendant was
a carrier of passengers and freight from Greenbush to Boston, for
hire and reward, had simply averred that the plaintiff became a pas-
senger in the cars of the defendant, and was so received by it; an
implied contract would have arisen on the part of the defendant,
to transport the plaintiff, with all due diligence and skill; because
the law would have inferred from those facts that the defendant
906 CAEKIERS OF PASSENGKES.
was to receive a compensation from the plaintiff himself. But this
inference is repelled by the contract set forth, and the statement
that the plaintiff was received as a passenger under it.
It was suggested by the plaintiff's counsel, upon the argument,,
that a contract might be implied, of which the agreement between
the defendant and the government should form the consideration,
and basis. But although that agreement may be resorted to, for
the purpose of showing that the plaintiff became a passenger upon
the cars by the consent of the defendant, and not as a mere intruder,
it cannot, I think, be made available by the plaintiff, as the con-
sideration of an implied assumpsit. As to him, that agreement is.
res inter alios acta. He is not a party to it or mentioned in it. His
employment by the government may have taken place long after the
agreement was made, and have had no reference to it. If any con-
tract can be implied from that agreement, in favor of the plaintiff,
it must be a contract to transport him from place to place, accord-
ing to the terms of the agreement. Suppose, then, the cause of
action, instead of being for an injury received through the negli-
gence of the defendant, had been for not furnishing the necessary
cars, or not running any train, could the plaintiff recover in such
an action? "Would the defendant be liable for its failure to perform
the contract, not only to the party with whom the contract was-
made, and from whom the consideration was received, but to a third
party not named in it, and from whom they had received nothing?
No one would claim this.
It may be said that the implied contract with the plaintiff is
limited to an undertaking to transport safely or with due care. It
is difficult to see, however, how there can be a contract to transport
safely where there is no contract to transport at all. My conclusion
therefore is, that this action cannot be maintained upon the basis of
a contract express or implied.
It necessarily follows that it must rest exclusively upon that
obligation which the law always imposes upon every one who
attempts to do anything, even gratuitously, for another, to exercise
some degree of care and skill in the performance of what he has
undertaken. The leading case on this subject is that of Goggs v.
Bernard, Ld. Ray. 909. There the defendant had undertaken to-
take several hogsheads of brandy belonging to the plaintiff, from one
cellar in London, and to deposit it in another; and in the process of
moving one of the hogsheads was staved and the brandy lost,
through the carelessness of the defendant or his servants. Although
it did not appear that the defendant was to receive anything for his
services, he was, nevertheless, held liable by the whole court.
The principle of this case has never since been doubted, but there
has been some confusion in the subsequent cases as to the true'
nature of the obligation, and as to the form of the remedy for its
violation. In many instances suits have been brought, upon the
WHO DEEMED PASSENGERS. 907
supposition that an implied contract arises, in all such cases, that
the party will exercise due care and diligence; and the language of
Lord Holt, in Coggs v. Bernard, undoubtedly gives countenance to
this idea. He seems to treat the trust and confidence reposed as a
sufEicient consideration to support a promise. This doctrine, how-
ever, can hardly be considered as in consonance with the general
principles of the common law. In addition to the difficulty of
bringing mere trust and confidence within any legal definition of
valuable consideration there is a manifest incongruity in raising a
contract, to do with care and skill that which the party is under no
legal obligation to do at all.
The duty arises in such cases, I apprehend, entirely independent
of any contract, either expressed or implied. The principle upon
which a party is held responsible for its violation does not differ
very essentially, in its nature, from that which imposes a liability
upon the owner of a dangerous animal, who carelessly suffers such,
animal to run at large, by means of which another sustains injury ;
or upon one who digs a ditch for- some lawful purpose in a highway,
and carelessly leaves it uncovered at night, to the injury of some
traveller upon the road. It is true, it may be said that, in these
cases, the duty is to the public, while in the present case, if it
exists at all it is to the individual ; but the basis of the liability is
the same in both cases, viz., the culpable negligence of the party.
All actions for negligence presuppose some obligation or duty vio-
lated. Mere negligence, where there was no legal obligation to use
care, as where a man digs a pit upon his own land, and carelessly
leaves it open, affords no ground of action. But where there is any-
thing in the circumstances to create a duty, either to an individual
or the public, any neglect to perform that duty, from which injury
arises, is actionable.
The present case falls clearly within this principle of liability.
There can be no material difference between a gratuitous undertak-
ing to transport property, and a similar undertaking to transport
a person. If either are injured through the culpable carelessness
of the carrier, he is liable. If, according to the case of Coggs v.
Bernard, supra, and the subsequent cases, an obligation to exercise
care arises in one case, it must also in the other.
It is true that, according to the authorities, the party in such cases
is only liable for gross negligence. But what will amount to gross
negligence depends upon the special circumstances of each case. It
has been held that, when the condition of the party charged is such
as to imply peculiar knowledge and skill, the omission to exercise
such skill is equivalent to gross negligence. Thus, it was said by
Lord Loughborough, in Shiells v. Blackburne, 1 Hen. Bl. 158, that
" if a man gratuitously undertakes to do a thing to the best of his
skill, when his situation or profession is such as to imply skill, an
omission of that skill is imputable to him as gross negligence."
908 CAERIEES OF PASSENGERS.
The same doctrine is advanced by Park, B., in Wilson v. Brett,
11 Mees. & Wels. 113. He says: "In the case of a gratuitous
bailee, where his profession or situation is such as to imply the
possession of competent skill, he is equally liable for the neglect to
use it."
I regard this principle as peculiarly applicable to railroad com-
panies in view of the magnitude of the interests which depend upon
the skill of their agents, and of the utter powerlessness of those
who trust to that skill to provide for their own security.
This case is not like that of Winterbottom v. Wright, 10 Mees.
& Wels. 109. There the defendant had not undertaken to trans-
port the plaintiff, either gratuitously or otherwise. He was simply
bound by contract with the government to furnish and keep in repair
the carriages used by the latter in transporting the mails. The
relations of the parties in that case and in this are very different,
and the cases cannot be considered as governed by the same
principles.
I entertain no doubt that in all cases where a railroad company
voluntarily undertakes to convey a passenger upon their road,
whether with or without compensation, in the absence, at least, of
an express agreement exempting it from responsibility, if such pas-
senger is injured by the culpable negligence or want of skill of the
agents of the company, the latter is liable. The matter of compen-
sation may have a bearing upon the degree of negligence for which
the company is liable. That question, however, does not arise
here. Degrees of negligence are matters of proof, and not of aver-
ment. The allegations of negligence in this complaint are sufficient
whether the defendant is liable for ordinary or only for gross
negligence. The judgment should be affirmed.*
c. Employees.
GILLSHANNON v. STONY BEOOK E. CO.
10 Cush. (Mass.) 228. 1852.
Action on the case for injuries sustained by the plaintiff, a laborer
in the employment of the defendants, by the negligence of their
servants and agents. It was tried in this court before Bigelow, J.,
by whom the evidence was reported for the consideration of the
whole court. From this evidence it appeared that the plaintiff was
a common laborer, employed in repairing the defendant's road-bed,
at a place several miles from his residence. Each morning and
1 Ace. : Barker v. Chicago, P. & St. L. R. Co., 243 111. 482, 90 N. E. R. 1057,
26 L. R. A. N. S. 1058,
WHO DEEMED PASSENGERS. 909
evening he rode with other laborers, to and from the place of laboi
on the gravel train of the defendants. This was done with the con-
sent of the company, and for mutual convenience ; no compensation
being paid, directly or indirectly by the laborers, for the passage,
and the company being under no contract to convey the laborers to
and from their work.
While thus on the way to their work on one occasion, a collision
took place with a hand-car on the track, through the negligence of
those having charge of the gravel train, as the plaintiff contended,
and he was thrown off and run over by the gravel train, for which
injury this action was brought. The plaintiff had no charge or care
over the gravel train, and there was some evidence that the gravel
train was not sufB.ciently supplied with brakemen. If, upon these
facts, the jury would be justified in finding a verdict for the plain-
tiff, the case was to stand for trial; otherwise the plaintiff to become
nonsuit.
Dewey, J. If the relation existing between these parties was
that of master and servant, no action will lie against the defendants
for an injury received by the plaintiff in the course of that service
occasioned by the negligence of a fellow-servant. Farwell v. Boston
and Worcester Eailroad, 4 Met. 49; Hayes v. Western Eailroad,
3 Gush. 270.
It was attempted on the argument for the plaintiff to take the
case out of the rule stated in those cases, upon the ground that the
nature of the employment of these servants was different, the plain-
tiff being employed as a laborer in constructing the railroad bed,
and not engaged in any duty connected with running the trains, and
so not engaged in aiiy- common enterprise. The case of Albro v.
Agawam Canal Co., 6 Cush. 75, seems to be adverse to these views,
and goes strongly to sustain the defence.
It was also urged that the plaintiff was not in the employment of
the defendants at the time the injury was received, or that he might
properly be considered as a passenger, and the defendants, as respects
him, were carriers for hire. But as it seems to us, in no view of
the case can this action be maintained. If the plaintiff was by the
contract of service to be carried by the defendants to the place for
his labor, then the injury was received while engaged in the service
for which he was employed, and so falls within the ordinary cases
of servants sustaining an injury from the negligence of other ser-
vants. If it be not properly inferable from the evidence that the
contract between the parties actually embraced this transportation
to the place of labor, it leaves the case to stand as a permissive
privilege granted to the plaintiff, of which he availed himself, to
facilitate his labors and service, and is equally connected with it,
and the relation of master and servant, and therefore furnishes no
ground for maintaining this action.
How does the case differ from that suggested at the argument by
910 CARRIERS OF PASSENGERS.
the counsel for the defendants, who supposed a case where the busi-
ness for which the party is employed is that of cutting timber, or
standing wood, and the servant receives an injury in his person on
the way to the timber-lot, by the overturning of the vehicle in which
he is carried, by the negligence or careless driving of another ser-
vant? There is no liability on the part of the master in such a
case.
It seems to the court, that upon the evidence offered in the present
case, the plaintiff was not entitled to a verdict, and the nonsuit
should stand.
Plaintiff nonsuit?-
d. For Compensation.
TAEBELL v. CE"^rTEAL PACIFIC E. CO.
34 Cal. 616. 1868.
[Action to recover damages for wrongful ejection from train.]
On the trial , which was by the court with a jury, plaintiff proved
(the defendant objecting and excepting thereto for irrelevancy and
incompetency) that while on the defendant's moving train of pas-
senger cars, at a point about five niiles from Auburn, towards Colfax,
he having entered the train at Auburn, he tendered to the conductor
of the train, upon the usual demand being made of him for his ticket
or fare, the legal passenger fare chargeable between the Auburn and
Colfax railroad stations, in the legal tender notes of the United
States. The conductor refused to accept the payment so tendered,
and demanded that it be made in the gold or silver coin of the
United States, and on the failure and refusal of plaintiff to make
the payment as required, caused the train to be stopped and plaintiff
to be ejected therefrom. Plaintiff had a verdict and judgment for
five hundred dollars damages. The defendant moved for a new
trial upon a settled statement of the evidence and rulings of the
court on demurrer and the admission of evidence, on grounds of
alleged error in law occurring at the trial, that the verdict and judg-
ment were against law, and that the verdict was excessive. The
motion was denied, and defendant appealed from the judgment and
the order of the court denying a new trial.
1 That an employee riding free, but not in the prosecution of his employment,
is a passenger, see MoNulty v. Pennsylvania R. Co., 182 Pa. St. 479, 38 Atl. R.
524, 38 L. R. A. 376, 61 Am. St. R. 721 ; Dickinson v. "West End St. R. Co. 177
Mass. 365, 69 N. B. R. 60, 52 L. R. A. 326, 83 Am. St. R. 284.
WHO DEEMED PASSENGERS. 911
Sanderson, J. In actions of this character it is not necessary
that the plaintiff should allege a strictly legal tender of his fa^e.
It was so held in the case of Pickford v. The Grand Junction Rail-
way Company, 8 M. & Wels. 372. It is sufficient to allege that he
was ready and willing, and offered to pay the defendant such sum
of money as it was legally entitled to charge. The transportation
and payment of the fare are contemporaneous acts. If the plaintiff
was ready and willing, and offered to pay the legal fare when
demanded by the conductor of the train, the defendant was bound
to carry him, provided there was room in the cars and the plaintiff
was a fit person to be admitted. This results from the nature of
the defendant's business, which makes it its duty to receive all per-
sons as passengers who offer to become such, upon their offering to
pay the legal fare. Whenever the performance of a duty or obliga-
tion is thus cast upon the one party in consequence of a contempo-
raneous act of payment by the other, it is sufficient if the latter is
ready and willing to pay when the former is ready to undertake the
duty. Eawson v. Johnson, 1 East, 203.
The complaint in this case might have been drawn with more
directness and precision in this respect, but we are disposed to hold
that the court below did not err in overruling the demurrer. It
would have been more certain had the amount of the fare been stated
which the plaintiff offered to pay, and that the person to whom the
offer was made was the conductor in charge of the train ; but we are
not prepared to say it is not sufficiently certain in its present form.
The point that the defendant was not bound to carry the plaintiff
because the fare which he offered to pay was in legal tender notes,
is not tenable. Conceding that a statute authorizing defendant to
demand coin in payment of fare would be constitutional, no such
statute exists, and there being no contract in writing stipulating for
coin, we find nothing in the ease which takes it out of the operation
of the Act of Congress in relation to legal tender notes. Eailroad
fares are not taxes, and do not fall within the rule in Perry v.
Washburn, 20 Cal. 318.
Whether the defendant could have legally exacted payment in
coin before the plaintiff was admitted into the cars and the journey
commenced, is a question not involved in this case, and upon which
we express no opinion. Having received the plaintiff and proceeded
several miles upon the journey, the defendant must be held to have
consented to receive in payment of the fare any good and lawful
money which the plaintiff might tender when called upon for pay-
ment. The kind of money to be paid had then ceased to be an open
question, for the contract was already made, and in process of
performance.
The verdict, however, was excessive. No special damages were
alleged or proved. It is not pretended that this is a case for puni'
tive damages, or that the business of the plaintiff suffered in any
912 CAKEIEKS OF PASSENGERS.
way by reason of his not being taken to Colfax. It does not appear
whether the plaintiff proceeded on to Colfax or returned to Auburn
after he was put out of the cars, or, whichever he did, if he did
either, that he was put to any expense in doing it. Whether the
plaintiff was going to Colfax upon urgent business or merely for
pleasure is not shown. In short, there is no evidence in the tran-
script which has any bearing upon the question of damages except
the naked fact that he was put out of the cars at a point ten or
twelve miles from the place of his destination, and about five from
the place of his departure. Such being the only evidence bearing
upon the question, we think the verdict greatly disproportionate to
the injury proved, within the rule in Aldrich v. Palmer, 24 Cal. 513.
A new trial must be granted, unless the plaintiff elects, within
fifteen days, to take a judgment for one hundred dollars, which sum
we think amply suflfieient compensation for the injury which he
sustained.
WILTON V. MIDDLESEX E. CO.
107 Mass. 108. 1871.
ToBT for personal injuries alleged to have been sustained by the
plaintiff through the negligence of defendant's servant. Defendant
was a street railroad corporation.
At the trial, the plaintiff offered to prove " that on July 16, 1868,
at which time she was nine years of age, she went out about seven
o'clock in the evening to walk; that she was in company with four
or five other girls, on the Charlestown bridge, an,d near the draw,
and one of the defendant's cars came along very slowly ; that there
were no passengers on the platform, and the driver beckoned to the
girls to get on, and they accordingly got on the platform, while the
car was going slowly; that the driver then struck his horses, and
they started on a fast trot; that the plaintiff had one foot on the
step, and by reason of the sudden start lost her balance; that she
called to the driver to stop, but the car kept on, and she fell so that
one of the wheels passed over her arm, and she was obliged to have
it amputated; and that she used due care and the driver was care-
less." It was admitted that the driver had no authority, unless
implied from his position, to invite persons to ride free, and that
defendant was not a passenger for hire. Upon the plaintiff's offer
of proof, the case was reserved for the consideration of the full
court; if the plaintiff was entitled to recover thereon, the case to
stand for trial; otherwise, judgment to be given for the defendant.
Morton, J. The plaintiff was injured while riding upon one of
the defendant's cars. At the trial she offered to prove that she was
WHO DEEMED PASSENGERS. 913
in the exercise of due care, and that the driver of the car was care-
less. For the purposes of this hearing, therefore, we are to assume
that she was injured by the negligence of a servant of the defend-
ants, in the course of his employment; and that her own want of
care did not contribute to the injury. It follows, that she can main-
tain this action ; unless we sustain the position taken by the defend-
ants, that she was unlawfully upon the car, and, therefore, not
entitled to recover.
The facts which the plaintiff offered to prove, bearing upon this
question, are as follows : The plaintiff, a girl of nine years of age,
was walking with several other girls upon the Charlestown bridge,
about seven o'clock in an evening in July. One of the defendant's
cars came along very slowly, and the driver beckoned to the girls
to get on. They thereupon got upon the front platform. It was
admitted that the plaintiff was not a passenger for hire, and that
the driver had no authority to take the girls upon the car and carry
them, unless such authority is to be implied by the fact of his
employment as a driver.
Upon these facts, it is clear that it would be competent for the
jury to find that the beckoning by the driver was intended and
understood as an invitation to the plaintiff to get upon the car and
ride. In accepting this invitation and getting upon the car, we
think she was not a trespasser, there being no evidence of collusion
between her and the driver to defraud the corporation.
A master is bound by the acts of his servants in the course of
his employment. They are deemed to be the acts of the master.
Eamsden v. Boston & Albany Eailroad Co., 104 Mass. 117, and cases
cited. The driver of a horse-car is an agent of the corporation, hav-
ing charge, in part, of the car. If, in violation of his instructions,
he permits persons to ride without pay, he is guilty of a breach of
his duty as a servant. Such act is not one outside of his duties ,
but is an act within the general scope of his agency, for which he is
responsible to his master. In the case at bar, the invitation to the
plaintiff to ride was an act within the general scope of the driver's
employment, and if she accepted it innocently she was not a tres-
passer. It is immaterial that the driver was acting contrary to his
instructions.
It follows, that the plaintiff being lawfully upon the car, though
she was a passenger without hire, is entitled to recover, if she proves
that she was using due care at the time of the injury and that she
was injured by the negligence of the driver. Philadelphia & Beading
Eailroad Co. v. Derby, 14 How. 468, 483.
In the present aspect of the case, we are not called upon to con-
sider to what extent the defendants might be held liable if it were
shown that the plaintiff was unlawfully riding upon the car.
Case to stand for trial.
914 CAKKIEES OF PASSENGERS.
WATEEBURY v. NEW YOEK CENTRAL, etc., E. CO.
17 Fed. Rep. (U. S. C. C.) 671. 1883.
Wallace, J. The plaintifE sued for personal injuries sustained,
as he alleged, by the negligence of the defendant, and, having
recovered a verdict, the defendant moves for a new trial. The
plaintifE was riding on an engine of .the defendant, when, in conse-
quence of a misplaced switch, it was thrown from the track, and he
"was injured. There was no evidence on the trial of any express
contract between the parties creating the relation of passenger and
carrier, but it appeared that on various prior occasions the plaintifE
and other drovers whose cattle were being transferred from West
Albany to East Albany by the defendant, had been permitted by the
employees of the defendant to accompany their cattle by the same
train, — sometimes on the cars of the cattle train, and sometimes on
the engine. At times the trams were delayed between these points
and the cattle required attention, and as no employee of the defend-
ant was assigned to the duty of looking after the cattle, it seemed
to be assumed between the employees of the defendant and the
drovers that the latter should look after their own cattle. Upon
the occasion in question the plaintiff and another drover got upon
the engine, there being none but box-cars on the train. The engineer
inquired if they had cattle on the train, and being informed that
such was the fact, made no objection to their riding upon the engine.
It was shown for the defendant that its rules for the government of
its employees forbade them from permitting any person to ride upon
the engine.
At the trial it was left to the jury to determine as questions of
fact whether the plaintiff was a trespasser or a passenger; whether
there was negligence on the part of the defendant; and whether
there was contributory negligence on the part of the plaintiff. The
jury were instructed in substance that if the plaintiff knew he was
riding upon the engine in contravention of the rules of the defend-
ant he was a trespasser, and in that case the defendant was not
responsible for the injury. They were also instructed that if they
found he was riding upon the engine pursuant to an implied under-
standing between himself and the defendant that he should accom-
pany his cattle in order to take care of them on the way, he was a
passenger; and that if he was a passenger, and entitled to accom-
modations as such, the defendant was not at liberty to assert that
he was guilty of negligence in riding upon the engine, if the
defendant had provided no safer place for him to ride.
A careful examination of the evidence shows quite satisfactorily
that the case did not justify the assumption in any aspect of it that
WHO DEEMED PASSENGERS. 915
the plaintifi was entitled to be carried as a passenger, as an implied
condition of the contract to carry his cattle. The most that can be
fairly claimed for the plaintiff upon the evidence is that he was
riding upon the engine permissively. If he was riding there with
the consent of the defendant, express or implied, it is not material,
;so far as it affects the defendant's liability for negligence, whether
he was there as a matter of right or a matter of favor, — as a pas-
senger or a mere licensee. It suifices to enable him to maintain an
action for negligence if he was being carried by the defendant volun-
tarily. If the defendant undertook to carry him, although gratui-
tously, and as a mere matter of favor to himself, it was obligated to
exercise due care for his safety in performing the undertaking it
liad voluntarily assumed. Philadelphia, &c. , R. Co. v. Derby, 14
How. 468; Steamboat New World v. King, 16 How. 469 [940]. The
carrier does not, by consenting to carry a person gratuitously, relieve
himself of responsibility for negligence. When the assent to his
riding free has been legally and properly given, the person carried
is entitled to the same degree of care as if he paid his fare. Todd
r. Old Colony, &c., E. Co. 3 Allen, 18. As is tersely stated by
Blackburn, J., in Austin v. Great Western Ky. Co. 15 Weekly E,ep.
863, " the right which a passenger by railway has to be carried safely
does not depend on his having made a contract, bnt the fact of his
being there creates a duty on the part of the company to carry him
safely."
The real question in the case was lost sight of upon the trial.
That question was whether the plaintiff was being carried upon the
engine with the consent of the defendant, or only by the unauthorized
permission or invitation of the defendant's employees. This ques-
tion was not presented by the exceptions to the charge or by the
instructions which the court was asked to give to the jury. But
upon the theory on which the case was presented the jury must have
found that the plaintiff had a right to be carried by the defendant as
an implied condition of the contract for the transportation of his
oattle. As the evidence does not warrant such a conclusion, and as
the real question in the case has not been passed upon by the jury,
there should be a new trial upon the ground of misdirection, although
the defendant's exceptions do not reach the error.
It should have been left to the jury to determine, as a question
of fact, whether the defendant had by its conduct held out its
employees to the plaintiff as authorized, under the circumstances,
to consent to his being carried on the train with his cattle. Un-
doubtedly the presumption of law is that persons riding upon trains
of a railroad carrier, which are palpably not designed for the trans-
portation of persons, are not lawfully there ; and if they are per-
mitted to be there by the consent of the carrier's employees, the
presumption is against the authority of the employees to bind the
carrier by such consent.
916 CAEEIEES OF PASSENGERS.
In Eaton v. D., L. & W. E. Co., 57 N. Y. 382, it is held that the
conductor of a freight train has no authority to consent to the carry-
ing of a person upon a caboose attached to such train, but designed
for the accommodation of employees, and in such case the presump-
tion is that the person carried is not lawfully there. On the other
hand, this presumption may be overthrown by the special circum-
stances, as in the case of Ohio & Miss. R. Co. v. Muhling, 30 111.
9, where the plaintiff was riding on a construction train, and in the
cases of Eyan v. Cumberland Valley E. Co., 23 Pa. St. 384 and Gill-
shannou v. Stony Brook Co., 10 Cush. 228 [908], where the plaintiff
was riding on a gravel train.
So, in a case like the present, where the railroad carrier may
derive some benefit from the presence of drovers upon its cattle
trains, and may have allowed its employees in charge of such trains
to invite or permit drovers to accompany their cattle, the presump-
tion against a license to the person thus carried may be overthrown.
It should have been left to the jury to determine, as a question of
fact, whether, notwithstanding its rules for the government of its
employees, the defendant had not held them out to the plaintiff as
having authority to consent to his being carried. If it should appear
that its employees have been accustomed to allow drovers to accom-
pany their cattle on the cattle trains so generally and constantly
that the officers of the company must have known it, the consent of
the company may be predicated upon acquiescence and ratification.
A new trial is granted.
DUFF V. ALLEGHANY VALLEY E. CO.
91 Penn. St. 458. 1879.
Per Curiam. This was an action by a parent to recover damages
for the death of her son on account of the alleged negligence of the
defendants. It is clear, from the evidence, that the boy was on the
train from day to day, not as a passenger or employee of the com-
pany, but by the connivance of the conductor, in order to sell news-
papers. It is not like a person allowed by the conductor to ride in
a car as a passenger without paying fare. In that case there is a
legal liability to the company for the fare. This is the case of a
mere trespasser, and the company owed him no duty. We are of
opinion that the rulings of the learned judge below were right.
Judgment affirmed.
■WHO DEEMED PASSENGERS. 917
ST. JOSEPH, ETC., E. CO. v. WHEELER.
35 Kan. 185. 1886.
Action by De Witt C. Wheeler, as administrator of the estate of
Frank Wheeler, deceased, against The Eailroad Company, to recover
damages for the benefit of the next of kin of the decedent, whose
death is alleged to ]iave been caused by the negligence of the
defendant. Trial at the December Term, 1884, and judgment for
plaintiff for $1500. The company brings the case here. The mate-
rial facts are stated in the opinion.
Johnston, J. De Witt C. Wheeler, as administrator of the estate
of Frank Wheeler, deceased, brought this action under § 422 of the
Civil Code, to recover damages for the benefit of the next of kin of
Frank Wheeler, whose death, it is alleged, was caused by the gross
carelessness and negligence of the St. Joseph & Western Railroad
Company. There was but little dispute concerning the facts of the
case. On June 17, 1881, the defendant below was operating a rail-
road which runs from Elwood westward through Doniphan and other
counties of Kansas to Grand Island, Nebraska. On that day a work
or construction train with a caboose car attached, was sent from
Elwood to a point near Troy, for the purpose of being loaded with
dirt to be brought back for the repair of the road-bed between
Wathena and Elwood, with instructions to work until ten o'clock
in the morning without regard to train No. 7, a freight train going
west. While the train was being loaded, Frank Wheeler, in com-
pany with another boy, came up to the construction train, and learn-
ing that it was soon going eastward, asked the conductor if he might
ride back. The conductor consented, and Frank Wheeler rode in the
caboose car with other persons that belonged to the train. He paid
no fare, and was not asked or expected to pay any. Soon after he was
taken on, the construction train backed eastwardly toward Wathena,
and before reaching that place, and at 9.45 a.m. of that day, it col-
lided with the engine of train No. 7 going westward, in which col-
lision Frank Wheeler was killed. The conductor of the construction
train had instructions from the railroad company not to allow per-
sons as passengers to ride upon his train except those who belonged
to it, but this instruction was not communicated to Frank Wheeler.
Upon these and some other facts which were shown upon the trial,
a verdict for f 1500 was given in favor of the plaintiff.
One of the questions raised is, that there was no correspondence
between the pleadings and the evidence. The point is made that
the plaintiff alleged that Frank Wheeler was a passenger, — a term
which it is claimed implied that Frank Wheeler was travelling in a
918 CAERIERS OF PASSENGEBS.
public conveyance by virtue of a contract, express or implied, witli
the carrier, as the payment of fare, or that ■which is accepted as an
equivalent therefor, while the evidence ofEered showed that he was
carried on a train not designed for passengers, that no fare was col-
lected or expected to be paid, and therefore that he did not stand
toward the company in the relation of a passenger. This is one
sense in which the term is used, but not the only one. It is com-
monly applied to any one who travels in a conveyance, or who is
carried upon a journey, irrespective of the character of the convey-
ance or of compensation to the carrier. While the plaintiff alleged
that Wheeler was carried as a passenger, he nowhere averred that
he was carried for hire, nor can it be said that the petition was,
framed upon the theory that there was a contract relation between i
deceased and the company. It was rather upon the theory that he)
was not a trespasser upon the defendant's train, and it is specially
alleged that he was upon the train with the knowledge and consent
of the conductor. From this averment it is manifest that the
pleader did not rely upon any agreement between the company and
Wheeler, and did not intend to hold the company to extraordinary
care, as it would be held in carrying persons who were passengers
in a strictly legal sense; but rather, that as Wheeler was upon the
train with the consent of the conductor, he was not wrongfully
there, and the company owed him the duty of ordinary care. The
action was founded upon the neglect of the company and not upon
the breach of a contract; and allegations of the relation which he
occupied toward the company are only material for the purpose of
determining and fixing the grade of care owing to him by the com-
pany. As we interpret the petition, it did not allege that the rela-
tion of carrier and passenger existed by reason of an agreement
between the deceased and the company, and therefore that there was
no substantial variance between the pleadings and the evidence.
A series of instructions were prepared by the railroad company
and disallowed by the court, and their refusal is assigned as error.
Most of them in effect instructed a verdict in favor of the defendant,
and asserted that the company cannot be held liable for injury to
one who rides upon a construction train with the consent of the con-
ductor, and who is not a passenger in the ordinary sense. They
were properly refused. We concur with the view of the law taken
by the trial judge where he states that: —
" Ufider the admitted facts and the evidence in the case the said
Frank Wheeler was not a trespasser upon the defendant's train,
although he was not in legal contemplation a passenger. A com-
mon carrier of passengers is bound to exercise extraordinary care
towards its passengers, and is liable for slight negligence, but it
does not owe the same degree of care to a person on one of its
vehicles or trains, who does not stand in the relation of a passenger.
To such persons a carrier owes only the duty of ordinary care, which
WHO DEEMED PASSENGEKS. 9ig
is that degree of care whieli persons of ordinary prudence would
usually exercise under like circumstances."
It is contended that Frank Wheeler was an intruder upon the
train, for whose injury no liability could arise against the company,
for two reasons': First, that the conductor had instructions not to
carry passengers on the construction train; and second, that from
the nature of the business which was being done with the train,,
and also its .equipment, it was apparent that the company did not
permit passengers to be carried thereon. Neither of tliese circum-
stances will defeat a recovery in this case. It is true the conductor
had been instructed not to allow persons to ride upon his train as
passengers, but Frank Wheeler had no knowledge of such instruc-
tion. He had asked and obtained permission to ride upon the train.
It was within the range of the employment of the conductor to grant
such permission. He had entire charge of the train, and was the
general agent of the company in the operation of the train. As he
was the representative of the company, his act, and the permission
given by him, may properly be regarded as the act oi the company.
If Wheeler had furtively entered upon the train, or had ridden after
being informed that the rules of the company forbade it, or had
obtained permission only from the engineer, brakeman, or some
other subordinate employee, the argument made by counsel might
apply.
In Dunn v. Grand Trunk Ely., 58 Me. 187, the plaintiff went on
board a freight train with the knowledge of the conductor. One of
the regulations of the company prohibited conductors from allowing
passengers to travel upon its freight trains. He was not directed or
requested to leave, but paid the usual fare to the conductor, and
during the journey the car upon which he rode was thrown from
the track and he was thereby injured. The court held that under
the circumstances he had a right to suppose himself rightfully on
board, and that if the act of the passenger did not conduce to the
injury received, the company was responsible for the consequences
of its negligence or want of care. C. & A. Eld. Co. v. Michie,
Adm'x, 83 111. 427, was an action by the administratrix to recover
damages for the death of her husband, which occurred while he was
riding upon an engine. The rules of the company provided that
no persons except the road master and conductor of the train were
allowed to ride ou the engine without the permission of the super-
intendent or master mechanic. He applied to the engine driver and
was given permission to ride. It was ruled that the driver of the
engine occupied only a subordinate position, and that his permis-
sion was not the permission of the company, as he had no power to
give it ; but it was added that —
"Had the conductor of the train given the permission, or knowing
the deceased was upon the engine suffered him there to remain, it
might be considered the act of the company, as the conductor hag
920 CARRIERS OF PASSENGERS.
control of the entire train, and his act is rightfully regarded as the
act of the company."
In the case of Wilton v. Middlesex Eld. Co., 107 Mass. 108 [912],
several young girls were invited by the driver to ride upon one of
the defendant's cars. They got upon the front platform, and the
driver immediately struck his horses, when, by reason of their sud-
denly starting, the plaintiff lost her balance and fell so that one of
the wheels passed over her arm. It was admitted that the plaintiff
was not a passenger for hire, and that the driver had no authority to
take the girls upon the car unless such authority was implied from
the fact of his employment as driver. In deciding the case the court
said: —
■' The driver of a horse-car is the agent of the corporation having
charge in part of the car. If, in violation of his instructions, he
permits persons to ride without pay, he is guilty of a breach of his
duty as a servant. Such act is not one outside of his duty, but is
one within the general scope of his agency, for which he is respon-
sible to his master. In the case at bar, the invitation to the plain-
tiff to ride was an act within the general scope of the driver's
employment, and if she accepted it innocently, she was not a tres-
passer. It is immaterial that the driver was acting contrary to his
instructions."
In Lucas v. Milwaukee & St. P. Rly. Co., 33 Wis. 53, it was held
that if a person rode upon a freight train without authority from
some person competent to give it, he would have been unlawfully
there, and could not have successfully enforced the rights of a pas-
senger against the company, but the company had authorized the
carriage of passengers upon some of its freight trains, and therefore
a different ruling was applied. It was stated that —
" By making a portion of its freight trains lawful passenger trains,
the defendant has, so far as the public is concerned, apparently given
the conductors of all its freight trains authority to carry passengers,
and if any such conductor has orders not to carry passengers upon
his train, they are or may be in the nature of secret instructions
limiting and restricting his apparent authority, and third persons
are not bound by such instructions until informed thereof."
In support of the same view, we cite Jacobus v. St. Paul & Chicago
Ely. Co., 20 Minn. 125 [1023] ; 0. & M. Eld. Co. v. Muhling, 30 111.
9; Gradin v. St. Paul & Duluth Ely. Co., 30 Minn. 217; 11 Am.
and Eng. Eld. Cases, 644; Lawson v. C. St. P. M. & 0. Eld. Co.,
21 Am. and Eng. Eld. Cases, 249.
Eaton V. D. & L. W. Eld. Co., 57 N. Y. 383, is relied upon as an
authority for the position assumed by the company. The circum-
stances of that case are not like the one before us, and the decision,
is based on the special circumstances of the case. It differs mate
rially in its facts from the one at bar. There, the party injured was
invited by the conductor to ride upon a freight train with the promise
WHO DEEMED PASSENGERS. 921
to get him employment as a brakeman; and, besides, it did not
appear that passengers were either habitually or occasionally per-
mitted to ride upon the freight trains of that company. Here,
although disputed, it was satisfactorily shown that passengers were
not only occasionally but commonly carried upon the freight and
construction trains of the defendant. A. J. Shuster, who was
employed upon the construction train at the time that Frank
Wheeler was killed, testified that passengers were carried upon that
train under certain circumstances. Albert Hinchman, who had
been on the train three or four months, stated that the company
had always carried passengers on all its freight trains while he was
upoB the road, and the passengers had frequently ridden on the con-
struction train, and had frequently been taken on at points other
than stations where the train was at work. Henry Wheeler states
that prior to the accident he rode upon the construction train to
Wathena, and paid fare to the conductor for such ride. A. J.
Mowry, who travelled a great deal upon defendant's road, testified
that it was usual to carry passengers on all caboose cars ; that he
rode on every kind of train that was ever on the road, and had ridden
on defendant's construction trains before June 17, 1881, and paid
fare to the conductor. It will thus be seen that it was customary
for passengers to ride, with the permission of the conductor, upon
all freight and construction trains upon the defendant's road; and
the New York case, while similar in some of its features, is not an
authority here. Persons not informed of the instructions given to
the conductor, had a right, under this prevailing practice, to assume
that the conductor had authority to carry passengers on the construc-
tion train, and that the granting of permission by him in such cases
fell within his general authority as manager of the train. Nor was
there anything in the exterior appearance of the car in which the
deceased rode to notify him that passengers were not carried therein.
The testimony is that it was a caboose car similar in construction
and appearance to those which were attached to all of defendants'
freight trains, and upon which, as has been seen, passengers were
carried.
The railroad company asked an instruction that if the father of
Frank Wheeler had, prior to the accident, relinquished unto him
the right to his time and services during his minority, and that this
relinquishment was unrevoked at his death, the plaintiff can recover
only nominal damages. It was properly rejected. In such an action
the plaintiS does not sue for his own benefit, "but only as the per-
sonal representative of the deceased. The damages recovered inure
to the exclusive benefit of the widow and children if there are any,
and if not, to the next of kin. In this case the damages were for
the benefit of the next of kin, who were the father and the mother.
The sum to be recovered was therefore not for the benefit of the
father alone, who may have made the relinquishment, but for the
922 CAEKIEES OF PASSENGERS,
mother also. Besides, parents may recover for the death of a child
who has attained his majority if they can prove any pecuniary
damages resulting therefrom, such as the loss of support. In esti-
mating the pecuniary benefit which would accrue to his parents by
the continuance of his life, the fact that the parents relinquished to-
Frank Wheeler his time and services during his minority was an
element which might properly be taken into consideration, and this,
much was stated to the jury.
None of the other objections raised are at all tenable, and as the
charge given fairly presented the law of the case to the jury, the
errors assigned will be overruled, and the judgment will be affirmed.
TOLEDO, ETC., R. CO. v. BEOOKS.
81111.245. 1876.
This was an action on the case, by Julia A. Brooks, administra-
trix of- the estate of William H. Brooks, deceased, against the
Toledo, Wabash and Western Eailway Company, to recover damages,
for causing the death of plaintiff's husband and intestate, through
negligence. A trial was had, resulting in a verdict and judgment
in favor of plaintiff, for $3166.
Mr. Justice Walkee
It is urged that the court erred in refusing to give the ninth or
some one of the other instructions asked by plaintiff in error, but
refused by the court. That instruction asserts that if deceased
knew that the regulations of the company prohibited persons from,
travelling on the road without a ticket or the paying of fare, and if,
after being so informed, he went on the train, and by arrangement
with the conductor, was travelling without a ticket or paying his
fare, deceased, in such case, would not be a passenger, and th&
company would not be liable for the negligence of their ofleers.
In some form, all these refused instructions present this question.
Defendant in error insists that this case is governed by that of
The Ohio and Mississippi Railroad Co. v. Muhling, 30 111. 9. In
that case the passenger had been in the employment of the road,
and was neither prohibited from getting on the train, nor informed
that it was against the rules for him to do so without a ticket or the
payment of fare. Again, the company, in that case,, seems to have
owed the plaintiff for labor, which would have enabled them to
deduct the amount of fare from the amount owing him. It was
there said, that if a person was lawfully on the train, and injuries
ensued from the negligence of the employees of the company, the
passenger thus injured might recover.
WHO DEEMED PASSENGERS. 923
On the part of plaintiff in error it is urged that railroad com-
panies, being liable for the want of care of their officers by which
passengers suffer injury, must have the power to make all reason-
able regulations for the government of their employees, and the
power to enforce them; that is a reasonable regulation which pro-
hibits persons from travelling upon their roads without purchasing
a ticket or paying fare; that a person going on their road in known
violation of such a rule, and by inducing the conductor to violate it,
is not lawfully on the road, and the company should not be held
responsible for an injury received by such person; that where a per-
son actively participates in the violation of such a rule intentionally
and knowingly, he does not occupy the same relation to the road
as had he not known of the rule or not done any act to induce its
violation.
It is manifest that if a person were stealthily, and wholly with-
out the knowledge of any of the employees of the company, to get
upon a train and secrete himself, for the purpose of passing from
one place to another, he could not recover if injured. In such a
case his wrongful act would bar him from all right to compensation.
Then, does the act of the person who knowingly induces the con-
ductor to violate a rule of the company, and prevails upon him ta
disregard his obligations to fidelity to his employer, to accomplish
the same purpose, occupy a different position, or is he entitled to any
more rights? He thereby combines with the conductor to wrong
and defraud his employer out of the amount of his fare, and for his
own profit. In this case the evidence tends strongly to show that
both defendant in error and her husband had money more than
sufiB.cient to pay their fare to Danville, and a considerable distance
beyond that place. If this be true, and defendant in error swears
they had, then they were engaged in a deliberate fraud on the com-
pany, no less than by false representations to obtain their passage
free from Decatur to Danville, and thus defraud the company out of
the sum required to pay their fare. In this there is a broad distinc-
tion from Muhling's case, as in that case there was no pretence of
fraud or wrong on his part. The court below should have given
some one of the defendant's instructions which announced the view
here expressed.
The evidence is not of the character to convince us that the judg-
ment should stand, notwithstanding the erroneous instructions given
or the refusal to give proper instructions. We have no doubt that
the erroneous instructions given misled the jury in finding their
verdict.
For the errors indicated, the judgment of the court below must be
reversed and the cause remanded.
924 CARRIERS OK PASSENGERS.
WAY V. CHICAGO, etc., E. CO.
64 Iowa, 48. 1884.
The plaintiff is the administrator of the estate of John Way,
deueased. The action was brought by the decedent. After his
death the present plaintiff was substituted. The plaintiff claims to
recover for a personal injury alleged to have been received by the
decedent as a passenger on one of defendant's trains, and by being
thrown against a cupola platform, by defendant's negligence in
making a coupling. There was a trial to a jury, and verdict and
judgment were rendered for the plaintiff. The defendant appeals.
Adams, J. In April, 1881, the decedent took passage upon a
freight train at Monroe, Jasper County, for Oskaloosa. In payment
of his fare, he presented a mileage ticket, which had been issued to
one R. G. Forgrave, at commutation rates. The conductor of the
train, without knowledge that Way was not Forgrave, detached the
coupons for his passage. Printed upon the ticket were several con-
ditions, and also a printed acceptance of the conditions, which was
signed by Forgrave, and the whole was denominated a contract.
One of the conditions is in these words : " This ticket is positively
not transferable, and, if presented by any other than the person
whose name appears on the inside of the cover, and whose signature
is attached below, it is forfeited to the company."
The defendant's theory upon the trial below was, that the dece-
dent was not a passenger within the meaning of the law, and asked
the court to instruct accordingly. This the court refused to do, and
gave an instruction in these words : " If you find from the evidence
that the decedent was injured to the damage of his estate substan-
tially, as alleged, and that he was at that time riding in a caboose in
the defendant's train, on the mileage ticket in evidence, issued by
the defendant to K. G. Forgrave, and that, upon its presentation in
payment for transportation, the conductor of the train accepted the
ticket, and recognized and treated the decedent as a passenger, the
defendant's duties and obligations were, and its liabilities now are,
the same as if the ticket had been issued to the decedent, whether
prior to the accident he disclosed to, or the conductor knew, his
identity or not."
In respect to the measure of care which common carriers owe to
passengers, the court gave an instruction as follows: "Common
carriers of persons are required to do all that human care, vigilance,
and foresight can reasonably do, in view of the character and mode
of conveyance adopted, to prevent accident to passengers. Not the
utmost degree of care which the human mind is capable of invent-
WHO DEEMED PASSENGERS. 925
ing, but the highest degree of care and diligence which is reasonably
practicable under the circumstances, is what is required."
The giving of these instructions is assigned as error. The defend-
ant insists that the contract relied upon, as constituting the relation
of common carrier and passenger, was obtained by imposition and
virtual misrepresentation, and, it being now repudiated by the com-
pany by a denial by it of its liability, the plaintiff cannot be allowed
to set it up as binding upon the company ; and that, if the relation
of common carrier and passenger did not exist, the company did not
owe the decedent the measure of care set forth in the instruction.
It appears to us that the defendant's position in this respect is
well taken. When the decedent presented the ticket, we must pre-
sume that he intended to be understood as claiming that he had a
right to travel upon it. This claim involved the claim that he was
Torgrave, for the ticket showed upon its face that no one had a
right to travel upon it but Forgrave. By the presentation of the
ticket, the decedent falsely personated Forgrave, with the intention
of deceiving the company ; and he did deceive it, and to its injury,
for, by reason of the deception, he escaped the payment of the full
rate with which he was otherwise chargeable.
It is not material, then, that the decedent obtained the conduc-
tor's consent. Whether his consent would have bound the company,
if he had known that the decedent was not Forgrave, we need not
inquire ; it certainly did not under the circumstances shown. The
only relation existing between the decedent and the company having
been induced by fraud, he cannot be allowed to set up that relation
against the company as a basis of recovery. He was, then, at the
time of the injury, in the car, without the rights of a passenger,
and without the right to be there at all. We do not say that it is
necessary that a person should pay fare to be entitled to the rights
of a passenger. It is sufficient, probably, if he has the consent of
the company fairly obtained. But no one would claim that a mere
trespasser has such rights ; and it appears to us to be well settled
that consent obtained by fraud is equally unavailing.
The plaintiff insists that the extraordinary care described in the
instruction does not become due from common carriers by reason of
any contract, but simply by a rule of law which enforces the duty
upon broader grounds. It is not important to inquire precisely how
the duty arises. However it arises, the duty is one which the com-
mon carrier owes only to passengers, and if, as we hold, the decedent
did not sustain that relation within the meaning of the law, the
company did not owe that duty to him, and that is the end of the
inquiry. The doctrine which we announce was very clearly ex-
pressed in T., W. & W. E. Co. v. Beggs, 85 111. 80. In that case
the court said : " Was defendant a passenger on that train in the
true sense of that term? He was travelling on a free pass issued to
one James Short, and not transferable, and passed himself as the
926 CARRIERS OF PASSENGERS.
person named in the pass. By his fraud he was riding on the car.
Under such circumstances, the company could only be held liable
for gross negligence, which would amount to wilful injury." In
Thompson on Carriers of Passengers, 43, section 3, the author goes,
even further. After stating the rule that the relation of carrier and
passenger does not exist where one fraudulently obtains a free ride,
he says: "This doctrine extends further, and includes the case of
one who knowingly induces the conductor of a train to violate the
regulations of the company, and disregard his obligations of fidelity
to his employer." In tJ. P. R'y Co. v. Nichols, 8 Kan. 505, the
defendant in error imposed himself upon the company as an express
messenger, and obtained the consent of the conductor to carry him
without fare. It was held that he did not become entitled to the
rights of a passenger. The court, after quoting Sherman & Eed-
field's definition of a passenger, which is in these words : " A pas-
senger is one who undertakes, with the consent of the carrier, to
travel in the conveyance provided by the latter, other than in the
service of the carrier as such, " proceeds to say : " The consent obtained
from the conductor was the consent that an express messenger might
ride without paying his fare. Such consent did not apply to the
plaintiff (the defendant in error)." See also the following cases:
T., W. & W. R. Co. V. Brooks, 81 111. 292 [922]; M. & C. R. Co.
V. Chastine, 54 Miss. 503; Creed v. Penn. R. Co., 86 Penn. St. 139;
Relf V. Eupp, 3 W. & S. 21 ; Hayes v. Wells, Fargo & Co., 23
Cal. 185.
The plaintiff cites and relies upon Bissell v. R. Co.'s, 22 N. Y.
308; Washburn v. Nashville, &c., R. Co., 3 Head, 638; Jacobus v.
St. Paul, &c., R. Co., 20 Minn. 125 [1023]; Penn. R. Co. -y.
Brooks, 57 Pa. St. 346; Wilton v. Middlesex, R. Co., 107 Mass.
108 [912]; Mint, &c., R. Co. v. Weir, 37 Mich. Ill [305]; Dunn
V. Grand Trunk R'y Co., 58 Me. 192; Edgerton v. N. Y., &c., R.
Co., 39 N. Y. 227; Gregory v. Burlington, &c., R. Co. 10 Neb. 250;
Great Northern R'y Co. v. Harrison, 10 Exch. 376. But none of
these cases hold that the extraordinary care described in the instruc-
tion given is due to a person not a passenger, and none of them hold
that the relation of passenger can be insisted upon, where the com-
pany shows affirmatively, as a defence, that the company's consent
was obtained by fraud.
Certain special objections to the defence remain to be noticed.
Sec. 2086 of the Code provides that " when by the terms of an instru-
ment its assignment is prohibited, an assignment of it shall never-
theless be valid." The plaintiff cites this statute, and claims, as we
understand, that the mere possession of the ticket by the decedent
was prima facie evidence of an assignment to him, and that the
assignment under the statute was valid, and, being such, it is im-
material whether the conductor supposed that the decedent was
Forgrave or not.
WHO DEEMED PASSENGEKS. 927
Without undertaking to set forth all the answers which we think
might be made to this position, we think it sufficient to say that we
do not think that the word "instrument," as used in the statute, was
designed to embrace railroad tickets like the one in question. The
purpose of such a ticket is to serve as evidence of a contract to ren-
der the party to whom it is issued a personal service, to wit, the
transportation of himself and baggage, and no one else, over the
route described. The language is: "On presentation of this ticket,
with coupons and contract attached, Mr. R. G. Forgrave may travel, "
&c. While section 2085 treats of instruments whereby the maker
acknowledges labor to be due another, and while a valid assignment
may undoubtedly be made of such instruments under the statute, we
cannot properly so construe the statute as to hold that the essential
nature of the contract can be changed, so as to require the maker to
do not only what he did not agree to do, but what the other party
expressly stipulated that the maker should not be required to do.
The case is not different from one where an individual or corpora-
tion should agree to transport certain specific freight, and no other.
No assignment could be made of the contract which would impose
upon the maker the obligation to transport different freight. It is
said by the company that Forgrave was a commercial traveller, and
that the company was interested in facilitating commercial travellers,
and in developing commerce along its line; but it is not important
to inquire how this is. It is certain that we cannot go beyond the
company's contract, so far as its essential nature is concerned.
Another statute relied upon is section 11, chapter 77, Laws of
1878. The section is in these words : " No railroad corporation shall
charge, demand, or receive from any person . . . for the transpor-
tation of persons . . . , or for any other service, a greater sum
than it shall, at the same time, charge, demand, or receive from any
other person . . . for a like service from the same place, or upon
like conditions and under similar circumstances." The plaintiff's
position, as we understand it, is that the act of the company in
commuting rates to Forgrave, though he might have belonged to a
certain class, and though the company might have been interested
in facilitating such class, was nevertheless a violation of law, and,
being such, the acts of the decedent in gaining the advantage of the
rates commuted to Forgrave, though done by imposition, were jus-
tifiable, and did not preclude him from insisting that he had the
same rights that he would have had if he had paid full rates, or
otherwise had obtained the consent of the company without fraud.
It is a sufBcient answer to say that if the company charged illegal
rates it was not done in charging Forgrave less, but some one else
more; nor could the decedent properly obtain the rates made to
Forgrave by personating Forgrave. Whether, if he had appeared
in his own name, and demanded that the rates made to Forgrave
should be made to him, and the company had refused, he would
928 CAKEIEES OF PASSENGEES.
have had a right to complain, we need not determine, as we have no
such case.
Another position taken by the plaintiff is that the ticket provides
its own penalty for its violation, to wit, a forfeiture, and that no
other penalty can be added.
But the question before Us is not as to the enforcement of a penalty
by the company, but as to whether the decedent acquired the rights
of a passenger. The right of the company to insist that he did not,
if he never properly acquired the consent of the company to carry
him as such, is independent of any question of penalty. We think
that the instruction given by the court is erroneous, and that the
judgment must be Reversed.
4. LIABILITY FOE INJUEIES.
a. From negligence.
CHEISTIE V. GEIGGS.
Before Mansfield, C. J. 2 Camp. 79. 1809.
This was an action of assumpsit against the defendant as owner of
the Blackwall stage, on which the plaintiff, a pilot, was travelling
to London, when it broke down, and he was greatly bruised. The
first count imputed the accident to the negligence of the driver ; the
second, to the insufficiency of the carriage.
The plaintiff having proved that the axle-tree snapped asunder at
a place where there is a slight descent, from the kennel crossing the
road; that he was, in consequence, precipitated from the top of the
coach; and that the bruises he received confined him several weeks
to his bed, — there rested his case.
Best, Sergeant, contended strenuously that the plaintiff was bound
to proceed farther, and give evidence, either of the driver being
unskilful, or of the coach being insufficient.
Sir James Mansfield, C. J. I think the plaintiff has made a
prima facie case by proving his going on the coach, the accident, and
the damage he has suffered. It now lies on the other side to show
that the coach was as good a coach as could be made, and that the
driver was as skilful a driver as could anywhere be found. What
other evidence can the plaintiff give? The passengers were probably
all sailors like himself; and how do they know whether the coach was
well built, or whether the coachman drove skilfully? In many other
cases of this sort it must be equally impossible for the plaintiff to
give the evidence required. But when the breaking down or over-
LIABILITY FOR INJURIES. 929
turning of the coach is proved, negligence on the part of the owner
is implied. He has always the means to rebut this presumption,
if it be unfounded; and it is now incumbent on the defendant to
make out, that the damage in this case arose from what the law con-
siders a mere accident.
The defendant then called several witnesses, who swore that the
axle-tree had been examined a few days before it broke without any
flaw being discovered in it; and that when the accident happened,
the coachman, a very skilful driver, was driving in the usual track
%nd at a moderate pace.
Sir James Mansfield said, as the driver had been cleared of
«verything like negligence, the question for the jury would be, — as
to the sufficiency of the coach. If the axle-tree was sound as far as
human eye could discover, the defendant was not liable. There was
a difference between a contract to carry goods, and a contract to carry
passengers. For the goods the carrier was answerable at all events.
But he did not warrant the safety of the passengers. His under-
taking as to them went no farther than this, that as far as human
care and foresight could go, he would provide for their safe con-
veyance. Therefore if the breaking down of the coach was purely
accidental, the plaintiff had no remedy for the misfortune he had
encountered.
The jury found a verdict for the defendant.
INGALLS V. BILLS.
9 Met. (Mass.) 1. 1845.
Assumpsit on an implied promise of the defendants as coach pro-
prietors and common carriers of passengers, to convey the plaintiff
safely from Boston to Cambridge.
At the trial in the Court of Common Pleas, before Williams,
C. J., the plaintiff introduced evidence tending to prove that, otf
the 23d of September, 1841, he and several other persons took out-
side seats, as passengers, on the top of the defendants' coach, to be
conveyed from Boston to Cambridge; that on the way, in Court
Street, in Boston, while proceeding at a moderate rate, and without
coming in contact with anything, or meeting any obstruction, the
hind axle-tree of the coach broke, one of the hind wheels came ofP,
and the coach settled down on one side, without being overset; that
the plaintiff and some other outside passengers, being alarmed,
jumped from the top of the coach upon the pavement ; and that the
plaintiff's left arm was thereby badly injured.
The defendants introduced evidence tending to prove that they
had taken all possible care, and incurred extraordinary expense in
830 CAEEIEKS OF PASSENGERS.
order that the said coach should be of the best materials and work-
manship; that at the time of the accident the coach, so far as could
be discovered from the most careful inspection and examination
externally, was strong, sound, and sufficient for the journey; and
that they had uniformly exercised the utmost vigilance and care to
preserve and keep the same in a safe and roadworthy condition.
But the evidence further tended to prove that there was an internal
defect or flaw in the iron of the axle-tree, at the place where it was
broken as aforesaid, about three-eighths of an inch in length, and
wide enough to insert the point of a fine needle or pin — whicli
defect or flaw appeared to have arisen from the forging of the iron,
and which might have been the cause of the said breaking; that the
said defect was entirely surrounded by sound iron one-quarter of an
inch thick; and that the flaw or defect could not possibly have been
discovered by inspection and examination externally.
Upon this evidence the defendants moved the court to instruct the
jury that it was the duty of the defendants to use all possible care
in providing a good coach, in keeping the same in due repair, and
in due examination into its condition ; and if they took such care,
and the accident happened, without any fault or negligence on
their part, but by reason of a defect which they could not discover,
then the verdict should be for them ; and that the plaintiff was not
entitled to a verdict, unless the jury were of opinion that there
was some degree of actual fault or negligence on the part of the
defendants.
The judge declined giving these instructions, but submitted the
evidence to the jury, with instructions that the defendants were
bound by law, and by an implied promise on their part, to provide
a coach not only apparently, but really roadworthy ; that they were
liable for any injury that might arise to a passenger from a defect
in the original construction of the coach, although the imperfection
was not visible and could not be discovered upon inspection and
examination; and that if the jury were satisfied, from the evidence,
that the axle-tree broke in consequence of the original flaw or defect
in the interior thereof, and the plaintiff was injured thereby, he was
entitled to a verdict, although that flaw was invisible, and could not
be discovered by inspection and examination externally.
The jury returned a verdict for the plaintiff, and the defendant
alleged exceptions.
Hubbard, J. The question presented in this case is one of much
importance to a community like ours, so many of whose citizens are
engaged in business which requires their transportation from place
to place in vehicles furnished by others ; and though speed seems to
be the most desirable element in modern travel, yet the law points
more specifically to the security of the traveller.
Under the charge of the learned judge who tried this case, we are
called upon to decide whether the proprietors of stage-coaches are
LIABILITY FOK INJURIES. 931
answerable for all injuries to passengers arising from accidents hap-
pening to their coaches, although proceeding from causes which the
greatest care in the examination and inspection of the coach could
not guard against or prevent ; or, in other words, whether a coach
must be alike free from secret defects, which the owner cannot
•detect, after the most critical examination, as from those which
might, on such an examination, be discovered.
The learned judge ruled that the defendants, as proprietors of a
•coach, were bound by law, and by an implied promise on their part,
to provide a coach, not only apparently, but really, roadworthy, and
that they were liable for any injury that might arise to a passenger
from a defect in the original construction of the coach, although
the imperfection was not visible, and could not be discovered upon
inspection and examination.
The law respecting common carriers has ever been rigidly enforced,
and probably there has been as little relaxation of the doctrine, as
maintained by the ancient authorities, respecting this species of
•contract, as in any one branch of the common law. This arises from
the great confidence necessarily reposed in persons engaged in this
■employment. Goods are intrusted to their sole charge and over-
■sight, and for which they receive a suitable compensation ; and they
have been, and still are, held responsible for the safe delivery of
the goods, with but two exceptions, viz., the act of God and the
king's enemies; so that the owners of goods may be protected
-against collusive robberies, against thefts and embezzlements, and
negligent transportation. But in regard to the carriage of passen-
■gers, the same principles of law have not been applied ; and for the
obvious reason that a great distinction exists between persons and
.goods, the passengers being capable of taking care of themselves,"
and of exercising that vigilance and foresight in the maintenance
■of their rights, which the owners of goods cannot do, who have
intrusted them to others.
It is contended by the counsel for the plaintiff, that the propri-
<etor of a stage-coach is held responsible for the safe carriage of pas-
rsengers so far that he is a warrantor that his coach is roadworthy,
that is, is absolutely sufficient for the performance of the journey
undertaken; and that if an accident happens, the proof of the
greatest care, caution, and diligence, in the selecting of the coach,
and in the preservation of it during its use, will not be a defence to
the owner; and it is insisted that this position is supported by
various authorities. The cases, among many others, cited, which
are more especially relied upon, are those of Israel v. Clark, 4 Esp.
R. 259; Crofts v. Waterhouse, 3 Bing. 319; Bremner v. Williams,
1 Car. & P. 414; and Sharp v. Grey, 9 Bing. 457. If these cases
•do uphold the doctrine for which they are cited, they are certainly
■so much in conflict with other decided cases, that they cannot be
viewed in the light of established authorities. But we think, upon
932 CABKIEES OF PASSENGEKS.
an examination of them and comparing them with other cases, they
will not be found so clearly to sustain the position of the plaintiff
as has been argued.
It must be borne in mind that the carrying of passengers for hire,
in coaches, is comparatively a modern practice; and that though
suits occur against owners of coaches, for the loss of goods, as early
as the time of Lord Holt, yet the first case of a suit to recover
damages by a passenger, which I have noticed, is that of White v.
Boulton, Peake's Gas. 81, which was tried before Lord Kenyon in
1791, and published in 1795. That was an action against the pro-
prietors of the Chester mail-coach for the negligence of the driver,
by reason of which the coach was overturned, and the plaintiff's
arm broken, and in which he recovered damages for the injury; and
Lord Kenyon, in delivering his opinion, said, "when these (mail)
coaches carried passengers, the proprietors of them were bound to
carry them safely and properly." The correctness of the opinion
cannot be doubted, in its application to a case of negligence. The
meaning of the word "safely," as used in declarations for this
species of injury, is given hereafter.
The next case which occurred was that of Aston v. Heaven, 2 Esp,
E. 533, in 1797, which was against the defendants, as proprietors,
of the Salisbury stage-coach, for negligence in the driving of their
coach, in consequence of which it was overset and the plaintiff in-
jured. This action was tried before Eyre, C. J. It was contended
by the counsel for the plaintiff, that coach owners were liable in all
cases, except where the injury happens from the act of God or the
King's enemies ; but the learned judge held that cases of loss of goods
by carriers were totally unlike the case before him. In those cases,
the parties are protected by the custom ; but as against carriers of
persons, the action stands alone on the ground of negligence.
The next case was that of Israel v. Clark, 4 Esp. R. 269, in 1803,
where the plaintiff sought to recover damages for an injury arising
from the overturning of the defendant's coach, in consequence of the
axle-tree having broken; and one count alleged the injury to have
arisen from the overloading of the coach. It was contended that if
the owners carried more passengers than they were allowed by Act
of Parliament, that should be deemed such an overloading. To this
Lord Ellenborough, who tried the cause, assented, and said, "if
they carried more than the statute allowed they were liable to its.
penalties; but they might not be entitled to carry so many; it
depended on the strength of the carriage. They were bound by law
to provide sufficient carriages for the safe conveyance of the public
who had occasion to travel by them. At all events, he would expect,
a clear landworthiness in the carriage itself to be established."
This is one of the cases upon which the present plaintiff specially
relies. It was a nisi prius case, and it does not appear upon which
count the jury found their verdict. But the point pending in the
LIABILITY FOR INJURIES. 933
present case was neither discussed nor started, viz., whether the
accident arose from the negligence of the owner in not providing a
coach of sufficient strength, or from a secret defect not discoverable
upon the most careful examination. No opinion was expressed
whether the action rests upon negligence or upon an implied war-
ranty. But it was stated that the defendants were bound by law to
provide sufficient carriages for the passage, and, at all events, that
there should be a clear landworthiness in the carriage itself.
The general position is not denied with regard to the duty of an
owner to provide safe carriages. The duty, however, does not in
itself import a warranty. The judge himself may have used stronger
expressions in the terms, "landworthiness in the carriage," than he
intended by the thought of seaworthiness in a ship, and the duty of
shipowners in that respect. If the subject had been discussed, and
the distinctions now presented had been raised, and then the opinion
had followed, as expressed in the report, it would be entitled to
much more consideration than the mere strength of the words now
impart to it.
The next case was that of Christie v. Griggs, 2 Campb. 79 [928],
in 1809. There the axle-tree of the coach snapped asunder at a
place where there was a slight descent from the kennel crossing the
road, and the plaintiff was thrown from the top of the coach. Sir
James Mansfield, in instructing the jury, said: "As the driver had
been cleared of negligence, the question for the jury was as to the
sufficiency of the coach. If the axle-tree was sound, as far as human
eye could discover, the defendant was not liable. There was a
difference between a contract to carry goods and a contract to carry
passengers. For the goods, the carrier was answerable at all events,
but he did not warrant the safety of the passengers. His under-
taking as to them went no further than this, that, as far as human care
and foresight could go, he would provide for their safe conveyance.
Therefore, if the breaking down of the coach was purely accidental,
the plaintiff had no remedy for the misfortune he had encountered."
The case of Bremner v. Williams, 1 Car. & P. 414, in 1824, is
relied on by the plaintiff. There, Best, C. J., *aid he considered
that " every coach proprietor warrants to the public that his stage-
coach is equal to the journey it undertakes, and that it is his duty
to examine it previous to the commencement of every journey."
And so, in Crofts v. Waterhouse, 3 Bing. 321, in 1825, Best, C. J.,
said: "The coachman must have competent skill, and use that skill
with diligence ; he must be well acquainted with the road he under-
takes to drive; he must be provided with steady horses, a coach and
harness of sufficient strength, and properly made; and also with
lights by night. If there be the least failure in any one of these
things, the duty of the coach proprietors is not fulfilled, and they
are answerable for any injury or damage that happens." But though
this language is strong, and would apparently import a warranty,
934 CAERIEKS OF PASSENGEES.
on the part of the stage proprietor, as to the suf&ciency of his coach,
yet Park, J., in the same case said, "a carrier of passengers is only
liable for negligence." This shows that the court did not mean to
lay down the law, that a stage proprietor is in fact a warrantor of
the sufficiency of his coach and its equipments, but that he is bound
to use the utmost diligence and care in making suitable provision
for those whom he carries; and we think such a construction is
warranted by- the language of the same learned judge (Best), in the
case of Harris v. Costar, 1 Car. & P. 636, in 1825, where the aver-
ment in the declaration was, that the defendant undertook to carry
the plaintiff safely. The judge held that it did not mean that the
coach proprietor undertook to convey safely absolutely, but that it
was to be construed like all other instruments, taking the whole
together, and meant that the defendants were to use due care.
But the case mainly relied upon by the plaintiff is that of Sharp
V. Grey, 9 Bing. 457, where the axle-tree of a coach was broken and
the plaintiff injured. There the axle was an iron bar enclosed in a
frame of wood of four pieces, secured by clamps of iron. The coach
was examined, and no defect was obvious to the sight. But after
thfc accident a defect was found in a portion of the iron bar, which
could not be discovered without taking off the woodwork; and it
was proved that it was not usual to examine the iron under the wood-
work, as it would rather tend to insecurity than safety. It does not
appear by the statement, that the defect could not 'have been seen,
on taking, off the woodwork ; but it would rather seem that it might
have been discovered. However that may be, the language of
different judges, in giving their opinion is relied upon as maintain-
ing the doctrines contended for by the plaintiff. Gaselee, J., held
that "the burden lay on the defendant to show there had been no
defect in the construction of the coach." Bosanquet, J., said: "The
chief justice" (who tried the case) "held that the defendant "was
bound to provide a safe vehicle, and the accident happened from a
defect in the axle-tree. If so, when the coach started it was not
roadworthy, and the defendant is liable for the consequence, upon
the same principle as a ship-owner who furnishes a vessel which is
not seaworthy." And Alderson, J., said he was of the same opinion,
and that " a coach proprietor is liable for all defects in his vehicle,
which can be seen at the time of construction, as well as for such
as may exist afterwards, and be discovered on investigation. The
injury in the present case appears to have been occasioned by an
original defect of construction; and if the defendant were not
responsible, a coach proprietor might buy ill-constructed or unsafe
vehicles, and his passengers be without remedy."
This case goes far to support the plaintiff in the doctrine con-
tended for by his counsel, as it would seem to place the case upon the
ground that the coach proprietor must, at all events, provide a coach
absolutely and at all times sufficient for the journey, and that he
LIABILITY FOR INJURIES. 935
is a warrantor to the passenger to provide such a coach. But we
incline to believe the learned judges gave too much weight to the
comparison of Bosanquet, J., viz., that a coach must be road worthy
on the same principle that a ship must be seaworthy. We think
the comparison is not correct, and that the analogy applies only
where goods are carried, and not where passengers are transported.
And no case has been cited, where a passenger has sued a ship-
owner for an injury arising to him personally in not conducting him
in a seaworthy ship. If more was intended by the learned court,
than that a coach proprietor is bound to use the greatest care and
diligence in providing suitable and sufficient coaches, and keeping
them in a safe and suitable condition for use, we cannot agree
with them in opinion. To give their language the meaning con-
tended for in the argument of the case at bar is, in fact, to place
coach proprietors in the same predicament with common carriers,
and to make them responsible, in all events, for the safe conduct
of passengers, so far as the vehicle is concerned. But that the
case of Sharp v. Grey is susceptible of being placed on the ground
which we think tenable, namely, that negligence and not war-
ranty lies at the foundation of actions of this description, may be
inferred from the language of Mr. Justice Park, who, in giving his
opinion, says : " This was entirely a question of fact. It is clear
that there was a defect in the axle-tree; and it was for the jury to
say whether the accident was occasioned by what, in law, is called
negligence in the defendant, or not." And Tindal, C. J., who tried
the cause before the jury, left it for them to consider whether there
had been that vigilance which was required by the defendant's
engagement to carry the plaintiff safely; thus apparently putting
the case on the ground of negligence and not of warranty. See also
Bretherton v. Wood, 3 Brod. & Bing. 54, and 6 Moore, 141; Ansell
V. Waterhouse, 6 M. & S. 385, and 2 Chit. E. 1.
The same question has arisen in this country, and the decisions
exhibit a uniformity of opinion that coach proprietors are not liable
as common carriers, but are made responsible by reason of negli-
gence. In the case of Camden and Amboy Eailroad Co. v. Burke,
13 Wend. 626, the court say that the proprietors of public convey-
ances are liable at all events for the baggage of passengers ; but as
to injuries to their persons, they are only liable for the want of
such care and diligence as is characteristic of cautious persons.
And in considering the subject again in the case of HoUister v.
Nowlen, 19 Wend. 236 [465], they say that "stage-coach proprie-
tors, and other carriers by land and water, incur a very different
responsibility in relation to the passenger. and his baggage. For an
injury to the passenger they are answerable only where there has
been a want of proper care, diligence, or skill; but in relation to
baggage, they are regarded as insurers, and must answer for any loss
not occasioned by inevitable accident or the public enemies."
936 CARRIERS OF PASSENGERS.
In a ease whieh occurred in respect to the transportation of slaves,
Boyce v. Anderson, 2 Pet. 155 [860], Chief Justice Marshall, in
giving the opinion of the court, says : " The law applicable to com-
mon carriers is one of great rigor. Though to the extent to which
it has been carried, and in cases to which it has been applied, we
admit its necessity and policy, we do not think it ought to be car-
ried further or applied to new cases. We think it has not been
applied to living men, and that it ought not to be applied to them."
So in the case of Stokes v. Saltonstall, 13 Pet. 181, the question
arose and was thoroughly discussed; and the same opinions are
maintained as in the cases above cited from Wendell. And the
whole subject is examined by Judge Story, in his Treatise on Bail-
ments, §§ 592-600, with his usual learning; and his result is the
same.
If there is a discrepancy between the English authorities which
have been cited, we think the opinions expressed by Chief Justice
Eyre and Chief Justice Mansfield are most consonant with sound
reason, as applicable to a branch of the law comparatively new, and
though given at nisi prius, are fully sustained by the discussions
which the same subject has undergone in the courts of our own
country. We have said, as being most consonant with sound reason
or good common sense, as applied to so practical a subject; because,
if such a warranty were imposed by force of law upon the proprie-
tors of coaches and other vehicles for the conveyance of passengers,
they would in fact become the warrantors of the work of others,
over whom they have no actual control, and — from the number of
artisans employed in the construction of the materials of a single
coach — whom they could not follow. Unless, therefore, by the
application of a similar rule, every workman shall be held as the
warrantor, in all events, of the strength, sufficiency, and adaptation
of his own manufactures to the uses designed — which, in a com-
munity like ours , could not be practically enforced — the warranty
would really rest on the persons purchasing the article for use, and
not upon the makers.
If it should be said that the same observations might be applied
to ship-owners, the answer might be given, that they have never
been held as the warrantors of the safety of the passengers whom
they conveyed; and as to the transportation of goods, owners of
general ships have always been held as common carriers, for the
same reasons that carriers on land are bound for the safe delivery
of goods intrusted to them. But as it respects the seaworthiness
of a ship, the technical rules of law respecting it have been so
repeatedly examined, and the facts upon which they rest so often
investigated, that the questions which arise are those of fact and
not of law, and in a vast proportion of instances depend upon the
degree of diligence and care which are used in the preservation of
ressels, and practically resolve themselves into questions of negli-
LIABILITY FOE INJURIES. 937
gence; so that the evils are very few that arise from the mainte-
nance of the doctrine that a ship must be seaworthy in order to be
the subject of insurance.
The result to which we have arrived, from the examination of the
case before us, is this : That carriers of passengers for hire are bound
to use the utmost care and diligence in the providing of safe, suflft-
cient, and suitable coaches, harnesses, horses, and coachmen in order
to prevent those injuries which human care and foresight can guard
against; and that if an accident happens from a defect in the coach,
which might have been discovered and remedied upon the most care-
ful and thorough examination of the coach, such accident must be
ascribed to negligence, for which the owner is liable in case of
injury to a passenger, happening by reason of such accident. On
the other hand, where the accident arises from a hidden and inter-
nal defect, which a -careful and thorough examination would not
disclose, and which could not be guarded against by the exercise of
a sound judgment and the most vigilant oversight, then the pro-
prietor is not liable for the injury, but the misfortune must be borne
by the sufferer, as one of that class of injuries for which the law
can afford no redress in the form of a pecuniary recompense. And
we are of opinion that the instructions, which the defendants' coun-
sel requested might be given to the jury in the present case, were
correct in point of law, and that the learned judge erred in extend-
ing the liability of the defendants further than was proposed in the
instructions requested.
The point arising on the residue of the instructions was not
pressed in the argument; and we see no reason to doubt its correct-
ness, provided the peril to which the plaintiff was exposed arose from
a defect or accident for which the defendants were otherwise liable :
Jones V. Boyce, 1 Stark. K. 493,
New trial granted.
MEIER V. PENNSYLVANIA E. CO.
64 Perm. St. 225. 1870.
This was an action on the case for negligence, brought February
5th, 1868, by Theodore G. Meier against the Pennsylvania Railroad
Company.
The plaintiff's case was the following : —
On the evening of February 7th, 1867, Theodore G. Meier, the
plaintiff in error, took passage on the train of defendant's cars at
Jersey City, bound for St. Louis. He occupied the sleeping car,
which was the rear car of the train. On the following morning,
about eight o'clock, at a point on defendant's road between Tyrone
938 CARRIERS OF PASSENGERS.
and Altoona — the train running at a speed of twenty-six miles to
the hour on an ascending grade — the axle of the forward truck broke
in two places. The end of the car then dropped down and slid along
the rails. The plaintiff was thrown forward so that his knee caught,
in the side-rest of the seat, and the ligaments of the right knee-
joint were torn, and the bones of his leg were severely bruised.
The defendants proved that new wheels and new axles had been
put under the car in October, 1866; the axles were made at the Sligo
Works of Lyon, Shorb & Co., and they were of good quality, that
the train had been inspected seventy miles east of the place of the
accident, and again twenty-two miles east of it; the truck and the
road were in good order; the train running at a proper speed. They
gave a large amount of evidence to show that minute and constant
care had been exercised to keep the road, apparatus, cars, running
gear, &c., in perfect order, and that they employed such appliances^
&c., as are approved by the most experienced railroad operators and
mechanics ; and gave evidence generally for the purpose of showing
that they used the utmost care that human knowledge, skill, and
foresight could provide, and that the accident was due to some cir-
cumstance against which these could not guard.
Verdict for the defendants.
Agnew, J. It is agreed on all hands, says Judge Kedfield, in his
work on Kailways, ed. 1867, p. 174, that carriers of passengers are
liable only for negligence either proximate or remote, and that they
are not insurers of the safety of their passengers, as they are as car-
riers of goods and baggage of passengers. The numerous cases
cited from which this result is drawn, justify this statement: Alden
V. N. Y. Central Eailroad Co., 26 N. Y. 102, holding that a carrier
is bound absolutely to provide a safe vehicle, irrespective of any
question of negligence, is not in accord with the American cases
generally, or the modern English decisions. It is reviewed in
Readhead v. Midland Railroad Co., 2 Law Rep. C. B. 412, and
therein said not to be founded in good reason. See the cases col-
lected in Shearman & Redfield on Negligence (1869), 299, § 267.
The language of Judge Gibson, taken from N. Jersey Railroad Co.
V. Kennard, 9 Harris, 204, that a carrier of either goods or passen-
gers is bound to provide a carriage or vehicle perfect in all its parts,
in default of which he becomes responsible for any loss or injury
that may be suffered, has no relation to the question now before
us. The case he was considering was that of a car made without
guards at the windows to prevent the arms of passengers being
thrust out, to their injury, which he considered a defect in the con-
struction of the car, making the carrier liable for negligence. The
car was not perfect in its parts, as he thought. The car was imper-
fect in construction, and therefore not adapted to the end to be
attained, to wit, security. It may not be amiss to say that this
opinion of the Chief Justice as to window guards was not sustained
LIABILITY FOR INJURIES. 939
by the court in banc, and has since been overruled in Pittsburg &
Connellsville Railroad Co. v. McCleary, 6 P. F. Smith, 294. The
doctrine we are now asked to sustain is that, though the car is per-
fect in all its parts, if imperfect from some latent and undiscover-
able defect, which the utmost skill and care could neither perceive
nor provide against, the railway company must still be held respon-
sible for injury to passengers, on the ground of an absolute liability
for every defect. The plaintiff in error in effect contends that the
defendants were warrantors against every accident, but even in
the case referred to, Judge Gibson denied this rule. He said of
the carrier, he is bound to guard him (the passenger) from every
danger which extreme vigilance can prevent. This expresses th&
true measure of responsibility. He answered a point in these
words : " That the company is responsible only for defects discover-
able by a careful man after a careful examination and exercise of
sound judgment." Thus: "This is true, but were there such an
examination and exercise of judgment? The defective construction
of the car must have been obvious to the dullest perception," &c.
The same rule was laid down in Laing v. Colder, 8 Barr, 482.
Judge Bell says, it is long since settled that the common -law
responsibilities of carriers of goods for hire do not as a whole
extend to carriers of passengers. The latter are not insurers against
all accidents. But though (he says) in legal contemplation they da
not warrant the absolute safety of their passengers, they are bound
to the exercise of the utmost degree of diligence and care. The
slightest neglect against which human prudence and foresight may
guard, and by which hurt or loss is occasioned, will render them
liable in damages. The same doctrine will be found in substance
in Railroad Co. v. Aspell, 11 Harris, 149, and Sullivan v. The Phil-
adelphia & Reading Railroad Co., 6 Casey, 234, and in other cases.
In all the Pennsylvania cases, it will be found that negligence is
the ground of liability on the part of a carrier of passengers. Abso-
lute liability requires absolute perfection in machinery in all
respects, which is impossible.
The utmost which human knowledge, human skill, and human
foresight and care can provide is all that in reason can be required.
To ask more is to prohibit the running of railways, unless they pos-
sess a capital and surplus which will enable them to add a new ele-
ment to their business, that of insurance. Nor can we carry the
requirement beyond the use of known machinery and modes of
using it. Railroa.ds must keep pace with science and art and modern
improvement in their application to the carriage of passengers, but
are not responsible for the unknown as well as the new. The rule
laid down by the learned judge, in the language quoted in the second
assignment of error, is a correct summary of the law. The rule of
responsibility differs from the rule of evidence. Prima facie, where
a passenger, being carried on a train, is injured without fault of his
940 CAERIEES OF PASSENGEKS.
own, there is a legal presumption of negligence, casting upon thef
carrier the onus of disproring it; Laing v. Colder, 8 Barr. 482s
Sullivan v. Philadelphia & Reading Eailroad Co., 6 Casey, 234},
Shearman & Redfield on Negl. § 280; Redfield on Railways, § 1760,)
and notes. -This is the rule when the injury is caused by a defect
in the road, cars, or machinery, or by a want of diligence or care in
those employed, or by any other thing which the company can and
ought to control as a part of its duty to carry the passengers safely;
but this rule of evidence is not conclusive. The carrier may rebut
the presumption and relieve himself from responsibility by showing
that the injury arose from an accident which the utmost skill, fore-
sight; and diligence could not prevent.
We think none of the errors assigned are sustained, and the judg-
ment is therefore affirmed.
STEAMBOAT NEW WORLD v. KING.
16 How. (U. S.) 469. 1853.
This was an appeal from the District Court of the United States
for the Northern District of California.
It was libel filed by King, complaining of severe personal injury,
disabling him for life, from the explosion of the boiler of the steam-
boat "New World," while he was a passenger, on her passage from
Sacramento to San Erancisco, in California.
The District Court decreed for the libellant in twenty-five hun-
dred dollars damages and costs; and the owners of the boat appealed
to this court.
The substance of the evidence is stated in the opinion of the
court.
Mr. Justice Curtis. This is an appeal from a decree of the
District Court of the United States for the Northern District of
California, sitting in admiralty. The libel alleges that the appellee
was a passenger on board the steamer on a voyage from Sacramento
to San Erancisco, ia June, 1851, and that, while navigating within
the ebb and flow of the tide, a boiler flue was exploded through neg-
ligence, and the appellee grievously scalded by the steam and hot
water.
The answer admits that an explosion occurred at the time and
place alleged in the libel, and that the appellee was on board and
was injured thereby, but denies that he was a passenger for hire, or
that the explosion was the consequence of negligence.
The evidence shows that it is customary for the masters of steam-
boats to permit persons whose usual employment is on board of such
LIABILITY TOE INJURIES. 941
boats to go from place to place free of charge ; that the appellee had
formerly been employed as a -waiter on board this boat; and just
before she sailed from Sacramento he applied to the master for a
free passage to San Pranoisco, which was granted to him, and he
came on board.
It has been urged that the master had no power to impose any
obligation on the steamboat by receiving a passenger without
compensation.
But it cannot be necessary that the compensation should be in
money, or that it should accrue directly to the owners of the boat.
If the master acted, under an authority usually exercised by masters
of steamboats , if such exercise of autliority must be presumed to be
known to and acquiesced in by the owners, and the practice is, even
indirectly, beneficial to them, it must be considered to have been a
lawful exercise of an authority incident to his command.
It is proved that the custom thus to receive steamboat men is
general. The owners must therefore be taken to have known it,
and to have acquiesced in it, inasmuch as they did not forbid the
master to conform to it. And the fair presumption is, that the
custom is one beneficial to themselves. Any privilege generally
accorded to persons in a particular employment tends to render that
employment more desirable, and of course to enable the employer
more easily and cheaply to obtain men to supply his wants.
It is true the master of a steamboat, like other agents, has not an
unlimited authority. He is the agent of the owner to do only what
is usually done in the particular employment in which he is engaged.
Such is the general result of the authorities. Smith on Mer. Law,
659; Grant v. Norway, 10 Com. B. 688, S. C. 2 Eng. L. and Eq.
337; Pope V. Nickerson, 3 Story, E. 475; Citizens Bank v. Nan-
tucket Steamboat Co. , 2 Story, E. 32. But different employments
may and do have different usages, and consequently confer on the
master different powers. And when, as in this case, a usage appears
to be genera], not unreasonable in itself, and indirectly beneficial to
the owner, we are of opinion the master has power to act under it
and bind the owner.
The appellee must be deemed to have been lawfully on board
under this general custom.
Whether precisely the same obligations in all respects on the part
of the master and owners and their boat existed in his case, as in
that of an ordinary passenger paying fare, we do not find it neces-
sary to determine. In the Philadelphia and Eeading Eailroad Com-
pany V. Derby, 14 How. E. 486, which was a case of gratuitous
carriage of a passenger on a railroad, this court said: "When car-
riers undertake to convey persons by the powerful but dangerous
agency of steam, public policy and safety require that they should
be held to the greatest possible care and diligence. And whether
the consideration for such transportation be pecuniary or otherwise.
942 CAEEIEES OF PASSENGERS.
the personal safety of passengers should not be left to the sport of
chance or the negligence of careless agents. Any negligence, in
such cases, may well deserve the epithet of gross."
We desire to be understood to reaffirm that doctrine, as resting,
not only on public policy, but on sound principles of law.
The theory that there are three degrees of negligence, described
by the terms slight, ordinary, and gross, has been introduced into
the common law from some of the commentators on the Boman law.
It may be doubted if these terms can be usefully applied in prac-
tice. Their meaning is not fixed, or capable of being so. One
degree, thus described, not only may be confounded with another,
but it is quite impracticable exactly to distinguish them. Their
signification necessarily varies according to circumstances, to whose
influence the courts have been forced to yield, until there are so-
many real exceptions that the rules themselves can scarcely be said
to have a general operation. In Storer v. Gowen, 18 Maine E.
177, the Supreme Court of Maine say: "How much care will, in a.
given case, relieve a party from the imputation of gross negligence,
or what omission will amount to the charge, is necessarily a ques-
tion of fact, depending on a great variety of circumstances which
the law cannot exactly define." Mr. Justice Story, Bailments, § 11,
says: "Indeed, what is common or ordinary diligence is more a
matter of fact than of law." If the law furnishes no definition of
the terms gross negligence or ordinary negligence, which can be
applied in practice, but leaves it to the jury to determine, in each,
case, what the duty was, and what omissions amount to a breach
of it, it would seem that imperfect and confessedly unsuccessful
attempts to define that duty had better be abandoned.
Recently the judges of several courts have expressed their dis-
approbation of these attempts to fix the degrees of diligence by legal
definitions and have complained of the impracticability of applying
them. Wilson v. Brett, 11 Meeson & Wels. 113 [56] ; Wyld v. Pickford,
8 ib. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must
be confessed that the difficulty in defining gross negligence, which
is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason,
132, and Foster?;. The Essex Bank, 17 Mass. 479, E., would alone
be sufficient to justify these complaints. It may be added that some
of the ablest commentators on the Eoman law and on the Civil Code
of France have wholly repudiated this theory of three degrees of
diligence as unfounded in principles of natural justice, useless in
practice, and presenting inextricable embarrassments and difficul-
ties. See Touillier's Droit Civil, 6th vol., p. 239, &c. ; 11th vol.,
p. 203, &c. ; Makeldey, Man. Du Droit Eomain, 191, &<!.
But whether this term gross negligence be used or not, this par-
ticular case is one of gross negligence according to the tests which
have been applied to such a case.
In the first place, it is settled that " the bailee must proportion
I
LIABILITY FOE INJURIES. 943
his care to the injury or loss which is likely to be sustained by any
improvidence on his part." Story on Bailments, § 15.
It is also settled that, if the occupation or employment be one
requiring skill, the failure to exert that needful skill, either because
it is not possessed or from inattention, is gross negligence. Thus
Heath, J., in Shields v. Blackburn, 1 H. Bl. 161, says: "If a man
applies to a surgeon to attend him in a disorder, for a reward, and
the surgeon treats him improperly, there is gross negligence, and the
surgeon is liable to an action. The surgeon would also be liable for
such negligence if he undertook, gratis, to attend a sick person,
because his situation implies skill in surgery." And Lord Lough-
borough declares that an omission to use skill is gross negligence.
Mr. Justice Story, although he controverts the doctrine of Pothier
that any negligence renders a gratuitous bailee responsible for the
loss occasioned by his fault, and also the distinction made by Sir
William Jones between an undertaking to carry and an undertaking
to do work, yet admits that the responsibility exists where there is a
want of due skill or an omission to exercise it. And the same may
be said of Mr. Justice Porter in Percy v. Millaudon, 20 Martin, 75.
This qualification of the rule is also recognized in Stanton et at. v.
Bell et al., 2 Hawks, 145.
That the proper management of the boilers and machinery of a
steamboat requires skill, must be admitted. Indeed, by the Act
of Congress of August 30, 1852, great and unusual precautions are
taken to exclude from this employment all persons who do not pos-
sess it. That an omission to exercise this skill vigilantly and
faithfully, endangers, to a frightful extent, the lives and limbs of
great numbers of human beings, the awful destruction of life in our
country by explosions of steam boilers but too painfully proves.
We do not hesitate, therefore, to declare that negligence in the care
or management of such boilers, for which skill is necessary, the
probable consequence of which negligence is injury and loss of the
most disastrous kind, is to be deemed culpable negligence, render-
ing the owners and the boat liable for damages, even in case of the
gratuitous carriage of a passenger. Indeed, as to explosion of
boilers and flues, or other dangerous escape of steam on board
steamboats, Congress has, in clear terms, excluded all such cases
from the operation of a rule requiring gross negligence to be
proved to lay the foundation of an action for damages to person
■or property.
The thirteenth section of the Act of July 7, 1838, 5 Stat, at Large,
306, provides-: " That in all suits and actions against proprietors of
steamboats for injury arising to persons or property from the burst-
ing of the boiler of any steamboat, or the collapse of a flue, or other
dangerous escape of steam, the fact of such bursting, collapse, or
injurious escape of steam shall be taken as full prima faeie evidence
BufiBcient to charge the defendant, or those in his employment, with
944 CAKRIEES OF PASSENGERS.
negligence, until he shall show that no negligence has been com-
mitted by him or those in his employment."
This case falls within this section; and it is therefore incumbent
on the claimants to prove that no negligence has been committed by
those in their employment.
' Have they proved this? It appears that the disaster happened
a short distance above Benicia; that another steamer, called the
"Wilson G. Hunt," was then about a quarter of a mile astern of the
"New World," and that the boat first arriving at Benicia got from
twenty-five to fifty passengers. The pilot of the " Hunt " says he
hardly knows whether the boats were racing, but both were doing
their best, and this is confirmed by the assistant pilot, who says the
boats were always supposed to come down as fast as possible; the
first boat at Benicia gets from twenty-five to fifty passengers. And
he adds that at a particular place called "the slough" the "Hunt"
attempted to pass the "New World." Fay, a passenger on board
the "New World," swears that on two occasions before reaching
"the slough" the "Hunt" attempted to pass the "New World," and
failed; that to his knowledge these boats had been in the habit of
contending for the mastery, and on this occasion both were doing
their best. The fact that the " Hunt " attempted to pass the " New
World" in "the slough" is denied by two of the respondents' wit-
nesses, but they do not meet the testimony of Pay, as to the two
previous attempts. Haskell, another passenger, says: "About ten
minutes before the explosion I was standing looking at the engine ;
we saw the engineer was evidently excited, by his running to a little
window to look out at the boat behind. He repeated this ten or
fifteen times in a very short time." The master, clerk, engineer,
assistant engineer, pilot, one fireman, and the steward of the " New
World " were examined on behalf of the claimants. No one of them,
save the pilot, denies the fact that the boats were racing. With the
exception of the pilot and the engineer, they are wholly silent on
the subject. The pilot says they were not racing. The engineer
says : " We have had some little strife between us and the ' Hunt '
as to who should get to Benicia first. There was an agreement made
that we should go first. I think it was a trip or two before." Con-
sidering that the master says nothing of any such agreement, that it
does not appear to have been known to any other person on board
eithes boat, that this witness and the pilot were both directly con-
nected with and responsible for the negligence charged, and that
the fact of racing is substantially sworn to by two passengers on
board the "New World," and by the pilot and assistant pilot of the
"Hunt," and is not denied by the master of the "New World," we
cannot avoid the conclusion that the fact is proved. And certainly
it greatly increases the burden which the Act of Congress has thrown
on the claimants. It is possible that those managing a steamboat
engaged in a race may use all that care and adopt all those precau-
LIABILITY FOE INJUEIES. 945
tions which the dangerous power they employ renders necessary to
safety. But it is highly improbable. The excitement engendered
by strife for victory is not a fit temper of mind for men on whose
judgment, vigilance, coolness, and skill the lives of passengers
depend. And when a disastrous explosion has occurred in such a
strife, this court cannot treat the evidence of those engaged in it,
and primajucie responsible for its consequences, as sufficient to dis-
prove their own negligence, which the law presumes.
We consider the testimony of the assistant engineer and fireman,
who are the only witnesses who speak to the quantity of steam
carried, as wholly unsatisfactory. They say the boiler was allowed
by the inspector to carry forty pounds to the inch, and that when
the explosion occurred they were carrying but twenty-three pounds.
The principal engineer says he does not remember how much steam
they had on. The master is silent on the subject and says nothing
as to the speed of the boat. The clear weight of the evidence is
that the boat was, to use the language of some of the witnesses,
doing its best. We are not convinced that she was carrying only
twenty-three pounds, little more than half her allowance.
This is the only evidence by which the claimants have endeavored
to encounter the presumption of negligence. In our opinion it does
not disprove it; and consequently the claimants are liable to damages,
and the decree of the District Court must be affirmed.
Mr. Justice Daxibl dissented.
McPADDEN V. NEW YORK CENTRAL R. CO.
44 N Y. 478. 1871.
Appeal from a decision of the General Term of the Supreme
Court in the seventh district upon exceptions there heard in the
first instance, granting a new trial.
This action was brought to recover for injuries sustained by the
plaintiff, while a passenger upon the defendant's road. The cause
was tried at the Rochester Circuit, in January, 1865; and it appeared,
among other things, that on the .5th day of January, 1864, the plain-
tiff took passage on a train at Rochester going westerly, intending
to go to Knowlesville. The train stopped at Brockport, and there
met a train coming east. About half a mile west of Brockport the
two passenger cars of the train going west were thrown from the
track, and the car in which the plaintiff was riding was overturned,
and he was injured. The train going west was not under full head-
way, going at the rate of about twenty-five miles per hour. The
train going east passed the place of the accident at the rate of
twenty-five to thirty miles per hour.
•946 CAEEIEKS OF PASSENGERS.
The accident was caused by a broken rail, — a piece of the rail,
about four feet in length, being broken in three or four pieces. All
the witnesses who testified upon the subject testified that the rail
was a good, sound, and perfect rail, and in all respects properly-
placed and fastened, and they attributed the breaking to the cold-
ness of the weather, it being a very cold morning. A track watch-
man went over the track three miles west of Brockport, starting at
three o'clock that morning, and a train followed him west in about
an hour. He then returned over the road to Brockport, reaching
there a little before six o'clock, a short time before the accident.
After the train passed east, he had no time to go over the road again
before this train went west. When he went over the road he found
it in order. The plaintiff's witnesses testified that all the cars were
off from the track but the locomotive. The defendant's witnesses
testified that the passenger cars and the hind wheels of the baggage
<!ar were off the track. The conductor and engineer of the train
going eastward testified that they did not notice any jolt at the place
of the accident of their train, and that if the rail had been broken
and displaced by their train they would have noticed it. The
engineer of the train going west testified that he did not discover
that any rail was displaced, and would have discovered it if one had
been displaced before his engine* passed over, and the conductor of
this train testified that he could feel the jog when a rail was dis-
placed. This testimony of the conductors and engineers was uncon-
tradicted.
At the close of the evidence the counsel for the defendant moved
for a nonsuit upon the ground that there was no proof of negligence
or omission of duty on the part of the defendant, but that there was
clear evidence that every precaution to insure safety to passengers
had been taken. The counsel for the plaintiff then asked to go to
the jury upon the question whether the rail was broken before the
train going west came upon it. The court refused permission to him
to do so, and nonsuited the plaintiff, and his counsel excepted, but
did not request to go to the jury upon any other question.
The General Term made an order granting a new trial, and the
defendant appealed from such order to this court, stipulating for
judgment absolute in case the order should be affirmed.
Eael, C. The General Term granted a new trial, upon the ground
that the judge, at the Circuit, should have submitted to the jury the
question, whether the rail was broken before it was reached by the
train going west carrying the plaintiff; and it held, if it was thus
broken , that the defendant was liable, irrespective of any question
of negligence, within the principle of the case of Alden v. The N.
Y. C. R. R. Co., 26 N. Y. 102, upon the ground that it was bound
to furnish a road adapted to the safe passage of trains, or, in other
words, "a vehicle-worthy road."
I am obliged to differ with the General Term, for two reasons:
LIABILITY FOE INJURIES. 947
1st. If the rail was broten before it was reached by the train going
west, it must have been broken by the train going east shortly
before, and there is no evidence whatever that it was broken by
that train. All the evidence tends to show that it was broken by
the train going west. Such is the evidence of the conductors and
engineers of both trains. There is no presumption that the rail was
broken before this train reached it. It is unquestioned that the
accident was caused by the broken rail, and if the plaintiff claimed
that the defendant was liable, because the rail was broken before the
train upon which he was riding reached it, it was incumbent upon
bim to prove it. This he failed to do; and if the jury upon the
•evidence had found it, it would have been the duty of the court to
set the verdict aside as against the evidence.
But there is another reason. It does riot appear that plaintiff's
counsel, upon the trial, claimed that he had shown any negligence
against the defendant, and he did not claim to go to the jury upon
any such question, and the General Term did not grant a new trial
upon the ground that there was any question of negligence in the
case, which ought to have been submitted to the jury, but upon the
ground above stated.
In the case of Alden v. The New York Central Kailroad Company,
theaccident, by which the plaintiff was injured, was caused by the
breaking of an axle of the car in which the plaintiff was riding, and
it was held that a common carrier is bound absolutely, and irrespec-
tive of negligence, to provide road worthy vehicles, and that the
defendant was liable for the plaintiff's injuries , caused by a crack in
the axle, although the defect could not have been discovered by any
practicable mode of examination. That case was a departure from
every prior decision and authority to be found in the books of this
country or England, and, so far as I can learn, has never been fol-
lowed anywhere t)ut of this State. It was in conflict with the
previous case, in the same court, of Hegeman v. The Western Rail-
road Corporation, 3 Kern. 9. The only authority cited to sustain
the decision was the English case of Sharp v. Grey, 9 Bing. 457,
and yet the decision has been distinctly repudiated in England, in
the well-considered case of Readhead v. Midland Railway Co. , first
decided in the Queen's Bench, Law Reports, 2 Q. B. 412, and then
on appeal in the Exchequer Chamber, Law Reports, 4 Q. B. 379,
where it was unanimously afifirmed in 1869 ; and the court held that
the contract, made by a common carrier of passengers for hire, with
■a passenger, is to take due care (including in that term the use of
skill and foresight) to carry the passenger safely, and that it does
not contain or imply a warranty that the carriage in which he travels
shall be in all respects perfect for its purpose and roadworthy. In
the Exchequer Chamber Mr. Justice Smith, writing the opinion of
the court, alludes to the case of Alden v. The New York Central
Railroad Company, and dissents from it, and comments upon the
948 CAKRIEES OF PASSENGERS.
case of Sharp v. Grey, relied upon in that case, and he shows clearly
that it was no authority for the broad doctrine laid dowu in that
case. He says : " We have referred somewhat fully to this case.
Sharp V. Grey, because it was put forward as the strongest authority
in support of the plaintiff's claim , which can be found in the English
courts, and because it was relied on by the judges of the Court of
Appeals, in New York, in a decision which will be afterward
referred to. But the case, when examined, furnishes no suflB.cient
authority for the unlimited warranty now contended for. The facts
do not raise the point for decision." Hence the case of Alden v.
The New York Central Eailroad Company has no foundation of
authority, whatever, to rest on, and the only reason given for the
decision is that the new rule adopted would be plainer and easier
of application than the one that had been recognized and acted upon
for hundreds of years. It was always supposed that there was a
difference, founded upon substantial reasons, between the liability
of the common carrier of goods and the common carrier of passen-
gers. The former was held to warrant the safe carriage of the
goods, except against loss or damage from the act of God or the
public enemy ; but the latter was held to contract only for due and
proper care in the carriage of passengers.
I have thus commented upon and alluded to the case of Alden v.
The New York Central Railroad Company, with no design to repu-
diate it as authority, but for the purpose of claiming that it is a
decision which should not be extended. I am unwilling to apply it
to every case that apparently comes within its principle; nor would
I limit it to the car in which the passenger was riding. The whole
train must be regarded as the vehicle; and the engine and all the
cars attached together must be free from defect and roadworthy,
irrespective of negligence. So far, and no farther, am I willing to
regard that case as authority. Shall it be applied to steamboats
and vessels, common carriers of passengers upon the ocean and our
inland waters? Shall it apply to innkeepers, proprietors of theatres
and other places of public resort, who invite the public into their
buildings, for a compensation? And shall all such persons be held
to an implied warranty that their buildings, with the appurtenances,
are suitable and proper, and free from all defects which no foresight
could guard against or skill detect? Shall it be applied to the road-
bed of a railroad? If so applied, where shall it stop? It must also
extend to the bridges, masonry, signals, and, in fact, to all the
diii'erent parts of the system employed and used in the transport of
passengers by railroad. And, as railroad companies are responsible
for the skill and care of all their human agents, such an extension
of that decision would make them substantial insurers of the safety
of all their passengers, and thus practically abolish the distinction
between the liability of the carriers of passengers and the carriers
of goods. While such a rule would " be plain and easy of applica-
LIABILITY FOK INJURIES. 949
tion," I am not satisfied that it -would be either wise or just. Eail-
roads are great public improvements, beneficial to the owners, and
highly useful to the public. There is a certain amount of risk inci-
dent to railroad travel which the traveller knowingly assumes; and
public policy is fully satisfied when railrqad companies are held to
the most rigid responsibility for the utmost care and vigilance for
the safety of travellers.
If, therefore, the jury had found that the rail was broken by the
eastward-bound train, it would still have been a case of mere acci-
dent, caused without any want of proper care and vigilance on the
part of the defendant, and the defendant would not have been
liable.
I am, therefore, in favor of reversing the order of the General
Term, and ordering judgment upon the nonsuit for the defendant,
with costs.
LoTT, Gh. C, and Leonaed, C, delivered opinions in favor of
reversal.
Order of the General Term reversed, with costs, and judgment
upon the nonsuit ordered, with costs. Hunt, C, dissenting.
GRAND EAPIDS, etc., R. CO. v. HUNTLES".
38 Mich. 537. 1878.
Trespass on the ease. Defendant brings error.
Campbell, C. J. Suit was brought by Mrs. Huntley for personal
injuries suffered on the 5th day of November, 1874, by reason of an
accident caused by a passenger car being thrown from the track and
upset. The testimony showed that the mischief was caused by the
breaking of an axle containing a large flaw, within the wheel or
near its edge. Those witnesses who made any actual examination
found the flaw entirely within the axle, and covered by a small
thickness of sound metal. The suit was tried in April, 1877, about
two years and a half after the accident. Mrs. Huntley was injured
in the shoulder, and claimed that the injury was permanent.
Testimony was introduced bearing upon the condition of the cars
and track, and the speed of the train, as well as concerning the char-
acter of the injury. The principal questions arise upon the medical
testimony and upon the charge; although some other points are
presented.
The principal remaining questions arise out of the rules of lia-
bility established by the charge.
950 CAKEIEUa OF PASSENGERS.
The primary cause of the accident was the broken axle. Some
stress seems also to have been laid on the condition of the track and
the rate of speed. So far as appears upon the record, we have not
discovered any proper evidence to authorize these matters to be con-
sidered. There is no testimony from such persons as are qualified
to give opinions on the subject that either the condition of the road
or the speed indicated negligence. Whether the structure of the
road is such as to warrant fast travel is not a question which usually
belongs to ordinary witnesses , and it would be dangerous to allow
a jury to act on its own suspicions or prejudices in such a matter.
Tlie road, if in such a condition as would be regarded as safe by
railroad men of usual intelligence and experience, could not be com-
plained of for any possible deficiencies which would not be regarded
by competent persons as existing, nor could the rate of speed be
properly held excessive without similar evidence from men of
experience. It is a matter of daily occurrence in many parts of the
country, and of occasional occurrence everywhere, for cars to be run
at very high rates of speed on railway tracks, l^o particular rate
can be assumed, without proof, to be dangerous.
The main question, however, relates to responsibility for the con-
dition of the axle. It was held by the court below that no diligence
or care in the railroad company could exempt them from want of
care in the manufacturers of the cars and axles.
This doctrine is, we think, entirely incorrect. Carriers of freight
are liable whether careful or not, for any act or damage not caused
by the act of God, or of the public enemy. Their liability , therefore,
does not arise from negligence or want of care. It arises from their
failure to make an absolutely safe carriage and delivery, which they
insure by their undertaking. The analogies of carriers of freight
have nothing to do with passenger carriers. These are liable only
when there has been actual negligence of themselves or their ser-
vants. If they exercise their functions in the same way with pru-
dent railway companies generally, and furnish their road and run it
in the customary manner which is generally found and believed to
be safe and prudent, they do all that is incumbent upon them. M.
C. K. R. V. Coleman, 28 Mich. 440; G. E. & I. E. R. v. Judson,
34 Mich. 506; Ft. Wayne, J. & S. R. R. v. Gildersleeve, 33 Mich.
133; M. C. E. R. v. Dolan, 32 Mich. 610. This general doctrine
the court below laid down very clearly, but qualified it so as to
make them absolutely responsible for the omissions or lack of skill
or attention of the manufacturers from whom they made their pur-
chases of stock, however high in standing and reputation as reliable
persons.
There is no principle of law which places such manufacturers in
the position of agents or servants of their customers. The law does
not contemplate that railroad companies will in general make their
own cars or engines, and they purchase them in the market, of per-
LIABILITY FOE INJURIES. 951
sons supposed to be competent dealers, just as they buy their other
articles. All that they can reasonably be expected to do is to pur-
chase such cars and other necessaries as they have reason to believe
will be safe and proper, giving them such inspection as is usual and
practicable as they buy them. When they make such an examina-
tion, and discover no defects, they do all that is practicable, and it
is no neglect to omit attempting what is impracticable. They have
a right to assume that a dealer of good repute has also used such
care as was incumbent on him, and that the articles purchased of
him which seem right are right in fact. Any other rule would make
them liable for what is not negligence, and put them practically on
the footing of insurers. The law has never attempted to hold pas-
senger carriers for anything which they could not avoid by their own
diligence.
The case of Eichardson v. Great Eastern Eailway Co. , L. R. 1 C.
P. Div. 342, Court of Appeals, is quite in point and establishes the
doctrine as it has been fixed by the general understanding since the
carrying of passengers has been the subject of legal discussion.
That was a passenger case, depending on the doctrine of negligence
as applied to defective trucks. The axle of a truck belonging to
another company, brought on the line of the respondents to be for-
warded, was broken by reason of a flaw which might have been dis-
covered by a minute examination, but which was not discovered, in
fact, by such an examination as was customary and reasonably prac-
ticable. It was held no negligence could be imputed for not making
a more minute examination than was made. In that case the court
also held that it was not within the province of a jury to lay down
rules after their own opinion, which imposed duties beyond the
usual practice of prudent railways. See also Daniel v. Metropolitan
Railway Co., L. E. 5 H. of L. 45, upon the right of a railway com-
pany to assume there is no negligence in others over whom they
exercise no control.
The injustice and illegality of holding passenger carriers to any-
thing like a warranty of their carriages was very fully discussed and
asserted in Eeadhead v. Midland Ey. Co., L. E. 4Q. B. 379. The
New York cases which were relied on upon the argument of the
present cause were considered in the light of a large number of
decisions, and disapproved, as we think, correctly. They entirely
ignore the true ground of responsibility as depending on the actual
negligence of the carrier. There is no such thing as implied negli-
gence, when there is none, in fact.
We think the judgment erroneous, and it must be reversed with
costs and a new trial be granted.
952 OAKKIERS OF PASSENGERS.
PERSHING V. CHICAGO, etc., R. CO.
71 Iowa, 561. 1887.
On the eighth, day of February, 1885, a passenger train on defend-
ant's railway was derailed, as is supposed, by a broken rail, at • a
point near a bridge over a gully or ravine. When the train went
upon the bridge, the wheels on one side passed outside of the guard-
rail, and the bridge was broken down, and the car in which the
plaintiff's intestate was riding as a passenger was thrown into the
gully or ravine, and she received injuries which caused her death.
This action was brought for the recovery of the damages sustained
by her estate. There was a verdict and judgment for defendant,
and plaintiff appeals.
Reed, J. It is alleged in the petition that the injury was caused
by the negligence of the defendant, and that its negligence con-
sisted (1) in the manner in which its track and bridge were con-
structed and maintained, the latter being insufficient; and (2) in the
manner in which the train was being run at the time of the acci-
dent. The evidence is not contained in the abstract, but it is recited
in the " bill of exceptions " that plaintiff introduced evidence tending
to prove the occurrence of the accident and injury, and that the
deceased was not guilty of any contributory negligence, and that
the accident was caused by the negligent manner in which the track
and bridge were constructed and maintained, and the negligent
manner in which the train was being run at the time, and by the
insufficiency of the bridge, and that he then rested his cause; that
the defendant thereupon introduced evidence tending to prove that
its road, and said bridge, and its rolling stock, and its servants
and agents, were in all respects such as were accepted by, and were
in general use, and found to be sufficient and approved by the best
and most skilfully managed railroads of the country, doing a like
business under like circumstances with it; and the selection of its
materials, and the plan and construction of its roadway, track,
bridges, and rolling stock, and the selection of its employees, ser-
vants, and agents, and the inspection and repairs of its road and
machinery, and appliances connected with the operation of the
road, were such as the best, most carefully, prudently, and skilfully
managed railroads in the country exercise and require, doing a like
business, and under like circumstances; and that the bridge went
down, and that the car in which the intestate was riding was thrown
into the ravine, by reason of the derailment of the train, at a point
378 feet from the bridge ; that the ties , rails, and fastenings, and the
ballast thereunder at that point, and between there and the bridge,
LIABILITY FOR INJURIES. 953
were in all respects such as had been found sufficient by the most
skilfully and prudently managed railroads of the country, doing a
like business, under similar circumstances ; that the same were from
time to time, and as frequently as by other railroads, inspected in
the usual way of inspecting such appliances by the most carefully
and prudently managed railroads of the country, by an employee of
competent skill and experience in such matters ; and that the rails
and joint fastenings appeared sound, and all their supports sound
and secure; and that there were no flaws or defects visible that
could have been discovered by such inspection ; and that the shock
or blow which caused the bridge to fall was of unusual and extraor-
dinary violence, and that the bridge would not otherwise have gone
down, and that the guard-rails on the bridge were such as were
usually and customarily used by the most skilfully managed rail-
roads of the country, under like circumstances.
In rebuttal, plaintiff introduced evidence tending to prove that
the bridge was not sufficient, either in plan or construction; that the
guard-rails were not of sufficient size, and were not properly placed
or fastened; that the joint fastenings at the point at which the
derailment occurred were insufficient, and were broken prior to the
occurrence of the derailment; and that the break might have been
discovered, by a careful and proper inspection, before the passage of
the train.
The errors assigned all relate to the instructions given by the court
to the jury.
I. In the seventh, eighth, and thirteenth instructions, the jury
were told, in effect, that the burden was on plaintiff to show that
the injury was caused by the negligence of the defendant; but that,
if he had established that the accident was attended by circum-
stances showing that it was caused by the defective construction of
the roadway, bridge, track, or the fastenings of the rail at the point
where the derailment occurred, or its train or cars, or by the man-
agement or running of the train, this would raise a presumption of
negligence, and would cast upon defendant the burdefi of proving
that it was not caused by any negligence or want of skill on its part,
either in the construction or maintenance of its roadway, track, or
bridge, or in the management of the train, or the condition of the
cars, but that this presumption extended only to those portions of
the track, machinery, or bridge which the circumstances of the acci-
dent indicated were possibly defective, and it was not required to
prove that nothing about its entire train and roadway were defec-
tive ; and that the burden cast upon it by proof of the happening of
•the accident, and the attending circumstances, only required it to
show that, as to the matters which the circumstances indicated
were the cause of the accident and injury, it had exercised due care ;
and that it was not required to satisfactorily explain the reason of
the breaking of the rail, and the derailment of the train, and the
954 OAERIEKS OF PASSENGEES.
breaking down of the bridge, but was only required to prove that
these things did not occur through any negligence on its part.
The point urged by counsel for appellant is that the instructions
are erroneous, in that they limit the burden imposed upon defendant
by the evidence of the occurrence of the accident, and the attendant
circumstances, to proof merely that it had not been negligent in
respect to those matters which the circumstances indicated were the.
cause of the injury. Their position is that the presumption which
arises upon proof of the happening of the accident is not a mere
presumption of negligence as to some specific matter, but is a pre-
sumption of general negligence on the part of the carrier; or, in.
other words, they insist that the presumption is that he is legally
liable for the injury, and that this presumption can be overcome-
only by proof that it was caused by inevitable accident, and that it
follows necessarily from this that he must account for the accident,
and show that he was free from all negligence in the matter.
The rule which casts the burden of proof on the carrier is a rule-
of evidence having its foundation in considerations of policy. It
prescribes the quantum of proof which the passenger is required t&
produce in making out his ease originally, and he is entitled to-
recover on that proof, unless the carrier can overcome the presilmp-
tion which arises under the rule from the facts proven. Caldwell v^
Steamboat Co., 47 N. Y. 282; Thomp. Carr. 209.
The rule undoubtedly requires the carrier to prove his own free-
dom from negligence as to the cause of the injury. But that, it
appears to us, is the doctrine of the instructions. The immediate-
cause of the injury to plaintifE's intestate was the breaking down
of the bridge, and the consequent precipitation of the car into th&
ravine ; and this was occasioned by the blow or concussion by the
derailed train. In seeking for the cause of the injury, then, it
became necessary to inquire as to the cause of the derailment of the
train, and whether there was any defect in the track, or roadway,
or bridge, or in the cars or machinery of the train, or any negligence
in the management of it at the time; for the circumstances indi-
cated unmistakably that the cause of the accident was to be found in
some of these matters. They constituted the subject of the inquiry
as to this branch of the case, and defendant very properly confined
its proof as to the diligence and care it had exercised, to that subject.
As there was nothing to indicate that any other matter could have-
contributed to the accident, it could not be required to show that it
had been careful as to other matters. Such evidence would clearly
have been immaterial, and the holding of the instructions is that it
was not required to go beyond the cause of the inquiry in making
proof of care and diligence. The holding that it was not required
to give a satisfactory explanation of the cause of the breaking of the
rail and bridge is supported by Tuttle v. Chicago, R. I. & P. E'y Co.>
48 Iowa, 236.
LIABILITY FOK INJURIES. 955
II. The following instructions were given by the Circuit Court :
"It is a duty of a railway company, employed in transporting pas-
sengers, to do all that human care, vigilance, and foresight can 7-eas-
onably do, consistent with the mode of conveyance and the practical
operation of the road, in providing safe coaches, machinery, tracks,
rails, angle-bars, or splices, bridges and roadway, and in the con-
duct and management of its trains for the safety of its passengers,
and to keep the same in good repair. The utmost degree of care
which the human mind is capable of inventing or producing, is not
required; but the highest degree of care, vigilance, and foresight that
is reasonably practicable in the conduct and management of its road
and business is required. . . . Common carriers of passengers are
held to the very highest degree of care and prudence that human
care, vigilance, and foresight could reasonably do, which is consistent
with the practical operation of their road, and the transaction of
their business; yet they are not absolute insurers of the safety of
their passengers; and if you find that the defendant exercised all
reasonably practical care, diligence, and skill in the construction,
preservation, inspection, and repairs of its road-bed, bridges, track,
rails, angle-bars, or splices, in the management and operation of its
road,, and of the train, at the time of the accident alleged and shown
to have occurred, and that the accident could not have been pre-
vented by the use of the utmost practical care, diligence, and skill
consistent with the practical operation of its road, and the transac-
tion of its business, then plaintiff cannot recover in this action."
The rule which has been uniformly recognized and enforced in
this State, is that the carrier, in the conduct and management of his
business, and as to all the appliances made use of in the business, is
bound to exercise the highest degree of care and diligence for the
convenience and safety of his passengers, and he is held liable for
the slightest neglect. Frink v. Coe, 4 G. Greene, 655; Sales v.
Western Stage Co., 4 Iowa, 574; Bonce v. Dubuque St. E'y Co., 53
id. 278; Kellow v. Central Iowa E'y Co., 68 id. 470. It is insisted
that the instructions aie in conflict with this rule. The position of
counsel is that, by the use of the words reasonable, reasonably prac-
ticable, and reasonably practical in the instructions, the care for the
safety of the passenger required of the carrier is lowered, -and he is
required to exercise reasonable or ordinary care only. It will be
observed, however, that these words, as they are used in the
instructions, while they to some extent limit the degree of care
required of the carrier, have special reference to the practical opera-
tion of the railroad, and the conduct of the business. When the
instructions are scrutinized, it will be found that the doctrine
announced by them is that defendant was bound to exercise the
highest degree of care and diligence which was reasonably consistent
with the practical operation of its railroad, and the conducting of
its business ; and this is right. It is doubtless true that precautions
956 CAERIEKS OF VASSENGEES.
could be used in the construction and operation of railroads that
would prevent many of the accidents which occur as they are con-
structed and operated. It sometimes happens that a derailed train
is precipitated from a high embankment, and the lives of its passen-
gers endangered or destroyed. Accidents of that character could be
avoided by constructing all railroad embankments of such a width
that a derailed train or car would come to a stop before reaching the
declivity. But this would add immensely to the cost of construct-
ing such improvements, and, if required, would in many cases pre-
vent their construction entirely. IE passenger trains were run at
the rate of ten miles per hour, instead of from twenty-five to forty
miles, it is probable that all danger of derailment would be avoided.
But railroad companies could not reasonably be required to adopt
that rate of speed. Their roads are constructed with a view to rapid
transit, and the travelling public would not tolerate the running of
trains at that low speed. When it is said that they are held to the
highest degree of care and diligence for the safety of their passen-
gers, it is not meant that they are required to use every possible
precaution; for that, in many instances, would defeat the very ob-
jects of their employment. There are certain dangers that are
necessarily incident to that mode of travel, and these the passenger
assumes when he elects to adopt it. But all that is meant is that
they should use the highest degree of care that is reasonably con-
sistent with the practical conduct of the business, and that is the
doctrine of the instructions, and it is abundantly sustained by the
authorities. Indianapolis & St. L. E'y Co. v. Horst, 93 U. S. 291;
Dunn V. Grand Trunk E. R., 58 Me. 187; Hegeman v. Western
E. R., 13 N. Y. 9; Kansas Pacific R. R. v. Miller, 2 Colo. 442;
Wood, E. R. 1049-1054.
III. The eleventh, twelfth, and fourteenth instructions given by
the court are as follows : —
" The degree of care required of defendant in the selection of its
materials, the plan and construction of its roadway, track, bridges,
and rolling stock, in the selection of its employees, servants, and
agents, and in the inspection and repairs of its road, and the
machinery and appliances connected with the operation of the same,
is such as the best, most carefully, prudently, and skilfully managed
railroads of the country exercise and require, doing a like business,
and under like circumstances.
" The high degree of care hereinbefore referred to, and required of
defendant, embraces its roadway, track, bridges, and rolling stock,
and the selection of its employees, servants, and agents. In supply,
ing materials for and in constructing its roadway, track, bridges, and
rolling stock, it was required to exercise that high degree of care to
see that materials used were amply sufBcient, and of such quality,
size, pattern, as were accepted by and in general use, and found to
be sufficient, and approved by the best and most skilfully managed
LIABILITY FOE INJURIES. 957
railroads of the country, doing a like business with defendant. In
the selection of train-men, and in the management of its train, it
was bound to exercise that high degree of care, and to provide men
of sufficient experience, skill, and prudence to run such train safely,
as far as was practicable ; and it was bound, also, in like manner, to
see that, in the actual management of the train at the time of the
accident, the train-men exercised a like degree of care and skill
in managing and running the train safely in all respects, so as to
avoid injury to the passengers. If defendant failed in any of these
respects, and such failure was the cause of the injury complained
of, it was negligent, and is liable.
" If you find that the rails which were broken were made by a
manufacturer of good repute, were made upon the approved method
of manufacturing rails, were properly tested by the proper known
and usually applied tests then in practical use, and had been on the
track for several years, and had successfully stood the strain of
numerous passing trains without in any manner affecting their
quality or strength, so far as could be seen by proper examination,
carefully and skilfully made ; if, at the time of the accident, they
were placed and lying securely on sound ties, with good angle-bars
or splices at the ends, with sufficient ballast under the ties, with all
their connections and supports well adjusted ; if they had been sub-
jected to a daily inspection in the most approved and customary way
of inspecting such appliances by the most careful and best managed
railroads in the country, by some servant of competent skill and
experience in such matters, and said rails appeared then sound, and
all these connections and supports sound and secure; then if there
were no flaws or defects visible, or that could have been discovered
by such approved and customary inspection, made in the manner
hereinbefore explained, — then the defendant was not negligent with
reference to said rails."
Some of the members of the court think that the eleventh instruc-
tion is erroneous, but we unite in the conclusion that, if it should
be conceded to be erroneous, the plaintiff could not have been preju-
diced by it. The doctrine of the instruction is that the degree of
care required of defendant in the selection of plans and materials for
its roadways, bridges, and appliances was such as was exercised by
the best and most skilfully and carefully managed railroads in the
country, under like circumstances. The objection urged against it
is that it treats the practices of the class of railroads named, in the
matters in question, as affording an absolute standard of duty as to
those matters, thus, in effect, making the very practices which are
called in question the law of the case. We admit the force of the
objection. But the twelfth instruction was drawn with special refer-
ence to the facts of the case, and in it the jury were told, in effect,
that defendant was bound, not only to select such plans and material
for the construction of its road and appliances as were in use by the
958 CARRIERS OF PASSENGERS.
best and most skilfully conducted roads of the country, but that
such materials and plans must have been found sufficient by the
other roads. This is clearly right. When a plan of construction,
and the materials made use of, have been found by actual experience
to be sufficient and safe, other roads, whose business is to be carried
on under like circumstances, are warranted in adopting them. To
hold otherwise would be to hold that railroad companies, in the
construction and operation of their roads, could not avail themselves-
of the experience of others, and that the construction and operation
of every road must, to a great extent, be a matter of experiment.
With this rule distinctly laid down as applicable to the facts of
the case, we think the jury could not have been misled by the
eleventh instruction, conceding that it is erroneous. This conces-
sion, however, must be understood as being made only for the pur-
pose of the argument, for a majority of the court are of the opinion
that the instruction is not erroneous. We think, also, that the four-
teenth instruction is correct.
IV. In another instruction the jury were told that defendant
" was not required to so construct its bridge that it would resist an
unusual and extraordinary shock of a derailed train, running at reg-
ular speed, and striking it with great force." After the jury had
been considering the case for some time, they were again brought
into court, and the court gave them further instructions on that sub-
ject, which very materially modified the one quoted above. In the
additional instructions they were told, in effect, that the defendant
was required to take into account, in constructing and maintaining
its bridges, the fact that accidents might occur in the operation of
its road, and to construct its bridges with reference thereto; and
that it was held to a very high degree of care in that respect. As
thus modified, the instruction quoted affords plaintiff no just ground
of complaint.
We have found no ground in the record upon which we think we
ought to disturb the judgment, and it will be
Affirmed^
GLEESON V. VIRGINIA MIDLAND E, CO.
140 U. S. 435. 1891.
In error to the Supreme Court of the District of Columbia.
This is an action for damages, brought in the Supreme Court of
the District of Columbia. It appears from the bill of exceptions
that at the trial the evidence introduced by the plaintiff tended to
show that in January, 1882, he was a railway postal-clerk, in the
service of the United States post-office department; that on Sunday,
LIABILITY FOE INJURIES. 959
the 15th of that month, in the discharge of his ofi&cial duty, he was
making the run from Washington to Danville, Va., in a postal-car
of the defendant, and over its road; that in the course of such run
the train was in part derailed by a landslide which occurred in a
railway cut, and the postal-car in which the plaintiff was at work
was thrown from the track upon the tender, killing the engineer and
seriously injuring the fireman; and that the plaintiff, while thus
engaged in performing his duty, was thrown violently forward by
the force of the collision, striking against a stove and a letter-box,
three of his ribs being broken, and his head, on the left side, con-
tused, which injuries are claimed to have permanently impaired his
physical strength, weakened his mind, and led to his dismissal from
his office, because of his inability to discharge its duties. Defence
was made by the company under these propositions : That the land-
slide was caused by a rain which had fallen a few hours previous,
and therefore was the act of God; that it was a sudden slide, caused
by the vibration of the train itself, and which, therefore, the com-
pany was not chargeable with, since it had, two hours before, ascer-
tained that the track was clear; and that the injury resulted from
the plaintiff's being thrown against the postal-car's letter-box, for
which the company was not responsible, since he took the risk inci-
dent to his employment. At the close of the testimony, the court,
having given to the jury certain instructions in accordance with the
lequests of the plaintiff, charged the jury, at defendant's request,
as follows: "(1) The burden of proof is on the plaintiff to show
that the defendant was negligent, and that its negligence caused the
injury. (2) The jury are instructed that the plaintiff, when he
took the position of a postal-clerk on the railroad, assumed the risk
and hazard attached to the position, and if, in the discharge of his
duties as such, he was injured through the devices in and about the
car in which he was riding, properly constructed for the purpose of
transporting the mails, the railroad is not liable for such injury,
unless the same were caused by the negligent conduct of the com-
pany or its employees. (3) The court instructs the jury that, while
a large degree of caution is exacted generally from railway cornpanies
in order to avert accidents, the caution applies only to those acci-
dents which could be prevented or averted by human care and fore-
sight, and not to accidents occurring solely from the act of God. If
they believe that the track and instruments of the defendant were in
good order, its officers sufficient in number and competent, and that
the accident did not result from any deficiency in any of these
requirements, but from a slide of earth caused by recent rains, and
that the agents and servants of the company had good reason to
believe that there was no such obstruction in its track, and that they
could not, by exercise of great care and diligence, have discovered
it in time to avert the accident, then they should find for the defend-
ant. (4) If the jury believe from the evidence that the defendant's
960 CAEKIEKS OF PASSENGEBS.
instruments, human and physical, were suitable and qualified for
the business in which it was engaged; that the accident complained
of was caused by the shaking down of earth which had been loosened
by the recent rains, and that the earth was shaken down by the
passing of this train, — then the accident was not such an act of
negligence for which the defendant would be responsible, and the
jury should find for the defendant." The counsel for the plaintiff
objected to the granting of the first of these prayers, and asked the
court to modify it by adding the words " but that the injury to the
plaintiff upon the car of the defendant, if the plaintiff was in the
exercise of ordinary care, is prima facie evidence of the company's
liability." But the court refused to modify the said prayer, and
the plaintiff duly and severally excepted to the granting of each one
of said prayers on behalf of the defendant, and to the refusal of the
court to modify the said first prayer as requested. The jury, so
instructed, found for the defendant, and judgment was rendered
accordingly. That judgment having been affirmed by the court in
general term, 5 Mackey, 356, this writ of error was taken.
Lamar, J. It will be most convenient in the decision of this case
to consider the third instruction first. The objections made to it
are three : (1) " It assumes that the accident was caused by an act
of God, in the sense in which that term is technically used." It
appears that the accident was caused by a land-slide, which occurred
in a cut some IS or 20 feet deep. The defendant gave evidence
tending to prove that rain had fallen on the afternoon of Friday and
on the Saturday morning previous; and the claim is that the slide
was produced by the loosening of the earth by the rain. We do not
think such an ordinary occurrence is embraced by the technical
phrase "an act of God." There was no evidence that the rain was
of extraordinary character, or that any extraordinary results fol-
lowed it. It was a common, natural event; such as not only might
have been foreseen as probable, but also must have been foreknown
as certain to come. Against such an event it was the duty of the
company to have guarded. Extraordinary floods, storms of unusual
violence, sudden tempests, severe frosts, great droughts, lightnings,
earthquakes, sudden deaths and illnesses, have been held to be " acts
of God ; " but we know of no instance in which a rain of not unusual
violence, and the probable results thereof in softening the superficial
earth, have been so considered. In Dorman v, Ames, 12 Minn. 451,
Gil. 347, it was held that a man is negligent if he fail to take pre-
cautions against such rises of high waters as are usual and ordinary,
and reasonably to be anticipated at certain seasons of the year; and
we think the same principle applies to this case. Ewart v. Street,
2 Bailey, 157, 162; Moffat v. Strong, 10 Johns. 11; Steamboat Co.
V. Tiers, 24 N. J. Law, 697; Railway Co. v. Braid, 1 Moore P. C.
(N. S.) 101. (2) The instruction does not hold the defendant
" responsible for the condition of the sides of the cut made by it in
LIABILITY FOE INJURIES. 961
the construction of the road, the giving way of which caused the acci-
dent." We think this objection is also well taken. The railroad
cut is as much a part of the railroad structure as is the fill. They
are both necessary, and both are intended for one result, which is
the production of a level track over which the trains may be pro-
pelled. The cut is made by the company no less than the fill; and
the banks are not the result of natural causes, but of the direct inter-
vention of the company's work. If it be the duty of the company
(as it unquestionably is) in the erection of the fills and the neces-
sary bridges to so construct them that they shall be reasonably safe,
and to maintain them in a reasonably safe condition, no reason can
be assigned why the same duty should not exist in regard to the
cuts. Just as surely as the laws of gravity will cause a heavy train
to fall through a defective or rotten bridge to the destruction of life,
just so surely will those same laws cause land-slides and consequent
dangerous obstructions to the track itself from ill-constructed rail-
way cuts. To all intents and purposes a railroad track Which runs
through a cut where the banks are so near and so steep that the
usual laws of gravity will bring upon the track the debris created by
the common processes of nature is overhung by those banks. Ordi-
nary skill would enable the engineers to foresee the result, and
ordinary prudence should lead the company to guard against it. To
hold any other view would be to overbalance the priceless lives of
the travelling public by a mere item of increased expense in the con-
struction of railroads; and, after. all, an item, in the great number
of cases, of no great moment.
In a late case in the Queen's Bench division, — Tarry v. Ashton,
1 Q. B. Div. 314, — two out of three judges declared in substance
that a man who, for his own benefit, suspends an object, or permits
it to be suspended, over the highway, and puts the public safety in
peril thereby, is under an absolute duty to keep it in such a state
as not to be dangerous. The facts of the case were these: The
defendant became the lessee and occupier of a house from the front
of -which a heavy lamp projected several feet over the public foot-
pavement. As the plaintiff was walking along in November, the
lamp fell on her, and injured her. It appeared that in the previous
August the defendant employed an experienced gas-fitter to put the
lamp in repair. At the time of the accident a person employed by
defendant was blowing the water out of the gas-pipes of the lamp,
and in doing this a ladder was raised against the lamp-iron, or
bracket, from which the lamp hung; and on the man mounting the
ladder, owing to the wind and wet, the ladder slipped, and he, to
save himself, clung to the lamp-iron, and the shaking caused the
lamp to fall. On examination it was discovered that the fastening
by which the lamp was attached to the lamp-iron was in a decayed
state. The jury found that there had been negligence on the part
uf the defendant personally : that the lamp was out of repair through
962 CAERIBES OF PASSENGERS.
general decay, but not to the knowledge of the defendant ; that the
immediate cause of the fall of the lamp was the slipping of the
ladder ; but that, if the lamp had been in good repair, the slipping
of the ladder would not have caused the fall. Upon this it was
held by Lush and Quain, JJ., that the plaintiff was entitled to a
verdict on the ground that if a person maintains a lamp projecting
over the highway for his own purposes, it is his duty to maintain it
so as not to be dangerous to persons passing by ; and if it causes
injuries, owing to a want of repair, it is no answer on his part that
he had employed a competent man to repair it. 1 Thomp. Neg. 346,
347. The case of Kearney v. Eailroad Co., L. R. 6 Q. B. 759, 762,
(in the Exchequer Chamber), cited in the brief of counsel for plain-
tiff in error, is directly in point. In that case the plaintiff had been
injured while walking along a public highway, by a brick which fell
from a pier of the defendant's bridge. A train had just passed, and
the counsel for the defendant submitted that there was no evidence
of negligence. The court (Kelly, Chief Baron) says : " There can be
no doubt that it was the duty of the defendants, who had built this
bridge over the highway, to take such a care that, where danger can
be reasonably avoided, the safety of the public using the highway
should be provided for. The question, therefore, is whether there
was any evidence of negligence on the part of the defendants ; and
by that we all understand such an amount of evidence as to fairly
and reasonably support the finding of the jury. The lord chief jus-
tice, in his judgment in the court below, said res ipsa loquitur, and
I cannot do better than to refer to that judgment. It appears with-
out contradiction that a brick fell out of a pier of the bridge without
any assignable cause except the slight vibration caused by a passing
train. This, we think, is not only evidence, but conclusive evi-
dence , that it was loose ; for otherwise so slight a vibration could
not have struck- it out of its place. . . . The bridge had been built
two or three years, and it was the duty of the defendants from time
to time to inspect the bridge, and ascertain that the brick-work was
in good order, and all the bricks well secured." The principle of
these decisions seems to us to be applicable to this ease. If such be
the law as to persons who, for their own purposes, cause projections
to overhang the highway not constructed by them, a fortiori must it
be the law as to those who, for their own purposes of profit, under-
take to construct the highway itself, and to keep it serviceable and
safe, yet who allow it to be practically overhung, from considerations
of economy or through negligence. We think the case of Eailroad
Co. V. Sanger, 15 Grat. 237, to which we are referred by counsel
for plaintiff" in error, is strongly illustrative of the principle in this
case, to which it bears a close resemblance. Some rocks had been
piled up alongside of the track for the purpose of ballast, and some
of them got upon the track, causing the injury. In rendering its
opinion the court says: "Combining in themselves the ownership
LIABILITY FOK INJURIES. 963
as well of the road as of the cars and locomotives, they are bound to
the most exact care and diligence, not only in the management of
"the trains and cars, but also in the structure and care of the track,
-and all the subsidiary arrangements necessary to the safety of the '
passengers. And, as accidents as frequently arise from obstructions
on the track as perhaps from any other cause whatever, it would
seem to follow, obviously, that there is no one of the duties of a
railroad company more clearly embraced within its warranty to
carry their passengers safely, as far as human care and foresight
will go, than the duty of employing the utmost care and diligence in
guarding their road against such obstructions." See, also, McElroy
V. Railroad Corp., 4 Oush. 400; Hutch. Carr. p. 524; Bennett v.
Eailroad Co. , 102 U. S. 577. This view of the obligation of the
•company of course makes it immaterial that the slide was suddenly
caused by 'the vibration of the train itself. It is not a question of
negligence in failing to remove the obstruction, but of negligence in ;
allowing it to get there.
We are also of the opinion that it was error to refuse to modify
the first instruction for the defendant as requested by the' plaintiff.
•Since the decisions in Stokes v. Saltonstall, 13 Pet. 181, and Rail-
load Co. V. Pollard, 22 Wall. 341, it has been settled law in this
■court that the happening of an injurious accident is, in passenger
cases, prima facie evidence of negligence on the part of the carrier,
^nd that (the passenger being himself in the exercise of due care)
the burden then rests upon the carrier to show that its whole duty
was performed, and that the injury was unavoidable by human
ioresight. The rule announced in those cases has received general
acceptance, and was followed at the present term in Coasting Co. v.
Tolson, 139 U. S. 661. The defendant seeks to uphold the action
'Of the court in refusing the modification prayed for, by distinguish-
ing the case at bar. It attempts to make two distinctions : (1) That
the operation of the rule is confined to cases " where the accident
Tesults from any defective arrangement, mismanagement, or miscon-
rstruction of things over which the defendant has immediate control,
and for the management, service, and construction of which it is
responsible, or where the accident results from any omission or
commission on the part of the railroad company with respect to these
matters entirely under its control." (2) That the injury from an
act of God is established as a fact, wherefore the presumption of
negligence from the occurrence of the accident cannot arise. Neither
of these attempted distinctions is sound, since, as has been shown,
the defect was in the construction of that over which the defendant^
did have control, and for which it was responsible, and since the
slide was not caused by the act of God, in any admissible sense of
that phrase. Moreover, if these distinctions were sound, still, as a
matter of correct practice, the modification should have been made.
The law is that the plaintiff miist show negligence in the defendant.
964 CAEEIERB OF PASSENGERS.
This is done prima facie by showing, if the plaintiff be a passenger,
that the accident occurred. If that accident was in fact the result
of causes beyond the defendant's responsibility, or of the act of
God, it is still none the less true that the plaintiff has made out his
prima facie case. When he proves the occurrence of the accident,
the defendant must answer that case frcfln all the circumstances of
exculpation, whether disclosed by the one party or the other. They
are its matters of defence. And it is for the jury to say, in the
light of all the testimony, and under the instructions of the courb,
whether the relation of cause and effect did exist, as claimed by the
defence, between the accident and the alleged exonerating circum-
stances. But when the court refuses to so frame the instructions as
to present the rule in respect to the prima facie case, and so refuses
on either of the grounds by which the refusal is sought to be sup-
ported herein, it leaves the jury without instructions to which they
are entitled to aid them in determining what were the facts and
causes of the accident, and how far those facts were or were not
within the control of the defendant. This is error. Judgment
reversed, and cause remanded, with direction to order a new trial,
and to take further proceedings not inconsistent with this opinion.
Brewer, J., dissented from the opinion and judgment in this
case on the ground that it is in contravention of the long-established
rules as to what may be considered on an incomplete record.
b. Negligence or wrong of servants,
EAILROAD CO. v. WALEATH.
38 Ohio, 461. 1882.
Error to the District Court of Hamilton County.
Walrath brought suit in the Superior Court of Cincinnati against
the Cleveland, Columbus, Cincinnati & Indianapolis Eailroad
Company, to recover damages for an injury alleged to have been
sustained while he was a passenger on the company's road. He paid
to the company his fare from Cleveland to Cincinnati, and also,
after the train had started, paid for a berth in a car of the Woodruff
Sleeping-Car Company, which car formed part of the train. After
riding in his proper seat in the sleeping-car an hour or more, the
upper berth came down, striking him, as he alleges, on the head,
causing injury to the spinal cord, and ultimately paralysis. This,
he avers, was without fault on his part, and by reason of the negli-
gence of the railroad company, as well in using defective appliances
as in the management of the same. There was evidence that the.
LIABILITY FOR INJURIES. 965
terth had never fallen before or afterward, and that, on examination
after the accident, no defect could be discovered in its construction.
The case was heard upon petition, answer, reply, and testimony,
and a verdict for $6,000 was found, upon which judgment was
rendered. The judgment was affirmed in the District Court. This
petition in error was filed by the railroad company to reverse the
judgments.
Refusing to charge in terms that no presumption of negligence
arose, from the fact that an accident occurred to Walrath while
travelling as a passenger in the sleeping-car, and that, if there was
no defect in the road, or the car, or the mechanism used, the burden
to show negligence of the railroad company's employees was on
him, the court charged the jury, among other things, as follows ;
"The burden of proof is on the plaintiff to show that he was
injured by the defendant's negligence, either in not providing safe
and suitable cars, or in not properly inspecting and taking care of
said cars. A mere statement that a person was injured while riding
on a railway, without any statement of the character, manner, or
circumstances of the injury, does not raise a presumption of negli-
gence on the part of the railway company. • But if the character,
manner, or circumstances of the injury are also stated, such state-
ment may raise, on the one hand, a presumption of such negligence,
or, on the other, a presumption that there was no such negligence.
If the plaintiff was in fact injured while sitting in his proper place,
by the falling on to his head of the upper berth, while said upper
berth ought to have remained in place above, such fact raises a pre-
sumption in this case of negligence, for which the defendant is
liable. If you find that there was no defect in the road , or in the
ear, or the mechanism used, yet, if upon the evidence in this case,
you find it reasonable to presume that the accident happened by rea-
son of the upper berth not having been properly fastened in place,
or by reason of the persons having charge of the car having failed to
observe that it had become loosened, if such insecure condition
would be observed by proper diligence, you have a right so to
presume, and .you would then find the defendant guilty of negli-
gence. If, on the other hand, in such case, you find it equally
reasonable to presume that the fastening of the berth was loosened
by some other person, not those in the employment of the defendant,
and such insecure condition would not be observed by proper dili-
gence on the part of the persons having charge of the car, you have
the right so to presume, and in that case would find the plaintiff
failed to make out a case of negligence against the defendant. . . .
The plaintiff is entitled to damages for injury traceable to the
defendant's fault, but not for injury caused by his own act."
Exception was taken to specified portions of this charge.
The railroad company also insisted that it was not liable for the
n,egligence of the servants of the sleeping-car company, but the
966 CAKEIERS OF PASSENGERS.
charge of the court was adverse to the claim, and exception was
taken.
Okey, C. J. Two questions are presented: first, as to the liabil-
ity of the railroad company for injury to a passenger travelling on
one of its trains in a coach of a sleeping-car company; secondly, as
to the presumption arising from proof of the injury.
1. In Southern Express Co. v. Railway Co., 10 Fed. Eep. 210,
Miller, J., said that "the express business is a branch of the carry-
ing trade that has, by the necessities of commerce and the usages of
those engaged in transportation, become known and recognized;"
" that it is the duty of every railroad company to provide such con-
veyances, by special cars or otherwise, attached to their freight or
passenger trains, as are required for the safe and proper transporta-
tion of this express matter on their roads; " "that under these cir-
cumstances there does not exist, on the part of the railroad company, '
the right to open and inspect all packages so carried;" and "that,
when matter is so confided to the charge of an agent or messenger
(of the express company), the railroad company is no longer liable
to all the obligations of a common carrier, but that when loss or
injury occurs, the liability depends upon the exercise of due care,
skill, and diligence on the part of the railroad company." And see
Penn. Co. v. Woodworth, 26 Ohio St. 585.
Counsel for plaintiff in error argue in this case that sleeping-cars
have become recognized as so far necessary to the comfort and con-
venience of passengers by railway, that railway companies may be
compelled, in like manner, to abtach the coaches of sleeping-car
companies to their trains, where they have failed to provide their
own cars for such purpose, in which case there should be a corre-
sponding modification of the liability of the railroad company, and
that whether the arrangement between the companies be enforced or
conventional, the railroad company should not be liable for injury
to passengers resulting solely from negligence of the agents of the
sleeping-car company.
In support of this view, attention is called to the fact that in
Penn. Co. v. Eoy, 102 U. S. 451, where the liahility of the railroad
company for an injury received in a car of the Pullman Palace Car
Co. was asserted, Harlan, J,, lays stress on the fact that the rail-
road company had published and circulated cards, which were in
such form as to induce the belief that the sleeping-car was under the
management and control of the railway company. But, on examina-
tion of the whole opinion, we find there was no intention to place
the liability on such narrow ground; and we have no hesitancy in
saying that, in the absence of notice that the company will not be
liable for defective appliances in the sleeping-car or negligence of
servants of the sleeping-car company, a passenger may well assume
that the whole train is under one general management. Thorpe v.
Eailway Co., 76 N. Y. 402; Kinsley v. Railroad Co., 125 Mass.
LIABILITY FOE INJURIES. 967
54. How far a railway company may, by agreement with a
sleeping-car company, known to the passenger, exonerate itself for
liability for such, injuries, is a question concerning which we express
no opinion.
2. As to the presumption stated in the charge, counsel for plain-
tiff in error say that there was no evidence that the injury resulted
from defect in the car or any part of it. Hence, the injury was
occasioned by the negligence of the porter in securing the berth in
its place, or by the intefference of some other person with the
fastenings of the berth. This statement is probably correct. Now,
in charging that the burden was on Walrath to show the injury
resulted from the negligence of the defendant below, and that he
could only recover for negligence traceable to the defendant's fault,
the court virtually charged that he was required to show that he was
without fault. This being shown, we think the court might then
well say, under the circumstances, that the negligence of the defend-
ant might be presumed. We are aware that upon this subject the
authorities are in some conflict. Eoscoe's N. P. Ev. (14th ed.) 695;
Thompson on Car. Pas. 209; Schouler on Bailments, 642; 2 Wait's
Act & Def. 90; Pierce on Eail. (ed. of 1881) 298; Johnson v.
Eailroad Co., 20 N. Y. 65; Eeadhead v. Midland Eailw. Co., 4 L.
E. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Eailw.
V. Fawcett, 1 Moore (P. C.) 101, 116; cf. Czech v. General Steam
Nav. Co., 3 L. E. C. P. 14. But the general question was carefully
considered in Eailroad Co. v. Mowery, 36 Ohio St. 418, and we
think the principle of that case sustains the court below in the
charge given and in refusing the charge requested. Eailroad Co. v.
McMillan, 37 Ohio St. 554, was an action for killing a horse on the
company's road, and has no application. Whether the sentence
next to the last, in the portion of the charge set forth in the state-
ment of this case, was not more favorable to the railroad company
than was warranted, we need not determine.
Judgment affirmed.
EAMSDEN V. BOSTON, etc. E. CO.
104 Mass. 117. 1870.
ToET for an assault and battery.
Trial in the Superior Court, before Eeed, J., who made the fol-
lowing report to this court : —
968 CABKIERS OF PASSENGERS.
This is an action of tort. The pleadings make a part hereof >
The plaintiffs introduced evidence tending to show that the female
plaintiff got on board the defendant's cars at Newton Corner, for
the purpose of going to West Newton in an evening train; that she.
paid the fare to the conductor; that afterwards the conductor de-
manded the fare again; that she said she had before paid it; that
the conductor told her she lied; that the conversation between them
was in a loud tone; that the attention of people in the cars was
attracted by it; that she was confused and shamed and excited by
it; that the conductor demanded of her that she should give him
her parasol to keep as security, or as payment for the fare; that
she refused; that he took hold of it, and after somewhat of a
struggle, took it away from her; and that, by reason of this, the
said plaintiff, a few da;^s afterwards, was prematurely delivered of
a child, and had suffered much in health.
" After the testimony for the plaintiffs was concluded, the judge
announced to the counsel that at the conclusion of the ease, when-
ever that should be, the rulings would be as follows; and that,
after hearing them, the counsel upon the one side or the other might
proceed or not with the case to the jury, as they might elect. These
are the rulings: 'IJpon the pleadings, the action is tort in the nature
of trespass for an assault. In order to maintain the action, the
plaintiffs must show that an assault was committed upon the female
plaintiff. A conductor, by virtue of his implied authority as such,
that being the only authority shown in this case, has no right to
seize articles of property belonging to a passenger for the purpose of
thus enforcing the payment of fare. And if a conductor does this,
or attempts to do this, and, in so doing, and for the sole purpose of
seizing such property, commits an assault on a passenger, the cor-
poration is not responsible in trespass for such acts.^ Upon the
announcelnent of these rulings, with the foregoing statement made
by the judge to the counsel, the plaintiff's counsel consented to a
verdict for the defendants."
Gray, J. A railroad corporation is liable, to the same extent as
an individual would be, for an injury done by its servant in the
course of his employment. Moore v. Fitchburg Railroad Co. , 4 Gray,
465. Hewitt v. Swift, 3 Allen, 420. Holmes v. Wakefield, 12
Allen, 580. If the act of the servant is within the general scope of
his employment, the master is equally liable, whether the act is
wilful or merely negligent; Howe v. Newmarch, 12 Allen, 49; or
even if it is contrary to an express order of the masber. Philadel-
phia & Eeading Eailioad Co. v. Derby, 14 How. 468.
The conductor of a railroad train, from the necessity of the case,
represents the corporation in the control of the engine and cars, the
regulation of the conduct of the passengers as well as of the sub-
ordinate servants, of the corporation, and the collection of fares.
He may even eject a passenger for not paying fare. O'Brien v.
LIABILITY FOR INJURIES. 969
Boston & Worcester Eailroad Co., 15 Gray, 20. It has been ad-
judged by this court that if, in the exercise of his general discre»
tionary authority, he wrongfully ejects a passenger who has in fact
paid his fare ; or uses excessive and unjustifiable force in ejecting
a passenger who has not paid his fare, and injures him by a blow or
kick, or by compelling him to jump off while the train is in motion, —
in either case, the corporation is liable. Moore v. Fitchburg Rail-
road Co., Hewitt V. Swift, and Holmes v. "Wakefield above cited.
We are all of opinion that this case cannot be distinguished in
principle from those just mentioned. The use of unwarrantable
violence in attempting to collect fare of the plaintiff was as much
' within the scope of the conductor's employment as the exercise or
threa.t of unjustifiable force in ejecting a passenger from the cars.
Neither the corporation nor the conductor has any more lawful
authority to needlessly kick a passenger or make him jump from the
cars when in motion, than to wrest from the hands of a passenger
an article of apparel or personal use, for the purpose of compelling
the payment of fare. Either is an unlawful assault; but if com-
mitted in the exercise of the general power vested by the corpora-
tion in the conductor, the corporation as well as the conductor is
liable to the party injured. In Monument National Bank v. Globe
Works, 101 Mass. 59, Mr. Justice Hoar said, "No corporation is
empowered by its charter to commit an assault and battery; yet it
has frequently-been held accountable in this Commonwealth for one
committed by its servants."
! The ruling of the learned judge who presided at the trial, that if
the conductor, in seizing, or attempting to seize, articles of property
belonging to a passenger, for the purpose of thus enforcing the pay-
ment of fare, comnjitted an assault upon the passenger, the corpo-
ration was not responsible for such acts, was therefore erroneous.
Verdict set aside.
CHICAGO, ETC. K. CO. v. FLEXMAN.
103 111. 546. 1882.
Mb. Chief Justice Cbaig. This was an action brought by
James Elexman, against appellant, to recover damages for personal
injuries inflicted upon him while a passenger in appellant's cars, by
a brakeman in the employ of the company.
The plaintiff, as appears from the evidence, procured a ticket
from Hoopeston to Milford, and took passage on a freight train
which carried passengers. Soon after plaintiff entered the car he
laid down in a seat and went to sleep. When the train arrived at
Milford he was notified by the conductor. As plaintiff was about
970 CAEEIEKS OF PASSENGEES.
to leave the car he missed his watch, and supposed it had beeit
stolen. He then refused to leave the train until he recovered the
watch, and the conductor consented that he might remain on the
train until they should reach Watseka. After the train had started,
a passenger assisted plaintiff in making a partial search for the
watch, but it was not then found. The passenger then inquired of
plaintiff who he thought had his watch, to which he replied, " That,
fellow," pointing at the brakeman. Immediately after the remark
was made the brakeman struck plaintiff in the face with a railroad
lantern, inflicting the injuries complained of. These are substan-
tially the facts, over which there is no controversy by the parties.
After the plaintiff had introduced all his testimony, the defendant
entered a motion to exclude the evidence from the jury, and asked
for an order directing the jury to find a verdict for defendant. The
court denied the motion, and the defendant excepted. This de-
cision of the court presents the question whether the facts proven,
conceding them to be true, constitute a cause of action against the
defendant.
The point is made that as plaintiff only paid fare to Milford he
ought not to be regarded as a passenger on the train after he left
that place. We do not regard this position well taken. The con-
ductor did not deinand or require fare from the plaintiff; had he
done so, no doubt the required amount would have been paid. As-
the conductor failed to call for fare, it must be regarded as waived.
At all events, we have no hesitation in holding that the railroad
company occupied the same position towards plaintiff that it would
have occupied had he paid his fare.
But it is said, " that if the plaintiff' was injured by a servant of
appellant, it was an act outside of the employment of the servant
who committed the act, and not in furtherance of his employment
by the master." This position is predicated upon McManus v.
Cricket, 1 East, 106, and like cases which have followed it. In the
case cited Lord Kenyon said: "It is laid down by Holt, Ch. J., as
a general position, ' that no master is chargeable with the acts of his
servant but when he acts in the execution of the authority given
him. ' Now, when a servant quits sight of the object for which he
is employed, and without having in view his master's orders pursues
that which his own malice suggests, he no longer acts in pursuance
of the authority given him, and, according to the doctrine of Lord
Holt, his master will not be answerable for such act." The doc-
trine announced is no doubt correct when applied to a proper case.
If, for example, a conductor or brakeman in the employ of a rail-
road company should wilfully or maliciously assault a stranger, — •
a person to whom the railroad company owed no obligation what-
ever, — the master in such a case would not be liable for the act of
the servant; but when the same doctrine is invoked to control a
case where an assault has been made by the servant of the company-
LIABILITY FOE INJURIES. 971
upon a passenger on one of its trains, a different question is pre-
sented, — one which rests entirely upon a different principle.
What are the obligations and duties of a common carrier toward
its passengers? In Keokuk Northern Line Packet Co. v. True, 88
111. 608, it was held that a steamboat company , as a carrier of pas-
sengers for hire, is, through its ofl&oers and servants, bound to the
utmost practicable care and diligence to carry its passengers safely
to their place of destination, and to use all reasonably practicable
care and diligence to maintain among the crew of the boat, includ-
ing deck hands and roustabouts, such a degree of order and disci-
pline as may be requisite for the safety of its passengers. The
same rule that governs a steamboat company must also be applied
to a railroad company, as the duties and obligations resting upon
the two are the same, or any other company, which carries passen-
gers for hire. In Goddard v. Grand Trunk Ey. Co., 57 Me. 202, in
discussing this question, the court says: "The carrier's obligation
is to carry his passenger safely and properly, and' to treat him re-
spectfully; and if he intrust the performance of this duty to his
servants, the law holds him responsible for the manner in which
they execute the trust. . . . He must not only protect his passen-
gers against the violence and insults of strangers and co-passengers,
but, a fortiori, against the violence and insults of his own servants.
If this duty to the passenger is not performed, — if this protection is
not furnished, — but, on the contrary, the passenger is assaulted and
insulted through the negligence of the carrier's servant, the carrier
is necessarily responsible." In Bryant v. Rich, 106 Mass. 180,
where the plaintiff, a passenger on a steamboat, was assaulted and
injured by the steward and some of the table waiters, the defend-
ant, as a common carrier, was held liable for the injury. In
Craker v. Chicago and Northwestern Ey. Co., 36 Wis. 667, where
the conductor of a railroad train kissed a female passenger against
her will, the court, in an elaborate opinion, held the railroad com-
pany liable for compensatory damages. It is there said : " We can-
not think there is a question of the respondent's right to recover
against the appellant for a tort which was a breach of the contract
of carriage." In Shirley v. Billings, 8 Bush, 147, where a passenger
on defendant's boat was assaulted and injured by an officer on the
boat, the defendant was held liable. See, also, McKinley v. Chicago
and Northwestern R. E. Co., 44 Iowa, 314, and N. 0., St. L. and C.
E. E. Co. V. Burke, 53 Miss. 200. Many other authorities holding
the same doctrine might be cited, but we do not regard it necessary.
It is true there are authorities holding the opposite view, but we do
not think they declare the reason or logic of the law, and we are not
prepared to follow them.
The appellant was a common carrier of passengers. As such it
was not an insurer against any possible injury that a passenger
might receive while on the train, but the company was bound to
972 CABKIEES OF PASSENGERS.
furnish a safe track, cars, and machinery of the most approved
quality, and place the trains in the hands of skilful engineers and
competent managers, — the agents and servants were bound to be
qualified and competent for their several employments. Again,
the law required appellant, as a common carrier, to use all reason-
able exertion to protect its passengers from insult OT injury from
fellow-passengers who might be on the train, and if the agents of
appellant in charge of the train should fail to use reasonable dili-
gence to protect its passengers from injuries from strangers while
on board the train, the company would be liable. So, too, the con-
tract which existed between appellant as a common carrier and
appellee as a passenger was a guaranty on behalf of the carrier that
appellee should be protected against personal injury from the agents
or servants of appellant in charge of the train. The company placed
these men in charge of the train. It alone had the power of re-
moval, and justice demands that it should be held responsible for
their wrongful acts towards passengers while in charge of the train.
Any other rule might place the travelling public at the mercy of
any reckless employee a railroad company might see fit to employ,
and we are not inclined to establish a precedent which will impair
the personal security of a passenger.
We are of opinion that the evidence showed a legal cause of action
in plaintiff, and the court did not err in overruling the motion to
exclude the evidence from the jury. Two instructions given for the
plaintiff have been somewhat criticised, but we think they were in
the main correct.
The judgment will be afBrmed.
FICK V. CHICAGO, etc. E. CO.
68 Wis. 469. 1887.
Action to recover damages for injuries occasioned by an assault
upon the plaintiff by one of the defendant's employees. The com-
plaint alleges bhat the plaintiff applied at the station at Wilton for
a ticket to Norwalk, and handed to the person in the ticket office
fifty cents to take therefrom the price of the ticket, which was
twenty cents; that such person handed to him the proper ticket,
but only returned ten cents in change; that the plaintiff having
called attention to the mistake, the said agent or employee refused
to return the balance, came out of the ticket office in an angry man-
ner, and passed to the platform ; that the plaintiff again requested
such agent to return the change, and that thereupon the agent
assaulted and struck him.
LIABILITY FOE INJURIES. 973
Tlie answer alleged that the plaintiff with two or three compan-
ions, all grossly drunk, entered the station at Wilton and commenced
an assault upon one E. W. Davis, who was then and there engaged
in the business of mail carrier from the post-office at Wilton to the
trains of the defendant, and that the said Davis resisted as he law-
fully might. Otherwise the answer denies the allegations of the
complaint.
The jury returned a special verdict. The facts found therein
will sufficiently appear from the opinion. The jury also assessed
the plaintiff's damages at f 200. Both parties moved for judgment
on the special verdict. The motion of the plaintiif was granted,
and from the judgment entered accordingly, the defendant appealed.
Cole, C. J. The plaintiff had purchased a ticket at the ticket
office at Wilton, for his transportation to Norwalk, so the relation
of carrier and passenger existed at the time of the assault. It is
needless to say that the company and its agents owed him fair and
proper treatment while this relation existed. The jury found that
one Fred E. Davis was the station agent at Wilton when the ticket
was purchased; that Edward W. Davis was employed at Wilton to
carry the mail from the trains to the post-office, and was employed
in no other capacity ; that at the time in question the plaintiff pur-
chased of Edward W. Davis, temporarily in the ticket office at
Wilton, by permission of Ered E. Davis, a ticket to Norwalk, the
price of which was twenty cents, and tendered him fifty cents in
payment thereof; that Edward W. Davis returned to the plaintiff
too small an amount of change, and informed him that they had no
change and would either send it to him or hand it to him when he
came again; that Edward W. Davis committed the first assault
upon the plaintiff at this time ; and that the plaintiff was intoxicated.
Upon these simple facts the conduct of the employee, Edward W.
Davis, in assaulting the plaintiff, would appear to be wholly inde-
fensible and without any legal excuse. The plaintiff had given him
money to pay for his ticket, and he was entitled to have his correct
change returned. It was natural that he should ask for it and per-
sist in demanding it. The agent had no possible right or justifi-
cation for assaulting him because he did insist upon the correct
amount of change being returned. Of course, the defendant owed
the plaintiff the duty of treating him respectfully and properly.
Certainly it was bound to protect him against the violent acts or
misconduct of its agents. There would probably be no controversy
as to the correctness of this view of the law, or as to the liability of
the defendant for the wilful act of a servant while acting in the
course of his employment.
It is said that Edward W. Davis was not the station agent at
Wilton, but was merely employed to carry the mails from the trains
to the post-office, and was employed in no other capacity. But he
was in the ticket office, sold the plaintiff a ticket, and received pay
974 CAERIERS or PASSENGERS.
therefor. It is alleged in the complaint that the plaintifiE went to
the station for the purpose of taking passage on the train due in a
few minutes, and purchased a ticket of an employee in charge of
the office. Now, while it may be true that Edward W. Davis was
not the regular ticket agent, yet under the circumstances he must
be regarded as authorized to issue the ticket. The special verdict
finds that at this time the " fracas " occurred, or the unlawful assault
was committed. Now, to say that Edward W. Davis was a servant
of the defendant in selling the ticket and receiving pay for it, but
while in the act of refusing to return the proper change and in
making the assault, was acting outside the course of his employ-
ment, is refining too much upon the transaction. It is not as though
the fracas had occurred at a subsequent time and place disconnected
with the act of selling the ticket and making change. Of course,
the rule is familiar that the master is liable for the torts of his ser-
vant only when they are committed in the course of his employ-
ment, and we do not intend to disregard that rule here. It is often
difficult to determine what acts should be deemed within the course
of the employment; but it seems to us, upon the facts, that the
assault made upon the plaintiff is one for which the defendant is
liable. It would be unjust to hold that the defendant, which was.
bound to use all due diligence to carry the plaintiff safely to his
destination, was not bound to protect him against the violent act of
its servant under the circumstances of the case. True, the jury, in
answer to the fourteenth question, find that the striking of the
plaintiff by Edward W. Davis was not done by him in the course
of his employment. But this, in view of the other findings, amounts
only to a conclusion of law, and is not controlling as to the fact. It
is like the question presented in Hogan v. C, M. & St. P. R. Co.,.
59 Wis. 139, where it was held that, if the special findings by the
jury and the averments of the complaint conclusively show that the
defendant was free from any negligence causing the injury com-
plained of, a finding in the verdict that the defendant was guilty of
such negligence will be treated merely as an erroneous conclusion
of law, and will have no weight in determining what judgment
should be entered. So here, where the other findings show that
Edward W. Davis was acting in the course of his employment when
he committed the unlawful act complained of, the fourteenth finding
must be treated as an erroneous conclusion of law, which can have
no weight in determining what judgment shall be entered.*
1 That the carrier is not liable for assault on a passenger by an employee while
riding on the train not in the prosecution of his employment, see Penny v. At-
lantic Coast Line E. Co., 163 N. C. 296, 69 S. E. R. 238, 32 L.;^R. A. N. S. 1209.
LIABILITY FOR INJURIES. 975
c. Acts of fellow-jpassengers or others.
PUTNAM V. BROADWAY, etc. E. CO.
55 N. Y. 108. 1873.
Action by Ellen S. Putnam, as administratrix, against tlie Broad-
way and Seventh Avenue Eailroad Company to recover for the
death of Avery D. Putnam, plaintiff's intestate, who was killed by
William Foster, the deceased and Foster being at the time fellow-
passengers on defendant's street car.
It appeared that Putnam, in company with two ladies, was riding
in the car, when Poster, who was intoxicated, got on the car and
rode quietly on the front platform. He afterward went inside and
made insulting remarks and signs to the ladies. Putnam called the
conductor to keep "this man quiet." The conductor told Foster to
"sit down and be quiet," and went back to the rear platform.
Foster then threatened Putnam with violence, in a tone of voice so
low that the conductor did not hear. Foster went again upon the
front platform and remained quiet. When the car stopped to allow
Putnam and the ladies to leave, Foster seized the car hook, and
running to the- back platform, assaulted Putnam as he was assisting
his companions to alight, and struck him two blows, from the effects
of which Putnam subsequently died. Plaintiff obtained judgment,
which was affirmed at general term. The defendant appealed to
this court.
Allen, J. The questions presented upon this appeal are founded
upon exceptions to the refusal to nonsuit the plaintiff at the close
of the trial. If the evidence, upon any view that can be taken of
it, entitled the plaintiff to a verdict, the judgment must be affirmed.
The case was submitted to the jury with great fairness, and with
accurate instructions as to the law, if there was in truth any evi-
dence of neglect of duty, or want of care on the part of the servants
and agents of the defendant to which the injury to and death of the
plaintiff's intestate could legally be attributed.
The cases bearing upon the liability of railway companies, and
other carriers of human beings as passengers for hire, for any de-
fect in their roadways, carriages, and other vehicles of transporta-
tion, any neglect or want of care by themselves, their agents or
servants in the performance of the service undertaken, and for
injuries caused by or resulting directly from the acts of the carrier
or his servants, either to the passenger or third persons, may be laid
out of view, except as they serve to indicate the stringency and
extent of the liability imposed by law upon carriers, and the extreme
976 CAKRIEKS OF PASSENGEKS.
care and diligence required of them, in all that concerns their own
acts and the agencies and means employed by them. The acts,
neglects, and omissions complained of here, upon which the action is
based, do not come within either class of cases referred to. The
passenger was carried in a safe and proper manner, and there is no
complaint of injury from any defect in the means of conveyance, or
any act or omission of duty on the part of the servants of the com-
pany in respect to the plaintiff's intestate personally. The wrong
and injury complained of is the wanton and unprovoked as well as
unlooked-for attack of a fellow-passenger, resulting in the death of
the individual assailed, and the defendant is sought to be charged
for the resulting damages on the ground that the servants and agents
of the company, in charge of the car, negligently and improperly
omitted to exercise police powers with which they are invested for
the protection of well-disposed and peaceable passengers.
There is no such privity between a railway company and a pas-
senger as to make it liable for the wrongful acts of the passenger
upon any principle. Pittsburgh, F. W. & C. R. Co. v. Hinds, 53
Penn. St. 512 [981]. But a railroad company has the power of
refusing to receive as a passenger, or to expel any one who is drunk,
disorderly, or riotous, or who so demeans himself as to endanger the
safety or interfere with the reasonable comfort and convenience of
the other passengers, and may exert all necessary power and means
to eject from the cars any one so imperilling the safety, or annoying
others ; and this police power the conductor, or other servant of the
company in charge of the car or train, is bound to exercise with all
the means he can command, whenever occasion requires. If this
duty is neglected without good cause, and a passenger receives
injury, which might have been reasonably anticipated or naturally
expected, from one who is improperly received, or permitted to con-
tinue as a passenger, the carrier is responsible. Pittsburgh, F. W.
& C. R. Co. V. Hinds, supra ; Flint v. Norwich and N. T. Trans-
portation Co., 34 Conn. 554; 6 Blatch. C. C. 158. In the case first
cited, a passenger was seriously injured by a large body of drunken
and riotous persons, who came upon the train in defiance Of the
conductor in change; and the court in banc held that, upon the
evidence in that case, the only question which should have been
submitted to the jury was whether the conductor did all he could to
quell the riot and eject the rioters, and that if he did not the com-
pany was liable. The judge at nisi prius having submitted other
questions, to wit, whether the conductor allowed improper persons
on the train, and whether he allowed more persons on the train than
was proper, a verdict for the plaintiff was set aside, and a venire de
novo ordered. In the other case, the action was for an injury re-
ceived by the plaintiff, a passenger on the defendant's steamboat,
from the falling and consequent discharge of a loaded musket, by
one of a great number of riotous and drunken soldiers engaged in
LIABILITY FOR INJURIES. 977
an affray, and occupying a part of the boat assigned to passengers,
the plaintiff being suffered to enter the boat and pass to this part of
it without any warning from the officers of the boat, or others, of
the presence of these soldiers, and the defendants making no effort
to preserve the peace or remove the offenders. Upon conflicting
evidence the jury found for the plaintiff. Judge Shipman, in his
charge to the jury, instructed them that "the defendants were
bound to exercise the utmost vigilance in maintaining order, and
guarding the passengers against violence, from whatever source
arising, which might reasonably be anticipated, or naturally be
expected to occur in view of all the circumstances, and of the num-
ber and character of the persons on board." This, as a rule of duty
and liability, is in strict analogy and consistent with the rules by
which the liability of common carriers of persons for hire is deter-
mined in other cases, and seems to be well expressed and properly
limited. It may be conceded that Foster, the individual who in-
flicted the injury resulting in the death of the plaintiff's intestate,
was drunk when he came on the car; but so long as he remained
quietly by the driver on the platform, neither entering the car, nor
molesting or annoying the passengers in any way, there was no
occasion for removing him, and the conductor would not have been
justified in refusing to permit him to remain as a passenger. The
fact that an individual may have drank to excess will not, in every
case, justify his expulsion from a public conveyance. It is rather
the degree of intoxication, and its effects upon the individual, and
the fact that, by reason of the intoxication, he is dangerous or an-
noying to the other passengers, that gives the right or imposes the
duty of expulsion.
While Foster remained on the platform of the car, neither inter-
fering with or noticing the other passengers, there was nothing to
indicate to the conductor that his presence was offensive to the pas-
sengers, or that there was danger of harm to any one from him.
There was during that time no occasion, and would have been no
propriety, in causing his removal from the car. He did, however,
thereafter make himself peculiarly obnoxious to the other passen-
gers, and by his conduct and demeanor grossly insult and annoy
them, and gave occasion for the exercise of the power of removal,
had the conductor seen fit, or been called upon to exercise it; and
had he continued his annoying practices, the conductor would have
been faithless to his duty had he suffered him to remain on the car.
After Foster came into the car and insulted and intimidated the
females under the protection of the deceased, the latter appealed to
the conductor, not to exclude Foster from the car, but to make him
be quiet, and the conductor directed him to sit down and be quiet,
and he did thereupon take a seat on the opposite side of the car from
the females, and near the deceased, and after remaining there a
short time left the car, and took his place on the front platform, the
978 CAEKIEES OF PASSENGERS.
front door of the car being closed, and, during the residue of the
passage to Forty-sixth Sti'eet, gave no occasion of complaint, so far
as appears. He was during that time peaceable and inoffensive.
During this latter part of the ride there was no occasion for remov-
ing him from the car, unless the occasion and a necessity for such
removal was furnished by his previous conduct, showing that he
was a dangerous or improper person to remain. He had ceased to
address or in any way to insult or annoy the females, upon being
requested by the conductor to sit down and be quiet; and his ready
compliance with that request, and his taking his place soon there-
after on the platform, and proceeding quietly and peaceably on his
journey, was some evidence that there was no reason to apprehend
a renewal of his insults in that direction, and justified the conductor
in at least giving him the benefit of a further probation. This was
precisely in accord with the suggestion of the deceased; neither he
nor the conductor apprehending any serious harm or injury, cer-
tainly not a wanton and murderous attack upon any one with a
dangerous weapon. It is true, that on taking his seat, he did not
observe the strictest rules of propriety, and, by putting his feet on
the seat, violated good taste and good manners; but it was not an
offence of which the passengers could very seriously complain, or
which essentially violated their rights, so long as there was abun-
dant room for all, and there was no indecency in the position.
This breach of good manners certainly did not tend to show that he
was a dangerous man, and was condoned by his subsequent with-
drawal from the seat and the body of the car entirely. It is also in
evidence that, while seated near the deceased, he directed abusive
language to him, and made threats indicating an intent to do him
some bodily harm before he left the car. But all this was in an
undertone, and, so far as appears, was unheard by the conductor,
occupying his proper place on the rear platform, and neither the
deceased nor any one else called the attention of the conductor to it.
It was probably treated with indifference by the deceased and all
who heard it, and regarded as the maudlin and senseless gabble of
a drunken man, unworthy of notice, and incapable of creating any
apprehension of danger or harm. But be this as it may, there is no
evidence to justify an inference that the conductor did hear, or could
have heard or known of the abuse or threat, so that to him they
were not evidence that he was an unsafe and dangerous man, or that
there was any reason to apprehend injury to the other passengers
from him or his acts.
The conductor was only called upon to act upon improprieties or
offences witnessed by him, or made known to him in some other
way, and the defendants can only be charged for neglect of some
duty arising from circumstances of which the conductor was cog-
nizant, or of which he ought, in the discharge of his duties as con-
ductor, to have been cognizant.
LIABILITY FOR INJURIES. 979
There was no evidence tending to show that the conductor was
in fault for not removing the person of Foster from the car. He
«xerted his police powers by causing him to desist from his offen-
sive acts and approaches toward the females, and supposed that he
had done all that was necessary to preserve the peace and keep good
order upon the car, to secure the other passengers against further
annoyance, as well as all that the deceased asked him to do. If the
peace could be preserved and the quietness and comfort of the pas-
sengers could be secured, as he supposed he had done, without the
•expulsion of the offender, the conductor could hardly have been
■called upon to proceed to extremities and put the latter from the car
by force. An unnecessary resort to force, in ejecting a passenger
from the car, might have given the passengers, male as well as
female, more pain and annoyance than would the mere presence of
a drunken man, and possibly might have seriously imperilled their
persons. There was no evidence of any neglect of duty on the part
of the conductor in omitting to, remove the person of Foster from
the cars ; and whatever may be the duties or powers of the driver,
except as he is in subjection to the conductor, there is no evidence
that he had any notice or knowledge of any impropriety of conduct
or the threatening language on the part of Foster, except as. he must
have witnessed what passed before Foster entered the car. There
is no evidence that he had knowledge of what transpired within the
car; and after Foster's return to the platform there was nothing, so
far as appears, to excite alarm, or create apprehension of danger or
disturbance or annoyance of any kind. There was an entire absence
of evidence of any connection or complicity of the driver with
Foster, or that the driver was responsible for the possession by the
latter of the iron instrument with which the blows were inflicted
that caused the death of Putnam. There was no proof from whence
or of whom Foster obtained it, and none to show that the driver
either acquiesced in or assented to the taking of it by Foster, or
that he knew that Foster had it. There was no evidence of negli-
gence or omission of duty, or want of proper care and vigilance on
the part of the servants and agents of the company in preserving
order and keeping the peace on the cars, and protecting the passen-
gers, to be submitted to the jury; most certainly, none connected
with the attack upon and death of the intestate , or to which it can
be legally or logically traced. The rule cannot be better or more
€oncisely expressed than as stated by Judge Shipman in Flint v.
Norwich & N. Y. Transportation Co., supra: "That for any neglect
or omission of duty in the preservation of order and the removal of
dangerous and offensive persons by the owner of a public conveyance
for the transportation of passengers, or his servants or agents, the
oarrier is liable for any injury to other passengers which might
reasonably be anticipated, or naturally be expected to occur in view
of all the circumstances, and of the number and character of the
980 CAKEIERS OF PASSENGEKS.
persons on board." It does not follow and cannot be presumed that
because a man is drunk, and is, in that condition, offensive to others,
as well by his demeanor as in his appearance, that he is a dangerous
man, and that his presence imperils the safety of others ; that be-
cause he is drunk he may violently assault or murder others without
provocation.
If there was anything in the condition, conduct, appearance, or
manner of Foster from which the jury could reasonably infer that
there was reason to expect or anticipate an attack upon the deceased,
or any other passenger, either while upon the car or in the act of
leaving, the facts authoriziag such' inference should have been
proved, and knowledge of them brought home to the conductor.
The injury to and death of Mr. Putnam was immediately and directly
caused by the murderous attack of Foster, and the carriage of the
murderer by the defendant had no connection with and did not cause
the act or directly contribute to it.
It is said in McGrew v. Stone, 53 Penn. St. 436, that the general
rule is that a man is answerable for the consequences of a fault
which are natural and probable ; but if his fault happen to concur
with something extraordinary and not likely to be foreseen, he will
not be answerable.
Bovill, Ch. J., in Sharp v. Powell, L. K., 7 C. P. 253, uses this
language : " No doubt one who commits a wrongful act is responsible
for the ordinary consequences which are likely to result therefrom ;
but, generally speaking, he is not liable for damage which is not the
natural or ordinary consequence of such an act, unless it be shown
that he knows or has reasonable means of knowing that consequences
not usually resulting from the act are, by reason of some existing
cause, likely to intervene so as to occasion damage to a third per-
son." The law ordinarily looks only to the proximate cause of an
injury, in holding the wrong-doer liable to an action; and if the
damage is not the probable consequence of a wrongful act, it is not
the proximate cause, so as to make the wrong-doer liable. See
Marsden v. City and County Assurance Co., L. R., 1 C. P. 232;
Bigelow V. Reed, 61 Me. 325; Railroad Co. v. Reeves, 10 Wall. 17&
[398]. This is the rule in cases of tort, when the conduct of the
defendant cannot be considered so morally wrong or grossly negli-
gent as to give a right to vindictive or exemplary damages. Bald-
win V. U. S. Tel. Co., 45 N. Y. 744; s. c. 6 Am. R. 165; Boyle v.
Brandom, 13 M. & W. 738.
The assault by Foster upon the deceased could not have been fore-
seen, and it was not the reasonable or probable consequence of the
omission of the conductor to eject him from the car, and upon prin-
ciple as well as upon authority the injury was too remote to charge
the defendant for the damages. In Scott v. Shepherd, 2 W. Bl. 892,
Guille V. Swan, 19 Johns. 381, and Vandenburgh v. Truax, 4 Den.
464, the injuries were held to be the natural and direct result of the
LIABILITY FOR INJURIES. 981
3onduct of tlie party charged, although he did not intend the par-
ticular injury which followed.
There was no evidence to carry the case to the jury, and the motion
for a nonsuit should have been granted.
The judgment must be reversed, and a new trial granted.
PITTSBUEGH, TOET WAYNE & CHICAGO E.
CO'. V. HINDS.
53 Penn. St. 512. 1866.
This action was brought, December 5th, 1865, by Parker Hinds
and Martha Jane his wife, against The Pittsburgh, Fort Wayne &
Chicago Eailway Company, for injury to her whilst riding on the
defendant's train.
WooDWAKD, C. J. The action is for an injury sustained by the
plaintiff's wife whilst she was a passenger in the oars of the defend-
ants ; and what is peculiar in the case is the fact that the injury was
not occasioned by defective machinery, or cars or road, or by any-
thing that pertained properly to their business as transporters, but
was caused by the lighting of passengers among themselves.
Drunken aad quarrelsome men intruded into the ladies' car in great
numbers whilst the train stopped at Beaver Station, and in the dis-
graceful fight which ensued among them, the plaintiff's arm was
broken, and for this the railroad company is sued. Had the suit
been against the riotous men who did the mischief, the right of
recovery would have been undoubted, for it is not more the duty of
railroad companies to transport their passengers safely than it is the
duty of passengers to behave in a quiet and orderly manner. This
is a duty which passengers owe both to the company and to fellow-
passengers, and when one is injured by neglect of this duty the
wrong-doer should respond in damages. But in such a case is the
company liable ?
There is no such privity between the company and the disorderly
passenger as to make them liable on the principle of respondeat
superior. The only ground on which they can be charged is a vio-
lation of the contract they made with the injured party. They
undertook to carry the plaintiff safely, and so negligently performed
this contract that she was injured. This is the ground of her action
— it can rest upon no other. The negligence of the company, or of
their oificers in charge of the train, is the gist of the action, and so
It is laid in the declaration. And this question of negligence was
submitted to the jury in a manner of which the company have no
reason to complain. The only question for us as a Court of Error,
982 CAEKIEKS OF PASSENGERS.
therefore, is -whether the case was, upon the whole, one that ought
to have been submitted. The manner of the submission having been
unexceptionable, was there error in the/ae^ of submission?
The learned judge reduced the case to three propositions. He
said the plaintiff claims to recover —
1st. Because the evidence shows that the conductor did not do
his duty at Beaver Station, by allowing improper persons to get on
the cars.
2d. Because he allowed more persons than was proper under the
circumstances to get on the train, and to remain upon it.
3d. That he did not do what he could and ought to have done to
put a stop to the fighting upon the train, which resulted in the
plaintiff's injury.
As to the first of the above propositions the judge referred the
evidence to the jury, especially with a view to the question whether
the disorderly character of the men at Beaver Station had fallen
under the conductor's observation so as to induce a reasonable man
to apprehend danger to the safety of the passengers.
The evidence on this point was conflicting, but it must be assumed
that the verdict has established the conclusion that the conductor
knew that drunken men were getting into the cars. Let it be
granted also as a conclusion of law that a conductor is culpably neg-
ligent who admits drunken and quarrelsome men into a passenger
car. What then?
The case shows that an agricultural fair was in progress in the
vicinity of Beaver Station ; that an excited crowd assembled at the
station rushed upon the cars in such numbers as to defy the resist-
ing power at the disposal of the conductor; and that the man who
commenced the fight sprung upon the platform of the hindmost car
after they were in motion.
Of what consequence, then, was the fact that the conductor knew
these were improper passengers? It is not the case of a voluntary
reception of such passengers. If it were, there would be great
force in the point, for more improper conduct could scarcely be
imagined in the conductor of a train than voluntarily to receive and
introduce among quiet passengers, and particularly ladies, a mob of
drunken rowdies. But the case is that of a mob rushing with such
violence and in such numbers upon the 'cars as to overwhelm the
conductor as well as the passengers.
It is not the duty of railroad companies to furnish their trains
with a police force adequate to such emergencies. They are bound
to furnish men enough for the ordinary demands of transportation,
but they are not bound to anticipate or provide for such an unusual
occurrence as that under consideration.
When passengers purchase their tickets and take their seats they
know that the train is furnished with the proper hands for the con-
duct of the train, but not with a police force sufficient to quell mobs
LIABILITY rOR INJURIES. 983
■by the wayside. No such element enters into the implied contract.
It is one of the incidental risks which all who travel must take upon
themselves, and it is not reasonable that a passenger should throw
it upon the transporter.
These observations are equally applicable to the second proposi-
tion. The conductor did not " allow " improper numbers, no more
than improper characters, to get upon the cars. He says he took no
fare from them, and in no manner recognized them as passengers.
To allow undue numbers to enter a car is a great wrong, almost as
great as knowingly to introduce persons of improper character, and
in a suitable case we would not hesitate to chastise the practice
severely. But this is not a case in which the conductor had any
volition whatever in respect either of numbers or characters. He
was simply overmastered, and the only ground upon which the
plaintiff could charge negligence upon the company would be in not
furnishing the conductor with a counter force sufficient to repel the
intruders. This was not the ground assumed by the plaintiff, and
it would scarcely have been maintainable had it been assumed.
Taking the case as it is presented in the evidence, we think it was
error for the court to submit the cause to the jury on these two
grounds. But upon the third ground we think the cause was
properly submitted.
If the conductor did not do all he couM to stop the fighting there
was a negligence. Whilst a conductor is not provided with a force
sufficient to resist such a raid as was made upon the train in this
instance, he has, nevertheless, large powers at his disposal, and if
properly used, they are generally sufficient to preserve order within
the cars, and to expel disturbers of the peace. His official character
and position are a power. Then he may stop the train and call to
bis assistance the engineer, the fireman, all the brakemen, and such
passengers as are willing to lend a helping hand, and it must be a
very formidable mob, indeed, more formidable than we have reason
to believe had obtruded into these cars, that can resist such a force.
Until at least he has put forth the forces at his disposal, no con-
ductor has a right to abandon the scene of conflict. To keep his
train in motion and busy himself with collecting fares in forward
cars whilst a general fight was raging in the rearmost car, where the
lady passengers had been placed, was to fall far short of his duty.
Nor did his exhortation to the passengers to throw the fighters out
come up to the demands of the hour. He should have led the way,
and no doubt passengers and hands would have followed his lead.
He should have stopped t}ie train, and hewed a passage through the
intrusive mass until he had expelled the rioters, or have demon-
strated, by an earnest experiment, that the undertaking was
impossible.
Such are the impressions which this novel case has made upon our
minds. We think there was error in submitting the ease upon the
984 CAEKIEES OF PASSENGERS.
first two propositions, but none in submitting it on the third, and if
the record showed that the jury decided it upon this latter ground
the judgment could be affirmed. But, inasmuch as the error we find
upon the record may have infected the verdict, the judgment must
be reversed, and a venire faoias de novo awarded.
BATTON V. SOUTH AND NOKTH ALABAMA K. CO.
77 Ala. 591. 1884.
SoMBEViLLE, J, The action is one of novel impression for which
we nowhere find a precedent. It is a suit for damages against a
common carrier, a railroad company, instituted by a passenger for
the alleged negligence of the carrier in failing to protect the plain-
tiff, who was a female, and a single woman at the time of bringing
the suit, against the nuisance of indecent language and conduct of
certain unknown strangers, who proved disorderly in the presence
of the plaintiff, while she was seated in the ladies' waiting-room of
a railroad station belonging to the road line of the defendant com-
pany. No assault on the plaintiff is shown, but only vulgar and
profane language, and indecent exposure of person, and disorderly
conduct, on the part of two or three intruders, who are in no wise
connected with the defendant, as servants or agents.
It may be admitted that the plaintiff, Mrs. Batton, who, having
married since suit was brought, unites with her husband in this
action, was a passenger, inasmuch as she had purchased a ticket on
the road, and had entered the waiting-room at the station, not an
unreasonable length of time before the passenger train was due at
Calera, en route for the place of her destination, which is shown to
be the city of Birmingham. Wabash E. E. Co. v. Eector, 104 111.
296; Gordon v. Grand St. E. Co., 40 Barb. 546.
The nuisance complained of appears to have been an extraordi-
nary occurrence, and one of which no officer or agent of the defend-
ant company is shown to have been at the time cognizant, except a
colored employee, or porter, whose duties were confined to looking
after the baggage of the passengers.
The question thus presented is, whether it was the duty of the de-
fendant to keep on hand a police force at the station for the pro-
tection of passengers against the insults or disorderly violence of
strangers. If not, they would be guilty of no negligence which would
render them liable in damages for breach of duty. The broad propo-
sition is urged upon us, that it is the duty of railroad companies,
when acting as common carriers, to use the utmost care in protect-
ing passengers, and especially female passengers, not only from the
LIABILITY FOR INJURIES. 985
violence and rudeness of its own officers and agents, but also of
intruders who are strangers. We need not say that there may not
be certain circumstances under which the law would impose such a
duty. There are many well-considered cases which support this
view, but none of them fail to impose the qualification, that the
wrong or injury done the passenger by such strangers must have
been of such a character, and perpetrated under such circumstances,
as that it might reasonably have been anticipated, or naturally ex-
pected to occur. In Britton v. Atlanta & Charlotte Ey. Co., 88
N. C. 536; 18 Am. & Eng. E. Gas. 391; s. o. 43 Am. Rep. 748, the
rule is stated to be, that "the carrier owes to the passenger the duty
of protecting him from the violence and assaults of his fellow-pas-
sengers or intruders,, and will be held responsible for his own or his
servants.' neglect in this particular, when, by the exercise of proper
care, the acts of violence might have been foreseen and prevented,
and while not required to furnish a police force sufficient to over-
come all force, when unexpectedly and suddenly offered, it is his
duty to provide ready help, sufficient to protect the passenger from
assaults from every quarter which might reasonably be expected to
occur, under the circumstances of the case and the condition of the
parties." We may assume this to be the law for the purpose of this
decision, as it seems to be supported by authority. New Orleans
R. Co. V. Burke, 53 Miss. 200; Pittsburg E. Co. v. Hinds, 63 Penn.
St. 512 [981] ; Pittsburg E. Co. v. Pillow, 76 Penn. St. 510; Goddard
V. Grand Trunk E. Co., 57 Me. 202; s. c. 2 Am.Eep. 39; Cooley,
Torts, 644, 645; Nieto v. Clark, i Cliff. 145; Putnam v. Broadway
R. Co., 55 N. Y. 108; s. o. 14 Am. Eep. 190.
In the case of the Pittsburg Ey. Co. v. Hinds, 53 Penn. St. 512
[981], the plaintiff, who was a passenger, sued the defendant company
for an injury received by her at the hands of a mob, who, defying the
power of the conductor, entered the cars at a wayside station, and
commenced an affray, which resulted in an injury to the plaintiff.
It was held not to be the duty of the railroad companies to furnish
their trains with a police force adequate to such emergencies, the
court observing that " they are bound to furnish men enough for the
ordinary demands of transportation, but they are not bound to anti-
cipate or provide for such an unusual occurrence as that under con-
sideration.'' "It is one of the accidental risks," said Woodward,
C. J., "which all who travel must take upon themselves, and
it is not reasonable that a passenger should throw it upon the
transporter."
It cannot be said that this duty of carriers , to take due care for
the comfort and safety of papsengers, is to be confined to the man-
agement of their trains and cars; for the better view is, that it
extends also in a measure to what has been termed "subsidiary
arrangements." 2 Eorer, Railr. 951. They are bound to keep their
stations in proper repair, and sufficiently lighted, and to provide
986 CAEEIBES OF PASSENGBKS.
reasonable accommodations for the passengers who are invited and
expected to travel their roads. Knight v. Portland K. Co. , 56 Me.
234; McDonald v. Chicago R. Co., 26 Iowa, 124. The measure of
duty is admitted by all the authorities, however, not to be so great,
as it is after a passenger has boarded the train, for reasons of a
manifest nature. Bait. & Ohio E. Co. v. Schwindling, 101 Penn.
St. 268; s. 0. 47Am. Rep. 706; 8 Am. & Eng. R. Cas. 552, note.
We do not think that there is any duty to police station-houses,
with the view of anticipating violence to passengers, which there
are no reasonable grounds to expect. This is as far as the case re-
quires us to go. The liability of a common carrier, when receiving:
a passenger at a station for transportation, ought not to be greater
than that of an innkeeper, who is never held liable for trespasses-
committed ordinarily by strangers upon the person of his guests.
2 Kent, Com. 593*. There is nothing tending to prove that the-
company had notice of any facts which justified the expectation of
such a wanton and unusual outrage to passengers. Their contract,
of safe carriage imposed upon the company no implied obligation to-
furnish a police force for the protection of passengers against such
insults. It is shown neither to be commonly necessary nor cus-
tomary. _ It was a risk which was incidental to one's presence any-
where when travelling without a protector, and it was the plaintiff's-
risk, not the defendant's.
We discovered no error in the ruling of the court, and the judg-
ment must be affirmed.
d. Contributory Negligence.
ILLINOIS CENTRAL E. CO. v. GREEN.
81 111. 19. 1875.
Sheldon, J. This was an action on the case, for personal injury
to appellee whilst a passenger on the cars of appellant.
The appellee took the cars of appellant at Odin, in this State,
going south, at about 9 o'clock in the evening of May 25, 1870. He-
was going to a place about seven miles east of Mt. Vernon, and took
a ticket to Ashley, which is some five miles north of Little Muddy
Bridge. The accident occurred in getting off the train at this bridge.
There was no station there, but there was a water-tank, and it wa&
a regular stopping-place for supplying water to the engines, and for
no other purpose.
Appellee's account of the affair is substantially as follows : That
the conductor on the train took his ticket between Odin and Cen-
tralia; that he objected to the conductor taking his ticket, because
LIABILITY FOE INJURIES. 987
appellee was a stranger on the road, and wanted to know when he
arrived at Ashley ; that the conductor said to him, " Give yourself
no uneasiness; we always see that our passengers are put off at their
regular stations ; " that they stopped at Centralia, and remained
there awhile ; that Centralia is fourteen miles from Ashley ; that he
went to sleep, and remained so until he heard the locomotive whistle
and the station called out of Irvington, which was seven and one-
half miles from Ashley ; that it was four miles from Irvington to
Eichview; that Irvington and Eichview were the only stations be-
tween Centralia and Ashley; that after leaving Irvington he went
to sleep again ; that he heard the whistle, and no station announced,
and then when the cars travelled along again he supposed they were
going down grade, which he took to be a grade from Ashley to Eich-
view, and he began to think he was reaching his station, and he in-
quired if they were coming to Ashley, and the response was, by
passengers on the cars, that they had passed Ashley and were coming
to the next station ; that when the cars became about still he stood
up in his seat and looked back, and asked the passengers if they
saw anything of the conductor on the car, and they remarked they
did not; that he felt that he had been neglected, and went to the
door, and, finding it unlocked, turned around and said, " Gentlemen,
this is right, I suppose," and, being answered in the affirmative, he
then opened the door and went out on the platform; a light was
shining on the platform, but there was no brakeman there ; that he
put out his foot to reach the platform, if he could, and there being
no platform as he expected, it gave him a jerk and pulled both feet
off the car, and left him hanging by one hand; his weight pulled
him loose, and he fell and received the injury; that it was between
10 and 11 o'clock at night when he arrived at Little Muddy Bridge,
and was quite dark. In falling, appellee did not strike anything
till he struck the ground under the bridge, a distance of some thirty
feet. He said he knew he was not at Ashley before he went out of
the car.
There was further testimony that the train, at the time, between
Odin and Centralia, was under the charge of Conductor Gilman.
Gilman testified that he could not remember having any conversa-
tion with any passenger on that train, and says if a passenger got
on at Odin with a ticket for Ashley he would punch the ticket and
hand it back. The train at Centralia was handed over by Gilman
to Conductor Morgan, who says that the train consisted of a sleeping-
coach, a ladies' car, a gentlemen's car, a second-class and baggage
car combined, and an express car. On leaving Centralia, he says,
he went through the train and took up all tickets to local points as
far south as Du Quoin. The train was large, and stopped at all
regular stations. The stations were called. That is the brake-
man's business, although he did it also. That night one brakeman
was stationed between the sleeping-coach and ladies' car. He
988 CAEKIERS OP PASSENGERS.
would call the stations on both of these cars. The other brakeman
was between the baggage car and the next car to it, — the gentle-
men's car. Thus located, all the brakes of the four cars were under
the control of the two brakemen. The train stopped at Little Muddy
Creek that night to take water. The bridge is for trains to pass on.
The train stands partly on the bridge while they take water. No
station there, and no platform. Bridge never used except for cars.
No light there that night when the train stopped. Several passen-
gers got off at Ashley that night, among them women and children,
and were attended to by the conductor. That the general custom of
railroads is to notify passengers of the stations by calling out the
names of the stations as they are reached.
Thomas Winters was the brakeman stationed that night between
the baggage car and the gentlemen's car. He testifies that he called
the station as the train arrived at Ashley on the night of the acci-
dent. He remembers it from the fact that Morgan, the conductor,
the next day asked him if he had called that station, and he then
remembered that he had.
A Mr. Turlay of Centralia, who was on the train, states that he
saw a passenger get up and walk out of the rear door of the car- at
Little Muddy Bridge, and he supposed that he was going into the
ladies' car on account of the annoyance occasioned to him by the
conversation of a party of four persons who were sitting opposite to
him, Mr. Turlay being one of the number; that the man never asked
any question of any one, so far as he heard.
We are of opinion the evidence in this case discloses no cause of
action.
It is said there was negligence in carrying the appellee past his
station.
Conceding all that is claimed in that respect, appellee would not,
for such cause, be justified in jumping off the train, or otherwise
needlessly exposing himself to injury, and then claim the liability
of appellant for the injury he might receive in consequence. The
injury here received had no proper connection with being carried
past a destined station, and for such act appellant cannot be held
responsible for any such remote and unnatural consequence thereof
as the injury here sued for.
It is then insisted that the stoppage of a passenger car at such a
place as the one in question, without some precaution to notify pas-
sengers of danger, was an act of gross negligence.
But why notify passengers of danger? It was a stopping-place
for getting water, not for passengers. The bridge was. intended
solely for the passage of cars, not for the alighting of passengers
upon it. The place for the passenger here was inside, not outside
of the car. The train and the appellee in his proper place inside
the car were as safe upon the bridge as they would have been any-
where away from it. The fact that the cars were upon the bridge
LIABILITY FOK INJURIES , 989
in,Tolved no danger ar risk to the passenger, so long as he remained
in his right place, within the car.
There was a right to presume that the passenger would keep in
his place inside the car. It was not to be anticipated that he would
be getting off the car where he had no business to do so, and that
there was any necessity for providing against it.
It cannot be said that there was any invitation to appellee to alight
where he did. The mere stopping of the train is not to be so
regarded.
It may be inferred, from appellee's testimony, that he heard the
whistle at the bridge. If so, it was not a signal of approach to a
station. The testimony of the conductor on that head was : " They
[brakemen] know where the tank is, and the engineer does not
whistle in coming to it, with the exception that, once in a while,
when the engineer sees the train is going by the tank, he will then
give a little toot — whistle down brakes; don't know whether he
whistled that night or not. There is a fixed whistle for down
brakes, one short whistle, and is used on all portions of the line.
They use the same whistle when they want to stop, except at regu-
lar stations they whistle a long whistle, and don't whistle any stop
whistle at all. This short toot is used to apply the brakes between
stations, where there is danger, when you want the train to stop at
an irregular place where there is danger, or anything on the track,
but in stopping regularly we don't use that at all."
Appellee testified that he was accustomed to travel on railways.
He was not justified in taking the whistle as notice of approaching
a station. Any encouragement to get off, which, according to his
testimony, he might have received from any passenger of course is
not to be imputed to the company as in any way its act. Appellee
getting off the car where he did was an entirely uncalled for and
voluntary act of his own', uninvited and unencouraged by any one in
the management of the train, and he took the risk of the conse-
quence. The act of thus getting off in the darkness of night, at an
unknown and dangerous place, was one of gross carelessness,
whereby appellee exposed himself to the injury which he received.
The harm which one brings upon himself he is to be considered as
not having received. So far as his relations to others are concerned,
such harm is uncaused. Chicago & Alton Eailroad Company v.
Becker, 76 111. 31.
Had appellee used ordinary prudence, the casualty would not have
happened. Having failed in this, the company ought not to be
liable. Chicago & Northwestern Railway Co. v. Sweeney, 52 111.
331. And see Chicago & Alton Railroad Co. v. Gretzner, 46 id. 75 ;
Chicago, Burlington & Quincy Railroad Co. v. Van Patten, 64 id.
611; Chicago Rock Island & Pacific Railroad Co. v. Bell, 70 id.
103; Todd v. Old Colony, etc., Railroad Co., 3 Allen, 18; Louis-
ville and Nashville Railroad Co. v. Sickings, 5 Bush, 1 ; Pittsburg
990 CARRIERS OF PASSENGERS.
& Connellsviile Eailroad Co. v. Andrews, 39 Md. 329; 2 Eedf. Am.
Railway Cases, 552, in note to McClurg's case; The Indianapolis^
etc., Eailroad Co. v. Eutherford, 29 Ind. 82.
It is a requisite to the liability of a railway company, as a pas-
senger carrier, that the passenger should not have been guilty of
any want of ordinary care and prudence which directly contributed
to the injury. 2 Eedfield on Eailways, 224, 236.
The judgment must be reversed, there being no cause of action
under the evidence.
MOEEISON V. ERIE E. CO.
56 N. Y. 302. 1874.
Appeal from judgment of the General Term of the Supreme Court
in the fourth judicial department, in favor of plaintifE, entered upon
an order denying motion for a new trial and directing judgment on
a verdict.
This action was brought to recover damages for injuries sustained
by plaintifE while leaving a car on defendant's road at Niagara
Ealls.
Plaintiff was twelve years of age, and was in the company and
care of her parents. They were passengers on defendant's car from
Buffalo to Niagara Falls. Before the train reached the latter
station, the conductor called out the name of the station. The car
stopped, plaintiff and her parents arose from their seats, gathered
up their packages and stepped out into the passage-way between the
seats, but before they had passed out of the car the train started
and moved slowly by the station. The party knew the train was
in motion while yet inside the car; they passed out upon the plat-
form of the car. The train had passed beyond the stationary plat-
form of the depot. It was evening and was dark. Mr. Morrison
took plaintiff under his right arm, and, taking hold of the iron rod
at the rear end of the platform with his left hand, stepped from the
car; he fell, and plaintiff's foot was crushed by the car .wheels.
IHirther facts appear in the opinion.
At the close of plaintiff's evidence and also of the entire evidence
defendant's ijounsel moved for a nonsuit, which was denied, and de-
fendant excepted.
The court instructed the jury among other things, that the plain-
tiff had a right to leave if the cars were under motion, and he knew
it, if he exercised ordinary care under the circumstances in doing so.
The defendant's counsel excepted to this instruction.
The defendant's counsel requested the court to instruct the jury,
that if they, from the evidence, found the father had the care.
LIABILITY FOK INJURIES. 991
custody, and control of the plaintiff, as his child, and the cars were
under motion , and he knew it when he took her under his arm to go
out of the car, and when the ears were thus under motion, his duty
was not to undertake to get off. The court declined except as quali-
fied, that the father was bound to use ordinary care in removing
her from the train. Defendant's counsel excepted.
Defendant's counsel further requested the court to charge, that if
the jury found that the father, under the circumstances stated in the
last request, undertook to get off from the cars while they were to
his knowledge under motion, and his so doing contributed to the
injury, plaintiff cannot recover. The court declined so to charge, and
plaintiff excepted.
The jury found a verdict for plaintiff. Exceptions were ordered
to be heard at first instance at General Term.
FoLGEE, J. The plaintiff was a paying passenger upon the cars
of the defendant, and it owed her the duty of taking her up, carry-
ing her, and setting her down safely, so far as it was concerned
therein.
There was testimony in the case, at every stage of the trial, upon
which the jury had a right to rely ; and relying upon which they
had a right to find, that the train on which she was, did not stop at
the station, at which she was to be set down, long enough for her to
alight with ease and safety. Hence, the plaintiff made out so
much of her case as consisted in showing that the defendant was
negligent in its duty toward her.
There are undisputed facts in the case, however, which raise other
important questions.
As the train approached the station at which she was to be set
down, the conductor called out the name of it and then the train
stopped. This was a notice and an invitation for her to get out.
It was further noticed that it was time to alight, and that time
enough would be given therefor. The plaintiff and her parents , in
whose care she was, prepared to do so, gathered their packages, and
were on their feet in the passage-way between the seats. Up to
this time it cannot be said that either party was lacking in due care.
Before they got outside of the ear, however, the train started
sharply, and moved slowly by the station. In this, as before said,
was the negligence of the defendant. The plaintiff, her father and
her mother, while they were yet inside the ear, knew that the train
was moving; as she was of tender years and immediately under
their care and control, their acts and conduct were her acts and eon-
duct,, and she is to be judged thereby. The train still moving, they
passed out of the car on to its platform. It was evening and was
dark. The train had passed away from the stationary platform,
built at the side of the track , and on a level, or nearly so, with the
platform of the ear. To reach the earth from the latter, a person
must go down from off the steps thereof, still lower, on to the
992 OAEEIEES OF PASSENGERS.
ground. He must for a space of time be in the air, without support
either by hand or foot; he must, in fact, fall or drop from the mov-
ing train to the ground, with the momentum downward of his-
weight, and the momentum forward, got from the motion of the car,
these two not in accord. This the father of the plaintiff undertook
to do; not only with his own weight making the descent alone, but-
holding the body of the plaintiff under one of his arms, having but
the other to sustain and guide himself, thus laden; holding fast
with his other hand to the railing of the car. He did this aware
that there was danger in it. It was because he knew that it was
dangerous that he would not let the plaintiff undertake it alone, by
reason of the train being in motion. He was not directed nor ad-
vised to attempt thus to alight; on the contrary, he was told not to;
though he had then got so far in it as to have lost his balance, to be
unable to recover himself and retake his steps. He fell, still hold-
ing the plaintiff, and she was injured. Upon this state of facts, the
defendant, by motion for nonsuit, and by exceptions to the charge
given and to the refusals to charge, presents the question whether
the plaintiff is chargeable with negligence contributory to the acci-
dent. The learned counsel for the defendant claims that the facts-
are such, as that as a matter of law, contributory negligence is.
shown, and that there was not a question of fact for the jury. He
insisted that as a matter of law, it is always negligence and want of
ordinary care for a person to attempt to get from off a car when it
is in motion. Were I disposed to accede to this proposition upon
principle, which I am not, I should feel myself precluded by prior
decisions of this court, and influenced to a contrary conclusion by
those of other courts. Filer v. N. Y. C. E. E. , 49 N. Y. 47 [995],
and cases cited; Penn. E. E. Co. v. Kilgore, 32 Penn. St. 292. The
rule established, and as I think the true one is, that all the circum-
stances of each case must,be considered, in determining whether in
that case, there was contributory negligence or want of ordinary
care, and that it is not sound to select one prominent and important
fact, which may occur in many cases, and to say, that being present,
there must, as matter of law, have been contributory negligence.
The circumstances vary infinitely, and always affect and more or
less control each other. Each must be duly weighed, and relatively
considered, before the weight to be given to it is known. This is
not to say, however, that in every case it is a question for the jury
of fact, or of fact and of law to be given to the jury with instruc-
tions. Where the facts are undisputed, the question of contributory
negligence may become one of law, as the other questions which
arise upon a trial, and are submitted to the decisions of the court on
a motion for a nonsuit or otherwise. In this case there are certain
facts as to which there is and can be no dispute; and they are of
such character and weight that it is for the court to say whether
there is room for doubt or query, but that there was a complete
LIABILITY FOE INJURIES. 993
absence of that care and prudence, without which, in the direction
of conduct, there is negligence. I am aware that it has been held
more than once in this court, and more than once in other courts,
that though an injury has been received by a passenger in alighting
or passing from a car while it is in motion, yet it was a question
for the jury to answer, whether there was a lack of ordinary care
under all of the circumstances. Mclntyre v. N. Y. C. E. E., 37
N. Y. 287; 49 id. supra, and cases cited. In those cases, the pas-
senger was not left alone, to his own judgment and discretion. A
direction or notification of some employee of the defendant, having
authority or place upon the train, came in to influence the mind of
the passenger, to remove apprehension of danger, to induce a sense
of safety in action, and a failure to exercise the prudence which the
occasion demanded ; and it was as if the defendant had assumed the
control and responsibility of the act ; and so, there being no respon-
sible volition by the passenger, there was no damnifying negligence.
And there it was under the pressure of these affecting and control-
ling circumstances in the case, that the question was left to the
jury to determine whether there was a failure to exert ordinary care
and prudence. So in Foy v. L. B. & So. C. E. Co., 18 Com. Ben.
[N.S.], 225, the porter of the defendant directed the alighting of
the passenger where there was no platform. And that stress is to
be laid upon this circumstance is shown by the judgment in Siner
V. G. W. E. Co., L. E. [3 Exch.], 150; affirmed [Exch. Ch.], 4 id.
117. Though in Penn. E. E. Co. v. Kilgore, 32 Penn. St. 232,
there was no such fact, yet there were facts which made the case
quite unlike that here, and so characterized it as to render it appro-
priate to commit it to a jury. There, the passenger was a woman
in feeble health, in a strange place, with her three young children
in her charge. At dusk the train had stopped at the station to
which she had taken passage. She and her children had left their
seats and passed out while the train was at a stand-still ; two of the
young folks had passed off; she was on the steps of the car with the
other; by the starting of the cars, that one was thrown prone upon
the station platform ; at the instant she leaped upon that platform
and was hurt. It was a matter of impulse, not of thought, discre-
tion, and prudence, and plainly quite different from that in the case
at hand. It is significant, too, that in the charge in that case ex-
ceptions to which brought up the case for review, the court said:
" If the plaintiff had been in the car, or on the platform, when the
train had started or was in motion, and was in a situation to choose
between getting off or remaining on, ancj with a full consciousness
of her danger, with foolish rashness, persisted in leaving the car in
defiance of warning to the contrary, we would be compelled to tell
you, as matter of law, that she could not recover." It is plain that
there was quite a different state of facts in this case from that in
Kilgore's case and other cases above cited. Here, the plaintiff, or
994 CAKfilEKS OF PASSENGERS.
which is the S3,me thing, her father, was not influenced by the com-
mand or direction of an employee of superior experience and prac-
tical judgment; he was not obliged to choose one of two courses,
one of which might endanger himself or the plaintiff, and the other
might expose others in his charge to want of care and protection;
nor was he obliged to choose suddenly; he had time for thought,
within the car and on the way out to the steps of it; he knew that
the train was in motion before he left the inside of the car, or
essayed to get down ; he not only knew that, but was then in full
consciousness of the fact that there was danger in the attempt, for
he would not suffer the child to undertake it by herself ; and on the
other hand, that there was at the most no danger, but only incon-
venience in remaining on the train; knowing that there was danger
in the attempt by one person, he doubled it or added to it, by load-
ing himself with the weight of his child, and in such wise as to
deprive himself of the use, in the attempt, of one arm and one hand;
he did not make the attempt when he had a structure to step out
upon, level with that which he must leave, but, when obliged, as he
knew, to let himself fall to the ground, through some space, with-
out support from anything during the lapse, and with no guidance
save the momentum of the drop and of that got from the forward
motion of the car, — forces acting at variance from each other, and
neither tending to steadiness and uprightness of position. All of
this was no result of impulse, or choice suddenly compelled. There
was time for prudent choice, and correct apprehension of all the
circumstances.
Now, it is certain that but for the attempt of the plaintiff's
father then to get down from out the car she would not have been
injured as she was. His act, which was her act, in thus attempt-
ing, did contribute to the accident. Was it a faulty act in him?
If it was, then it was such contributory negligence as relieves the
defendant from liability to her, for their negligence toward her.
It was faulty in him, if it was such an act as would not have been
done by one exercising the care for his person, which men of ordi-
nary care and prudence for their safety and well-being are accus-
tomed to employ under the same or like circumstances. Can it be
said that a person of ordinary prudence and care would have swung
himself from a car in motion down to the ground in the dark, laden
with the weight of a child twelve years old, having but one hand
and one arm to aid himself with, when there was no other danger
to be avoided by meeting this, and no incentive to the act, other
than the inconvenience of being carried by his place of abode, and
with a full apprehension of the danger he was about to run? I
think not. And I am of the opinion that it is so clear that the
law'and the court should have given the answer without calling in
the aid of a jury. Lucas v. N. B. & T. R. E. Co., 6 Gray, 64, is,
in principle, in support of the foregoing; as is also Phillips v.
LIABILITY FOB INJUKIES. 995
Eens. & Sar. E. E. Co., 49 K. Y. 177. And see also Nichols v.
Sixth Av. R. E. Co., 38 IST. Y. 131.
The judgment should be reversed and a new trial ordered, with
oosts to abide the event.
All concur except Chuech, Ch. J,, and Andrews, J., dissenting.
FILER V. NEW YORK CENTRAL R, CO.
59 N. Y. 351. 1874.
Appeal from judgment of the General Term of the Supreme^
Court, in the fourth judicial department, affirming a judgment in ,
favor of plaintiff, entered upon a verdict. 3
This action was brought to recover damages for injuries received
by plaintiff, while getting off a train on defendant's road, alleged
to have been occasioned by defendant's negligende.
Plaintiff took passage at Rochester for Eort Plain, where she
arrived about 3 a. m. The brakeman called out the name of the
station; the cars moved slowly, but did not stop. Plaintiff went
•out on the platform, and, while waiting, some one told her that she
had better get off, as the train was not going to halt any more. As
to who this person was, the evidence was conflicting, plaintiff's
-evidence tending to show it was a brakeman, defendant's, that it
was not a person employed on the train but a passenger. Plaintiff
attempted to alight, her clothing caught on the step, and she was
thrown down and injured. In regard to the advice or direction
given tocher, the court charged that he did not see that it would
make any difierence whether it was a brakeman or any other person,
but the question was: "Was it prudent for her, acting under the
advice thus given to her by anybody, to alight from that train?"
To which defendant's counsel duly excepted.
Gkovek, J. This case has been before this court upon a previous
•occasion, when the questions presented were nearly all determined.
49 N. Y. 47; see, also, William Filer v. N. Y. C. R. E. Co., id.
42. Some of the questions were, upon the present trial, presented
in an aspect somewhat different, but not so varying the legal prin-
ciple, applicable thereto, as to require further discussion. Upon
the last trial, an additional question was presented. The evidence
showed that the injury sustained by the plaintiff was caused by her
getting off the cars while in motion, and it was insisted, by the
counsel for the defendant, that this was contributory negligence,
on her part, such as to preclude her recovery. To meet this objec-
tion, the plaintiff gave evidence tending to show that she was told
hy the brakeman to get off where and when she did, but the evi-
996 CAKKIEBS OF PASSENGEK3.
deuce was conflicting as to whether this direction to her was given
by the brakeman or some other person having no connection with
the management of the train or anything to do with it except as
passengers. Upon this point the judge charged the jury, in sub-
stance, that it was immaterial, and did not make any difference
whether such direction was given by the brakeman or any other
person ; that it was for them to determine whether she was guilty
of negligence in getting off after having received such direction
from any one. I think this was error. The employees upon a
train, including brakemen, are in the line of their duty in assisting
passengers in getting on and off the train, and in directing them in
procuring seats. Passengers rightly assume that these persons are
familiar with all the movements of the train, and know whether
they can, under the particular circumstances, get on or off, or move
upon the train with safety. When the conductor or brakemap
directs a passenger to get off the train, although in motion, such
passenger will naturally assume that he knows it is entirely safe,
or he would not give the direction. See cases cited in opinions in
above cases. Not so in case the direction is given by one having
no connection with the train, other than a passenger. As to such
a person, there is no reason to suppose that he knows anything
more about whether it is safe to follow his direction than the one
to whom it is given.
For the above error in the charge, the judgment must be reversed^
and a new trial ordered, costs to abide event.
BUEL V. NEW YORK CENTEAL R. CO.
31 N. Y. 314. 1865.
Appeal from judgment of the Supreme Court. The action was to
recover damages for injuries received by the plaintiff, while a pas-
senger on the defendant's railroad, in October, 1867, by a collision
of trains on the route between Rochester and Batavia.
The cause was tried at the Genesee Circuit, in November, 1858,.
before Mr. Justice Davis and a jury. It appeared from the evi-
dence that on the evening of the 9th of October, 1857, the plaintiff
was a passenger on a train of cars of the defendant's passing west
from Rochester through Bergen, between Rochester and Batavia.
He occupied a seat in the second passenger car, near the centre, and:
upon the south side. Upon reaching Bergen the train was run on
a switch, where it remained fifteen minu,tes waiting for a train due
there from the west. It then started west, and had proceeded but a
short distance when the train from the west was discovered coming.
LIABILITY FOR INJURIES. 997
at the speed of about twenty-five miles an hour. The engine at-
tached to the train on which the plaintiff was, was reversed, but
not in time to enable it to be backed wholly down on the switch,
and avoid a collision. The collision occurred driving the cars of
one of the trains from forty to sixty rods over the ties, killing at
least one man on the down train, jamming up the train going west,
and breaking off some of the platforms of its cars.
The plaintiff had remained in his seat all the time the train was
at Bergen. He sat facing the engine, by a window that was open.
When his train stopped, and commenced backing down, he looked
out of the window and saw the approaching train, and men jumping
from the cars. He left his seat, and hurried to the forward door of
the car as fast as he could to escape. As he opened the door, and
set his right foot on the platform, the collision occurred. He was
thrown forward and partially stunned ; he tried to get up, but could
not use his right leg; it was broken in four places below the knee,
and his ankle and knee were bruised. .....
The car in which the plaintiff was seated at the time of the acci-
dent was about two-thirds full of passengers. There seems not to
have been an unusual commotion in this car at the time of the col-
lision, and those who remained in their seats were uninjured.
Wright, J. It is .not now claimed, as it was on the motion for a
nonsuit, that the evidence failed to show negligence on the part of
the defendants. Indeed, a grosser case of careless conduct is seldom
presented to a court and jury. The train in which the plaintiff was
a passenger had been run on the switch at Bergen, to await a traiik
from the west which was due there. After waiting some fifteen
minutes the train was irregularly started, the conductor getting on
the engine. It was a dark and foggy night. The train had pro-
ceeded some forty rods when the western train was seen approach-
ing at a rate of speed of about twenty-five miles to the hour. An
effort was made, by breaking up and reversing the engine, to get
the up train back on the switch, but before this could be effected a
collision of the trains occurred. The case then was, that, on a dark
and foggy night, trains of the defendants running in opposite direc-
tions, out of time, and one of them, at least, at an unusual rate of
speed, near a station, run into each other, occasioning destruction
of property and perilling the lives of the passengers. No casualty
can occur on a railroad which manifests grosser carelessness than a
collision of trains which are running towards each other, out of
time, and at a rate of speed which prevents their being stopped in
season. And that was just this case.
But it is insisted that, although the defendants' negligence caused
the injury complained of, the plaintiff should have been nonsuited,
because his careless conduct contributed to produce it. The mis-
conduct alluded to iS; that, upon seeing the approaching train and-
998 CAEEIEKS OF PASSKNGEKS.
men jumping from other cars to avoid tlie impending danger, he left
his seat and rushed to the forward door of the car with the view of
escaping himself, and had stepped one foot upon the platform at the
instant of the collision. This, it is said, was such negligence as to
have required the court to nonsuit the plaintiff. That is, as a
matter of law, a passenger in a railroad car, who sees that he is
placed in peril by the culpable conduct of the managers of the road,
and judges correctly that a collision is inevitable, is guilty of a
wrong if he does not control the instinct of self-preservation, and
sit still, and take, the chances of safety. This is not the law. See-
ing the danger in which he was placed, the plaintiff was justifiable
in seeking to escape injury by leaving the car. His act was not the
result of a rash apprehension of danger that did not exist. By the
merest chance, the passengers in the same ear with liim, and who
did not, like him, see the approaching collision, and who retained
their seats, escaped uninjured. Although doubtless much excited,
I do not think even that there was an error of judgment as to the
course pursued to secure safety. A moment of time earlier would
have enabled him to leap from the car, thus affording a probable
chance of escape. But if he misjudged in this respect, the circum-
stances did not, as matter of law, charge him with negligence, or
want of ordinary prudence. Seeing the approaching train, and that
a collision, with its consequences, was inevitable, it was not the
dictate of prudence to have deliberately kept his seat without an
effort at self-preservation. There is no man, under the circum-
stances, retaining his senses and acting with ordinary prudence,
that would not have exerted himself in some way to escape the great
peril. It was not to invite, but to escape injury that he left his
seat, and rushed to the door of the car; and an instant of time more
would have enabled him to effect his purpose. That other passen-
gers, who neither saw or had notice of the impending danger,
remained in their seats, and, by chance, were uninjured, is no evi-
dence that they judged rationally, or judged at all, as to what
prudence required, or that the plaintiff misjudged, and acted rashly.
At all events, it was for the jury, and not the court, to say whether
the plaintiff's conduct, in view of the circumstances, was rash or
imprudent, or amounted to negligefice.
The court was requested to charge the jury, that as the plaintiff
was injured on the platform of the car, in violation of the printed
regulations of the company, he was not entitled to recover. This
was properly refused. The statute exempts a railroad company
from liability to a passenger who shall be injured while on the
platform of a car, &c., in violation of the printed regulations of the
company posted up at the time in a conspicuous place inside of its
passenger cars then in the train; provided the company at the time
furnished room inside its passenger cars sufficient for the proper
accommodation of the passengers. Laws of 1850, ch. 140, § 46.
LIABILITY FOR INJURIES. 999
There was, in this case, a printed regulation, pursuant to thia
statute, posted in a conspicuous place inside the car, prohibiting
passengers from standing or riding on the platform of any car. But_
neither the statute nor the regulation has any application to a case
like the present one. The plaintiS was not standing or riding on
the platform at the time of the collision, but was harrying as fast
as he could to leave the car, in order to escape an imminent peril.
The statute was intended to prevent the imprudent act of standing
or riding on the platform, but not to absolve railroad companies
from responsibility for every injury which might happen at that
place, when a passenger is passing over it, while justifiably enter-
ing or leaving the cars.
I am of the opinion that the judgment of the Supreme Court
should be affirmed.
WAITE V. NOETHEASTEEN E. CO.
Queen's Bench. E. B. & E. 719. 1858.
Action by Alexander Waite, the younger, an infant, by Alex-
ander Waite, his next friend.
On the trial, before Maetin, B. , at the last Spring Assizes for
Northumberland, it appeared that defendants had the management
of a railway from Tweedmouth to Kelso ; and that, on 1st January,
1867, plaintiEE, an infant of the age of five years or thereabouts,
accompanied Mrs. Park, his grandmother, to the Velvet Hall
Station, one of the stations on the Tweedmouth and Kelso Eailway,
for the purpose of proceeding together to Berwick-upon-Tweed by
the 10.51 A.M. train. The plaintiff and Mrs. Park arrived at the
Velvet Hall Station at 10.30. Mrs. Park bought of the station-
master a ticket for herself and a half-ticket for plaintiff, which
entitled them to be carried to the Tweedmouth Station near Berwick
by the 10.51 train. The platform for the departure of passengers
going from Velvet Hall Station to Tweedmouth was on the side of
the railroad opposite to the ticket-office; and it was necessary for
such passengers to cross the railway on a level to get to that plat-
form. The station-master, in giving out the tickets, informed Mrs.
Park that the train by which she and plaintiff were to go to Tweed-
mouth would not be there for a quarter of an hour: the station-
master saw Mrs. Park and plaintiff go, after having got their
tickets, and sit down by the fire. The station-master, who was the
only person in charge of the station, after giving out the said
tickets, immediately left the ticket-office and went to the end of
the station-yard to superintend the unloading of some goods, and
1000 CAEKIERS OF PASSENGERS.
returned in seven or eight minutes, which was not until after the
injuries which are the cause of the present action had been sus-
tained. While so engaged, the station-master was unable, owing
to the position in which he was, to see the ticket-office or the plat-
form. Neither could he see along the line towards Tweedmouth;
but could see along the line towards Kelso. Any train, as it
approached the Velvet Hall Station from Kelso, could be seen by
any one on the platform for a considerable distance: the station-
master generally went into the room and told the passengers to
cross when the train was in sight; and had done so to Mrs. Park
when she was there, she having been frequently in the habit of
going by that train to Tweedmouth. The station-master did not
warn plaintiff or Mrs. Park against crossing the line, or inform
them that another train was expected to pass the station before the
arrival of their train. Nor were any means adopted, by locking
the door of the ticket-office, or otherwise, to prevent the plaintiff
or Mrs. Park crossing the line at any time ; nor was there any clock
at the station. Before the passenger train for which the plaintiff
and Mrs. Park had taken tickets arrived at the station, a goods
train coming from Kelso, with a tender before the engine, passed
the Velvet Hall Station, going towards Tweedmouth; Mrs. Park and
the plaintiff were struck by it as they were crossing the line to go
to the platform already mentioned. Mrs. Park was killed: and
plaintiff was severely injured; and for that injury the present
action was brought. The goods train was not a train which
stopped at the station, and passed the station at its usual pace of
about twenty miles an hour. No one saw Mrs. Park or plaintiff in
the act of crossing the railway; and neither the station-master nor
any one on the goods train knew that the injuries had been sustained
until after the goods train had passed the station.
The jury, in answer to questions put to them by the learned judge,
found that defendants were guilty of negligence, and that Mrs.
Park was also guilty of negligence which contributed to the acci-
dent; and they assessed the damages at £20. There was no negli-
gence, nor was any suggested on the part of the infant plaintiff.
The learned judge directed a verdict for the plaintiff for £20, with
leave to the defendants to move to enter a verdict for them or for
a nonsuit.
Lord Campbell, C. J. In this case we think that the rule ought
to be made absolute for entering a verdict for the defendants, or for
a nonsuit. The jury must be taken to have found that Mrs. Park,
the grandmother of the infant plaintiff, in whose care he was when
the accident happened, was guilty of negligence without which the
accident would not have happened; and that, notwithstanding the
negligence of the defendants, if she had acted upon this occasion
with ordinary caution and prudence, neither she herself nor the
infant would have suffered. Under such circumstances, had she
LIABILITY FOK INJURIES. 1001
survived, she could not have maintained any action against the
company; and we think that the infant is so identified with her that
the action in his name cannot be maintained. The relation of
master and servant certainly did not subsist between the grandchild
and the grandmother; and she cannot, in any sense, be considered
his agent: but we think that the defendants, in furnishing the
ticket to the one and the half ticket for the other, did not incur a
greater liability towards the grandchild than towards the grand-
mother, and that she, the contracting party, must be implied to have
promised that ordinary care should be taken of the grandchild.
We do not consider it necessary to offer any opinion as to the
recent cases in which passengers by coaches or by ships have
brought actions for damage suffered from the negligent management
of other coaches and ships, there having been negligence in the
management of the coaches and ships by which they were travelling,
as, at all events, a complete identification seems to us to be con-
stituted between the plaintiff and the party whose negligence con-
tributed to the damage which is the alleged cause of action, in the
same manner as if the plaintiff had been a baby only a few days
old, to be carried in a nurse's arms.
Mule absolute.
In the Exchequer Chambee.
The plaintiff having appealed against the above decision, the case
was now argued.
CocKBURN, C. J. I am of opinion that the judgment of the
Court of Queen's Bench ought to be affirmed. I put the case on
this ground : that, when a child of such tender and imbecile age is
brought to a railway station or to any conveyance, for the purpose
of being conveyed, and is wholly unable to take care of itself, the
contract of conveyance is on the implied condition that the child is
to be conveyed subject to due and proper care on the part of the
person having it in charge. Such care not being used, where the
child has no natural capacity to judge of the surrounding circum-
stances, a child might get into serious danger from a state of things
which would produce no disastrous consequences, to an adult capable
of taking care of himself. Here the child was under the charge of
his grandmother; and the company must be taken to have received
the child as under her control and subject to her management. The
plea and the finding show that the negligence of the defendants con-
tributed partially to the damage; but that the negligence of the
person in whose charge the child was, and with reference to whom
the contract of conveyance was made, also contributed partially.
There is not therefore that negligence on the part of the defendants
which is necessary to support the action.
Pollock, C. B. I entirely agree. The shortest way of putting
Mr. Mellish's argument is that this is not a mere case of simple
1002 CAERIEES OF PASSENGERS.
wrong, but one arising from the contract of the grandmother on the
part of the plaintiff, who must avail himself of that contract, with-
out which he cannot recover. There really is no diiference between
the case of a person of tender years under the care of another and a
valuable chattel committed to the care of an individual, or even not
committed to such care. The action cannot be maintained, unless-
it can be maintained by the person having the apparent possession^
even though the child or the chattel was not regularly put into the
possession of the person, as, for instance, though the party taking
charge of the child had done so without the father's consent; that
circumstance would make no difference as to the question of the
child's right. That is my reason for pressing this argument of Mr.
Mellish, as it meets every possible view of the case.
Williams, J. I am entirely of the same opinion. The view of
the jury was that the accident would not have occurred but for the
negligence of the grandmother. There was here, as it seems to me,
from the particular circumstances of the case, an identification of
the plaintiff with the grandmother, whose negligence is therefore an
answer to the action. At the same time, I do not mean to express;
any doubt that, generally, where a child is of such tender years as
here, and is carried about by any person having it in charge, the
rule as to joint negligence of plaintiff and defendant applies. The
person who has the charge of the child is identified with the child.
If a father drives a carriage, in which his infant child is, in such
a way that he incurs an accident, which by the exercise of reason-
able care he might have avoided, it would be strange to say that,
though he himself could not maintain an action, the child could.
So, if the child be in the arms of a person who does not choose to
get out of the way of a train. But it is unnecessary to insist on
this general ground : because, on the mere narrow view of the plain-
tiff's right in this case, the defence must prevail.
Ckowdbk, J. I am of the same opinion, on the grounds given in
the judgment delivered in the Court of Queen's Bench. The case is
the same as if the child had been in the mother's arms. There is
an identification such that the negligence of the grandmother de-
prives the child of the right of action. Now the finding of the jury
would clearly have prevented the grandmother from recovering: it
therefore has the same effect in respect of an action by the child.
It would be monstrous and absurd if there could be a distinction.
Bramwbll, B. I am -of the same opinion. In form the action is
for a wrong; but it is in fact for a breach of duty created by con-
tract. It is alleged that the plaintiff was lawfully on the railway.
That could be so only on the supposition that he had become a pas-
senger through the instrumentality of himself or another. There
must be a contract or duty. It is impossible- here to say that the.
company contracted any other duty towards the infant, thus accom-
panied, than they would have contracted towards an adalt, or that
LIABILITY FOK DELAY. 1003
they were responsible for what would have occasioned no mischief
but for the negligence of a person having the custody of the plain-
tiff. That would be an absurdity : and we should have to hold that,
where a chattel is injured partly through the negligence of the party
having charge of it, such person could maintain no action, but that
the owner, if a different person, could. The case appears even more
distinct upon the pleadings. The first count charges that the plain-
tiff was lawfully upon and crossing the railway; the second plea
denies this, and states that the plaintiff was under the direction
and control of a person who, with the plaintiff, was wrongfully on
the railway; and the verdict shows this plea to be true. The second
count states also that the plaintiff was lawfully on the railway ; and
it is similarly answered.
Watson, B. I am of the same opinion. The plaintiff is a child
of an age at 'which he is incapable of exercising proper care for
himself. The charge against the company is that they did not give
proper warning to the grandmother ; and all the duties which arose
towards the child were with reference to it as being under the charge
of the grandmother ; and, as my brother Williams says, the case is
the same as if the plaintiff had been a child in arms. Many other
cases have been put and discussed by Mr. Manisty; but these we
need not now examine.
Judgment affirmed}
5. LIABILITY FOE DELAY.
SEAES V. EASTEEN E. CO,
14 Allen (Mass.), 433. 1867.
Action containing one count in contract and one in tort. Each
count alleged that the defendants were common carriers of passen-
gers between Boston and Lynn, and that on the 16th of September,
1865, the plaintiff was a resident of Nahant, near Lynn, and the
defendants before then publicly undertook and contracted with the
public to run a train for the carriage of passengers from Boston to
Lynn at nine and one half o'clock in the evening each week-day,
Wednesdays and Saturdays excepted; and the plaintiff, relying on
said contract and undertaking, purchased of the defendants a ticket
entitling him to carriage upon their cars between Boston and Lynn,
and paid therefor twenty-five cents or thereabouts, and on a certain
' The passenger is not so far identified -with the carrier that negligence of the car-
rier will he imputed to him in an action against a third person for an accident due to
the negligence of such third person causing him injury. See Little v. Hackett, 116
U. S. 366. (1886.)
1004 CAEKIEES OF PASSENGERS.
week-day thereafter, neither Wednesday nor Saturday, namely, on
the 15th of said September, presented himself on or before the hour
of nine and a half o'clock in the evening at the defendants' station
in Boston and offered and attempted to take the train undertaken
to be run at that hour, as a passenger, but the defendants negli-
gently and wilfully omitted to run the said train at that hour, or
any train for Lynn till several hours thereafter ; wherefore the plain-
tilf was compelled to hire a livery carriage and to ride therein to
Lynn by night, and was much disturbed and inconvenienced.
The following facts were agreed in the Superior Court; The de-
fendants were common carriers, as alleged, and inserted in the
"Boston Daily Advertiser," "Post," and "Courier," from the 15th
day of August till the 15th day of September an advertisement an-
nouncing the hours at which trains would leave Boston for various
places, and among others that a train would leave for Lynn at
9.30 p. M. except Wednesdays, when it would leave at 11.15, and
Saturdays, when it would leave at 10.30.
The plaintiff, a resident of Nahant, consulted one of the above
papers, about the 9th of September, 1865, for the purpose of ascer-
taining the time when the latest night train would start from
Boston for Lynn on the 15th, in order to take the train on that day,
and saw the advertisement referred to. On the 15th, which was on
Friday, he came to Boston from Lynn in a forenoon train, and in
the evening, shortly after nine o'clock, presented himself at the
defendants' station in Boston for the purpose of taking the 9.30
train for Lynn, having with him a ticket which, previously to Sep-
tember 9th, he had purchased in a package of five. This ticket
specified no particular train, but purported to be good for one pas-
sage in the cars between Boston and Lynn during the year 1865.
He learned that this train had been postponed to 11.15, on account
of an exhibition, and th&reupon hired a buggy and drove to Lynn,
arriving there soon after 10.30. He had seen no notice of any post-
ponement of this train. He once, in 1864, observed a notice of post-
ponement, and heard that the defendants sometimes postponed their
late trains.
For several years before 1865, the defendants' superintendent had
been accustomed occasionally to postpone this train, as often as from
once to three times a month, for the purpose of allowing the public
to attend places of amusement and instruction, and also upon holi-
days and other public occasions in Boston ; giving notice thereof by
handbills posted in the defendants' cars and stations. On the 13th
of September, 1865, in pursuance of this custom, he decided to post-
pone this train for September 15th till 11.15, and on the same day
caused notice thereof to be printed and posted in the usual manner.
The train was so postponed, and left Boston at il.l5, arriving at
Lynn at 11.45.
The defendants offered to prove, if competent, that this usage oi
liUBILITY FOR DELAY. 1005
detaining the train was generally known to the people using the
Eastern Railroad, and that the number of persons generally going
by the postponed train was larger than generally went by the 9.30
train, and was larger on the evening in question ; but at the station
in Boston there were persons complaining of the postponement of
the train, and leaving the station.
It was agreed that, if on these facts the plaintiff was entitled to
recover, judgment should be entered in his favor for ten dollars,
without costs. Judgment was rendered for the defendants, and the
plaintiff appealed to this court.
Chapman, J. If this action can be maintained, it must be for
the breach of the contract which the defendants made with the plain-
tiff. He had purchased a package of tickets entitling him to a
passage in their cars for each ticket from Boston to Lynn. This
constituted a contract between parties. Cheney v. Boston & Fall
Eiver Eailroad, 11 Met. 121; Boston & Lowell Eailroad v. Proctor,
1 Allen, 267; Najac v. Boston & Lowell Eailroad, 7 Allen, 329.
The principal question in this case is, what are the terms of
the contract? The ticket does not express all of them. A public
advertisement of the times when their trains run enters into the
contract, and forms a part of it. Denton v. Great Northern Eail-
way, 5 El. & Bl. 860. It is an offer which, when once publicly
made, becomes binding, if accepted before it is retracted. Boston
& Maine Eailroad v. Bartlett, 3 Gush. 227. Advertisements offering
rewards are illustrations of this method of making contracts. But
it would be unreasonable to hold that advertisements as to the time
of running trains, when once made, are irrevocable. Eailroad cor-
porations find it necessary to vary the time of running their trains,
and they have a right, under reasonable limitations, to make this
variation, even as against those who have purchased tickets. This
reserved right enters into the contract, and forms a part of it. The
defendants had such a right in this case.
But if the time is varied, and the train fails to go at the appointed
time, for the mere convenience of the company or a portion of their
expected passengers, a person who presents himself at the advertised
hour, and demands a passage, is not bound by the change unless he
has had reasonable notice of it. The defendants acted upon this
view of their duty, and gave certain notices. Their trains had been
advertised to go from Boston to Lynn at 9.30 p. m., and the plaintiff
presented himself, with his ticket, at the station to take the train;
but was there informed that it was postponed to 11.15. The post-
ponement had been made for the accommodation of passengers who
desired to remain in Boston to attend places of amusement. Certain
notices of the change had been given ; but none of them had reached
the plaintiff. They were printed handbills posted up .in the cars
and stations on the day of the change, and also a day or two before.
Though he rode in one of the morning cars from Lynn to Boston, he
1006 CAEKIEES OF PASSENGERS.
did not see the notice, and no legal presumption of notice to him
arises from the fact of its being posted up. Brown v. Eastern Rail-
road, ll Gush. 101; Malone v. Boston & Worcester Eailroad, 12
Gray, 388. The defendants published daily advertisements of their
regular trains in the "Boston Daily Advertiser," "Post," and
"Courier," and the plaintiff had obtained his information as to the
time of running from one of these papers. If they had published a
notice of the change in these papers, we think he would have been
bound by it. For as they had a right to make changes, he would be
bound to take reasonable pains to inform himself whether or not a
change was made. So if in their advertisement they had reserved
the right to make occasional changes in the time of running a par-
ticular train, he would have been bound by the reservation. It
would have bound all passengers who obtained their knowledge of
the time-tables from either of these sources. But it would be con-
trary to the elementary law of contracts to hold that persons wha
relied upon the advertisements in either of those papers should be
bound by a reservation of the offer, which was, without their knowl-
edge, posted up in the cars and stations. If the defendants wished
to free themselves from their obligations to the whole public to run
a train as advertised they should publish notice of the change as
extensively as they published notice of the regular trains. And as
to the plaintiff, he was not bound by a notice published in the cars
and stations which he did not see. If it had been published in the
newspapers above mentioned, where his information had in fact been
obtained, and he had neglected to look for it, the fault would have
been his own.
The evidence as to the former usage of the defendants to make
occasional changes was immaterial, because the advertisement was
an express stipulation which superseded all customs that were in-
consistent with it. An express contract cannot be controlled or
varied by usage. Ware v. Hayward Rubber Co., 3 Allen, 84.
The court are of opinion that the defendants, by failing to give
such notice of the change made by them in the time of running their
train on the evening referred to as the plaintiff was entitled to re-
ceive, violated their contract with him, and are liable in this action.
Judgment for the plaintiff.
NUNN V. GEORGIA R. 00.
71 Ga. 710. 1883.
Action of damages for carrying beyond destination. The opinion
states the case. The defendant had judgment below.
Hall, J. The plaintiff had a season ticket, commonly known as
LIABILITY FOE DELAY. 1007
a "book," which entitled him to travel on the cars of the defendant
company from Atlanta to his home at Clarkston, — a point between
the regular stations on the road at Decatur and Stone Mountain, at
which trains stopped to put ofE and take on passengers when so noti-
fied. On the night in question he took passage at Atlanta for his
home, and when he delivered the conductor his ticket he informed
him that he had lost much sleep the night before, and would prob-
ably sleep on his journey, and requested him when he reached his
destination, to awaken him and put him off, which the conductor
promised to do. He slept until he passed beyond Stone Mountain,
and below there was aroused, and informed that he had passed his
home. Here he left the cars in the night, and walked rapidly in
the dark a distance of seven or eight miles to his home, which he
reached between 11 and 12 o'clock. During this walk he labored
under considerable mental anxiety, on account of the situation of
his wife, whom he had left in the morning quite sick, and gone to
Atlanta to procure medicine for her; had obtained it, and then had
it with him. He reached home in time to relieve her with the
medicine he carried. He suffered from considerable soreness in
consequence of his walk, was not able to do full work, and remained
at home next day, and thereby lost his wages, amounting to two
dollars. It did not appear from the evidence that the train was not
halted at Clarkston a sufficient length of time to enable the plaintiff
to get off, or that the place was not called in the customary manner;
nor was it shown by any regulation of the company that it undertook
that the conductor at each stopping-place should go through the
train and see that every passenger was safely passed out of the cars.
It was shown that the conductor, when specially applied to, had in
some instances performed this service for passengers. It was in-
•cumbent upon the plaintiff to make out his case, and to show that
he had been damaged by a violation of his contract with the com-
pany. In the opinion of the Superior Court he failed in this, and
on motion a nonsuit was awarded at the close of the testimony, first,
because the proof failed to show that it was customary for the con-
ductor to go through the train and wake up a passenger who hap-
pened to be asleep. Secondly, because no breach of plaintiff''s
contract with the defendant was shown, or that there was any proof
■of a failure to stop at the designated point suf&ciently long for the
plaintiff to get off the cars. Thirdly, because it did not satisfac-
torily appear whether the loss of the day's work, which was the
only damage proved, was caused by the failure to put plaintiff off
at home, and by the long walk he took in consequence of being
carried beyond it, or by other causes, which might have contributed
to that result, such as the loss of sleep on the previous night.
In determining the propriety of this ruling, it will be essential to
consider whether the conductor's promise to wake plaintiff was
included in the company's contract to transport him from Atlanta to
1008 CAKRIEES OF PASSENGEES.
Clarkston ; If it was, and there was any failure in that respect, then
there was a breach of the agreement, and he had a right to recover
at least nominal damages; if it was not, then a failure in regard
thereto was damnum absque injuria, his rights were not violated,
he was not entitled to recover, and the nonsuit was properly
awarded.
" The sale of a ticket to a passenger is a contract to carry him
according to the reasonable regulations of the company, and he is
presumed also to contract with reference to them." Pierce Am.
Ey. Law, 491. It likewise seems a necessary implication from this
rule, that the train should be stopped at the point of destination a
suflcient length of time to allow the party to leave it with safety
to his life and person, 51 Ga. 489; 45 Ga. 288; and if he is carried
beyond his place, by no fault of his, but by the failure of the com-
pany's agent to do his duty in that behalf, he is entitled to recover
any damage he may sustain. Id.
It is insisted that if not directly bound to perform such acts as the
present, the conductor, as the company's servant, was impliedly
authorized to bind the company by this promise, and his failure to
perform it would render the company liable. This is likened to the
ability of the servant to contract debts for the master, growing out
of the peculiar nature of the business, and from which authority is
necessarily implied, in order to carry out the agency. Wood Mast,
and Serv. §§ 263, 267, 268, are cited to this latter effect. But we
cannot reach that conclusion. It was certainly not necessary to the
performance of the ordinary duties of the conductor in putting pas-
sengers off the train that he should give them any other than the
customary warning, and opportunity to avail themselves of it. The
regulations under which he acted required nothing more at the
hands of the company ; its contract was made with that view, and
any requirement in excess of it would be a departure from the terms
of the contract. To this additional act the company did not assent.
In Pennsylvania R. Co. v. Kilgore, 32 Penn. St. 294, it is said :
" We do not think it was the duty of the conductor to go through
the train and see that every person was safely passed out of the
cars. It was his duty to stop the train sufficiently long enough to
enable them to get out without damage to their persons or their
lives; and if he did not, he was derelict in his duty."
In New Orleans, Jackson & Great Northern R. Co. v. Statham,
42 Miss. 607, 613, the Supreme Court of that State applied this
principle to sick and impotent persons. Shackleford, C. J., who
delivered the opinion, declared that "railroad cars were not travel-
ling hospitals, nor their employees nurses. Sick persons have the
right to enter the cars of a railroad company ; as common carriers
of passengers, they cannot prevent their entering their cars. If
they are incapable of taking care- of themselves, they should have
attendants along to care for them, or to render them such assistance
LIABILITY FOK DELAY. 1009
as they may require in the cars, and to assist them from the cars at
the point of their destination. It is not the duty of conductors to
see to the debarkation of passengers. They should have the stations
announced ; they should stop the trains sufficiently long for the pas-
sengers for each station to get off. When this is done their duty to
the passengers is performed. All assistance that a conductor may
extend to ladies without escorts, or with children, or to persons
who are sick, and. ask his assistance in getting on and off trains, is
purely a matter of courtesy, and not at all incumbent upon him in
the line of his public duty."
See also the able and learned opinion of Hardy, C. J., in South-
ern E. Co. V. Kendrick, 40 Miss. 374, which covers and effectually
disposes of every question considered here. These cases proceed
upon the reasonable ground that passengers are vigilant to perform
their parts of the undertaking which they set out to accomplish,
and which is only to be done by their own exertions. It results
also from the difference of the obligations of carriers of goods and
of passengers; in the former case, the obligation is to carry and
deliver; in the latter, it is simply to carry and allow passengers
sufB.cient time and opportunity to leave the vehicle. Hutch. Carr.,
§ 614; Thomp. Car Pass. 226, 227, and citations. As to duty of
passengers to observe the known and obvious rules of the company
in entering and leaving cars, 2 Eedf. Am. Ey. Cas., 536, 640-542;
3 Am. and Eng. E. Cases, 340.
How far a custom upon the part of conductors, known, or which
may be presumed to be known to the company, to assist unattended
females or children, or infirm persons, will modify these rules, we
do not now decide, as there is nothing in this case falling within
such a principle. This was a drowsy man , travelling a distance of
ten miles; he made no contract with the company to have him
aroused, in case he should be asleep when he reached his destina-
tion ; he relied upon the courtesy of the conductor to do him this
kind ofB.ce, as it seems he had on previous occasions done for him,
and perhaps for some others. These exceptional and occasional
instances afforded no evidence of a custom binding upon the com-
pany. The plaintiff failed to make out any case, and there was no
error in sustaining the motion for a nonsuit.
Judgment affirmed.
1010 CAEBIEES OF PASSENGERS.
6. LIMITATION OF LIABILITY.
EAILWAY CO. V. STEVENS.
95 U. S. 655. 1877.
Eerob to the Circuit Court of the United States for the District
of Maine.
This was an action on the ease for negligence, brought against the
Grand Trunk Railway of Canada, to recover damages for injuries
received by Stevens whilst a passenger in its cars. The plaintiff,
being owner of a patented car-coupling, was negotiating with the
defendant, at Portland, Me. , for its adoption and use by the latter,
and was requested by the defendant to go to Montreal to see the
superintendent of its car department in relation to the matter, the
defendant offering to pay his expenses. Q^he plaintiff consented to
do this; and, in pursuance of the arrangement, he was furnished
with a pass to carry him in the defendant's cars. This pass was in
-the usual form of free passes, thus, "Pass Mr. Stevens from Port-
land to Montreal," and signed by the proper officer. On its back
was the following printed indorsement: —
" The person accepting this free ticket, in consideration thereof, assumes
all risk of all accidents, and expressly agrees that the company shall not be
liable, under any circumstances, whether of negligence by their agents or
otherwise, for any injury to the person, or for any loss or injury to the prop-
erty, of the passenger using the ticket. If presented by any other person than
the individual named therein, the conductor -will take up this ticket and
collect fare."
The plaintiff testified that he put the pass into his pocket without
looking at it; and the jury found specially that he did not read the
ittdorsement previous to the accident, and did not know what was
indorsed upon it. He had been a railroad conductor, however, and
had seen many free passes, some with a statement on the back,
others without.
During the passage from Portland to Montreal, the car in which
the plaintiff was riding ran off the track and was precipitated down
an embankment, and he was much injured. The direct cause of the
accident, according to the proof, was that, at the place where it
occurred, and for some considerable distance in each direction, the
bolts had been broken off the fish-plates which hold the ends of the
rails together, so that many of these plates had fallen off on each
side, leaving the rails without lateral support. The consequence
was that the track spread, and the cars ran off, as before stated.
LIMITATION OF LIABILITY. 1011
There was also evidence that at this place the track was made of old
rails patched up.
The above facts appeared on the plaintiff's case, and the defend-
ant offered no evidence, but requested the court to instruct the jury
as follows : —
First, That if the plaintiff, at the time of sustaining the injury,
^vas travelling under and by virtue of the pass produced in evidence
in the case, he was travelling upon the conditions annexed to it.
Second, That if the plaintiff, at th^ time of sustaining the injury,
was travelling under and by virtue of the pass produced in evidence
in the case, the defendant is not liable.
Third, That if the plaintiff, at the time of sustaining the injury,
was travelling as a free passenger, the defendant is not liable.
Fourth, That if the plaintiff, at the time of sustaining the injury,
was travelling as a gratuitous passenge'r, without any consideration
to the defendant for his transportation, the defendant is not liable.
The court refused these instructions, as inapplicable to the evi-^
dence produced, and instructed the jury as follows, viz. : —
That if the jury find that, in May, 1873, the plaintiff was inter-
ested in a car-coupling, which had been used on the cars of the
defendant since December previous, and that the officers of the
company were desirous that the plaintiff should meet them at
Montreal to arrange about the use of such couplings on their cars
by defendant, and they agreed with him to pay his expenses if he
would come to Montreal, and he agreed so to do, and took passage
on defendant's cars, and was, by the reckless misconduct and negli-
gence of the defendant, and without negligence on his part, injured
whilst thus a passenger in defendant's car, the defendant is not
exonerated from liability to plaintiff for his damages occasioned by
such negligence, by reason of the indorsement upon the pass pro-
duced in evidence.
There was a verdict and judgment for the plaintiff. The defend-
ant then sued out this writ of error.
Mr. Justice Bradley. It is evident that the court below re-
garded this case as one of carriage, for hire, and not as one of gratu-
itous carriage, and that no sufBcient evidence to go to the jury was
adduced to show the contrary; and, hence, that under the ruling of
this court in Railroad Company v. Lockwood, 17 Wall. 357, it was
a case in which the defendant, as a common carrier of passengers,
oould not lawfully stipulate for exemption from liability for the
negligence of its servants. In taking this view we think the court
was correct. The transportation of the plaintiff' in the defendant's
■cars, though not paid for by him in money, was not a matter of
charity nor of gratuity in any sense. It was by virtue of an agree-
ment, in which the the mutual interest of the parties was consulted.
It was part of the consideration for which the plaintiff consented to
take the journey to Montreal. His expenses in making that journey
1012 CARKIEKS OF PASSENGERS.
were to be paid by tbe defendant, and of these tlie expense of Ms
transportation was a part. The giving him a free pass did not alter
the nature of the transaction. The pass was a mere ticket, or
voucher, to be shown to the conductors of the train, as evidence of
his right to be transported therein. It was not evidence of any
contract by which the plaintiff was to assume all the risk; and it
would not have been valid if it had been. In this respect it was a
stronger case than that of Lockwood's. There the pass was what
is called a ''drover's pass," and an agreement was actually signed,
declaring that the acceptance of the pass was to be considered as a
waiver of all claims for damages or injury received on the train.
The court rightly refused , therefore, in the present case, to charge
that the plaintiff was travelling upon the conditions indorsed on the
pass, or that, if he travelled on that pass, the defendant was free
from liability. And the court was equally right in refusing to
charge, that, if the plaintiff was a free or gratuitous passenger, the
defendant was not liable. The evidence did not sustain any such
hypothesis. It was uncontradicted, so far as it referred to the
arrangement by virtue of which the journey was undertaken.
The charge actually given by the court was also free from material
error. It stated the law as favorably for the defendant as the latter
had a right to ask. If subject to any criticism, it is in that part in
which the court supposed that the jury might find that the plaintiff
was injured by the reckless misconduct and negligence of the de-
fendant. If this degree of fault had been necessary to sustain the
action, there might have been some difficulty in deducing it from
the evidence. However, the condition of the track where the acci-
dent took place, without any explanation of its cause, was perhaps
sufficient even for such an inference. If the defendant could have
shown that the injury to the rails was the result of an accident oc-
curring so shortly before the passage of the train as not to give an
opportunity of ascertaining its existence, it did not do so, but chose
to rest upon the evidence of the plaintiff. In fact, however, negli-
gence was all that the plaintiff was bound to show; and of this there
was abundant evidence to go to the jury. On the whole, therefore,
we think that the charge presents no sufficient ground for setting
aside the verdict. The charge, if not formally accurate, was not
such as to prejudice the defendant.
It is strongly urged, however, that the plaintiff, by accepting the
free pass indorsed as it was, was estopped from showing that he was
not to take his passage upon the terms therein expressed; or, at
least, that his acceptance of the pass should be regarded as compe-
tent, if not conclusive, evidence that such a pass was in the contem-
plation of the parties when the arrangement for his going to
Montreal was made. But we have already shown that the carrying
of the plaintiff from Portland to Montreal was not a mere gratuity.
To call it such would be repugnant to the essential character of the
LIMITATION OF LIABILITY. 1013
whole transaction. There was a.consideration for it, both good and
valuable. It necessarily follows, therefore, that it was a carrying
for hire. Being such, it was not competent for the defendant, as a
common carrier, to stipulate for the immunity expressed on the back
of the pass. This is a sufficient answer to the argument pro-
pounded. The defendant, being, by the very nature of the trans-
action, a common carrier for hire, cannot set up, as against the
plaintiff, who was a passenger for hire, any such estoppel or agree-
ment as that which is insisted on.
Since, therefore, from our view of the case, it is not necessary to
determine what would have been the rights of the parties if the
plaintiff had been a free or gratuitous passenger, we rest our decision
upon Eailroad Company v. Lockwood, supra. We have no doubt of
the correctness of the conclusion reached in that case. We do not
mean to imply, however, that we should have come to a different
conclusion, had the plaintiff been a free passenger instead of a pas-
senger for hire. We are aware that respectable tribunals have
asserted the right to stipulate for exemption in such a case ; and it
is often asked, with apparent confidence, " May not men make their
own contracts, or, in other words, may not a man do what he will
with his own? " The question, at first sight, seems a simple one.
But there is a question lying behind that: "Can a man call that
absolutely his own which he holds, as a great public trust, by the
public grant, and for the public use as well as his own profit?"
The business of the common carrier, in this country at least, is
emphatically a branch of the public service; and the conditions on
which the public service shall be performed by private enterprise
are not yet entirely settled. We deem it the safest plan not to
anticipate questions until they fairly arise and become necessary
for our decision. Judgment affirmed.^
BATES V. OLD COLONY E. CO.
147 Mass. 255. 1888.
Tort for personal injuries sustained by the plaintiff, on Novem-
ber 4, 1885, in an accident upon the defendant's railroad while he
was riding in a baggage car. At the trial in the Superior Court,
before Sherman, J. , evidence was introduced tending to prove the
following facts.
It was conceded by the defendant that the accident resulted from
negligence on the part of its servants , and that the plaintiff, if right-
fully in the car, was, at the time of the accident, in the exercise of
due care. None of the passenger cars in the same train with the
1 Contra ; BisseU v. New York Central K. Co., 25 N. Y. 442. (1862.)
1014 CARKIEBS OF PASSENGEKS.
baggage car were thrown from the track by the accident, and no
person in them was injured.
The plaintiff was employed as an express messenger by the New
York & Boston Despatch Express Company, which was carrying on
the express business over the road of the defendant between South
Framingham and Fitchburg. On January 1, 1885, and at the time
of the accident, the contract between the defendant and the express
company was, that the defendant should transport the express
matter at a specific price, and should transport the messengers of
the express company in its express cars or baggage cars at season
ticket rates, which were less than regular rates paid by the express
company upon condition that the express company and its mes-
sengers should assume all risks of accidents and injuries resulting
therefrom, and hold the railroad free and discharged from all claims
and demands in a,ny way growing out of any injuries received by
such messengers while being thus transported. In pursuance of
that agreement, the plaintiff, on February 9, 1885, at the request
of the express company, executed, and the express company de-
livered to the defendant, the following agreement : —
"Old Colony Railroad Company, Boston, February 9, 1885. Whereas,
under the rules of the Old Colony Railroad Company, passengers are not
allowed to ride in the baggage cars of any trains, but the undersigned, holder
of a season-ticket, being engaged in the express business, is desirous of riding
in such car for the more convenient despatch of his business as an expressman,
it is understood and agreed that, in consideration of said company allowing
him to ride in baggage cars on its trains, the undersigned will assume all risk
of accidents and injuries resulting therefrom, and will hold said company free
and discharged from all claims and demands in any way growing out of any
injuries received by him while so riding."
The agreement was sent to the plaintiff, with a letter from the
superintendent of the express company asking him to sign it, and
he signed it unwillingly, but did so because he understood that, if
he did not, the railroad company would demand that he should be
removed by the express company from his position as messenger.
The defendant thereupon issued to the express company, for the
plaintiff, a season ticket, which contained a provision that "it is
not to be used except on express business, and if so used will be
forfeited," and differed from those issued to passengers generally in
having stamped upon it this provision : " The holder of this ticket,
having released the company from all liability, will be permitted to
ride in the baggage car. J. Sprague, Jr., General Passenger
Agent."
It was contrary to the rules of the railroad company to permit
passengers to ride in baggage cars and express oars, and this provi-
sion was stamped upon the ticket for the purpose of showing to con-
ductors that the person holding that ticket had released the company
from liability, and therefore the rule need not be enforced in this
LIMITATION OF LIABILITY. 1015
case. While the plaintiff was riding in a baggage car, as an express
messenger, under the above arrangement with the express company
and contract signed by himself, and holding a ticket thus stamped,
he received his injuries. The following regulation, signed by the
defendant's general manager, was posted and enforced in the bag-
gage car in which the plaintiff rode while in the employment of the
express company as a messenger on the defendant's road and at the
time of the accident : —
" Old Colony Railroad. Notice. No passenger will be allowed to ride in
the baggage car of any train unless he has signed a release discharging the
company from all claims and demands in any way growing out of any acci-
dent or injuries while riding in such car. Conductors and baggage-masters
will be particular at all times not to permit any passenger to ride in the bag-
gage car without the special permit, which will be stamped on the tickets of
those who have complied with the regulations. This rule must be strictly
enforced."
Two other express companies — one a local company which had no
messenger in charge of its express matter, the same being cared for
by the messengers of the other companies, and the other the Ver-
mont and Canada Express, which had a messenger riding in the
baggage car uader this regulation — were doing business over that
portion of the defendant's road during the year 1885, and at the time
of the accident. The express business over the defendant's railroad
was carried on in the baggage car attached to its passenger train, by
messengers .riding therein, under agreements and upon tickets like
that signed and held by the plaintiff.
The defendant contended that, upon the above facts, the plaintiff
could not recover, and asked the judge to rule : "1. The agreement
and release is a bar to the plaintiff's recovery. 2. If the release is
void and not a bar, the plaintiff was, as a passenger, guilty of con-
tributory negligence by being in the baggage car, contrary to the
known reasonable regulation that passengers were not allowed to
ride in the baggage car. 3. On the whole evidence, the plaintiff is
not entitled to recover, and the verdict should be for the defendant."
The judge declined to rule as requested , but ruled that the plain-
tiff was entitled to recover, notwithstanding the regulation and
agreement, and submitted the case to the jury upon the question of
damages only. The jury returned a verdict for the plaintiff for
$10,000; and the defendant alleged exceptions.
W. Allen, J. The rules of the defendant prohibited passengers
from riding in baggage cafs, and the plaintiff had no right as a pas-
senger to ride where he was riding at the time he was injured. He
was there under a special contract, by which, in consideration that
the defendant would allow him to ride in the baggage cars, he
assumed all risk of accident and injuries resulting therefrom, and
agreed to hold the defendant free and discharged from all claims
and demands growing out of any injury received by him while so
1016 CARRIERS OF PASSENGERS.
riding. The parties plainly intended to include injuries resulting
from the negligence of the defendant's servants.
We need not consider whether the contract would be construed or
held to include injuries to which riding in the baggage ear did not
contribute. There was evidence tending to show that the plaintiff
would not have been injured had he been in a passenger car, and
that his presence in the baggage car directly contributed to the
injury. The ruling of the court ordering a verdict for the plaintiff
was a ruling that the plaintiff was entitled to recover for an injury
caused by the negligence of the defendant's servants, although his
riding in the baggage car contributed to the injury. In considering
the correctness of this ruling, the contract of the plaintiff must be
taken to have been, that he would assume the risk of injury from
the negligence of the defendant's servants to which his riding in
the baggage car under the permission given by the defendant should
contribute. The objection is, that the contract is void, as without
consideration, as unreasonable, and as against public policy. We
see no objection to the contract as construed and applied in this
case.
It was the duty of the defendant as a carrier of passengers to
transport persons over its road on their paying the established fare, '■
and to see that its servants used due care to secure the safety of its
passengers. It was its duty to give to persons paying the estab-
lished rates tickets which would be evidence of their right to car-
riage, and of the defendant's obligation to carry them with due
care. The defendant was ready to do this, and did sell to the
plaintiff a season ticket which gave to him all the rights of a pas-
senger. The contract in question was made to give him a right
which did not belong to him as a passenger. The plaintiff', having
the rights of a passenger, desired to ride in a baggage car. The
regulations of the defendant, as well as personal prudence, forbade
him to ride there, and, if he had attempted to do so, he not only
would have assumed all the- risks of injuries resulting therefrom,
but would have been liable to be expelled from the car by the
defendant.
It is difficult to see upon what ground it can be contended that
an agreement of the plaintiff, that, in consideration that the defend-
ant would permit him to ride in the baggage car, he would assume
all risk of injuries resulting therefrom, is unreasonable or illegal.
The defendant was under no obligation to give the permission, and
the effect of the plaintiff's agreement was only that the liability of
the defendant should not be increased by the permission that the
plaintiff, if he should be injured in consequence of being in the
baggage car, should not be entitled to recover damages of the de-
fendant, on the ground that he was there by its permission. The
contract did not diminish the liability of the defendant. It left the
risk assumed by the plaintiff in riding in the baggage car what it
LIMITATION OF LIABILITY. 1017
would have been without the contract; it only secured him against
being ejected from the car.
The question of the right of carriers to limit their liability for
negligence in the discharge of their duty as carriers by contracts
with their customers or passengers in regard to such duties, does
not arise under this contract as construed in this case. See Eail-
Toad Co. V. Lockwood, 17 Wall. 357; Griswold v. New York & New
England Eailroad, 53 Conn. 371. It was not a contract for carriage
over the road, but for the use of a particular car. The consider-
ation of the plaintiff's agreement was not the performance of any-
thing by the defendant which it was under any obligation to do, or
which the plaintiff had any right to have done. It was a privilege
granted to the plaintiff. The plaintiH was not compelled to enter
into the contract in order to obtain the rights of a passenger.
Having these rights, he sought something more. The contract by
which he obtained what he sought did not impair his rights as a
passenger, and he was under no compulsion to enter into it.
It is contended that the plaintiff, as the servant of the express
company, had a right, by statute, to ride in the baggage car, and
that, therefore, the case comes within the decisions that it is un-
reasonable, and against public policy, for a person, as a condition
of his becoming a passenger on a railroad, to agree that he will take
the risk of the negligence of the servants of the railroad in trans-
porting him. The express company is a common carrier, and it is
not contended that a railroad corporation is bound to transport, in
the baggage cars of its passenger trains, the merchandise and ser-
vants of another common carrier, unless required to do so by some
statute. See Sargent v. Boston & Lowell Eailroad, 115 Mass. 416
[364] ; Express Cases, 117 U. S. 1.
The statute relied on is c. 112, § 188, of the Public Statutes,
which is in these words: "Every railroad corporation shall give to
all persons or companies reasonable and equal terms, facilities,
and accommodations for the transportation of themselves, their
agents and servants, and of any merchandise and other property
upon its railroad, and for the use of its depot and other buildings
and grounds, and, at any point where its railroad connects with
another railroad, reasonable and equal terms and facilities of inter-
change." The statute cannot be construed to require railroad cor-
porations to discriminate in favor of express companies, and to carry
their merchandise and messengers in the baggage cars of passenger
trains on reasonable terms, equally favorable to all express com-
panies. If that were the meaning of the statute, no questions as to
the equality of the terms given to the plaintiff or the" company he
represented would arise. The same contract was required of all
•other express messengers who rode in baggage cars. The only
question that would arise is whether the terms granted were
Tcasonable.
1018 CABKIEES OF PASSENGERS.
The fact that the plaintiff was riding in the baggage car as an
express messenger, in charge of merchandise which was being
transported there, shows more clearly that the contract by the-
express company and the plaintiff was not unreasonable or against
public policy. He was there as a servant, engaged with the ser-
vants of the railroad corporation in the service of transportation on
the road. His duties were substantially the same as those of the-
baggage-master in the same car ; the latter relating to merchandise
carried for passengers, and the former to merchandise carried for
the express company. His actual relations to the other servants-
of the railroad corporation engaged in the transportation were sub-
stantially the same as those of the baggage-master, and would have-
been the same had he been paid by the corporation instead of by the
express company. Had the railroad done the express business, the
messenger would have been held by law to have assumed the risk
of the negligence of the servants of the railroad.
It does not seem that a contract between the express company
and the plaintiff on the one hand, and the defendant on the other,
that the express messenger, in performing his duties, should take-
the same risk of injury from the negligence of the servants of the-
railroad engaged in the transportation that he would take if em-
ployed by the railroad to perform the same duties, would be void,
as unreasonable or as against public policy. When we add the con-
siderations that the plaintiff was a passenger whose rights as such
were not impaired by the agreement, and that the agreement was to-
assume the risk of injuries resulting from his riding in baggage
cars, in consideration of being permitted to ride there to conduct
the express business, it seems clear that the contract is a valid and
sufficient defence to an action against the defendant for injuries
resulting from the negligence of the defendant's servants, to which
the fact that the plaintiff was riding in the baggage car under the
agreement contributed.
Exceptions sustained}-
QUIMBY V. BOSTON, etc. K. CO.
150 Mass. 365. 1890.
ToET for personal injuries occasioned to the plaintiff in an acci-
dent upon the defendant's railroad, through the alleged negligence of
its servants.
It was admitted that at the time when the injuries were received
the plaintiff was travelling upon a free pass given to him at his
I Ace. : B. & 0. etc. R. Co. v. Voigt, 176 U. S. 498, 20 S. C. Rep. 385 ; Walther
V. Southern Pac. R. Co., 159 Cal. 769, 116 Pac. R. 51, 37 L. R. A. N. S. 239.
LIMITATION or LIABILITY. 1019'
solicitation by the general manager of the defendant corporation.
The face of the pass bore the following : —
" 1062. Trip Pass. Boston and Maine Raih-oad. Pass Asa Quimby and
■wife, Account of Boston and Maine R. R., from Salem to Concord, N. H.,
provided he signs the agreement on the back hereof. Good until May 20,
1886, and not good for passage in the opposite direction. Boston, April 20,
1886. Jas. T. Furber, Gen'l Manager."
The face of the pass also bore upon its left-hand margin the
words: "Eead the other side."
Upon the back of the pass was the following : —
" 1886. Agreement. In consideration of being given this free ticket by
the Boston and Maine Railroad, I, the undersigned, hereby agree to assume
all risk of accident, of every name and nature, which may happen to me while
travelling on, or getting on or getting oft, the trains of said railroad on which
this ticket is honored for passage, by which I may be injured in my person,
or for the loss of or damage to any of my property, being transported free of
charge, in the same train with myself. [Here followed a blank space for the
" Signature of holder of this free ticket."] If this free ticket is presented by
any other than the person whose signature appears above, conductors will take
it up and collect fare."
The pass had not been signed by the plaintiif, but he was travel-
ling upon it when his injuries were received. He had tendered it
to the conductor of the train, who had honored it as good for his
passage, and had twice punched it. No oral testimony was intro-
duced as to whether the plaintiff had read or had not read the
language printed upon the pass.
The defendant admitted the negligence of its servants, but con-
tended that it was not liable to the plaintiff by reason of the fact
that he was riding upon the free pass when injured ; and asked the
judge to instruct the jury, that, upon the above facts, the plaintiff
could not maintain his action; and the judge, being of the opinion
that the action could not be maintained, submitted the case on the
question of damages only to the jury, who returned a verdict assess-
ing the plaintiff's damages.
If upon the above facts the plaintiff was entitled to recover, judg-
ment was to be entered upon the verdict ; otherwise, judgment was
to be entered for the defendant.
Devens, J. When the plaintiff received his injury, he was
travelling upon a free pass, given him at his own solicitation and
as a pure gratuity, upon which was expressed his agreement that
in consideration thereof he assumed all risk of accident which might
happen to him while travelling on or getting on or off the trains of
the defendant railroad corporation on which the ticket might be
honored for passage. The ticket bore on its face the words, "Pro-
vided he signs the agreement on the back hereof." In fact, the
agreement was not signed by the plaintiff, he not having been
1020 CA.EEIEES OF PASSENGERS.
required to do so by the conductor, who honored it as good for the
passage, and who twice punched it. The fact that the plaintiff had
not signed it, and was not required to sign it, we do not regard as
important. Having accepted the pass, he must have done so on the
conditions fully expressed therein, whether he actually read them
or not. Squire v. New York Central Eailroad, 98 Mass. 239; Hill
V. Boston, Hoosac Tunnel, & Western Eailroad, 144 Mass. 284;
Boston & Maine Railroad v. Chipman, 146 Mass. 107.
The object of the provision as to signing is to furnish complete
evidence that the person to whom the pass is issued assents thereto;
but one who actually avails himself of such a ticket, and of the
privileges it confers, to secure a passage, cannot be allowed to deny
that he made the agreement expressed therein because he did not
and was not required to sign it. Gulf, Colorado, & Santa Fe Rail-
way V. McGown, 65 Texas, 640, 643; Illinois Central Eailroad v.
Eead, 37 111. 484; Wells v. New York Central Eailroad, 24 N. Y.
181; Perkins v. New York Central Eailroad, 24 N. Y. 196. If
this is held to be so, the case presents the single question whether
such a contract is invalid, which has not heretofore been settled in
this State, and upon which there has been great contrariety of
opinion in different courts. If the common carrier accept a person
as a passenger, no such contract having been made, such passenger
may maintain an action for negligence in transporting him, even if
he be carried gratuitously. Having admitted him to the rights of
a passenger, the carrier is not permitted to deny that he owes to
him the duty which, as carrying on a public employment, he owes
to those who have paid him for the service. Todd\. Old Colony &
Fall Eiver Eailroad, 3 Allen, 18; Commonwealth v. Vermont &
Massachusetts Eailroad, 108 Mass. 7; Littlejohn v. Fitchburg Eail-
road, 148 Mass. 478; Files v. Boston & Albany Eailroad, 149 Mass.
204; Philadelphia & Eeading Eailroad v. Derby, 14 How. 468;
Steamboat Ne\f World v. King, 16 How. 469 [940]. But the
question whether the carrier may, as the condition upon which he
grants to the passenger a gratuitous passage, lawfully make an
agreement with him by which the passenger must bear the risks of
transportation, obviously differs from this.
In a large number of cases, the English courts, as well as those
of New York, have held that where a drover was permitted to
accompany animals upon what was called a free pass, issued upon
the condition that the user should bear all risks of transportation,
he could not maintain an action for an injury received by the negli-
gence of the carrier's servants. A similar rule would, without
doubt, be applied where a servant, from the peculiar character of
goods, such as delicate machinery, is permitted to accompany them,
and in other cases of that nature. That passes of this character are
free passes properly so called has been denied in other cases, as the
carriage of the drover is a part of the contract for the carriage of
LIMITATION OF LIABILITY. 1021
the animals. The cases on this point were carefully examined and
criticised by Mr. Justice Bradley, in Eailroad Co. v. Lockwood, 17
Wall. 357, 367; and it is there held that such a pass is not gratu-
itous, as it is given as one of the terms upon which the cattle are
carried. The decision is put upon the ground that the drover was
a passenger carried for hire, and that with such passenger a con-
tract of this nature could not be made. The court, at the conclusion
of the opinion, expressly waives the discussion of the question here
presented, and, as it states, purposely refrains from expressing any
opinion as to what would have been the result had it considered the
plaintiff a free passenger, instead of one for hire. Eailway Co. v.
Stevens, 95 U. S. 665 [1010], in which the same distinguished judge
delivered the opinion of the court, is put upon the ground that the
transportation of the defendant, although not paid for by him in
money, was not a matter of charity or gratuity in any sense, but
was by virtue of an agreement in which the mutual interest of the
parties was consulted.
Whether the English and New York authorities rightly or wrongly
hold that one travelling upon a drover's pass, as it is sometimes
called, is a free passenger, they show that, in the opinion of those
courts, a contract can properly be made with a free passenger that
he shall bear the risks of transportation. This is denied by many
courts whose opinions are entitled to weight. It will be observed
that in the case at bar there is no question of any wilful or mali-
cious injury, and that the plaintiff was injured by the carelessness
of the defendant's servants. The cases in which the passenger was
strictly a free passenger, accepting his ticket as a pure gratuity, and
upon the agreement that he would himself bear the risk of trans-
portation, are comparatively few. They have all been carefully
considered in two recent cases, to which we would call attention.
These are Griswoldt). New York & New England Eailroad, 53 Conn.
371, decided in 1885, and that of Gulf, Colorado, & Santa Ee Eail-
road V. McGown, 65 Texas, 640, decided in 1886, in which the pre-
cise question before us was raised and decided, after a careful
examination of the authorities, and opposite conclusions reached,
by the highest courts of Connecticut and of Texas. No doubt
existed in either case, in the opinion of the court, that the ticket of
the passenger was strictly a gratuity, and it was held by the former
court that, under these circumstances, the carrier and the passenger
might lawfully agree that the passenger should bear the risks of
transportation, and that such agreement would be enforced, while the
reverse was held by the court of Texas. We are brought to the deci-
sion of the question unembarrassed by any weight of authority with-
out the Commonwealth that can be considered as preponderating.
It is urged on behalf of the plaintiff, that, while the relation
of passenger and carrier is created by contract, it does not fol-
low that the duty and responsibility of the carrier is dependent
1022 _ CAKEIEES OF PASSENGEBS.
upon the contract; that, while with reference to matters indifferent
to the public, parties may contract according to their own pleasure,
they cannot do so where the public has an interest ; that, as certain
duties are attached by law to certain employments, these cannot be
waived or dispensed with by individual contracts ; that the duty of
the carrier requires that he should convey his passengers in safety;
and that he is properly held responsible in damages if he fails to da
so by negligence, whether the negligence is his own or that of his
servants, in order that this safety may be secured to all who travel.
It is also said, that the carrier and the passenger do not stand upon
an equality; that the latter cannot stand out and higgle or seek
redress in the courts ; that he must take the alternative the carrier
presents, or practically abandon his business in the transfer of
merchandise, and must yield to the terms imposed on him as a
passenger; that he ought not to be induced to run the risks of
transportation by being allowed to travel at a less fare, or for any
similar reason, and thus to tempt the carrier or his servants ta
carelessness which may affect others as well as himself; and that,
in few words, public policy forbids th:t contracts should be entered
into with a public carrier by which he shall be exonerated from his
full responsibility. Most of this reasoning can have no application
to a strictly free passenger, who receives a passage out of charity,
or as a gratuity.
Certainly the carrier is not likely to urge upon others the accept-
ance of free passes, as the success of his business must depend on
his receipts. There can be no difficulty in the adjustment of terms
where passes are solicited as gratuities. When such passes are
granted by such of the railroad officials as are authorized to issue
them, or by other public carriers, it is in deference largely to the
feeling of the community in which they are exercising a public
employment. The instances cannot be so numerous that any temp-
tation will be offered to carelessness in the management of their
trains, or to an increase in their fares, in both of which subjects the
public is interested. In such instances, one who is ordinarily a
common carrier does not act as such, but is simply in the position
of a gratuitous bailee. The definition of a common carrier, which is
that of a person or corporation pursuing the public employment of
conveying goods or passengers for hire, does not apply under such
circumstances. The service which he undertakes to render is one
which he is under no obligation to perform, and is outside of his
regular duties. In yielding to the solicitation of the passenger, he
consents for the time being to put off his public employment, and
to do that which it does not impose upon him. The plaintiff was in
no way constrained to accept the gratuity of the defendant; it had
been yielded to him only on his own solicitation. When he did,
there is no rule of public policy, we think, that prevented the carrier
from prescribing, as the condition of it, that it should not be com-
LIMITATION OF 'LIABILITY. 1023
pelled, in addition to carrying the passenger gratuitously, to be
responsible to him in damages for the negligence of its servants.
It is well known that, with all the care that can be exercised in the
selection of servants for the management of the various appliances
of a railroad train, accidents will sometimes occur from momentary
carelessness or inattention. It is hardly reasonable that, beside the
gift of free transportation, the carrier should be held responsible
for these, when he has made it the condition of his gift that he
should not be. Nor, in holding that he need not be under these
circumstances, is any countenance given to the idea that the carrier
may contract with a passenger to convey him for a less price on
being exonerated from responsibility for the negligence of his ser-
vants. In such a case the carrier would still be acting in the public
employment exercised by him, and should not escape its responsi-
bilities, or limit the obligations which it imposes upon him.
In some cases it has been held that while a carrier cannot limit
his liability for gross negligence, which has been defined as his own
personal negligence (or that of the corporation itself, where that is
the carrier), he can contract for exemption from liability for the
negligence of his servants. It may be doubted whether any such
distinction in degrees of negligence, in respect to the right of a
carrier to exempt himself from responsibility therefor, can be profit-
ably made or applied. Steamboat New World v. King, 16 How.
469. It is to be observed, however, that in the case at bar the injury
occurred through the negligence of defendant's servants, and not
through any failure on the part of the corporation to prescribe
proper rules or to furnish proper appliances for the conduct of its
business. We are of opinion that where one accepts, purely as
a gratuity, a free passage in a railroad train, upon the agreement
that he will assume all risk of accident which may happen to him,
while travelling in such train, by which he may be injured in his
person, no rule of public policy requires us to declare such contract
invalid and without binding force. By the terms of the report
there must, therefore, be
Judgment for the defendant.
JACOBUS V. SAINT PAUL, etc. E. CO.
20 Minn. 125. 1873.
The plaintiff brought this action to recover damages for personal
injury sustained while travelling as a passenger upon defendant's
railroad, occasioned, as is alleged, by the negligence of the defend-
ant. The defences were, that the plaintiff was travelling upon a
free pass or ticket, issued to him without consideration, by accept-
1024 CAKKIEES OF PASSENGEKS.
ing which, he assumed all risks of accident; that contrary to the
regulation of the defendant, well known to plaintiff, he was riding
in a baggage car, when the accident occurred; that plaintiff's own
negligence contributed to the injury, without any negligence of
defendant.
The cause was tried in the Court of Common Pleas for Eamsey
County, resulting in a verdict for the plaintiff. Defendant moved
to set aside the verdict, and for a new trial, upon the grounds:
"1st. That the verdict is not justified by the evidence, and is con-
trary to law. 2d. Errors of law occurring at the trial, excepted
to by the defendant." The motion was denied, and defendant
appeals to this court. The same points are made in this court, and
are so fully discussed in the opinion, that no further statement is
necessary.
Bekky, J. The plaintiff brings this action to recover damages
for injuries occasioned to his person by the alleged gross negligence
of defendant's servants in charge of defendant's railway train, upon
which plaintiff was travelling. Plaintiff was riding upon a free
pass, which, together with the conditions indorsed, is in these
words, viz. : —
"St. Paul & Chicago Railway.
" Pass D. Jacobus upon the conditions indorsed hereon, until Dec. Slst,
1871, unless otherwise ordered. Not transferable.
" D. C. Shepaed, Chf. Eng. and Supt.
" Conditions.
" The person who accepts and uses this free ticket thereby assumes all risk
of accident, and agrees that the company shall not be liable under any circum-
stances, whether of negligence of its agents or otherwise, for an injury of the
person, or for any loss or injury to his property, while using or having the
benefit of it."
Upon the pleadings and the charge of the court, the first question
arising in this case is, whether the pass, with its conditions, pro-
tects defendant from liability for injury received by plaintiff while
riding upon such pass, even though the injury was caused by gross
negligence upon defendant's part. In our opinion, this question
should be answered in the negative. For the reason that the degree
of care and diligence exacted of a bailee should be proportioned to
the importance of the business and of the interests at stake (Halley
V. Boston Gas Light Co., 8 Gray, 131; 57 Me. 202), "the law im-
poses upon the common carrier of passengers the greatest care and
foresight for the safety of his passengers, and holds him liable for
the slightest neglect." McLean v. Burbank, 11 Minn. 288. And
for like reasons the same extreme care is required, though the pas-
senger be carried gratuitously. Having undertaken to carry, the
duty arises to carry safely. Phil. & Reading R. R. Co. v. Derby,
14 Howard (U. S.), 486; Nolton v. Western Railway, 15 N. Y.
144 [904]; Steamboat New World v. King, 16 How. ([I. S.), 474
LIMITATION OF LIABILITY. 1025
[940] ; 2 Eedfield on Railways, 184-5, and notes; Perkins v. K. Y.
Central E. W. Co., 24 N. Y. 200; Todd v. Old Col. & F. E. E. Co.,
3 Allen, 21.
In the case at bar, however, the plaintiff was not merely a gratu-
itous passenger; i.e., a passenger carried without payment of fare
or other consideration. He was a passenger upon a free pass
expressly conditioned that the defendant should not be liable to
him for any injury of his person while he was using or having the
benefit of such pass. Does this circumstance distinguish his case
from that of a merely gratuitous passenger? Upon the question
whether conditions of this kind are valid and effectual to exonerate
the carrier of passengers, the adjudications differ. In New York,
the conditions appear to be held sufBcient to absolve the carrier
from liability, even for the gross negligence of his employees.
Wells V. N. Y. Central Eailway Co., 24 N. Y. 181; Perkins v.
Same, ib. 196; Bissell v. Same, 26 N. Y. 442. In New Jersey, it
is held that such conditions are good as against ordinary negli-
gence, with a very decided intimation that the exemption from
liability comprehends gross negligence also. Kinney v. Cen. E.
E. Co., 34 N. J. 513.
In Pennsylvania, Illinois, Indiana, and several other States, the
courts hold that no such condition will avail to protect the carrier
from responsibility for the gross negligence of its employees. 111.
Central Co. v. Eead, 37 111. 484; 19 id. 136; The Ind. Cen. E.
Co. V. Munday, 21 Ind. 48; Penn. E. Co. v. McCloskey's Adm'r,
23 Pa. 532; Mobile & Ohio Eailway v. Hopkins, 41 Ala. 489.
There are two distinct considerations upon which the stringent
rule as to the duty and liability of carriers of passengers rests.
One is a regard for the safety of the passenger on his own account,
and the other is a regard for his safety as a citizen of the State.
The latter is a consideration of public policy growing out of the
interest which the State or government as parens patriae has in pro-
tecting the lives and limbs of its subjects. Shearman & Eedfield
on Negligence, § 24; C. P. & A. E. Co. v. Curran, 19 Ohio State,
12; Phil, and Eeading E. E. Co. v. Derby, supra; Steamboat New
World V. King, supra; Smith v. N. Y. Central E. Co., 24 N. Y.
222; 111. C. E. Co. v. Eead, supra; Penn. E. Co. v. Henderson,
51 Penn. 315; Bissell v. N. Y. C. E. Co., 25 N. Y. 455, per Denio,
J.; N. Y. Central E. Co. v. Lockwood (U. S. Supreme Ct.), not
yet reported.
So far as the consideration of public policy is concerned, it can-
not be overridden by any stipulation of the parties to the contract
of passenger carriage, since it is paramount from its very nature. No
stipulation of the parties in disregard of it, or involving its sacrifice
in any degree, can, then, be permitted to stand. Whether the case
be one of a passenger for hire — a merely gratuitous passenger — or
of a passenger upon a conditioned free pass, as in this instance, the
1026 CAKEIEKS OF PASSENGEKS.
interest of the State in the safety of the citizen is obviously the
same. The more stringent the rule as to the duty and liability of
the carrier, and the more rigidly it is enforced, the greater will be
the care exercised, and the more approximately perfect the safety
of the passenger. Any relaxation of the rule as to duty or liability
naturally, and it may be said inevitably, tends to bring about a cor-
responding relaxation of care and diligence upon the part of the
carrier. We can conceive of no reason why these propositions are
not equally applicable to passengers of either of the kinds above
mentioned.
It is said, however, that it is unreasonable "to suppose that the
managers of a railroad train will lessen their vigilance and care for
the safety of the train and its passengers because there may be a
few on board for whom they are not responsible." In the first
place, if this consideration were allowed to prevail, it would prove
too much ; for it could be urged with equal force and propriety in
the case of a merely gratuitous passenger, as in a case lite this at
bar. Yet, as we have seen, no such consideration is permitted to
relieve the carrier from the same degree of liability for a gratuitous
passenger, as for a passenger for hire.
Again, suppose (what is not at all impossible or improbable, as,
for instance, in case of a free excursion), that most or all of the pas-
sengers upon a train were gratuitous, or riding upon conditioned
free passes, the consideration urged would be no answer to a claim
that the carrier should be responsible. A general rule can hardly
be based upon such calculations of chances. Moreover, while it
might not ordinarily occur that the presence of a free passenger
upon a train, for injury to whom the carrier would not be liable,
would tend to lessen the carrier's sense of responsibility and his
vigilance, it still remains true that the greater the sense of respon-
sibility, the greater the care ; and that any relaxation of responsi-
bility is dangerous.
Besides these considerations, it is to be remembered that the care
and vigilance which a carrier exercises do not depend alone upon a
mere sense of responsibility, or upon the existence of an abstract
rule imposing stringent obligations upon him. It is the enforce-
ment of the rule, and of the liability imposed thereby, — the mulct-
ing of the carrier for his negligence which brings home to him in
the most practicable, forcible, and effectual way, the necessity for
strictly fulfilling his obligations.
It may be that on a given occasion the gratuitous passenger, or
the passenger upon a free pass, is the only person injured (as, for
aught that appears, was the fact in this instance), or the only party
who will proceed against the carrier, the only person who will
practically enforce upon the carrier the importance of a faithful
discharge of his duty. These considerations, as it seems to us,
ought to be decisive upon the point that sound public policy requires
LIMITATION OF LIABILITY. X027
that the rule as to the liability of the carrier for the safety of the
passenger should not be relaxed, though the passenger be gratui-
"tous, or, as in this case, riding upon a conditioned free pass. It is
contended that there was no proof of gross negligence on defend-
-ant's part, and that, therefore, the verdict was not justified. There
was evidence that the train was a mixed train; that it was running
irom forty to forty-five miles an hour according to the plaintiff, and,
according to the other witnesses, from fifteen to twenty-two miles
an hour; that the lumber was upon a platform car, and that the
stake of the lumber car, in consequence of the breaking of which
1;he injury occurred, was a stick of butternut cord wood, and was
cross-grained. There was also the testimony of J. T. Maxfield, of
St.. Paul, a passenger who appears to be an intelligent and entirely
disinterested witness, and who says, "I felt anxious about the
lumber car. I was afraid of the speed. ... I was apprehensive'
of danger from the character of our train. I spoke to the brake-
man about it. . . . Have travelled on trains a good deal." And
taking all these facts together — to say nothing about others appear-
ing in the case — it cannot be said that there was not evidence in
the ease proper to be considered by the jury, and having some
reasonable tendency to establish negligence, which has been well
described as being a negative word signifying the absence of such
-care as it is the duty of the negligent party to exercise in the par-
ticular case. Grill v. General, &c.. Collier Co., Law Eep., 1 C. p.
■612; Steamboat New World v. King, supra. We will go further
even, and say that the evidence, in our opinion, had a reasonable
tendency to establish gross negligence in the sense of a great degree
■of negligence. Angell on Carriers, § 22. As to the point of the
degree of negligence necessary to sustain this action, it is, however,
to be remarked, in view of the stringent rule as to liability, that
where the question is between a railway carrier and a passenger,
there would seem to be no occasion for the ordinary distinction of
•different degrees of negligence, as slight, ordinary, and gross. As
is well and forcibly said by Mr. Justice Grier in Philad. & Reading
E. Co. , supra : " When carriers undertake to convey persons by the
powerful but dangerous agency of steam, public policy and safety
require that they be held to the greatest possible care and dili-
gence. And whether the consideration for such transportation be
pecurfary or otherwise, the personal safety of the passengers should
not be left to the sport of chance or the negligence of careless
agents. Any negligence in such cases may well deserve the epithet
of 'gross.'". So in Steamboat New World v. King, Mr. Justice
-Curtis, referring to the doctrine thus announced, says : " We desire
to be understood to re-affirm that doctrine as resting not only on
public policy, but on sound principles of law." A similar view of
the impracticability of a distinction between different kinds of
negligence as applicable to cases of this kind is taken in Perkins v.
1028 CAKKIEKS OF PASSENGERS.
N. Y. Central K. Co., supra. The carrier being bound to exercise
the greatest care, and being liable for the slightest neglect, what
is said by Eolfe, B., in Wilson v. Brett, 11 Mees. & Welsby, 113 [56],
and indorsed by Willis, J., in Grill v. G-eneral, &c., Collier Co.,
Law Rep., 1 C. P. 612, is in point in a case of this kind, viz. : that
he "could see no difference between negligence and gross negligence j
that it was the same thing with the addition of a vituperative epi-
thet." See also Angell on Carriers, § 23, and Briggs v. Taylor,
28 Vt. 180.
It is further argued on behalf of the defendant, that the plaintiff,
by his own negligence, contributed to the injury sustained, and for
that reason he cannot recover. This argument is founded upon the
fact that plaintiff was in the baggage car at the time of the acci-
dent, and, as defendant contends, wrongfully there. But, in the
first place, the evidence is conflicting as to whether or not the plain-
tiff was informed of the rule of the company excluding passengers
from the baggage car. If he was not so informed, and was suffered
to remain there without objection, it could hardly be said that his
presence there was negligence. Dunn v. Grand Trunk Eailway,
58 Maine, 187. Again, if it be admitted that the plaintiff was duly
informed of the regulation of the company excluding passengers-
from the baggage car, the evidence shows that he was, at least,,
permitted to remain there by the conductor. If he was thus per-
mitted to remain, so that he was there with the knowledge of ths'
conductor, and without any attempt on the part of the conductor ta
enforce the company's rule by removing him, his presence there
would not be such negligence as would exonerate the defendant
from the consequences of its negligence or want of care. On the
contrary, his presence there, under such circumstances, would render
it the duty of the company, in view of the fact that he was there,
to exercise the highest care required for his safety, and to refrain
from the slightest neglect tending to his injury. Dunn v. Grand
Trunk Eailway, supra; Isbel v. N. Y. & New Haven Eailway Co.,
27 Conn. 303; 2 Eedfield Eailway Cases, 474-502.
Still, again, admitting that the plaintiff was cognizant of the-
rule of the company excluding passengers from the baggage car,
and that he persisted in remaining there without the permission or
consent, yet with the knowledge of the conductor, and was guilty
of negligence in so doing, this negligence would not preveat his-
recovering unless it were contributory to the injury received. To
be thus contributory, in a legal sense, it must be a proximate cause
of the injury, — that is, it must have been near in ^the order of
causation (Shearman and Eedfield on Negligence, 37-38), and it must
have contributed, to some extent, directly to the injury, and must
have been not a mere technical or formal wrong contributing either
incidentally or remotely, or not at all, to the injury. Isbel v. N. Y.
and N. H. R. E. Co. , supra; 2 Eedfield E. Cases, 485-490. Now,
TICKETS. 1029
notwithstanding the fault or negligence of the plaintiff in remaining
in the baggage car, and admitting that the baggage car -was a place
of greater danger than the passenger car, and that the plaintiff
would not have been injured if he had not been there, his presence
there with the knowledge of the conductor made it defendant's duty
to exercise care to avoid injuring him while there; and if injury-
resulted from want of such care, the defendant is liable, Isbel v.
N. Y. and N. H. E. Co., supra. If the injury resulted from want of
such care, i. e., negligence on defendant's part — such negligence,
and not plaintiff's fault in being in the baggage car, would be the
immediate and direct — the more proximate — cause of the injury,
and defendant would be responsible for the same. Isbel v. N. Y>
and N. H. E. Co. supra; C. C. and C. E. Co. v. Elliott, 4 Ohia
State, 476; Shearman and Eedfield on Negligence, § 25; Keith v.
Pinkham, 43 Me. 503; Huelsenkamp v. Citizens' Eailwaiy Co., 3T
Mo. 537; Eichmond v. Sac. E. E. Co., 18 Cal. 351; Lackawanna
and Bloomsburg E. Co. v. Chenewith, 52 Penna. 386.
In our opinion there was evidence in the case for the considera-
tion of the jury in reference to these views of the law; and from
which they might reasonably find that plaintiff's negligence in this
case was not contributory to the injury received by him.
These considerations dispose of the case, the result being that the
order denying a new trial is affirmed.
7. TICKETS.
JEEOME V. SMITH.
48 Vt. 230. 1876.
Case for ejecting plaintiff from defendants' cars.
Wheeler, J.
As the case states that certain facts appeared on the trial and
others were found by special verdict, it hangs here upon the correct-
ness of the judgment rendered upon all these facts. If on these
facts the plaintiff was wrongfully in the defendants' cars at the
time he was expelled, the judgment was right, otherwise not. The
right to eject for non-payment of fare is given by statute, if statute
authority can, in addition to common-law rights in such cases, on
any ground be necessary. The real question is, whether there was,
in fact, such non-payment. When the plaintiff bought the ticket
at Worcester, with coupons attached, entitling the holder to ride
over that part of defendants' road he was riding on when ejected, he
did not make any agreement with them or their agents that they
would carry him in person over it as carriers agree to carry particu-
1030 CARRIERS OF PASSENGERS.
lar packages over their routes; but he bought what was symbolic
evidence of a right that wh9ever should have it might ride, and
what any other person could use as well as he. The title to it, and
right to a passage upon it, would pass by mere delivery, and who-
ever' should have it could pay the fare of a passenger with it by
delivering it in payment; but the mere fact of having had it, with-
out having it to deliver in payment on reasonable request, would
not entitle any one to the passage, any more than having a suificient
amount of money to pay the fare with, without paying it, would.
"When he entered on his passage over the defendants' road, he had
the coupon and tickets which would pay his fare throughout his
intended journey over their line, and if he had delivered the coupon
to the conductor in payment of his fare for the whole of that
journey, he would have had the right to ride the whole distance
without doing or paying anything more. But, according to the
facts, the conductor did not take the coupon as an equivalent for
the full passage, but only for the passage so far as he was to go as
conductor, and gave the plaintiff the white check as evidence in lieu
of the coupon, more symbolic, but equally effective of the right to
a passage the rest of the way. As the plaintiff did not know what
the symbols of the check each meant, so probably he did not know
what those on the ticket and those on the coupon, respectively,
meant; but, however that may have been, such checks are in com-
mon use among conductors on railroads, as evidence of the right to
a passage, and the case not only does not show but that he under-
stood what the purpose and effect of this one was , as persons ordi-
narily would, but does impliedly show that he did so understand,
because it appears that he searched for it to use to pay his fare with
when he saw the next conductor approaching him collecting fares.
And although it was delivered to him only by placing it in his hat-
band, as he did not object, that was as much a delivery to him as
placing it in his lap or in his hand would have been, and was suffi-
cient to invest him with the ownership of it, and to bind him to
take care of it as his own property. While he held that check he
had not paid his fare beyond where the conductor was to go, but
had what would pay it, or that of any other person, the rest of the
way. If the conductor had not given him anything, or had given
him something that he could not use to pay his fare with, he would
have received no equivalent for his coupon, and would have still
been entitled to his passage for an equivalent. But as it was what
he took was as good as the coupon for the rest of his journey, and
with it he was situated the same as if he had kept the coupon, or
if he had bought the check of a station-agent or conductor at the
commencement of his journey, as evidence of his right to a passage,
and shown it to one conductor and was keeping it to show to the
next one. In either case, the duty of keeping it safely would be
upon him. When he had lost it, the loss was his, and he was
TICKETS. 1031
situated as lie would liave been if the coupon had been returned to
him, and he had lost that, and as any one would be who had bought
a ticket to an opera or a lecture, or that would entitle the holder of
it to any other privilege, and had lost it. Having lost it, he was
called upon by the proper conductor to pay his fare. He had not
any ticket or check to pay it with, and refused to pay it in money,
consequently, there was a refusal to pay it at all, and the conductor
rightfully expelled him from the train.
The books and cases cited in behalf of the plaintiff are not, ap-
parently, contrary to these views. Thus, in Pittsburgh, etc., R. R.
V. Hennigh, 39 Ind. 509, the first conductor took up the ticket and
gave no check nor anything showing a right to a passage, and the
next one ejected the passenger for want of anything to show pay-
ment. The company was very properly held liable for that expul-
sion. In Palmer v. Charlotte, etc. R. R. Co., 3 S. C. 580, the
plaintiff had a ticket which gave him the right to stop over at
Columbia; the conductor took it up and gave him a check that did
not show any right to stop over. He stopped over, and, on presen-
tation of the check on the next train, was expelled. The court said
that the conductor had no right to take up the ticket unless he
placed the passenger in as good condition as he was in before, by
giving a check or token evidencing his right to stop over and take
a subsequent train. In Maroney v. Old Colony R. R. Co., 106
Mass. 153, the plajntiff had a ticket that was purchased of the
agent of the defendants, and was apparently good for any regular
train, and he was ejected from a regular train because by some rule,
of which he had no notice, it was intended only for a special train.
In Hamilton v. Third Av. R. R. Co., 53 N. Y. 25, the plaintiff paid
his fare and received nothing to show he was entitled to a passagej
and was ejected before he had the passage for which he had ex-
pressly paid. In Moore v. Fitchburg R. R. Co., 4 Gray, 465, the
plaintiff had bought a ticket and given it up on his passage without
receiving any evidence of a right to a passage in return, and was
expelled before he had the rest of his passage. The other books
and cases cited for the plaintiff, so far as observed, relate to the
general rules of liability of carriers in respect to the persons and
baggage of passengers who have with money or by tickets paid for
and entered upon passage for some particular journey, and do not
bear directly upon the question in this case. On the other hand,
numerous authorities among those cited in behalf of the defendants
sustain these views more or less directly. Among those most nearly
in point are Hamilton v. N. Y. C. R. R., 51 IST. Y. 100; Standish v.
Narragansett Steamship Co., Ill Mass. 512; Townsend v. N. Y.
C. & H. R. R. R. Co., 66 IST. Y. 295 [1057] ; Duke and Wife v. G.
W. R. R. Co., 14 Up. Can. C. B. 369. According to these con-
clusions the judgment for the defendants was correct.
1032 CAEEIEKS OF PASSENGERS.
STATE V. OVEETON.
24 N. J. L. 435. 1854.
The Chief Justice. The defendant was convicted in the Oyer
and Terminer of Morris, of an assault and battery upon Theodore
A. Canfield. A motion having been made for a new trial, upon the
ground that the charge of the court was erroneous, and that the
verdict was against law and contrary to the evidence, the question
was reserved and submitted to this court for its advisory opinion.
The material facts are, that on the 18th of March, 1853, Canfield,
the prosecutor, procured at the office of the Morris & Essex Sailroad
Company, in Newark, a passenger's ticket to Morristown. He paid
for the ticket the regular fare from Newark to Morristown, and took
his seat in the ears. At Millville, one of the way stations upon
the road, he left the train. Before leaving the cars he received
from Van Pelt, the conductor of that train, a conductor's check,
upon which was printed the words "conductor's check to Morris-
town." About an hour afterwards Canfield took the next train of
cars which passed the Millville Station for Morristown, of which
train Overton, the defendant, was conductor. Upon being asked by
the conductor for his fare, Canfield tendered in payment the check
received by him from Van Pelt, the conductor of the train in which
Canfield had first taken his seat; this the conductor refused to
accept, and the passenger refusing to pay his fare, and declining to
leave the cars upon request, he was, without unnecessary force or
violence, and without personal injury, removed by the defendant
from the cars, at oAe of the way stations upon the road, before
reaching Morristown. The company furnished, at the office in
Newark, through tickets to Morristown, and also tickets to Mill-
ville and other way stations upon the route. The cost of a ticket
directly from Newark to Morristown was less than the cost of a
ticket to Millville and another ticket thence to Morristown. Some
years previous to the transaction, the, company had given public
notice that conductor's checks were not transferable from one train
to another.
It was not questioned upon the trial that a railroad company are
not bound to carry a passenger, unless upon payment or tender of
his fare ; that they may, in such case, either refuse to permit him
to enter the cars, or having entered them, they may require him to
leave them before the termination of the journey; and that if he
refuses to leave, they may remove him at a suitable time and place,
using no unnecessary force. The ground upon which the convic-
tion was asked was that, in fact, the passenger had paid his fare;
TICKETS. 1033
that he offered to the conductor competent and satisfactory evidence
of that fact, and that, consequently, the act of the conductor in
removing him from the cars was illegal.
Had the passenger in fact paid his fare, or was the check given
by the conductor of another train, evidence of that fact? He had,
it is admitted, paid his fare to Morristown , by the train in which
he originally took his passage. Did that authorize him to leave the
train at any point upon the road, and to resume his place for his
original destination in a different train, at his pleasure ?
The question is obviously a question of contract between the pas-
senger and the company. By paying for a passage, and procuring
a ticket from Newark to Morristown, the passenger acquired the
right to be carried directly from one point to the other, without
interruption. He acquired no right to be transported from one
point to another upon the route, at different times and by different
lines of conveyance, until the entire journey was accomplished.
The company engaged to carry the passenger over the entire route
for a stipulated price. But it was no part of their contract that
they would suffer him to leave the train, and to resume his seat in
another train, at any intervening point upon the road. This con-
tract with the passenger would have been executed, if they had
proceeded directly to Morristown, without stopping at any inter-
vening point; nor could he have complained of a violation of con-
tract, if no other train had passed over the road, in which he might
have completed his journey. If the passenger chose voluntarily to
leave the train before reaching his destination, he forfeited all
rights under his contract. The company did not engage, and were
not bound to carry him in any other train, or at any other time,
over the residue of the route.
The production of the conductor's ticket in nowise altered the
case or affected the terms of the original contract. It was evidence,
indeed, that the holder had paid his passage, and was entitled to be
carried to Morristown. But how and when? Why, clearly, accord-
ing to the terms of his original contract. It was evidence that he
had paid his fare to Morristown, and was entitled to be carried
there by the train in which he had originally taken his passage;
for that purpose alone it was given to him ; that train he had left
voluntarily, without the knowledge or asseijt of the conductor, and
without giving up his check. The check was therefore valueless;
the right, of which it was the evidence, the passenger had volun-
tarily relinquished.
This is the clear legal effect of the contract between the company
and the passenger, in the absence of any evidence to the contrary.
If the passenger insists that under his contract, by virtue of general
usage or the custom upon the road, he is entitled to be carried at
his pleasure either by one or by different trains, and at different
times, over various portions of his journey, the burden of proof was
1034 CARRIERS OF PASSENGERS.
upon the State, No such usage was established, although some
evidence was offered upon the trial, for the purpose of proving it.
The defendant offered evidence to show that some years previous
to the transaction the company had adopted a rule, and given public
notice, that the conductor's check was not transferable from one
train to another. This, properly considered, is a simple warning to
passengers, that they would be carried strictly according to the
terms of their contract. Even if a previous custom had been proved
(which it was not) for passengers to be carried over different parts
of their journey by different trains, it was a mere warning that in
the future the custom would not prevail. Upon the trial this action
of the company was presented to the court, and by them submitted
to the jury, as if it were a by-law or regulation of the company
affecting the rights of passengers, upon the reasonableness and con-
sequent validity of which the jury were to decide. The court clearly
intimated its opinion, that the regulation of the company was valid,
but, under the influence of the ruling of another tribunal, submitted
the validity of the regulation as a matter of fact to the jury.
In this the court erred. Here was no evidence of any by-law, or
of any regulation made by the company, affecting the rights of pas-
sengers, upon the reasonableness or validity of which either court
or jury were called upon to decide. The right of the passenger
rested upon his contract. The notice given by the company was in
strict conformity with his rights under the contract. Upon the
evidence in the cause, if no proof had been offered of the notice
given by the company, that conductor's checks were not transfer-
able, the defendant would have been entitled to a verdict. Proof
of that notice certainly placed him in no worse position. The com-
pany have an unquestionable right, under their charter, independent
of any by-law or regulation, to charge different rates by different
trains, or a higher price for travelling over the road as a way-pas-
senger, by different journeys, than for a through passenger. This
was in reality all that was involved in the evidence of the action
by the company, as proved upon the trial. The case does not fall
within the operation of the principle, by which it was held to be
controlled.
KEELEY w. BOSTON & MAINE E. CO.
67 Me. 163. 1878.
Case, setting out in substance and in extended legal form and
phraseology that the defendants were common carriers of passen-
gers; that the plaintiff purchased two tickets, one of the following
TICKETS. 1035
form: "163. Issued by Grand Trunk E. E., and Boston & Maine
E. K., Portland to Boston. Valid only within seven days. First
class. Form 39. J. Hickson, General Manager, 3376," and anotiier,
similar in form, but whicii he is unable to describe ; that he entered
the defendants' cars at Portland for Boston, whither he was carriedj
that he gave up the " similar " ticket on his passage to Boston, when
the defendants promised and assured the plaintiff that the ticket
"described" was good for a passage for him over the defendants'
railway from Boston to Portland ; that on the 26th day of January,
1876, at Boston, he entered the cars to be conveyed to Portland, and
was in pursuance of said payments and ticket (described) conveyed
to South Lawrence, where he was ordered out; that he re-entered
and was conveyed to Haverhill; that the defendants then ordered
him to leave the cars and ejected him therefrom and refused to
carry him to Portland.
The plea was, not guilty.
Petees, J. This case presents this question: Does a railroad
ticket, with the words, " Portland to Boston " imprinted on it, pur-
chased in Portland under no contract other than what is inferable
from the ticket itself, entitle the holder to a passage, on the road of
the company issuing it, from Boston to Portland? Does a ticket
one way give the right to pass the other way instead ? We find no
case deciding that it does, nor do we assent to the proposition that
the law should be considered to be so. Such is not the contract
which the ticket is evidence of.
It has been held that, if a passenger purchases a ticket with a
notice upon it that it is " good for one day only " in the absence of
a statutory regulation to the contrary, he can travel upon such
ticket only on that day. State v. Campbell, 32 N. J. L. 309;
Shedd V. Troy & Boston Eailroad, 40 Vt. 88; Johnson v. Concord
Eailroad, 46 N. H. 213; Boston & Lowell Eailroad Co. v. Proctor,
1 Allen, 267; 1 Eedf. on Eailways, 99, and notes. It has been
held also that if the words " good upon one train only " are printed
upon a ticket, the holder is not entitled to change from one train to
another after the passage is begun. Cheney v. Boston & Maine E.
E. Co., 11 Met. 121. Eedf. on Eailways, supra. If such notices
confine a passenger to a certain day and a particular train, why is
there not as much reason to say in this case that the notice upon the
ticket must restrict the holder of it to go in the particular direction
named ?
This position is not weakened by the suggestion that the company
can transport the passenger as cheaply and easily one way as the
other. If it were so, it would be no answer. A person who agrees
to sell to another, merchandise of one kind, might find it to his
profit and advantage to deliver merchandise of another kind, but
he cannot be compelled to do so.
So a railroad could often, no doubt, transport a passenger as con*
4036 CAEEIEKS OF PASSENGERS.
veniently on one train as another and on one day as another; still,
as before seen, there is no obligation to do so. But it does not
follow that a railroad corporation can carry passengers as well for
itself the one way as the other. There may be a difference arising
from various considerations. There may be more travellers and
more freight to be carried one way than the other. It may be more
expensive. There may be more risk in the one passage than the
other. The up train may go more by daylight and the down train
more by night. That such considerations as these might arise in a
case, whether in this instance they exist or not, helps to demon-
strate that a ticket one way is a different thing from a ticket the
other. Practically , the doctrine set up by the plaintiff, if allowed
to prevail, would affect the defendants injuriously. It is well
known that through tickets are cheaper pro rata than the way or
local fares. This fact has led to a practice on the part of way
travellers of buying through tickets and using them over a part of
the route and selling them for the balance of the distance, so as to
make a saving from the regular prices charged. It is easily seen
that, if a passenger is permitted to ride in either direction on a
ticket, it increases the chances for carrying on this sort of specu-
lation against the interests of the road.
It does not avail the argument for the plaintiff at all, that before
this he had passed over the road upon other tickets in a direction
the reverse of that advertised upon their face; nor is it of any
importance that another conductor upon another train at another
time expressed an opinion to him that his ticket would be for either
direction good. The contract is not shorn of a particular stipula-
tion merely because it is not always enforced. Nor could such con-
ductor in such manner bind the corporation, and it could not have
been understood by the plaintiff that he undertook to do so. The
conductor merely expressed an opinion about the matter which he
at that time had no business with. The plaintiff had ample oppor-
tunity to purchase another ticket, and should have done so. Wake-
field V. South Boston Eailroad, 117 Mass. 544.
• Plaintiff nonsuit.
AUEKBACH v. N. Y. C. & H. R. R. CO.
89 N. Y. 281. 1882.
Earl, J. This action was brought by the plaintiff to recover
damages for being ejected from one of the defendant's cars while he
was riding therein as a passenger. He was nonsuited at the trial,
and the judgment entered upon the nonsuit was affirmed at the
General Term. The material facts of the case are as follows: The
TICKETS. 1037
plaintiff, being in St. Louis on the 21st day of September, 1877,
purchased of the Ohio and Mississippi Eailway Company a ticket
for a passage from St. Louis over the several railroads mentioned
in coupons annexed to the ticket to the city of New York. It was
specified on the ticket that it was " good for one continuous passage
to point named on coupon attached; " that in selling the ticket for
passage over other roads the company making the sale acted only as
agent for such other roads, and assumed no responsibility beyond
its own line ; that the holder of the ticket agreed with the respec-
tive companies over whose roads he was to be carried to use the
same on or before the 26th day of September then instant, and that,
if he failed to comply with such agreement, either of the companies
might refuse .to accept the ticket, or any coupons thereof, and de-
mand the full regular fare which he agreed to pay. He left St.
Louis on the day he bought the ticket, and rode to Cincinnati, and
there stopped a day. He then rode to Cleveland and stayed there a
few hours, and then rode on to Buffalo, reaching there on the 24th,
and stopped there a day. Before reaching Buft'alo he had used all
the coupons except the one entitling him to a passage over the de-
fendant's road from Buffalo to New York. The material part of
the language on that coupon is as follows : —
"Issued by Ohio and Mississippi Eailway on account of New
York Central and Hudson Eiver Eailroad one first-class passage,
Buffalo to New York."
Being desirous of stopping at Eochester, the plaintiff purchased
a ticket over the defendant's road from Buffalo to Eochester, and
upon that ticket rode to Eochester on the 2oth, reaching there in
the afternoon. He remained there about a day, and in the after-
noon of the 26th of September he entered one of the cars upon the
defendant's road to complete his passage to the city of New York.
He presented his ticket, with the one coupon attached, to the con-
ductor, and it was accepted by him, and was recognized as a proper
ticket and punched several times, until the plaintiff reached Hudson
about three or four o'clock, a. m., September 27th, when the con-
ductor in charge of the train declined to recognize the ticket on the
ground that the time had run out, and demanded three dollars fare
to the city of New York, which the plaintiff declined to pay. The
conductor with some force then ejected him from the car.
The trial judge nonsuited the plaintiff on the ground that the
ticket entitled him to a continuous passage from Buffalo to New
York, and not from any intermediate point to New York. The
General Term affirmed the nonsuit upon the ground that, although
the plaintiff commenced his passage upon the 26th of September, he
could not continue it after that date on that ticket.
We are of opinion that the plaintiff was improperly nonsuited.
The contract at St. Louis, evidenced by the ticket and coupons
there sold, was not a contract by any one company or by all the
1038 CARRIERS OF PASSENGERS.
companies named in the coupons jointly for a continuous passage
from St. Louis to New York. A separate contract was made for a
continuous passage over each of the roads mentioned in the several
coupons. JJach company through the agent selling the ticket made
a contract for a passage over its road, and each company assumed
responsibility for the passenger only over its road. No company
was liaible for any accident or default upon any road but its own.
This was so by the very terms of the agreement printed upon the
ticket. Hence the defendant is not in a position to claim that the
plaintiff was bound to a continuous passage from St. Louis to New
York, and it cannot complain of the stoppage at Cincinnati and
Cleveland. Hutchinson on Carriers, sec. 579; Brooke v. The Grand
Trunk Eailway Co., 16 Mich. 332.
But the plaintiff was bound to a continuous passage over the
defendant's road ; that is, the plaintiff could not enter one train of
the defendant's cars and then leave it, and subsequently take
another train, and complete his journey. He was not, however,
bound to commence his passage at Buffalo. He could commence it
at Rochester or Albany, or any other point between Buffalo and
New York, and then make it continuous. The language of the con-
tract and the purpose which may be supposed to have influenced the
making of it do not require a construction which would make it
imperative upon a passenger to enter a train at Buffalo. No pos-
sible harm or inconvenience could come to the defendant if the
passenger should forego his right to ride from Buffalo and ride only
from Rochester or Albany. The purpose was only to secure a con-
tinuous passage after the passenger had once entered upon a train.
On the 26th of September the plaintiff having the right to enter a
train at Buffalo, it cannot be perceived why he could not, with the
same ticket, rightfully enter a train upon the same line at any
point nearer to the place of destination.
When the plaintiff entered the train at Rochester on the after-
noon of the 26th of September, and presented his ticket, and it was
accepted and punched, it was then used within the meaning of the
contract. It could then have been taken up. So far as the plain-
tiff was concerned, it had then performed its office. It was there-
fore left with him not for his convenience, but under regulations
of the defendant for its convenience that it might know that his
passage had been paid for. The contract did not specify that the
passage should be completed on or before the 26th, but that the
ticket should be used on or before that day, and that it was so used
it seems to us is too clear for dispute.
The language printed upon the ticket must be regarded as the
language of the defendant, and if it is of doubtful import the doubt
should hot be solved to the detriment of the passenger. If it had
been intended by the defendant that the passage should be con-
tinuous from St. Louis to New York, or that it should actually
TICKETS. 1039
commence at Buffalo and be continuous to the city of New York, or
tliat the passage should be completed on or before the 26th of Sep-
tember, such intention should have been plainly expressed and not
left in such doubt as might and naturally would mislead the
passenger.
We have carefully examined the authorities to which the learned
counsel for the defendant has called our attention, and it is suffi-
cient to say that none of them are in conflict with the views above
expressed.
The judgment should be reversed and a new trial granted, costs
to abide the event.
BOYLAN V. HOT SPETNGS E. CO.
132 U. S. 146. 1889.
This was an action of assumpsit against a railroad corporation by
a person who, after taking passage on one of its trains, was forcibly
expelled by the conductor.
At the trial in the Circuit Court, the plaintiff testified that on
March 18, 1882, he purchased at the office of the Wabash, St. Louis,
and Pacific Eailway Company in Chicago a ticket for a passage to
Hot Springs and back (which is copied in the margin,^ and which,
as was alleged in the declaration and appeared upon the face of the
ticket, was then signed by him as well as by the ticket agent, and
witnessed by a third person), and upon this ticket travelled on the
defendant's railroad to Hot Springs.
He was asked by his counsel when he first actually knew that the
ticket required him to have it stamped at Hot Springs. The ques-
tion was objected to by the defendant, and ruled out by the court.
He further testified that on April 19, 1882, when leaving Hot
Springs on his return to Chicago, he went to the baggage-office and
requested the baggage-master to check his baggage, and, on his
asking to see the ticket, showed it to him, and he thereupon punched
the ticket, checked the baggage, and gave him the checks for it; and
also that the gateman asked to see the ticket, and he showed it to
iim, and then passed through the gate and took his seat in the cars.
This testimony was objected to by the defendant, on the ground
that no statement or action of the baggage-master, or of the gate-
man, would constitute a waiver of any of the written conditions of
the contract; and it was admitted by the court, subject to the
objection.
The plaintifE then testified that soon after leaving Hot Springs
the conductor, in taking the tickets of passengers, came to him,
' 1 [The terms of the ticket sufficiently appear, without setting out the copy.]
1040 CAEEIEKS OF PASSENGEBS.
and, upon being shown his ticket, said it was not good, because he
had failed to have it stamped at Hot Springs; the plaintiff replied
that the baggage-master, when checking his baggage, had said
nothing to him about it, and he did not know it was necessary; the
conductor answered that he must either go back to Hot Springs and
have the ticket stamped, or else pay full fare, but did not demand
any specific sum of fare, or tell him what the fare was, and upon
his refusing to pay another fare or to leave the train, forcibly put
him off at the next station, notwithstanding he resisted as much as
he could, and in so doing injured him in body and health.
On motion of the defendant, upon the grounds, among others,
that this was an action of assumpsit for breach of contract, and
that the plaintiff failed to produce to the conductor a ticket or
voucher which entitled him to be carried on the train, and that
until the plaintiff identified himself at the office at Hot Springs
and had the ticket stamped and signed by the agent there, he had
no subsisting contract between himself and the defendant for a
return passage to Chicago, the court declined to permit the plain-
tiff to testify to the consequent injury to his business and to his
ability to earn money, excluded all evidence offered as to the force
used in removing him from the train, and as to his expulsion from
the train (although corresponding to allegations inserted in the
declaration) , and directed a verdict for the defendant.
The plaintiff excepted to the rulings of the court, and, after ver-
dict and judgment for the defendant, sued out this writ of error.
Mr. Justice Gkay. This is an action of assumpsit, and cannot
be maintained without proof of a breach of contract by the defend-
ant to carry the plaintiff. The only contract between the parties
was an express one, signed by the plaintiff himself as well as by the
defendant's agent at Chicago, and contained in a ticket for a passage
to Hot Springs and back. The plaintiff, having assented to that
contract by accepting and signing it, was bound by the conditions
expressed in it, whether he did or did not read them or know what
they were. The question, when he first knew that the ticket re-
quired him to have it stamped at Hot Springs, was therefore rightly
excluded as immaterial.
By the express condition of the plaintiff's contract, he had no
right to a return passage under his ticket, unless it bore the sig-
nature and stamp of the defendant's agent at Hot Springs; and no
agent or employee of the defendant was authorized to alter, modify,
or waive any condition of the contract.
Neither the action of the baggage-master in punching the ticket
and checking the plaintiff's baggage, nor that of the gateman in
admitting him to the train, therefore, could bind the defendant to
carry him, or estop it to deny his right to be carried.
The plaintiff did not have his ticket stamped at Hot Springs, or
make any attempt to do so, but insisted on the right to make tlie
TICKETS. 1041
veturn trip under the unstamped ticket, and without paying further
fare. As he absolutely declined to pay any such fare, the fact that
Ihe conductor did not inform him of its amount is immaterial.
The unstamped ticket giving him no right to a return passage,
and he not having paid, but absolutely refusing to pay, the usual
fare, there was no contract in force between him and the defendant
to carry him back from Hot Springs.
There being no such contract in force, there could be no breach
of it ; and no breach of contract being shown, this action of assump-
sit, sounding in contract only, and not in tort, cannot be maintained
to recover any damages, direct or consequential, for the plaintiff's
expulsion from the defendant's train. The plaintiff, therefore, has
not been prejudiced by the exclusion of the evidence concerning the
circumstances attending his expulsion and the consequent injuries
to him or his business.
The case is substantially governed by the judgment of this court
in Mosher v. St. Louis, Iron Mountain & Southern Eailway, 127
U. S. 390, and our conclusion in the case at bar is in accord with
the general current of decision in the courts of the several States.
See, besides the cases cited at the end of that judgment, the follow-
ing: Churchill v. Chicago & Alton Railroad, 67 Illinois, 390; Petrie
«. Pennsylvania Eailroad, 13 Vroom, 449; Pennington v. Philadel-
phia, Wilmington & Baltimore Railroad, 62 Maryland, 95; Raw-
itzky V. Louisville & Nashville Railroad, 40 La. Ann. 47.
Nor was anything inconsistent with this conclusion decided in
either of the English cases relied on by the learned counsel for the
plaintiff. Each of those cases turned upon the validity and effect of a
by-law made by the railway company, not of a contract signed by the
plaintiff; and otherwise essentially differed from the case at bar.
In Jennings v. Great Northern Railway, L. E. 1 Q. B. 7, the by-
law required every passenger to obtain a ticket before entering the
train, and to show and deliver up his ticket whenever demanded.
The plaintiff took a ticket for himself, as well as tickets for three
horses and three boys attending them, by a particular train, which
was afterwards divided into two, in the first of which the plaintiff
travelled, taking all the tickets with him; and when the second
train was about to start, the boys were asked to produce their
tickets, and, being unable to do so, were prevented by the com-
pany's servants from proceeding with the horses. An action by the
plaintiff against the company for not carrying his servants was sus-
tained, because the company contracted with him only, and de-
livered all the tickets to him; and Lord Chief Justice Cockburn,
with whom the other judges concurred, said: "It is unnecessary to
determine whether, if the company had given the tickets to the
boys, and the boys had not produced their tickets , it would have
been competent for the company to have turned them out of the
carriage."
1042 CAKRIEES OF PASSENGERS.
In Butler v. Manchester, Sheffield & Lincolnshire Railway, 21
Q. B. D. 207j the ticket referred to conditions published by the com-
pany, containing a similar by-law, which further provided that any
passenger travelling without a ticket, or not showing or delivering
it up when requested, should pay the fare from the station whence
the' train originally started. The plaintiff, having lost his ticket,
was unable to produce it when demanded, and, refusing to pay such
fare, was forcibly removed from the train by the defendant's ser-
vants. The Court of Appeal, reversing a judgment of the Queen's
Bench Division, held the company liable, because the plaintiff was
lawfully on the train under a contract of the company to carry him,
and no right to expel him forcibly could be inferred from the provi-
sions of the by-law in question, requiring him to show his ticket or
pay the fare; and each of the judges cautiously abstained from
expressing a decided opinion upon the question whether a by-law
could have been so framed as to justify the course taken by the
company. Judgment affirmed:
NASHVILLE, etc. E. CO. v. SPEAYBEREY.
8 Baxt. (Tenn.) 341. 1874.
McEakland, J. Sprayberry purchased from an agent of the
Nashville & Chattanooga R. E. Co., at Chattanooga, tickets for
himself, wife, and two children from that place to Shreveport, La.
The tickets are what are known as coupon tickets, and indicated the
route to be by the Nashville & Chattanooga road to Nashville, and
by other connecting ^oads to Memphis, and from that point to
Shreveport by steamboat. After passing over the railroads to
Memphis the party took the steamboat called the "Nick Wall,"
to which they were directed, and while on the route on the Missis-
sippi Eiver an accident occurred, in which the wife of Sprayberry
and his two children were drowned. This action was brought by
Sprayberry against the Nashville & Chattanooga E. E. Co. The
drowning is averred to have been the result of the misconduct and
want of skill of the officers and servants of the boat. A demurrer
was filed upon the ground that the plaintiff could not maintain the
action in his own name for wrongs or injuries causing the death of
the wife and children. This, we think, was properly overruled.
An action of this character is unknown to common law, and is only
given by statute, and where such an action is given by statute and
a remedy prescribed, that remedy must be pursued. As the injury
occurred in the State of Mississippi, the right of action and the
remedy prescribed by the statute of that State is the one to which
the plaintiff was entitled. The statute of this State on the subject
TICKETS. 1043
has no application. The action, though predicated upon the Mis-
sissippi statute, may be brought in this State. In such case the
declaration must aver the statute under which it is brought. This
was suiflciently done. That statute gives the remedy to the husband
■and father, and we enforce that remedy in our courts.
The next question, and one of importance, is as to the liability of
the Nashville and Chattanooga Railroad Company for injuries to the
passengers caused by the wrongful acts, negligence, or want of skill
in the officers and servants of the steamboat after the passengers
had passed beyond their line. The declaration avers that the de-
fendant was in partnership with the company or line of carriers
owning the boat. This was put in issue. The judge, in his charge,
instructed the jury in substance that it was not necessary for the
plaintiff to prove this to entitle him to a recovery, but if the plain-
tiff purchased the tickets from an authorized agent of the defendant,
the defendant thereby became bound for the transportation of the
passengers over the entire line for which the tickets were sold,
although beyond the terminus of its road; that the company selling
the tickets incurs a responsibility as though the entire route was
its own, unless it stipulated at the time for a less responsibility.
This we understand to be the substance of the instructions to the
jury on this question. This doctrine rests upon the theory that the
contract is alone with the company from whom the tickets were
purchased for the entire route, and that the connecting lines are
but agents of the first in carrying out this contract, and as a conse-
quence the acts or negligence of the servants causing the injury are
the acts of the joint company. This is laid down as the true doc-
trine in Shearman & Redfield on Negligence, sec. 272, though it is
conceded that the American eases do not always support it. The
■cases referred to in support of the position we have not had an
opportunity to examine.
In the case of Carter & Hough v. Peck, 4 Sneed, 203, the language
of the judge delivering the opinion of the court seems to favor this
view. In that case, however, it ' appeared that the plaintiff pur-
chased from the defendants , the proprietors of a stage line, through
tickets from Nashville to Memphis ; the defendants did not own the
entire line, but had an arrangement with another company owning
a stage line to receive the passengers at Waynesboro on the route
and carry them to LaGrange for their share of the fare, from which
point they were to be taken to Memphis by railway, but this
arrangement was not known to the plaintiff. The connecting line
at Waynesboro failed and refused to carry the plaintiff, and he
was compelled to pay his fare upon another route. It was held
that the plaintiff ^as entitled to hold the first company liable for
this failure upon the ground that his contract was alone with them.
The case of Fustenheim v. The Memphis & Ohio E. E. Co., de-
cided at Jackson by this court in April, 1872, was this, the plain-
1044 CAEEIEES OF PASSENGERS.
tiff purchased a through ticket from New York to Memphis from
the Pennsylvania Central Railroad Company, and received a check
for his baggage, to be delivered at Memphis. It was held that upon
this the plaintiff could not recover from the last company running
into Memphis for an injury to his baggage, which occurred while on
the Pennsylvania Central road; for this injury he must look to
that company. We also referred to several cases, and one of them
our own holding, thab a carrier receiving freight to be carried be-
yond the terminus of its own road is responsible for its delivery at
that point unless a different liability is stipulated for and these are
as stated authorities holding that the same rule applies to passengers.
On the other hand, there are authorities holding that a different
rule applies to passengers from the rule applicable to freight and
Ittaggage. That where tickets of this character are sold they are to
be regarded as distinct tickebs for each road sold by the first com-
pany as agent of the others, so far as passengers are concerned.
This is the doctrine maintained by Judge Eedfield in his work on
carriers. He refers, among others, to the case of Ellsworth v.
Tartt, 26 Ala. 733, in which he says the question was a good deal
examined, and the rule laid down to be, "If the proprietors of
different portions of a public line of travel, by an agreement among
themselves, appoint a common agent at each end of the route to
receive the fare and give through tickets, this does not of itself
constitute them parties as to passengers, so as to render each one
liable for losses occurring upon any portion of the line." He refers
also to other authorities. See Redfield on Carriers, sec. 444. And
the same author maintains the same doctrine in his work on the
Law of Railways, vol. 2, sec. 201.
In this conflict of authority we are left to adopt the rule which to
us seems supported by the soundest reason.
The extent and termini of great railway lines, owned and operated
by companies incorporated by public laws, may be supposed to be
known, at least in general, to persons of ordinary intelligence when
they purchase tickets to travel over them, especially when this is
shown by the tickets themselves. The system of selling through
tickets is one of great importance and convenience to travellers, as
it avoids trouble, besides securing in some instances lower rates.
The theory that the company selling the ticket shall be held from
this alone to have actually contracted to carry the passengers over
roads besides its own, and that the owners of the other roads are
but the agents of the iirst to carry out the contract, seems to us to
be an arbitrary assumption, — a sort of legal fiction, — and contrary
in some cases, at least, to the truth of the case. Assuming that in
fact, the different lines of road are separate and distinct, and owned
and controlled by different companies, with different agents and
officers, and that there is no contract or privity between them in
regard to carrying passengers, except the arrangement to sell through
TICKETS. 1045
•tickets, and that these facts appear in proof, shall the fact that the
first company, with the authority of the others, issues and sells the
tickets, be held of itself to establish exactly contrary to the truth,
that the other companies are but the agents and servants of the
first? There is nothing in this record to indicate that the officers
and agents of the steamboat whose wrongful acts or negligence are
said to have caused the death of the plaintiff's wife and children,
were the servants of this defendant, or in any manner under its con-
trol, except the simple fact that the defendant sold the tickets. To
allow this of itself to establish this arbitrary conclusion against the
truth, would be to attach unjust responsibility upon the company
selling the tickets. We are of opinion that in such cases the com-
pany selling the ticket shall be regarded as the agent of the other
lines when the tickets themselves impart this and nothing else
appears, and the purchaser may well understand with whom the
contract is made, and who is bound for its performance.
Of course the company selling the tickets may, by contract, either
expressed or to be fairly implied from its acts, bind itself to be
responsible for the entire route; but this should not be held con-
clusively established from the sale of the tickets alone, nor should
it be held to throw upon the defendant the onus of proving that it
expressly limited its liability. If a partnership, in fact appear, the
case would be different.
For this error the judgment must be reversed, and a new trial
awarded.
CENTRAL E. CO. v. COMBS.
70 Ga. 533. 1883.
Action for breach of contract to carry a passenger. The opinion
states the point. The plaintiff had judgment below.
Bla-Ndfokd, J. The defendants in error brought their separate
actions in the Superior Court of Bibb County against the plaintiff in
error, in which each alleged that he made a contract with the de-
fendant (the plaintiff in error), that for and in consideration of the
sum of $35.65, it would transport the plaintiff from the city of
Macon, Georgia, to the city of Galveston, Texas ; that he paid said
amount to defendant, and that defendant issued and delivered to
plaintiff a ticket, with certain coupons attached; that plaintiff
travelled and was transported on said ticket as far as the city of
New Orleans; that part of the ticket so purchased was over the
Morgan line from New Orleans to Galveston ; that he left the city
of Macon on the 20th of August, 1879, and followed the directions
given him by defendant, reaching New Orleans on the 21st of
1046 CAREIEES OF PASSENGERS.
August, 1879, and there the defendant failed and refused to carry
him further on his journey, and the Morgan line failed and refused
to carry .plaintiff from New Orleans to Galveston. And it was
further averred that there was no steamer running on the Morgan
line from New Orleans, and had not been for a long time before the
issuing of said ticket and the making of the contract, and that fact
defendant knew before it sold the ticket. These are all the alle-
gations in the declaration material to be considered by this court.
The defendant in the court below and plaintiff in error in this
court filed a plea of the general issue.
There are several questions made by this record. Tirst, is a
railroad company which sells and issues tickets to passengers and
persons over its own lines of road and the lines of road of other
companies, known as through tickets, liable for the sure and safe
transportation of such passengers or persons to the point of destina-
tion, notwithstanding there may be indorsed or printed on the
tickets so sold and issued, "that the company issuing and selling
such tickets shall not be liable except as to its own line of road ?"
It has been held by this court, that when a passenger with a through
ticket over a connecting line of railroads checks his baggage at the
starting-point through to his destination, and upon arriving it is
damaged and has been broken open and robbed, he may sue the road
which issued the check, or he may sue the road delivering the bag-
gage in bad order. Wolff v. Central Eailroad Company, 68 Ga. 653;
Hawley v. Screven, 62 Ga. 347. In 2 Kedf. Eailw., § 201, it is
stated " that taking pay and giving tickets or checks through for the
carriage of baggage of passengers, binds the first company, ordi-
narily, for the entire route." Yet this author, who cannot be con-
sidered as having any bias or prejudice against these corporations,
does not assign any reason for the dictum above. He contents him-
self with citing the case of McCormick v. Hudson Eiver K. Co.,
4 E. D. Smith, 181.
It may be very safely assumed from these decisions that the law
in this State is, that when a railroad company issues and sells a
ticket over its own lines of road, and over the lines of other roads
to a point designated, such company is liable to the passenger thus
purchasing such ticket, who checks his baggage through on the line
indicated in the ticket, for the safe and secure carriage and trans-
portation of such baggage. And if the railroad company would be
liable for the safe and secure transportation of the baggage of a
passenger which is but a convenience and incident of the passenger,
it cannot be very readily perceived why such company should not
be liable for the safe and secure carriage and transportation of the
passenger himself. Why is the company thus contracting liable for
the transportation of the passenger's baggage ? Is it not because
such is the undertaking of such company ?
TICKETS. 1047
In the case of Illinois C. E. v. Copeland, 24 111. 338, the Supreme
Court of that State say this: "We hold the ticket and the check
given by this company, and produced in evidence, imply a special
undertaking to carry the passenger to St. Louis via the Terre Haute
& A-lton Eailroad and his baggage also. The ticket is what is
known as a through ticket, and the check denotes that the baggage
is checked from Chicago to St. Louis, and both inform the pas-
senger that the Illinois Central has running connections with the
Terre Haute & Alton road, and that they can and will deliver the
passenger and baggage, by means of this connection, at St. Louis.
The ticket and check are both issued by the Illinois Central ; they
are the evidence of the contract made with them, and in effect speak
this language : ' If you will buy this ticket we will carry you safely
to St. Louis and your baggage also; the terminus of our road, by
means of our connection with the Terre Haute & Alton road, is at
St. Louis, and we guarantee to you your safe arrival there with your
baggage, . . . whether we run our own cars through or take those
of the other road at the point of intersection. You pay through,
and you and your baggage shall be carried through. ' This is the
contract evidenced, we think, by the ticket and the check."- What
a close analogy between the case under consideration and the
Illinois case above cited! And the reason for the rule is well
stated. You [pay your money to go through, and [the company
receiving it guarantees to you that you shall go through safely; it
is an implied special contract, and it is not limited by any state-
ments written or printed on the check or ticket not signed by the
passenger. In support of this doctrine see Quimby v. Vanderbilt,
17 N. Y. 306; also Kessler v. N. Y. C. R. Co., 7 Lans. 62; Code
of Ga., § 2068.
\0n another ;pomt judgment reversed."^
TEANK V. INGALLS.
41 Ohio St. 560. 1885.
Nash, J. The plaintiff in error seeks to have the judgment of the
District Court reversed on the theory that a railroad passenger
ticket, like those described in the statement of facts, is negotiable
and passes by delivery from the holder to a purchaser, and that any
person purchasing and receiving such ticket from any holder thereof
takes it freed of all equities of the railroad company, or defects of
title , or want of authority in the seller to dispose of it.
The character of a railroad-passenger ticket has been considered
1048 CARRIERS OF PASSENGERS.
by the Supreme Court of this State. In the case of C. C. & C. E.
E. Co. V. Bartram, 11 Ohio St. 457, it is spoken of as " a convenient
symbol to represent the fact that the bearer has paid to the com-
pany the agreed price for his conveyance upon the road to the place
therein designated." Again, in the case of Eailroad Company v.
Campbell, 36 Ohio St. 647, it is said that a railroad ticket "is
simply a voucher that the person in whose possession it is, has paid
his fare." Lawson, in his work on "Contracts of Carriers," sec.
106, p. 116, says, "that a railroad or steamboat ticket is nothing more
than a mere voucher that the party to whom it is given, and in whose
possession it is, has paid his fare and is entitled to be carried a cer-
tain distance," and supports his definition by the citation of numer-
ous decisions.
It thus seems to be well established that a railroad ticket is a re-
ceipt or voucher. It has more the character of personal property
than that of a negotiable instrument. When the possession of such
a ticket has been obtained by fraud the company has parted with
the possession of it, but not with the title to it, and the person pur-
chasing from the holder, although for value and without notice of
equities, takes no better title than the party had who fraudulently
obtained possession of it. We do not perceive that the holder of
such a ticket is in any better position than the bona fide purchaser
of goods from one in possession, for a valuable consideration, and
without notice of any defect in his vendor's title. Such a purchaser
cannot be protected against the title of the true owner in a case
where the vendor has fraudulently obtained his possession and
without the knowledge or consent of the owner, although previous
to such possession he had, by false and fraudulent representations,
.induced the owner to enter into a contract for the sale of the goods.
Dean v. Yates, 22 Ohio St. 388; Hamet v. Letcher, 37 Ohio St. 356.
From the facts found by the courts below it appears that the pos-
session of the tickets in controversy were obtained from Ingalls,
receiver of the railroad company, by the fraud of Fordyce, and we
conclude that Frank, the purchaser from Fordyce, obtained no title
thereto.
Eagan, the agent of the receiver, authorized to sell such tickets,
and stamp and deliver the same upon receiving pay therefor, did not
bind his principal when he stamped and delivered the tickets, with-
out his knowledge or consent, to a third person, to be sold by him,
and to be paid for when sold.
Judgment affirmed.
TICKETS. 1049
SLEEPER V. PENNSYLVANIA EAILEOAD CO.
100 Penn. St. 259. 1882.
Case, by George W. Sleeper against the Pennsylvania Railroad
Co., to recover damages for an illegal ejecting of plaintiff from de-
fendant's train.
On the trial the plaintiff testified that on the morning of May 8th,
1878, he took passage on the defendant's train from New York to
Philadelphia and tendered to the conductor in payment of his fare
a ticket which he had bought several months before at a place on
Broadway, New York, not a regular agency of the company, but a
place where they advertised tickets at reduced rates. He further tes-
tified that he paid for the ticket one dollar less than the current
rates. The conductor refused to receive the ticket, and upon plain-
tiff's refusing to pay the fare put him off the train at Elizabeth.
The present suit was then brought. The court on motion of defend-
ant awarded a nonsuit, which the court in banc subsequently declined
to take off. Plaintiffs thereupon took this writ, assigning for error
the granting of the nonsuit and tlie refusal to take off the same.
Mr. Justice Teunkby. The parties agree that this case presents
a single question, whether a person purchasing a ticket over the
Pennsylvania Railroad from New York to Philadelphia, from a
ticket-dealer who is not an authorized agent of the company, can
maintain an action in the courts of this State for the refusal of the
company to carry him between these points in return for said ticket.
By the Act of May 6th, 1863, P. L. 682, it is made the duty of
every railroad company to provide each agent authorized to sell
tickets entitling the holder to travel upon its road, with a certificate
attested by the corporate seal and the signature of the officer whose
name is signed to the tickets. And any person not possessed of
such authority, who shall sell, barter, or transfer, for any considera-
tion, the whole or any part of a ticket, or other evidence of the
holder's title to travel on any railroad, shall be deemed guilty of a
misdemeanor, and shall be liable to be punished by fine and impris-
onment. The purchasing and using" a ticket from a person who has
no authority to sell , is not made an offence.
That the plaintifi's ticket, on its face, entitled him to the rights
of a passenger between the points named, is unquestioned. The
only reason for denying him such right was that he bought from one
who sold in violation of the statute in Pennsylvania. It is not
said that the vendor in New York is actually guilty of the statutory
offence, but that the defendant, being a corporation in Pennsylvania,
and the stipulated right of passage being partly in Pennsylvania,
1050 CARRIERS OF PASSENGERS.
her courts will not enforce a contract resting upon acts whicli the
legislature has declared criminal.
The presumption is that the ticket was properly issued by the
company, and that the holder had the right to use it. Such tickets-
are evidence of the holder's title to travel on the railroad. Prior to-
the statute in Pennsylvania, it was lawful for holders to sell them.
The property in them passed by delivery. The Act of 1863 con-
fers no right upon a railroad company to question passengers as to-
when, or where, or how they procured their tickets, or to eject them
from the cars upon suspicion that the tickets were sold to them by a
person who was not an agent for the company. At common law,
which is deemed in force in absence of evidence to the contrary, th&
contract made by the plaintiff in New York was valid. It was
executed. No part remained to be performed. It vested in him
the evidence of title to a passage over the railroad. His act had nO'
savor of illegality or immorality. It was the mere purchase of the
obligation of a common carrier, to carry the holder according to its
terms. The defendant issued the obligation, received the consider-
ation, and became liable for performance at the date of issue. As
transferee, the plaintiff claimed performance. This is the contract
which is the basis of the cause of action. It is purposely made sO'
as to entitle the bona fide holder to performance, and for breach to-
an action in his own name. Let it be assumed that the defendant
made the contract in Pennsylvania, it is quite as reasonable tO'
assume that tickets for passengers coming from New York into-
Pennsylvania were sold in New York. But wherever the contract
was made, it is true, as claimed by the defendant, "this action is-
to enforce not the contract between the ticket-scalper and the plain-
tiff in error, but between the defendant in error and the plaintiff in
error."
The sale of the ticket to the plaintiff in New York was lawfuL
That being an executed contract, there is no question respecting its-
enforcement. Surely it is not an exception to the rule that con-
tracts, valid by the law of the place where they are made, are
generally valid everywhere. Then, as the plaintiff has a valid title
to the ticket, the contract between the defendant and himself is
valid.
Judgment reversed and procedendo awarded.
BEGULATI0N8. 1051
8. EEGULATIONS.
JEFFEESONVILLE E. CO. v. EOGEES.
28 Ind. 1. 1867.
Pbazeb, J. This was a suit by the appellee against the appellant
for unlawfully expelling the appellee from its cars. The complaint
alleged that the defendant's ticket agent refused to sell a ticket to the
plaintiff; that he thereupon seated himself in the car without such
ticket, for the purpose of being carried from Indianapolis to Colum-
bus, and tendered the usual ticket fare to the conductor, who refused
that sum and demanded a greater sum by fifteen cents ; and upon a
refusal by the plaintiff to pay the sum demanded, he was, by the
defendant, expelled from the vehicle three miles from a station.
The answer was in two paragraphs. The first was a general
denial, under which the matter pleaded in the second was admissible
in evidence, and there was therefore no available error in sustaining
a demurrer to the latter.
Various questions are made upon the instructions to the jury,
and as to the admissibility of evidence, all of which are in the
record by an unsuccessful motion for a new trial, there having been
a verdict for the plaintiff in the sum of $345.
The evidence established the averments of the complaint upon
every point, save that the plaintiff had applied tor and been refused
a ticket. Upon that subject there was a conflict. It appeared, too,
that the appellant- discriminated in its charges for passage in favor
of persons holding tickets ; the usual rate, if paid on the train, being
$2.10, and the usual rate for a ticket $1.95. That the ticket agent
was at that time supplied with tickets, and instructed to sell them,
was clearly proven. Tickets were sold to other persons at that time,
and for Columbus'. If, therefore, he refused a ticket to the appellee,
it was of his own motion and in violation of his duties as agent of
the appellant. The appellant existed under a special charter (local
laws of 1846, p. 153), which gave it full power to fix its rates of
passenger fares, " provided that the rates established from time to
time shall be posted up at some conspicuous place or places on said
road ; " and this had been done as to the rates then usual, both for
tickets and when payment was made on board to the conductor.
It is not controverted that the appellant had the right, for its own
protection against the possible dishonesty of conductors, and for the
convenient transaction of its business, to discriminate in favor of
persons purchasing tickets. The regulation is a reasonable one, if
1052 OAEEIERS OF PASSEiTGEES.
carried out by the corporation in good faith. It tends to protect
the corporation from the frauds of its conductors, and from the
inconvenience of collecting fares upon its trains in motion ; and it
imposes no hardship whatever upon travellers. But if the corpora-
tion may refuse to furnish the tickets, and thus fail to do what is
plainly implied by the adoption and publication of the rule, it would
be unreasonable, and therefore not binding upon its passengers.
Such a corporation cannot be sustained, in so far as it assumes to
be the arbitrary" master of its patrons. It is a common carrier of
passengers, and must perform the obligations which the law imposes
upon it as such. It has no lawful authority to impose upon travel-
lers by vexatious and deceptive rules and regulations, such as the
one under consideration would obviously be, if it does not carry
with it an obligation on the part of the corporation to afford passen-
gers the opportunity to avail themselves of the discrimination in
fares which it publicly offers. That such an obligation does arise
out of the adoption of such a regulation was expressly ruled in
Illinois. Chicago, &c. Co. v. Parks, 18 111. 460, and St. Louis, &c.
Co. V. Dalby, 19 111. 353. The latter case is precisely in point liere,
it being held that the passenger, having been unable to procure a
ticket through the fault or neglect of the railroad company's ticket
agent, had a right to be carried at the ticket rate, and that upon
tender of that sum to the conductor, his subsequent expulsion from
the train was a wrong for which the corporation was liable.
In iN'ew York, the subject has been regulated to some extent by
statute. To ask or receive a greater rate of fare than that allowed
by law, entitles the passenger to recover the sum of fifty dollars as
a penalty. The New York Central Kailroad Company is required
to keep its ticket office at Utica open for the sale of tickets for an
hour prior to the departure of each train, but it is not required to
keep such office open between 11 o'clock p. m. and 5 o'clock a. m. ;
and if a person at any station where a ticket office is open enters the
cars as a passenger, without a ticket, the company may charge five
cents in addition to the usual fare, which is fixed at two cents per
mile. In Nellis v. New York Central Railroad Company, 30 N. Y.
505, where a passenger from Utica entered the train without a
ticket, at 1 o'clock a. m., when the ticket office was not open, and
was compelled to pay the additional five cents, it was held that the
penalty was incurred. It was argued there that the case was not
within the statute, because the ticket office was not required to be
open at that hour ; and upon that point it is said, in the opinion of
the court: "It is insisted that because the plaintiff did not do
what it was impossible for him to do, to wit, buy a ticket before
leaving Utica, he became liable to pay the extra fare. It seems to
me the proposition has but to be stated to be rejected as utterly
unsound. To compel a passenger to pay a penalty because the
company had deprived him of the power to travel for the regula?
EEGULATIONS. 1053
fare, would be so oppressive and unjust that it would require a posi-
tive provision of a legislative act to induce any tribunal to sanction
it." Though that case arose under the statutes of New York, and
might have been decided without touching upon the subject dis-
cussed in the passage quoted, yet the reasoning of the quotation is
so forcible and so directly applicable to the point under considera-
tion here that it may well be deemed an authority. And the fact
that a State like New York, largely interested in commerce, and
whose known policy it is, in every proper way, to foster her great
corporations engaged in the transportation of passengers, should, by
statute, make their right to discriminate in fares depend upon their
affording the passenger an opportunity to avail himself of the dis-
crimination, is worth some consideration when the inquiry is whether
such a discrimination can be upheld as reasonable without the cor-
responding obligation upon the carrier.
Opposed to the doctrine already announced, Crocker v. New Lon-
don, &c. Co., 24 Conn. 249, stands alone, so far as we know. The
facts of that case were much like the one at bar, except that the
ticket office was closed for the night, to be opened as usual there-
after. That fact was held as proof that the company had withdrawn
its proposition to carry at ticket rates, and was therefore not bound
to carry a passenger tendering to the conductor merely the price of
a ticket. The law certainly deduces no such conclusion from the fact
of closing a ticket office, as was reached in that case, to wit: that
the offer to carry at ticket rates was withdrawn. It is a conclusion
of fact and not of law, and we think not at all a legitimate one.
The Supreme Court of Iowa, in citing this case to another point, in
the State v. Chovin, 7 Iowa, 204, very properly disclaimed any
purpose to be understood as concurring with the case upon the
question now under examination. But the Connecticut case can
have no application whatever to the inquiry as it arises in the
present case, for here the evidence is clear that the offer was not
withdrawn ; that the agent was supplied with tickets and instructed
to sell them, and did actually sell them on that occasion to other
passengers for Columbus.
The court refused the following instruction, asked by She
appellant : —
"If you believe, from the evidence, that the plaintiff did not
apply for, and was not refused a ticket, as alleged in his complaint,
and that he refused to pay to the conductor of said train the regular
and usual fare fixed by said company for a passage paid upon the
■cars, then the said conductor would have a right to eject the plaintiff
from said cars, using no more force than was necessary for that pur-
pose, even though between stations."
The question thus presented is, whether the expulsion, if other-
wise rightful, might lawfully occur elsewhere than at a station,
This question, in the case before us, does not depend upon a statute.
1054 CAEEIEKS OF PASSENGERS.
Our general railroad, law, 1 G. & H. 516, does not apply to the appel-
lant, and its charter is silent upon the subject. It is said in the
briefs, which have evidently been prepared with great care, that
the question is without direct authority. The passenger who refuses
to pay fare is from that moment an intruder, and wrongfully on the
train. He has no lawful right to be carried gratis to the next
station. This is too plain to admit of debate. It follows that he
may be expelled at once. There may be public considerations, such
as the danger of collisions resulting from stopping trains between
stations, or the peril to the travelling public consequent upon the
increase of speed necessary to regain time thus lost, which justify
the enactment of a law that the expulsion must occur at a station.
These considerations, however, form no basis for a claim by a
passenger to be carried gratuitously from one station to the next.
The refusal to give this instruction must reverse the judgment.
The judgment is reversed, with costs, and the cause remanded for
a new trial.
EVERETT V. CHICAGO, etc. E. CO.
69 Iowa, 15. 1886.
On the morning of August 18, 1881, the plaintiff took passage on
defendant's railroad at a small station nam^d Weston, intending to
travel to Council BlufEs, a distance of ten miles. He did not pro-
cure a passenger ticket, and the conductor of the train demanded ten
cents in addition to the ticket rate, which the plaintiff refused to
pay. Thereupon the conductor caused the train to be stopped, and
he forcibly ejected the plaintiff therefrom. This action was brought
to recover damages for the alleged wrongful act of the conductor in
removing the plaintiff from the train. A trial by jury resulted in a
verdict and judgment for the defendant. Plaintiff appeals.
KoTHEOCK, J. I. It is provided by section 2 of chapter 68 of
the Laws of 1874, Miller's Code, 347, that "a charge of ten cents
may be added to the fare of any passenger where the same is paid
upon the cars, if a ticket might have been procured within a reason-
able time before the departure of the train." The ground upon which
the plaintiff based his refusal to pay the ten cents demanded by the
conductor was that he was prevented from procuring a ticket, because
the ticket office was closed when he presented himself for the pur-
pose of purchasing a ticket. The facts are that the plaintiff is the
owner of a large farm some five miles from Weston. His residence
is at Council Bluffs, and he made frequent visits to his farm, going
EEGULATIONS. 1055
by rail by tte way of Weston. He knew that the defendant was
authorized to collect ten cents, in addition to the ticket rate, from
passengers who neglected to purchase tickets at the station. Wes-
ton is a small and unimportant station at which an inconsiderable
amount of business is done by the railroad company, either in
freight or passenger trafB.c. As is usual at such places, the company
keeps no assistant for the agent; and, when a train arrives, the
agent leaves the ticket office, and goes upon the platform of the
station to transact his business with the train; such as seeing to the
loading of the mail on the train, the receipt and delivery of baggage
and express packages, and the like. The plaintiff came in from his
farm in the morning, and stopped at a store in the village until he
heard the whistle of the train as it approached the station, when he
went to the station, and arrived there just before the train came to
a full stop. The ticket agent had the office open for a considerable
time before the train arrived, and sold tickets to passengers, and he
did not leave the office until the engine to which the train was
attached had passed the office window, when he went on the plat-
form to attend to his train duties. The train stops at that station
only long enough to do the train business and allow passengers to
get on and off the cars.
The court permitted all these facts to be shown to the jury, and
charged the jury to the effect that if, under all these facts and cir-
cumstances, a reasonable time was given to passengers to purchase
tickets before the departure of the train, the conductor was autho-
rized to demand the extra ten cents of the plaintiff. One of the
instructions to the jury was as follows : " (6) The fact, if it is a fact,
that the plaintiff applied at the defendant's ticket office at Weston
to purchase a ticket at a time when it was closed, does not of itself
alone necessarily show that opportunity was not given within a
reasonable time before the departure of the train for the purchase of
tickets; nor can it be said, as matter of law, that the defendant had
a right to close its ticket office as soon as the train arrived at the
station. The question, what is a reasonable time for the procuring
of tickets before the departure of trains from a station, depends
principally on the requirements, convenience, and demands of the
public at that particular station. It was the duty of defendant to
keep its ticket office open, and to keep a competent man there to sell
tickets at such times as would reasonably, fairly, and fully accommo-
date the public in the matter of procuring tickets. Eegard should
be had to the importance of the station, and the number of people
who have occasion to purchase tickets there ; and the ticket office
should be kept open at such times as people in general who travel
by rail are in the habit of repairing, and find it convenient to repair,
to the station to purchase tickets and get aboard the train."
Counsel for appellant insist that this and other instructions given
by the court to the jury are erroneous. They claim that, under a
1056 CAEEIBES OF PASSENGERS.
proper construction of the statute above cited, it was the duty of the
railroad company to keep its ticket office open up to the time of the
departure of the train ; in other words, they claim that by the very
terms of the statute the office must be kept open for the sale of tick-
ets just so long as it is possible for passengers to purchase tickets
and board the train. Assuming this to be the meaning and intent
of the statute, they contend that it was error for the court to submit
to the jury the question whether, under the facts, the office was kept
open a reasonable time in which passengers might procure tickets.
We do not think this position is sound. In our opinion, it was
proper to allow the defendant to introduce evidence of the character
of the station, and whether the facilities extended to the travelling
public to purchase tickets were such as were required for the con-
venience of the public. It would be a most unreasonable require-
ment to impose upon the defendant the burden of employing two
persons to attend to the station in order that the ticket office might
be kept open for the one or two minutes which a train is required
to stop at such a station, in order to accommodate the exceptional
cases of passengers who may for any reason arrive at the station
after the arrival of the train. Eegard must be had to the orderly
transaction of the business of the station, taking into consideration
the necessary and proper facilities extended to persons having occa-
sion to travel on the trains or transact other business with the com-
pany. It is absolutely necessary that the office should be open for
business a sufficient time before the departure of the train, in order
to enable passengers to procure their tickets, receive and count their
change, if any, and prepare to board the train, without unnecessary
interference with each other. But the language " before the depar-
ture of the train '' does not require that the office shall remain open
up to the instant the train moves off. The question is, might the
passenger have procured a ticket within a reasonable time before
the departure, and not up to the very moment when the wheels be-
gan to move.
II. Some complaint is made as to the place where the plaintiff
was ejected from the cars. It appears that it was half a mile from
a public crossing. It is not required in this State that, where a per-
son may rightfully be ejected from a railroad train, it must be done
at a station or public crossing. Brown v. Railroad Co., 51 Iowa,
235. In the case at bar, all of the facts attending the removal of
the plaintiff from the train, and the place where he was removed,
were fairly submitted to the jury on what we regard as proper in-
structions; and the jury, in answer to a special interrogatory, found
that the conductor did not act with malice, express or implied,
towards plaintiff in ejecting him from the train. We think this
finding was fully supported by the evidence.
III. The plaintiff offered to introduce evidence to the effect that
the defendant's station was an unfit place for passengers to remain
KEGULATIONS. 1057
in waiting for trains because of the close proximity of a privy. The
evidence was excluded, and plaintiff's counsel complain of this rul-
ing of the court. We think it was correct. The plaintiff did not
allege this as a reason why he did not go to the station and procure
a ticket, and he made no such claim to the conductor. His sole
ground of recovery was based upon the alleged fact that he could
not procure a ticket because the office was closed.
We think the judgment of the district court should be
Affirmed.
TOWNSEND V. N. Y. CENTRAL & H. E. E. CO.
56 N. Y. 295. 1874.
Gkovee, J. This action was brought by the plaintiff to recover
damages for an assault upon and forcibly ejecting him from its cars,
at Staatsburg, a station on defendant's road between Poughkeepsie
and Khinebeck.
The jury by their verdict have found that the plaintiff purchased
a ticket at the station of Sing Sing for Rhinebeck; that with this
ticket he went on board a train from New York, going no farther
north than Poughkeepsie; that after this train passed Peekskill the
conductor called for tickets and the plaintiff handed his to him,
which he took and retained, giving to the plaintiff no check or other
evidence showing any right to a passage upon any train of the de-
fendant; nor did the plaintiff ask for a return of his ticket or for
any such evidence. Upon the arrival of the train at Poughkeepsie,
where it stopped, the plaintiff got out and waited at the station
until another train arrived from New York, which was going to
Albany, stopping at Rhinebeck. The plaintiff got into and seated
himself in a car in this train; and after it started the conductor
called upon him for his ticket ; in reply to which the plaintiff told
him that he had purchased a ticket from Sing Sing to Rhinebeck,
which the conductor of the other train had taken and had not given
back to him; some of the passengers told the conductor that the
plaintiff had had such a ticket. The conductor told the plaintiff
that it was his duty in case he had no ticket to collect the fare, and
that the other conductor would make it right with him. The plain-
tiff refused to pay fare, and the conductor told him he must leave
the train. This the plaintiff refused to do, insisting upon his right
to a passage to Rhinebeck upon the ticket which the conductor of
the other train had taken. Upon the arrival of the train at Staats-
burg, a regular station, the plaintiff, still refusing to pay fare or to
leave the train upon request, was taken hold of and such force used
1058 CAREIEES OF PASSENGEKS.
as was necessary to overcome his resistance, and ejected from the
car. This was the injury for which the recovery was had.
The court, among other things, charged the jury that the con-
ductor seemed to have done no more than his duty to the company
as between him and the company ; but at the same time that did not
excuse the company for the wrongful act of the other conductor —
for which act they were responsible. The defendant's counsel re-
quested the court to charge the jury that this was not a case for
punitive or exemplary damages. The court declined so to charge,
and in reply said : "I am inclined to think it is a case where the
jury are not restricted to actual injuries, — in other words, to com-
pensatory damages." To this the counsel for the defendant ex-
cepted. This exception was well taken. It must be kept in mind
that the injury for which a recovery was sought was the forcible
ejection of the plaintiff from the car by the conductor of the train,
not the wrongful taking from the plaintiff of his ticket by the con-
ductor of the other train. The latter was regarded as material,
only as making the former act wrongful as against the plaintiff.
The court, in substance, charged that in putting the plaintiff off the
car the conductor acted in what he believed was the performance of
his duty to the company. This being so, it is clear that no puni-
tory damages could have been recovered against him had he been
sued instead of the company. In Hamilton v. The Third Avenue
Eailroad Co., 53 if. Y. 25, it was held by this court that a master
was not liable for punitory damages for the act of his servant, done
under circumstances which would give no such right to the plaintiff
as against the servant had the suit been against him instead of the
master. Caldwell v. The New Jersey Steamboat Co. , 47 N. Y. 282,
is not at all in conflict with this ; nor does it hold that a master is
liable to punitory damages for the wrongful act of his servant if
free from any wrong of his own. It does hold that a corporation is
liable for punitory damages for its own torts and breaches of duty.
This error in the charges requires a reversal in the judgment and a
new trial.
But there is another important question in the case which will
necessarily arise upon a retrial, and which was raised by an excep-
tion taken upon the trial already had : that is whether the plaintiff
had a right to go upon another train and use force to retain a seat
there; refusing to pay fare, having no evidence of any right to a
passage, by reason of the conductor of the other train having wrong-
fully taken and retained his ticket.
It is insisted by the counsel for the plaintiff that this question
was decided in favor of the plaintiff in Hamilton v. Third Avenue
Eailroad Company, supra. This question was not involved or de-
cided in that case. There the plaintiff testified that when the car
upon which he had paid his fare to the City Hall stopped at an
intermediate station, its conductor told the passengers to change
EEGULATIONS. 1059
cars ; that before going on board the ear from which he was ejected,
he inquired of its conductor whether any transfer ticket was neces-
sary ; that the conductor told him it was not ; that if he came from
the other car he could go on board the one from which he was
ejected. This was equivalent to an assurance by that conductor
that he could ride upon the car under his control, without further
payment of fare or evidence of a right so to do. It was in reference
to this testimony that it was said that the company would be liable
for his wrongful ejection from the car by the conductor who had
given this assurance. But testimony was given by the defendant in
direct conflict with this. The judge erroneously charged the jury
that, assuming the truth of the latter testimony, and that the con-
ductor acted in good faith in putting the plaintiif ofE the car, still
he was entitled to recover of the company punitory damages if he
had paid fare to the City Hall upon the other car. For this error
the judgment was reversed and a new trial ordered by this court.
In Hibbard v. The New York & Erie Eailroad Co., 15 N. Y. 455,
it was held by this court that a railroad company had the right to
establish reasonable regulations for the government of passengers
upon its trains, and forcibly eject therefrom those who refused to
comply with such regulations. Surely a regulation requiring pas-
sengers either to present evidence to the conductor of a right to
a seat, when reasonably required so to do, or to pay fare, is reason-
able; and for non-compliance therewith such passenger may be
excluded from the car. The question in this case is whether a
wrongful taking of a ticket from a passenger by the conductor of
one train exonerates him from compliance with the regulation in
another train, on which he wishes to proceed upon his journey. T
am unable to see how the wrongful act of the previous conductor
can at all justify the passenger in violating the lawful regulations
upon another train. For the wrongful act in taking his ticket he
has a complete remedy against the company. The conductor of the
train upon which he was, was not bound to take his word that he
had had a ticket showing his right to a passage to Ehinebeck, which
had been taken up by the conductor of the other train. His state-
ment to that effect was wholly immaterial, and it was the duty of
the conductor to the company to enforce the regulation, as was
rightly held by the trial judge, by putting the plaintiff off in case
he persistently refused to pay fare. The question is, whether under
the facts found by the jury, resistance in the performance of this
duty was lawful on the part of the plaintiff. If so, the singular
case is presented, where the regulation of the company was lawful,
where the conductor owed a duty to the company to execute it, and
at the same time the plaintiff had the right to repel force by force
and use all that was necessary to retain his seat in the car. Thus,
a desperate struggle might ensue, attended by very serious conse-
■quences, when both sides were entirely in the right, so far as either
1060 CAEEIEKS OF PASSENGERS.
could ascertaiu. All this is claimed to result from the wrongful act
o"f the eonductor of another train, in taking a ticket from the plain-
tiff, for which wrong the plaintiff had a perfect remedy, without
inviting the commission of an assault and battery by persisting in
retaining a seat upon another train in violation of the lawful regu-
lations by which those in charge were bound to govern themselves.
It was conceded by the counsel, upon the argument, that one buy-
ing a ticket, say from Albany for Buffalo, which was wrongfully
taken from him by a servant of the company, and who had once
been put off for a refusal to pay fare, would not have the right to ga
upon other trains going to Buffalo, and, if forcibly ejected there-
from, maintain actions against the company for the injuries so in-
flicted. The reason why he could not, given by the counsel, was,
that being once ejected was notice that he could not have a seat
upon the ticket which he claimed had been taken from him. But
when the conductor in charge of the train explicitly tells him that
he cannot retain his seat upon that ticket, that he must pay fare or
leave the car, does it not amount to the same thing ? He then
knows that he cannot proceed upon the ticket taken, but must
resort to his remedy the same as though he had been ejected. If,
after this notice, he waits for the application of force to remove
him, he does so in his own wrong ; he invites the use of the force
necessary to remove him; and if no more is applied than is neces-
sary to effect the object, he can neither recover against the conduc-
tor or company therefor. This is the rule deducible from the
analogies of the law. No one has a right to resort to force to com-
pel the performance of a contract made with him by another. He
must avail himself of the remedies the law provides in such case.
This rule will prevent breaches of the peace instead of producing-
them; it will leave the company responsible for the wrong done by
its servant without aggravating it by a liability to pay thousands of
dollars for injuries received by an assault and battery, caused hy
the faithful efforts of its servants to enforce its lawful regulations.
The judgment appealed from must be reversed and a new trial
ordered, costs to abide event.
All concur: Polger and Andrews, JJ., concurring on the first
ground; Church, C. J., concurring on last ground stated in opinion.,
TREDEEICK v. M., H. & 0. R. CO.
37 Mich. 342. 1877.
Marston, J. This is an action on the case brought to recover
damages for being unlawfully ejected and put off a train of cars by
the conductor of the train. The evidence on the part of the plaio-
REGULATIONS. 1061
tiff tended to show that on the evening of January 29th, 1876, he
went to the regular ticket office of the defendant at Ishpeming and
asked for a ticket to Marquette, presenting to the agent in charge
of the office one dollar from which to make payment therefor; that
the agent received the money, handed plaintiff a ticket and some
change, retaining sixty-five cents for the ticket, the regular fare to
Marquette; that plaintiif did not attempt to read wliat was on the
ticket, nor did he count the change received back until next morn-
ing, or notice it until then ; that he went on board the train bound
for Marquette, and after the train left the station the conductor
took up the ticket, giving him no check to indicate his destination,
but at the time telling him his ticket was only for Morgan; that
when the train reached Morgan the conductor told the plaintiff he-
must get off there or pay more fare ; that if he wanted to go to Mar-^
quette he must pay thirty-five cents more ; plaintiff insisted he had
paid his fare and purchased his ticket to Marquette, and refused to
pay the additional fare, whereupon he was ejected from the train,
6tc. On the part of the defendant evidence was given tending to
show that the ticket purchased and presented to the conductor was
in fact a ticket for Morgan and not for Marquette. Under the
pleadings and charge of the court other evidence in the case and
questions sought to be raised need not be referred to, and as the real
gist of the action was for the expulsion from the cars by the con-
ductor, the above statement is deemed sufficient to a proper under-
standing of the case.
An erroneous impression seems to prevail with many that where
the conductor of a passenger train ejects therefrom a passenger who
has paid his fare to a point beyond, but has lost or mislaid his
ticket, or whose ticket does not entitle him to proceed further, or
upon that train, that the company is liable in an action at law for
all damages which the party may in any way have sustained in con-
sequence of the delay, mortification, injury to his health, or other-
wise, and tliat the passenger is under no obligation to prevent or
lessen the damages by payment of the necessary additional fare to
entitle him to complete his journey without interruption. Although
such damages were claimed in this case, under our present view it
will be unnecessary to discuss this question any farther at present.
What then is the duty of the conductor in a case like the present ?
and what are the passenger's rights •? In considering these ques-
tions, we cannot shut our eyes to the manner and method which
railroad companies and common carriers generally have adopted in
order to successfully carry on their business. The view to be taken
of these questions must be a practical one, even although it may
work perhaps injustice in some special and particular cases, result-
ing, however, in great part if not wholly from other causes. In Day
V. Owen, 5 Mich. 621, Mr. Justice Manning in speaking of the rules
and regulations of common carriers, said " all rules and regulations
1062 CARRIERS OF PASSENGERS.
must be reasonable, and, to be so, they should have for their object
the accommodation of the passengers. Under this head we include
everything calculated to render the transportation most comfortable
and least annoying to passengers generally ; not to one, or two, or
any given number carried at a particular time, but to a large major-
ity of the passengers ordinarily carried. Such rules and regulations
should also be of a permanent nature, and not be made for a partic-
ular occasion or emergency."
It is within the common knowledge or experience of all travellers
that the uniform and perhaps the universal practice is for railroad
companies to issue tickets to passengers with the places designated
thereon from whence and to which the passenger is to be carried ;
that these tickets are presented to the conductor or person in charge
of the train and that he accepts unhesitatingly of such tickets as
evidence of the contract entered into between the passenger and his
principal. It is equally well known that the conductor has but sel-
dom if ever any other means of ascertaining, within time to be of any
avail, the terms of the contract, unless he relies upon the statement
of the passenger, contradicted as it would be by the ticket produced,
and that even in a very large majority of oases, owing to the amount
of business done, the agent in charge of the office, and who sold the
ticket, could give but very little if any information upon the sub-
jfect. That this system of issuing tickets, in a very large majority
of cases, works well, causing but very little if any annoyance to pas-
sengers generally, must be admitted. There of course will be cases
where a passenger who has lost his ticket, or where through mis- "
take the wrong ticket had been delivered to him, will be obliged to
pay his fare a second time in order to pursue his journey without
delay, and if unable to do this, as will sometimes be the case, very
great delay and injury may result therefrom. Such delay and in-
jury would not be the natural result of the loss of a ticket or breach
of the contract, but would be, at least in part, in consequence of the
pecuniary circumstances of the party. Such cases are exceptional,
and however unfortunate the party may be who is so situate, yet we
must remember that no human rule has ever yet been devised that
would not at times injuriously affect those it was designed to accom-
modate. This method of purchasing tickets is also of decided
advantage to the public in other respects ; it enables them to pur-
chase tickets at times and places deemed suitable, and to avoid
thereby the crowds and delays they would otherwise be subject to.
Were no tickets issued and each passenger compelled to pay his
fare upon the cars, inconveqience and delay would result therefrom,
or the officers in charge of the train to collect fares would be in-
creased in numbers to an unreasonable extent, while at fairs and
places of public amusement where tickets are issued and sold enti-
tling the purchaser to admission and a seat, we can see and appreci-
ate the confusion which would exist if no tickets were sold, or if
REGULATIONS. 1063
the party presenting the ticket were not upon such occasions to be
bound by its terms.
How, then, is the conductor to ascertain the contract entered into
between the passenger and the railroad company where a ticket is
purchased and presented to him? Practically there are but two
ways, — one, the evidence afforded by the ticket; the other the
statement of the passenger contradicted By the ticket. Which
should govern? In judicial investigations we appreciate the neces-
sity of an obligation of some kind and the benefit of a cross-exami-
nation. At common law, parties interested were not competent
witnesses, and even under our statute the witness is not permitted,
in certain cases, to testify as to the facts, which, if true, were
equally within the knowledge of the opposite party, and he cannot
be procured. Yet here would be an investigation as to the terms
of a contract, where no such safeguards could be thrown around it,
and where the conductor, at his peril, would have to accept of the
mere statement of the interested party. I seriously doubt the prac-
tical workings of such a method, except for the purpose of encour-
aging and developing fraud and falsehood, and I doubt if any system
could be devised that would so much tend to the disturbance and
annoyance of the travelling public generally. There is but one rule
which can safely be tolerated with any decent regard to the rights
of railroad companies and passengers generally. As between the
conductor and passenger, and the right of the latter to travel, the
ticket prod*uced must be conclusive evidence, and he must produce it
when called upon, as the evidence of his right to the seat he claims.
Where a passenger has purchased a ticket and the conductor does
not carry him according to its terms, or, if the company, through the
mistake of its agent, has given him the wrong ticket, so that he has
been compelled to relinquish his seat, or pay his fare a second time
in order to retain it, he would have a remedy against the company
for a breach of the contract, but he would have to adopt a declara-
tion differing essentially from the one resorted to in this case.
We have not thus far referred to any authorities to sustain the
views herein taken. If any are needed, the following, we think,
will be found amply sufB.cient, and we do not consider it necessary
to analyze or review them. Townsend v. N. Y. C. & H. E. E. E. Co.,
66 N. Y. 298 [1057] ; Hibbard v. N. Y. & E. E. E., 15 N. Y. 470;
Bennett v. N. Y. C. & H. E. E., 5 Hun, 600 ; Downs v. N. Y. & N. H. E.
E., 36 Conn. 287; C, B. & Q. E. E. v. Griffin, 68 111. 499; Pullman
P. C. Co. V. Eeed, 75 111. 125; Shelton v. Lake Shore, etc. Ey. Co.,
29 Ohio St.
I am of opinion that the judgment should be affirmed with costs.
CooLBY, C. J., concurred.
Graves, J. By mistake the company's ticket agent issued and
plaintiff accepted a ticket covering a shorter distance than that bar-
gained and paid for ; and having ridden under it the distance which
1064 CARRIERS OF PASSENGERS.
it authorized, and refusing to repay for the space beyond, the plain-
tiff was removed from the cars.
This removal may, or may not, have constituted a cause of action,
but it is not the cause of action charged. The declaration sets up
that plaintiff's ticket was a proper one for the whole distance and
that he was removed in violation of the right which the ticket made
known to the conductor.
There was no proof of the case alleged, and I agree therefore in
affirming the judgment.
Campbell, J. The plaintiff's cause of action in this case was for
the failure of the company to carry him to a destination to which he
had paid the passage-money, and the immediate occasion for his
removal from the cars was that he was given a wrong ticket, and
was not furnished with such a one as the conductor was instructed
to recognize as entitling him to the complete carriage. His declara-
tion should have been framed on this theory. Had it been so
framed , I am not prepared to say that he may not have had a right
of action for more than the difference in the passage-money.
But as he counted on the failure of the conductor to respect a cor-
rect ticket, and it appears the conductor gave him all the rights
which the ticket produced called for, there was no cause of action
made out under the declaration, and the rule of damages need not be
considered. I concur in affirming the judgment.
BEADSHAW v. SOUTH BOSTON EAILROAD COMPANY.
135 Mass. 407. 1883.
ToET for being expelled from one of the defendant's cars. Trial
in the Superior Court without a jury, before Colbukn, J., who re-
ported the case for the determination of this court, in substance as
follows : —
The defendant is a common carrier of passengers for hire, owning
lines of street cars between South Boston and Boston proper, and,
among others, one running over Federal Street Bridge, between
Boston and City Point in South Boston by what is called the Bay
View route , and another running over Dover Street Bridge between
Boston and said City Point by way of Broadway. None of the
Dover Street cars run over the Bay View route, and none of the
Bay View cars run over Dover Street. When a passenger on
the Bay View line wishes to enter the city by way of Dover Street,
it is the practice of the defendant, after he has paid his fare, and
arrived at the proper place for changing cars, to give him a check,
which states that it is good, only on the day of its date, for one
EEGULATIONS. 1065
continuous ride, for Bay View passengers, from Dorchester Avenue
to the Providence Depot. When a passenger on the Dover Street
line wishes to go to some place in South Boston on the Bay View
line, it is the practice, after he has paid his fare and arrived at the
proper place for changing cars, for the defendant to give him a
check, which states that it is good, only on the day of its date, for
one continuous ride from Dorchester Avenue to City Point via Bay
View. The upper left quarter and the lower right quarter of the
first-mentioned checks are colored red, and the corresponding quar-
ters of the other checks are colored yellow. The plaintiff was fa-
miliar with the practice above mentioned, and had received and used
such checks, but had never read them, though able to read, and had
never noticed the difference in the color of the checks.
In the afternoon of May 15, 1881, the plaintiff entered one of the
Bay View cars of the defendant at the corner of Eighth Street and
Dorchester Street in South Boston, intending to go to the corner of
Dover Street and Washington Street in Boston, and thence over the
Metropolitan Horse Railroad to some point on that line. He paid
his fare on the defendant road, and also sufl&cient to pay for a trans-
fer check to the Metropolitan road, which he received in due form.
He told the conductor that he wished for a check to take him over
the Dover Street line, which the conductor promised to give him
■when they arrived at the proper place for changing cars. At the
corner of Dorchester Avenue and Broadway he left said car, and, as
he left, the conductor handed him the last-named check, by mistake,
in place of the first-named. After waiting a short time, a Dover
Street car came along, which he entered, and rode as far as the
bridge, when the conductor of the car came for his fare, and he
tendered him said check. The conductor refused to accept it,
(though the plaintiff informed him of the circumstances under
which he received it, as above stated), and required him to pay a
fare or leave the car. The plaintiff refused to pay a fare, and was
forced by said conductor to leave the car. No unnecessary force
was used.
Upon these facts, the judge ruled that the plaintiff was not en-
titled to maintain his action, and found for the defendant.
C. Allen, J. It may be assumed, as the view most favorable to
the plaintiff, that the defendant was bound by an implied contract
to give him a check showing that he was entitled to travel in the
second car, and that it failed to do so ; in consequence of which he
was forced to leave the second car. It does not appear that the
defendant had any rule requiring conductors to eject passengers
under such circumstances. We may, however, take notice of the
fact that it is usual for passengers to provide themselves with tick-
ets or checks, showing their right to transportation, or else to pay
their fare in money. It was the practice for passengers on the de-
1066 CAKEIERS OF PASSENGERS.
fendant's road to receive and use such, checks; and the plaintiff
intended to conform to this practice.
The conductor of a street-railway car cannot reasonably be re-
quired to take the mere word of a passenger that he is entitled to
he carried by reason of having paid a fare to the conductor of an-
other car; or even to receive and decide upon the verbal statements
of others as to the fact. The conductor has other duties to perform,
and it would often be impossible for him to ascertain and decide
upon the right of the passenger, except in the usual, simple, and
direct way. The checks used upon the defendant's road were trans-
ferable, and a proper check, when given, might be lost or stolen, or
delivered to some other person. It is no great hardship upon the
passenger to put upon him the duty of seeing to it, in the first in-
stance, that he receives and presents to the conductor the proper
ticket or check ; or, if he fails to do this, to leave him to his remedy
against the company for a breach of its contract. Otherwise, the
conductor must investigate and determine the question, as best he
can, while the car is on its passage. The circumstances would not
be favorable for a correct decision in a doubtful case. A wrong
decision in favor of the passenger would usually leave the company
without remedy for the fare. The passenger disappears at the end
of the trip; and, even if it should be ascertained by subsequent
inquiry that he had obtained his passage fraudulently, the legal
remedy against him would be futile. A railroad company is not
expected to give credit for the payment of a single fare. A wrong
decision, against the passenger, on the other hand, would subject
the company to liability in an action at law, and perhaps with sub-
stantial damages. The practical result would be, either that the
railroad company would find itself obliged in common prudence to
carry every passenger who should claim a right to ride in its cars,
and thus to submit to frequent frauds, or else, in order to avoid this
wrong, to make such stringent rules as greatly to incommode the
public, and deprive them of the facilities of transfer from one line
to another, which they now enjoy.
It is a reasonable practice to require a passenger to pay his fare,
or to show a ticket, check, or pass; and, in view of the difiB.culties
above alluded to, it would be unreasonable to hold that a passenger,
without such evidence of his right to be carried, might forcibly
retain his seat in a car, upon his mere statement that he is entitled
to a passage. If the company has agreed to furnish him with a
proper ticket, and has failed to do so, he is not at liberty to assert
and maintain by force his rights under that contract"; but he is
bound to yield, for the time being, to the reasonable practice and
requirements of the company, and enforce his rights in a more
appropriate way. It is easy to perceive that, in a moment of irrita-
tion or excitement, it may be unpleasant to a passenger who has
once paid to submit to an additional exaction. But, unless the law
REGULATIONS. 1067
holds him to do this, there arises at once a conflict of rights. His
right to transportation is no^reater than the right and duty of the
conductor to enforce reasonable rules, and to conform to reasonable
and settled customs and practices, in order to prevent the company
from being defrauded; and a forcible collision might ensue. The
two supposed rights are in fact inconsistent with each other. If the
passenger has an absolute right to be carried, the conductor can
have no right to require the production of a ticket or the payment
of fare. It is more reasonable to hold that, for the time being, the
passenger must bear the burden vsrhich results from his failure to
have a proper ticket. It follows that the plaintiif was where he
had no right to be, after his refusal to pay a fare, and that he might
properly be ejected from the car. This decision is in accordance
with the principle of the decisions in several other States, as shown
by the cases cited for the defendant; and no case has been brought
to our attention holding the contrary.
Judgment for the defendant}
MURDOCK V. BOSTON, etc. E. CO,
137 Mass. 293. 1884.
Tort for being expelled from a train on the defendant's railroad
at Pittsfield, and for false imprisonment in the lockup of that town.
[The facts are sufficiently stated in the opinion.]
The jury returned a verdict for the plaintifE in the sum of $4500 ;
and the defendant alleged exceptions.
C. Allen, J. It appears that the defendant's agent and ticket-
seller told the plaintiff that the two tickets would be good for a pas-
sage from Springfield to North Adams, and explained the meaning
of the punched holes, and, with a full understanding of exactly
what the tickets were and of what the plaintiff wanted, sold them
to him as tickets good for his contemplated trip. There was noth-
ing on their face to show the contrary to the plaintiff, and he took
and paid for them on the strength of these explanations and assur-
ances of the ticket-seller. There was no mistake on the part of
either as to where the plaintiff wished to go, or what terms were
1 Ace. : Pennington v. Illinois Cent. R. Co., 252 111. 587, 97 N. B. R. 289, 37 L. R.
A. N. S. 983. Contra : Louisville &N. R. Co. v. Scott, 141 Ky. 538, 133 S. W. R.
800, 34 L. R. A. N. S. 206 ; Smith v. Southern R. Co., 88 S. C. 421, 70 S. E. R.
1057, 34 L. R. A. N. S. 708.
1068 CAERIEKS OF PASSENGERS.
actually expressed upon the tickets, or what marks or punched holes
they bore. The circumstances of therS being two tickets, and of
the holes in one of them, naturally induced inquiry by the plaintiff,
and he had no reason to distrust the correctness of the explanations
which were given to him. The ticket-seller assumed to know, and
gave assurances which the plaintiff had a right to rely on, and which
he did rely on. If, when the conductor refused to accept the
punched ticket, it had appeared on an inspection of it that there
had been a mistake, and that it did not on its face purport to be
good for a passage over that part of the defendant's road, and that
the ticket-seller had delivered to the plaintiff a good ticket upon
some other railroad, or to some place which had already been
passed, when the mistake was discovered, and it was found that
the plaintiff had through inadvertence accepted a ticket which on
its face was plainly insufficient, then this case would have fallen
within the doctrine of the recent decision in Bradshaw v. South
Boston Eailroad, 135 Mass. 407, and it would have been the duty
of the plaintiff to yield for the time being, and pay his fare anew,
or withdraw from the car, unless a distinction should be taken be-
tween the rights of passengers upon steam railways and street rail-
ways, under such circumstances, — a question which we do not now
consider. See Cheney v. Boston & Maine Eailroad, 11 Met. 121;
Yorton v. Milwaukee, Lake Shore & Western Railway, 54 Wis.
234; Townsend v. New York Central & Hudson Eiver Eailroad, 56
N". Y. 295 [1057] ; Petrie v. Pennsylvania Railroad, 13 Vroom, 449 ;
Dietrich v. Pennsylvania Eailroad, 71 Penn. St. 432; Frederick v.
Marquette, Houghton & Ontonagon Eailroad, 37 Mich. 342 [1060] ;
McClure v. Philadelphia, Wilmington & Baltimore Eailroad, 34
Md. 532.
But, in the present case, such is not the position of the parties.
As has been seen, the plaintiff not only was not guilty of any negli-
gence in accepting his ticket, but he examined it carefully, saw
everything there was on it, and received explanations of the mean-
ing of the punched holes, and assurances that the two tickets, in
the condition in which they were, would be good for the trip. In
such a case, there being no mistake or inadvertence on his part
in the respects mentioned, and the tickets which- were delivered
being in all particulars such as were intended to be delivered, and
there being nothing which could be gathered by inspection to show
that they were insufficient, and no notice of their insufficiency being
given to the plaintiff by anybody, or in any form, until he had
already entered upon and partially accomplished his journey over
the defendant's road, he might well insist upon being allowed to
complete that journey. If the defendant's superintendent or presi-
dent, or both of them, had been standing by when the plaintiff pur-
chased his tickets, and had heard and assented to what was said by
the ticket-seller, and if they also were under the same mistake as to
EEGULATIONS. 1069
the rules established for the guidance of conductors, the legal posi-
tion of the plaintiff would hardly have been stronger than it is at
present. It ■would still be the case that he took his tickets relying
on the mistaken assurances of the defendant's agent in respect to
their validity. If the defendant, through any imperfection in its
rules or methods, or any ignorance or violation of rules or in-
structions by its agents, has been led into any interference
with the rights of the plaintiff under such circumstances, it must
abide the consequences. To hold the contrary would be a burden
upon passengers such as is called for by no reason of necessity or
expediency.
On the other hand, it is no more than a wholesome requirement
that railway companies should Idc responsible in damages for the
consequences of a mishap such as occurred in the present case. The
conductor's explanation of the meaning of the two punched holes
might or might not be correct; at any rate, their meaning was
purely arbitrary, and, so far as the plaintiff could see, the conduc-
tor's interpretation was no more probable or intelligible than that
given by the ticket-seller. The plaintiff had a right to act upon the
explanations given to him at the time when he bought his ticket.
The mistake was that of the ticket-seller, in supposing that the
punched holes signified that the ticket had been used only to Ches-
ter, whereas in fact, according to the defendant's rules for the in-
struction and guidance of conductors, they signified that it had been
used to Pittsfleld, a station farther on. The offer of the conductor
to give a receipt to the plaintiff for the additional fare which he
demanded, stating the circumstances under which it was paid, so
that the plaintiff might get back the money, if it should be found
that his account of the purchase of the ticket was true, though
showing good faith on the part o'f the conductor, did not have the
effect to make it the legal duty of the plaintiff to pay the additional
fare.
It follows that all the instructions requested were properly re-
fused, except as modified by the presiding judge; and the instruc-
tions which were given were clearly and accurately expressed.
Maroney v. Old Colony & Newport Eailway, 106 Mass. 153.
Exceptions overruled.
PHILADELPHIA, W. & B. E. CO. v. RICE.
64 Md. 63. 1885.
EoBiNSON, J. The appellee, plaintiff below, bought a round-trip
ticket from Wilmington to Philadelphia. The ticket was in two
coupons, attached to each other, one being for the trip to Philadel-
1070 CARRIERS OF PASSENGERS.
phia, and the other for the return trip. Shortly after leaving Wil-
mington the conductor came through for tickets, took the plaintiff's
ticket, tore off the coupon for the trip to Philadelphia, and, by mis-
take, punched the return coupon. A few minutes after he came
back and said to plaintiff : " Let me see that ticket. I think I have
made a mistake." He then took the ticket which was the return
coupon punched by him, and wrote on the back of it with a pencil
the words, "Cancelled by mistake," and returned it to the plaintiff
saying: "I have fixed it all right. Now you can ride on it." The
next day, the plaintifl:, on the return trip to Wilmington, handed to-
the conductor of that train the punched coupon, which, however, he
declined to accept, because it had been cancelled. The plaintiff
then called his attention to the writing on the back of the ticket,
and explained how it had been punched and the mistake corrected
by the conductor on the trip to Philadelphia. But the conductor
declined to accept the explanation, saying to the plaintiff: "Any-
body could have written that. You coiild have done it yourself."
The mistake, it seems , had not been corrected according to the rules
of the company, which required the conductor making the mistake
to draw a ring around the cancellation mark, and write on the back
of the ticket the word " Error " and sign his name or initials. The
conductor accordingly demanded of the plaintiff the fare from Phila-
delphia to Wilmington, and, upon his refusal to pay it, he was put
off the train. Upon these facts it is admitted an action will lie
against the company for a breach of contract as a carrier, or for the
negligence of the conductor in cancelling the plaintiff's ticket, and
thereby destroying the only evidence of his right to the return trip ;
but, inasmucfh as. the cancellation had not been corrected according
to the rules of the company, the ejection of the plaintiff, under such
circumstances, it is argued, does not in itself furnish a substantive
ground of action. We shall not stop to examine the several cases
relied on in support of this contention. Hufford v. Eailroad Co.,
18 Eeporter, 147 ; Frederick v. Eailroad Co., 37 Mich. 342 [1060] ;
Yorton v. Eailway Co., 57 Wis. 234 ; 11 N. W. Eep. 482 ; Bradshaw
». Railroad Co., 135 Mass. 407 [1064]. It is suflScient to say the
facts in this case differ materially from the facts in those cases.
Here the plaintiff was wholly without fault. He had purchased a
ticket which entitled him to a round trip from Wilmington to Phila-
delphia. The return coupon was cancelled through the mistake of
the conductor. This error he attempted to correct and informed the
plaintiff that it was all right. The latter had a right to rely on this
assurance, and that the ticket for which he had paid his money en-
titled him to return to Wilmington. If the servants of the appel-
lant, under such circumstances, laid their hands forcibly on the
person of the plaintiff, and compelled him to leave the car, there
was not merely a breach of contract on the part of the company, but
an unlawful interference with the person of the plaintiff, and an
EEGULATIONS. 1071
indignity to his feelings for which an action will lie, and for which
he is entitled to be compensated in damages. Such is the well-set-
tled law of this State and of this country. The mistake by which
the plaintiff's ticket was cancelled was the mistake of the appellant's
servant, and it must abide the consequences. There was no error
therefore in the rulings of the court in this respect.
But, in addition to damages for the unlawful interference with
the person of the plaintiff, and the indignity to his character and
feelings, the court also instructed the jury that, if he was mali-
ciously or wantonly ejected from the train, he was entitled to recover
exemplary damages as a punishment to the appellant. Now, we
have not been able to find a particle of evidence from which the jury
<50uld find that the plaintiff was wantonly or maliciously ejected
-from the car. The ticket which he handed to the conductor Matti-
son was a cancelled ticket, one which upon its face showed it had
been used. It had been cancelled, it is true, by the mistake of an-
other conductor, but this mistake had not been corrected according
to the rules of the company. Mattison could not therefore recog-
nize it as a ticket entitling the plaintiff to the trip to Wilmington,
and, if the latter refused to pay his fare or to leave the car, the con-
ductor was obliged to eject him forcibly. The proof shows the con-
ductor acted in good faith, and in obedience to the rules of the
company, and that no greater force was used than was actually
necessary. No complaint is made by the plaintiff in his testimony
of unnece.ss.ary force, or that any abusive language was used. The
brakeman, he says, " put his hand on his shoulder, and pulled him
across the person who was sitting by him." At first he had made
up his mind to resist, but upon the advice of friends he concluded
to go out without further resistance. The testimony of his friends
Friedenrich and Hobbs is to the same effect. Hobbs says the man-
ner " of the conductor and brakeman was firm and decided. They
looked angry." This is the evidence on the part of the plaintiff to
support the claim for punitive damages, damages as a punishment
to the appellant for having acted in bad faith, or maliciously, or
wantonly, or in a spirit of oppression. The case, it seems to us, is
wanting in every element necessary to entitle the plaintiff to vindic-
tive damages. Camp, as a passenger who saw and heard all that
took place, says : " The conductor told the plaintiff he must have all
the tickets regular, and hoped he would not think hard of him. His
orders were imperative and he was only doing his duty. The brake-
man put his hand gently on plaintiff's shoulder and he went out
without resistance. All the parties, " witness thought, "acted like
gentlemen." This case comes before us a second time, and we nat-
urally feel some reluctance in sending it back for another trial.
But as there is no evidence from which the jury could reasonably
find that the plaintiff was wantonly or maliciously put off the train,
the court erred in granting the plaintiff's third prayer, by which the
1072 CAKEIEKS OF PASSENGERS.
question of punitive damages was submitted to the finding of the
jury. Judgment reversed, and new trial awarded.
Bryan, J., dissents.
KANSAS CITY, etc. K. CO. v. EILET.
68 Miss. 765. 1891.
Action for damages against the railroad company for ejecting ap-
pellee from a train. On the trial of the case, at the instance of
plaintiff, the court gave the following instructions: —
"1. If the jury believe from the evidence that the plaintiff pro-
cured a round-trip ticket from Myrtle to Blue Springs and return,
and that on her way out to Blue Springs, the conductor, Dustin,
took from said round-trip ticket the return part of said ticket and
left the plaintiff the out-going part, and plaintiff did not know this,
and that plaintiff, in good faith, on her return journey offered con-
ductor Hadaway the portion of the ticket not taken from her, and
said last conductor requested her to leave the train or pay fare again
at any rate, then this was wrongful on the part of said conductor,
and defendant is liable in damages therefor to plaintiff.
"2. The court further charges the jury for the plaintiif, that the
law implies some damage for the violation of every legal right, the
amount to be determined by the jury according to the evidence.
" 3. If the jury believe from the evidence in the case that the
conduct of the conductor Hadaway toward Mrs. Eiley was charac-
terized by rudeness and violence, or gross carelessness and wilful
wrong, they may find for the defendant punitive damages as a pun-
ishment to the defendant for such conduct, and they are the judges
of the proper amount according to the law and evidence in the
case."
These instructions were objected to, and the court was asked ta
instruct the jury to find for defendant. This being refused, defend-
ant asked an instruction to the effect that plaintiff could only re-
cover the value of the ticket from Blue Springs to Myrtle, for loss
of time, and such other actual damages as she sustained. This was
refused as well as other instructions asked, announcing, in effect,
the converse of the propositions stated in plaintiff's instructions.
After verdict and judgment for plaintiff, defendant made a motion
for a new trial, which was overruled. The opinion contains a fur-
ther statement of the case.
CooPEE, J. On or about the 3d of September, 1889, the plain-
tiff, with her husband, purchased from the agent of appellant at
Myrtle two tickets for transportation over appellant's road to Blue
Springs and return, both places being stations on appellant's rOad.
EEGULATIONS, 1073
These tickets were handed to the conductor on the train running
from Myrtle to Blue Springs, and by accident and mistake he re-
turned to the passengers the wrong part of the tickets, giving to
them that portion which called for transportation from Myrtle to
Blue Springs, which he should have kept, and retaining that por-
tion calling for passage from Blue Springs to Myrtle, which he
should have returned to the passengers. The plaintiff went from
Blue Springs to Sherman, another station on appellant's road, and,
on the 6th of September, being desirous of returning to Mj'rtle, she
purchased a ticket from Sherman to Blue Springs, and for the jour-
ney from that place to Myrtle tendered that portion of the round-
trip ticket from Myrtle to Blue Springs that had been returned to
her by the conductor on the 3d, but this ticket the conductor refused
to accept, because it entitled the bearer to transportation from Myr-
tle to Blue Springs, and not from Blue Springs to Myrtle.
The plaintiff had not before noticed the mistake that had been
made by the other conductor, but then explained to the conductor
of the train upon which she was travelling how it had occurred, and
insisted upon her right to be carried on the ticket. But this he de-
clined, and informed the plaintiff that she must either pay train
fare, buy a ticket at Blue Springs when the train should reach that
point, or leave the train there. The plaintiif and the conductor tes-
tified to about the same facts as to what transpired until the train
reached Blue Springs, at which point, as the conductor stated, the
plaintiff and her husband left the train upon his refusal to carry
them on the tickets they then had, while the plaintiff testified that
the conductor spoke to her in an angry manner, and took her by the
arm to put her off the train.
At all events, the plaintiff left the train at Blue Springs with her
husband and there remained until the following day, and brings this
suit for damages against the appellanb. The jury awarded her dam-
ages in the sum of f 300, and, from a judgment for that sum, the
defendant appeals.
The decisions are in direct and palpable conflict upon the liability
of a common carrier for failure to transport a passenger under the
circumstances named. In New York, Michigan, Illinois, Mary-
land, Ohio, Wisconsin, Connecticut, New Jersey, Massachusetts,
and North Carolina it seems to have been decided that the ticket
presented by the passenger is the only evidence of his right to travel
upon the train which can be recognized by the conductor, and that
if by reason of the negligence of other servants of the carrier, a
wrong ticket has been given to the passenger, or the right ticket has
been given to him, but erroneously taken from him, the passenger's
right of action is for the wrong thus committed, and that he may
not insist upon his right to travel on the wrong ticket or without it,
when it has been taken up, and recover damages for the refusal of
the carrier to permit him to do so, and that the carrier may law-
1074 CAERIEKS OF PASSENGERS.
fully eject him from its train, using no more force than is necessary
for that purpose.
The authorities in support of this rule are found in the brief of
counsel for appellant. On the other hand, it is held in Georgia and
Indiana, that the passenger is entitled to travel according to his real
contract with the carrier, where the mistake in giving^ the proper
ticket or in taking up a proper one held by the passenger is caused
by the negligence of the servants of the carrier. R. E. Co. v. Tixe,
11 Am. & Eng. Ry. Cas. 108.
In a more recent case in Michigan than those cited by appellant's
counsel, Huft'ord v. Railroad Co., 64 Mich. 634, the plaintiff had
-applied and paid for a ticket from Manton to Traverse City. The
agent gave him a ticket previously issued for a ride from Sturgis to
Traverse City. There was evidence tending to show that the ticket
had been cancelled by conductor's marks for a ride between Sturgis
and Walton, and the trial court instructed the jury that "if they
believed the ticket was punched, indicating to the conductor by the
punch-mark that it had been used before between Grand Rapids and
Walton, that would be evidence of an infirmity in the ticket, and
the plaintiff would not be entitled to insist upon that ticket being
received." This instruction was held to be erroneous, the court
saying : " When the plaintiff told the conductor on the train that he
had paid his fare, and stated the amount he had paid to the agent
who gave him the ticket he presented, and told him it was good, it
was the duty of the conductor to accept the statement of the plain-
tiff until he found out it was not true, no matter what the ticket
contained in words, figures, or other marks."
The most remarkable thing about this decision is, that it was
made in j;he same case upon the same facts and between the same
parties as that reported in 53 Mich. 118, in which, in an opinion
delivered by Judge Cooley, it was held that, as between the conduc-
tor and the. passenger, "the ticket must be conclusive evidence of
the extent of the passenger's right to travel."
There is a class of cases somewhat analogous to the present one,
in which, by a uniform course of decisions so far as we are informed,
it is held that the conductor must accept the statements of the pas-
senger. We refer to those cases in which different rates are charged
for one who has procured a ticket and one who pays upon the train.
It is held that, as a condition precedent to the exercise of this right
to charge higher train-rates, and to expel one refusing to pay them,
a reasonable opportunity must be given by the carrier to the pas-
senger to procure the ticket required, and that one to whom no such
opportunity has been afforded,' and who for refusing to pay the
higher rate is expelled from the train, may recover damages there-
for. Hutchinson on Carriers, § 571, and authorities in note 2; For-
see V. Railroad Co. , 63 Miss. 66.
Without determining more upon this disputed question than is
EEGULATIONS. 1075
necessary for the decision of the case before us, it is sufS-cient to
say that where, as here, the ticket in the hands of the passenger
supports and confirms the truth of his statement, and no possible
injury can result to the carrier by the conductor's accepting and act-
ing thereon, he must so act, or refuse, at the peril of inviting an
action for damages against his princij)al if the statement be true.
We do not decide that a person holding a ticket from Myrtle to
Blue Springs has a right to ride from Blue Springs to Myrtle, but
no real injury could result to the carrier in recognizing such right,
for the distance is the same, and in the usual course of business as
many trains pass in one direction as the other. What we do decide
is, that a passenger holding and attempting to use such ticket under
the circumstances disclosed in this record, and. explaining to the
"jonductor how the mistake occurred by which the ticket read in the
wrong direction, makes such a reasonable and probable showing as
entitles him to be dealt with as a passenger, and therefore that any
regulation of the carrier authorizing the conductor of its trains to
disregard such statement is unreasonable, and need not be submitted
to by the passenger.
We find no error in the record for which the judgment should be
reversed, and it is
Affirmed.
SWAN V. MANCHESTER, etc. E.
132 Mass. 116. 1882.
ToET in two counts. The first count was for expelling the plain-
tiff from the defendant's cars at Windham, in the State of New
Hampshire. The second count was for refusing to sell the plaintiff
a ticket entitling him to be carried over the defendant's railroad
from said Windham to Lawrence, in this Commonwealth. The case
was submitted to the Superior Court, and,- after judgment for the
defendant, to this court on appeal, upon agreed facts, the material
parts of which appear in the opinion.
Devews, J. The regulation that all passengers, who shall pur-
chase tickets before entering the cars of a railroad company to be
transported therein, shall be entitled to a small discount from the
advertised rates of fare, but, if such ticket is not purchased, the full
rate of fare shall be charged, is a reasonable one, and in no way
violates the rule, which in New Hampshire has the sanction of the
statute law, that the rates shall be the same for all persons between
the same points. Commonwealth v.. Power, 7 Met. 596; Johnson
V. Concord Eailroad, 46 N. H. 213; St. Louis, Alton & Terre
Haute Eailroad v. South, 43 111. 176 ; Illinois Central Eailroad v.
Johnson, 67 111. 312; Indianapolis, Peru & Chicago Eailroad v.
1076 CAKRIEES OF PASSENGERS.
Einard, 46 Ind. 293; Du Laurans v. St. Paul & Pacific Railroad,
15 Minn. 49.
The number of persons carried, the rapidity with -which the oars
move, the frequency and shortness of their stops, the delay and in-
convenience of making change, the various details to be attended to
by the conductor while the train is in motion or at the stations, and
the importance to the railroad company of conducting its business
at fixed places, render the mode of payment by tickets previously
purchased one of advantage to the railroad company and of conveni-
ence to the public. A passenger who is without a ticket and de-
clines to pay full fare may ordinarily be ejected from a train at a
station, as one may who absolutely refuses to pay his fare. State v.
Goold, 63 Maine, 279; Stephen v. Smith, 29 Vt. 160; Hilliard v.
Goold, 34 N. H. 230, and cases above cited.
These positions are not controverted by the plaintiff, who main-
tains that, although he had no ticket, he was entitled to be carried
for the price of one, in view of his failure to procure one under the
circumstances hereafter stated. The table of prices advertised by
the defendant authorized the ticket-seller to make a discount of fif-
teen cents , had the plaintiff purchased one for the journey he pro-
posed to make from Derry to Lawrence, the advertised fare being
sixty-five cents. Until the time advertised for the departure of the
train from Derry had expired, the ticket-seller had been in his oflBce.
He left it after that time, and while the train was approaching, in
order to aid the station agent, as he was accustomed to do, in load-
ing the baggage upon the passenger trains. While the plaintiff did
not approach the ticket-ofB.ce to find it vacant and the ticket-seller
absent until after the time had expired for the departure of the train
as advertised, there was sufficient time for him to have procured his
ticket before the train actually started from the station, if the
ticket-seller had then been in the ofBce. He entered the train with-
out a ticket, and the conductor, acting according to the rules of the
company, demanded the full price for the fare, sixty-five cents,
which the plaintiff refused to pay, insisting upon his right to be
carried for fifty cents, the price of a ticket, which he tendered, but
which the conductor refused, telling the plaintiff he must leave the
train at the next station, unless the demand for full fare was com-
plied with. On the arrival of the train at the next station, the
plaintiff, failing to comply with the demand of the conductor, was
ordered by him to leave the train, which he did.
Upon this part of his case, the plaintiff contends that, inasmuch
as he went to the office to procure a ticket, and was unable so to do,
as above stated, he was entitled to be carried for the price of a
ticket, which he tendered, and that his exclusion from the train was
therefore unjustifiable.
It has been held in a few cases that the offer to carry passengers
at a less rate if tickets were procured, was in the nature of a pro-
EEGULATIONS. 1077
posal, like other proposals to enter into a contract, dependent for its
acceptance upon the compliance with its condition; that it might be
withdrawn at any time ; that closing the office for the sale of tickets
was such withdrawal ; and that the offer carried with it no obliga-
tion on the part of the company to open an office, or to keep such
office open for any length of time, it being merely an offer to make
the deduction if the ticket should be procured. Crocker v. New
London, Willimantic & Palmer Eailroad, 24 Conn. 249; Bordeaux
V. Erie Railway, 8 Hun, 679.
In a much larger number of cases, and with much better reason,
it has been held that where the railroad undertakes to conduct its
business by means of tickets, whether it requires, as it may, the
possession of a ticket as a prerequisite to entering its cars, or
whether it offers a deduction from the regular or advertised rate
to one who shall procure a ticket in advance, it is a part of its duty
to afford a reasonable opportunity to obtain its tickets. St. Louis,
Alton & Terre Haute Railroad v. South, ubi supra ; Chicago &
Alton Railroad v. Tlagg, 43 111. 364; Jeffersonville Railroad v.
Rogers, 28 Ind. 1 [1051] ; Indianapolis, Peru & Chicago Railroad v.
Rinard, ubi supra ; Du Laurans v. St. Paul & Pacific Railroad, ubi
supra.
Adopting on this part of the case the rule most favorable to the
plaintiff, he was afforded a fair and reasonable opportunity to obtain
a ticket. Delays must necessarily from time to time arise in the
progress of a train from a variety of incidental circumstances, but
at the stations everything may be definitely arranged with reference
to the time when by the schedule the train is to depart. A traveller
should be at the station sufficiently early to make the ordinary pre-
paration for his journey according to this, and has a right to expect
that other matters in which he is interested will be accommodated
to the schedule arranged; that suitable persons will then be at the
station to take charge of his baggage and to provide him with a
ticket. The plaintiff had a reasonable opportunity to procure a
ticket, if for a time sufficient to attend to the business, and up to
the time when the train was advertised to depart, the ticket-office
was open and there was a proper person in attendance. The delay
of the train did not enlarge his rights, nor could it entitle him to
insist that at the station whence he was to start the office of the
ticket-seller should not be closed until its arrival. Trains may be
delayed for hours, especially during the storms of winter, from
causes which cannot be controlled. The ticket-sellers, especially at
the numerous small stations, must have imposed upon them various
other duties; and it would not be a reasonable rule that should com-
pel them to be at their posts sometimes for hours after the time
when everything at the station should have been arranged for the
departure. St. Louis, Alton & Terre Haute Railroad v. South, vhi
supra.
1078 CAEEIERS OF PASSENGERS.
The cases of Porter v. New York Central Railroad, 34 Barb. 353,
Nellis V. New York Central Eailroad, 30 N. Y. 505, and Chase v.
New York Central Eailroad, 26 N. Y. 523, all depend upon a stat-
ute of New York applicable to the New York Central Railroad Com-
pany alone, which requires it, at every station on its road where
there is a ticket-office, to keep the same open "at least one hour
prior to the departure of each passenger train from such station."
This has been held to mean its actual departure, and that road is
necessarily governed by this positive provision of law.
The plaintiff, having no right to insist on being carried for the
price of a ticket, and declining to pay the regular fare, was properly
expelled from the train on its arrival at Windham, one of the sta-
tions on the road.
While the train stopped at Windham, and after the plaintiff's
expulsion therefrom, he applied to the ticket-seller for a ticket from
Windham to Lawrence, tendered him the money therefor, which the
ticket-seller accepted, but, upon being informed of the fact by the
conductor that the plaintiff had taken passage at Derry, and re-
quested not to sell him a ticket, declined so to do, and tendered to the
plaintiff his money, which the plaintiff declined to receive, at the
same time stating "that he wished to go on that train." Under
the direction of the conductor, the train started, leaving the plain-
tiff at the station, and he proceeded thence to Lawrence by carriage,
a distance "of twelve miles, there not being another train until five
hours later.
If his original expulsion from the train were lawful, the plaintiff
contends, on these facts, that the railroad company has no justifica-
tion for refusing thereafter to transport him to Lawrence. The
plaintiff did not seek to purchase a ticket from Windham, or offer
the money therefor, except to prosecute his journey to Lawrence by
the same train, which he had entered at Derry, and from which he
had been rightfully expelled. Because tickets are sold from Wind-
ham to Lawrence, he contends that he desired to make a new con-
tract at the regular price from that point, which the defendant, as
a common carrier of passengers, had no right to refuse. Whatever
might be his rights, if he had sought to purchase a ticket for or go
by a subsequent train from Windham, he sought to continue a trans-
action which had begun by his entering the cars at Derry to go to
Lawrence, when he had thus impliedly contracted to pay the regular
fare for that journey, which included the distance from Windham.
He was not in the situation of a passenger- whose journey was to
commence at Windham ; he had already been brought from Derry,
and the claim that he should have been carried by the same train
from Windham, on paying from that point, was a claim that he
might renew the same contract he had already broken, by paying
for the distance over which the journey was yet to be prosecuted,
while he made no payment for the distance over which he had
EEGULATIONS. 1079
already heen transported.- While the journey which he had begun
and for which he had contracted to pay continued, he could not at
his pleasure break it into two separate transactions. That which
he sought to make had been included in his original contract, and
the defendant was not obliged to re-admit him to the same train,
from which his expulsion had been proper, so long at least as he
persisted in his violation of the contract he had originally made. i
In O'Brien v. Boston & Worcester Kailroad, 15 Gray, 20, it was
held that a person, who had been properly ejected for non-payment
of fare at a place where there was no station, could not, by again
entering the cars and tendering the fare, obtain the right to be car-
ried by them.
If this case is distinguishable, as the plaintiff suggests, by the
fact that the expulsion there was not at a station, and the re-entry
into the cars was at a place where the company was not bound to
receive passengers, it is also distinguishable, and in this matter not
in favor of the plaintiff, by the fact that the person there expelled
offered to pay the entire fare for the journey which he had begun.
If the rightful expulsion takes place at a station, it is not an
unreasonable rule that the person expelled should pay the fare over
the distance already travelled before he can purchase a ticket from
such station for the remainder of the journey which will entitle him
to be carried on the same train. This point was directly adjudged
in Stone v. Chicago & Northwestern Eailroad, 47 Iowa, 82, and
in O'Brien v. New York Central & Hudson River Eailroad, 80
N. Y. 236.
The case of State v. Campbell, 3 Vroom, 309, goes further than
we are required to do in the present inquiry. The traveller there
had an excursion ticket from New Brunswick to New York, good
for a single day, which had passed, and the ticket was thus ex-
hausted. He had also a regular ticket, which then entitled him to
a passage between the same points. The latter ticket he kept in his
pocket, refused to exhibit any other than the exhausted ticket, and
was ejected from the cars, at Newark, a station on the road. He
then exhibited the regular ticket, which would have entitled him to
the passage if previously shown, and claimed to re-enter the cars.
His previous conduct was held to fully justify his exclusion from
the same train.
The only other case cited by the plaintiff which requires notice is
Nelson v. Long Island Eailroad, 7 Hun, 140. It was there held
that a passenger put off the car for refusing to pay his fare cannot
be taken back upon complying with the rule violated, unless he be
at a regular station, and then and there obtain a ticket, or tender
his fare. An examination of the case will show that the obtaining
of a ticket, or tendering the fare referred to, is a ticket or fare for
the whole distance travelled and to be travelled, and not for the
remainder of the proposed journey. Judgment affirmed.
1080 CAEEIERS OF PASSENGERS.
ILLINOIS CENTEAL E. CO. v. WHITTEMOEE.
43111.420. 1867.
Laweesce, J. This was an action of trespass brought by Whit-
temore against the Illinois Central Eailroad Company and N. W.
Cole, a conductor in the service of the company, for wrongfully
expelling the plaintiff from a train. It appears the plaintiff had
taken passage from Decatur to El Paso, and had procured the neces-
sary ticket. After the train passed Kappa, the station preceding
El Paso, the conductor demanded the plaintiff's ticket, which the
latter refused to surrender without a check. This the conductor
refused to give; and after some controversy with the plaintiff,
stopped the train, and with the aid of a brakeman expelled the
plaintiff. There is considerable evidence in the record given for
the purpose of showing that, even admitting the right of the defend-
ants to expel the plaintiff, an unnecessary and wanton degree of vio-
lence was used from which the plaintiff received a permanent and
severe injury. As, however, the case must be submitted to another
jury, we forbear from any comments on this portion of it. The jury
gave the plaintiff a verdict for $3,125,- for which the court rendered
judgment, and,the defendants appealed.
In sustaining a demurrer to the fourth plea, and in giving the
instructions, the Circuit Court held that, although the rules of the
road required the conductor to take up the plaintiff's ticket, and
notwithstanding he may have refused to surrender it when de-
manded, .the defendants had no right to expel him from the cars,
except at a regular station. In support of this position, it is urged
by counsel for appellee that the refusal to surrender the ticket was
merely equivalent to a refusal to pay the fare, and that the statu-
tory prohibition against the expulsion of passengers for this cause,
except at a regular station, should be applied to cases like the pres-
ent. We held, in the case of Chicago & Atlantic E. E. v. Elagg,
43 111. 364, that the neglect to buy a ticket before entering the
train, when required by the rules of the road, was the same thing
m substance as the refusal to pay the fare, and justified an expul-
sion only at a regular station. But the refusal to surrender a
ticket for which the requisite fare has already been paid is cer-
tainly not the same thing as refusal to pay the fare. It may be no
worse offence against the rights of the railroad company than the
refusal to pay the fare, but it is not the same offence. Perhaps
there was no good reason why the legislature should have forbidden
railways to expel a passenger only at a regular station for the non-
payment of fare, and have left them at liberty to expel one at any
other point, for the disregard of any other reasonable rule. But it
EEGULATIONS. 1081
has done so, and it is our duty to leave the law as the legislature
thought proper to establish it.
What, then, is the right of a railway company in reference to its
passengers ? Clearly, to require of them the observance of all such
reasonable rules as tend to promote the comfort and convenience of
the passengers, to preserve good order and propriety of behavior, to
secure the safety of the train, and to enable the company to conduct
its business as a common carrier with advantage to the public and
to itself. So long as such reasonable rules are observed by a pas-
senger, the company is bound to carry him; but if they are wantonly
disregarded, that obligation ceases, and the company may at once
expel him from the train, using no mote force than may be neces-
sary for that purpose, and not selecting a dangerous or inconvenient
place. This is a common-law right, arising from the nature of their
contract and occupation as common carriers, and, as already re-
marked, it has been restricted by the legislature only in cases where
the offence consists in non-payment of fare. Ch., B. & Q. E. K.
Co. V. Parks, 18 111. 460; Hilliard v. Gould, 34 N. H. 230; Cheney
V. Boston & Maine R. E. Co., 11 Mete. 121. If, then, the regula-
tion requiring passengers to surrender their tickets was a reason-
able one, the ruling of the court below on this point was erroneous.
That the rule is a reasonable one really admits of no controversy.
It was shown by witnesses on the trial, and must be apparent to any
one, that the company must have the right to require the surrender
of tickets, in order to guard itself against imposition and fraud, and
to preserve the requisite method and accuracy in the management of
its passenger department.
The Circuit Court left it to the jury to say whether the rule was
reasonable. This was error. It was proper to admit testimony, as
was done, but, either with or without this testimony, it was for the
court to say whether the regulation was reasonable, and, therefore,
obligatory upon the passengers. The necessity of holding this to be
a question of law, and, therefore, within the province of the court
to settle, is apparent from the consideration, that it is only by so
holding, that fixed and permanent regulations can be established.
If this question is to be left to juries, one rule would be applied by
them to-day and another to-morrow. In one trial a railway would
be held liable, and in another, presenting the same question, not lia-
ble. Neither the companies nor passengers would know their rights
or their obligations. A fixed system for the control of the vast
interests connected with railways would be impossible, while such
a system is essential equally to the roads and to the public. A
similar view has recently been taken of this question in the case of
Vedder v. Fellows, 20 N. Y. 126.
The judgment must be reversed; but if it appears, upon another
trial, that unnecessary violence was used, the defendants must re-
spond in damages.
1082 CAREIEKS OF PASSBNGEKS.
CHICAGO, ETC. E. CO. v. WILLIAMS.
55 111. 185. 1870.
Appeal from the Circuit Court of Winnebago County; the Hod,
Benjamin R. Sheldon, Judge, presiding.
This was an action on the ease, brought in the court below by
Anna Williams, a colored woman, against the Chicago & North-
western Eailway Company, to recover damages resulting to the
plaintiff by reason of being excluded from the privileges of a car
upon the defendants' road, which had been designated, under the
rules of the company, for the exclusive use of ladies, and gentle-
men accompanied by ladies, the only reason for such exclusion of
the plaintiff being on account of her color.
Upon the trial, the plaintiff recovered a judgment for $200, from
which the company appealed.
Mr. Justice Scott. There is but one question of any consider-
able importance presented by the record in this case.
It is simply, whether a railroad company, which, by our statute,
and the common law, is a common carrier of passengers, in a case
where the company, by their rules and regulations, have designated
a certain car in their passenger train for the exclusive use of ladies,
and gentlemen accompanied by ladies, can exclude from the privi-
leges of such car a colored woman, holding a first-class ticket, for
no other reason except her color.
The evidence in the case establishes these facts — that, as was the
custom on appellants' road, they had set apart in their passenger
trains a car for the exclusive use of ladies, and gentlemen accom-
panied by ladies, and that such a car, called the "ladies' car," Was.
attached to the train in question. The appellee resided at Eock-
ford, and being desirous of going from that station to Belvidere, on
the road of appellants, for that purpose purchased of the agent of
the appellants a ticket, which entitled the holder to a seat in a first-
class car on their road. On the arrival of the train at the Rockford
Station, the appellee offered and endeavored to enter the ladies' car,,
but was refused permission so to do, and was directed to go forward
to the car set apart for and occupied mostly by men.
On the appellee persisting on entering the ladies' car, force-
enough was used by the byakeman to prevent her. At the time she
attempted to obtain a seat in that car, on appellants' train, there-
were vacant and unoccupied seats in it, for one of the female wit-
nesses states that she, with two other ladies, a few moments after-
wards, entered the same car at that station, and found two vacant
seats, and occupied the same. No objection whatever was made.
REGULATIONS. 1083
nor is it insisted any other existed, to appellee taking a seat in the
ladies' car, except her color. The appellee was clad in plain and
decent apparel, and it is not suggested, itx the evidence or otherwise,
that she was not a woman of good character and proper behavior.
It does not appear that the company has ever set apart a car for
the exclusive use, or provided any separate seats for the use, of col-
ored persons who might desire to pass over their line of road. The
evidence discloses that colored women sometimes rode in the ladies'
car, and sometimes in the other car, and there was, in fact, no rule
or regulation of the company in regard to colored passengers.
The case turns somewhat on what are reasonable rules, and the
power of railroad companies to establish and enforce them.
It is the undoubted right of railroad companies to make all rea-
sonable rules and regulations for the safety and comfort of passen-
gers travelling on their lines of road. It is not only their right, but
it is their duty to make such rules and regulations. It is alike the
interest of the companies aad the public that such rules should be
established and enforced, and ample authority is conferred by law
on the agents and servants of the companies to enforce all reason-
able regulations made for the safety and convenience of passengers.
It was held in the case of 111. Cent. E. K. Co. v. Whittemore, 43
111. 423, that, for a non-compliance with a reasonable rule of the
company, a party might be expelled from a train at a point other
than a regular station.
If a person on a train becomes disorderly, profane, or dangerous
and offensive in his conduct, it is the duty of the conductor to expel
such guilty party, or at least to assign him to a car where he will
not endanger or annoy the other passengers. Whatever rules tend
to the comfort, order, and safety of the passengers, the company are
fully authorized to make, and are amply empowered to enforce com-
pliance therewith.
But such rules and regulations must always be reasonable, and
uniform in respect to persons.
A railroad company cannot capriciously discriminate between pas-
sengers on account of their nativity, color, race, social position, or
their political or religious beliefs. Whatever discriminations are
made, must be on some principle, or for some reason , that the law
recognizes as just and equitable, and founded in good public policy.
What are reasonable rules is a question of law, and is for the court
to determine, under all the circumstances in each particular case.
In the present instance, the rule that set apart a car for the exclu-
sive use of ladies, and gentlemen accompanied by ladies, is a rea-
sonable one, and the power of the company to establish it has never
been doubted.
If the appellee is to be denied the privilege of the "ladies' car,"
for which she was willing to pay, and had paid, full compensation
to the company, a privilege which is accorded alike to all women,
1084 CARRIERS OF PASSENGERS.
whether they are rich or poor, it must be on some principle or under
some rule of the company that the law would recognize as reasonable
and just. If she was denied that privilege bj the mere caprice of
the brakeman and conductor, and under no reasonable rule of the
company, or, what is still, worse, as the evidence would indicate,
through mere wantonness on the part of the brakeman, then it was
unreasonable, and therefore unlawful. It is not pretended that
there was any rule that excluded her, or that the managing officers
of the company had ever given any direction to exclude colored per-
sons from that car. If, however, there was such a rule, it could not
be justified on the ground of mere prejudice. Such a rule must have
for its foundation a better and a sounder reason, and one more in
consonance with the enlightened judgment of reasonable men. An
unreasonable rule , that affects the convenience and comfort of pas-
sengers, is unlawful, simply because it is unreasonable. The State
V. Overton, 4 Zab. 435.
In the case of the West Chester & Philadelphia R. E. Co. v.
Miles, 66 Penn. 209, it was admitted, that no one could be excluded
from a carriage by a public carrier on account of color, religious
belief, political relations or prejudice, but it was held, not to be an
unreasonable regulation to seat passengers so as to preserve order
and decorum, and prevent contacts and collisions arising from well-
known repugnances, and therefore a rule that required a colored
woman to occupy a separate seat in a car furnished by the company,
equally as comfortable and safe as that furnished for other pas-
sengers, was not an unreasonable rule.
Under some circumstances, this might not be an unreasonable
rule.
At all events, public carriers, until they do furnish separate seats
equal in comfort and safety to those furnished for other travellers,
must be held to have no right to discriminate between passengers on
account of color, race, or nativity, alone.
We do not understand that the appellee was bound to go forward
to the car set apart for and occupied mostly by men, when she was
directed by the brakeman. It is a sufficient answer to say, that
that car was not provided by any rule of the company for the use of
women, and that another one was. This fact was known to the ap-
pellee at the time. She may have undertaken the journey alone, in
view of that very fact, as women often do.
The above views dispose of all the objections taken to the instruc-
tions given by the court on behalf of the appellee, and the refusal of
the court to give those asked on the part of the appellants, except
the one which tells the jury that they may give damages above the
actual damages sustained, for the delay, vexation, and indignity to
which the appellee was exposed, if she was wrongfully excluded
from the car. If the party in such case is confined to the actual
pecuniary damages sustained, it would, most often, be no compensa-
EEGULATIONS. 1085
tion at all, above nominal damages, and no salutary effect would be
produced on the wrong-doer by such a verdict. But we apprehend,
that if the act is wrongfully and wantonly committed, the party
may recover, in addition to the actual damages, something for the
indignity, vexation, and disgrace to which the party has been
subjected.
It is insisted that the damages are excessive, in view of the slight
injury sustained.
There is evidence from which the jury could find that the brake-
man treated the appellee very rudely, and placed his hand on her
and pushed her away from the car. The act was committed in a
public place, and whatever disgrace was inflicted on her was in the
presence of strangers and friends. The act was, in itself, wrongful,
a,nd without the shadow of a reasonable excuse, and the damages are
not too high. The jury saw the witnesses, and heard their testi-
mony, and with their finding we are fully satisfied.
Perceiving no error in the record, the judgment is affirmed.
Judgment affirmed.
Mr. Justice Sheldon, having heard this cause in the court below,
took no part in this decision.
Beeese, J. I am not prepared to assent to all the reasoning and
conclusions of the above opinion, and I am further of opinion the
damages are excessive.
APPENDIX.
IMPORTANT FEDERAL STATUTES RELATING TO
CARRIERS.
LIMITATION OF LIABILITY.
Revised Statutes of the United States.
Section 4281. If any shipper of platina, gold, gold dust, silver, bullion,
or other precious metals, coins, jewelry, bills of any bank or public body, dia-
monds, or other precious stones, or any gold or silver in a manufactured or
unmanufactured state, watches, clocks, or time-pieces of any description,
trinkets, orders, notes, or securities for payment of money, stamps, maps,
writings, title-deeds, printings, engravings, pictures, gold or silver plate or
plated articles, glass, china, silks in a manufactured or unmanufactured state,
and whether wrought up or not wrought up with any other material, furs, or
lace, or any of them, contained in any parcel, or package, or trunk, shall lade
the same as freight or baggage, on any vessel, without at the time of such
lading giving to the master, clerk, agent, or owner of such vessel receiving the
same a written notice of the true character and value thereof, and having the
same entered on the bill of lading therefor, the master and owner of such vessel
shall not be liable as carriers thereof in any form or manner; nor shall any
such master or owner be liable for any such goods beyond the value and ac-
cording to the character thereof so notified and entered. [28 Feb. 1871, c. 100,
§ 69.]
Sec. 4282. No owner of any vessel shall be liable to answer for or make
good to any person any loss or damage which may happen to any merchandise
whatsoever, which shall be shipped, taken in, or put on board any such vessel,
by reason or by means of any fire happening to or on board the vessel, unless
such fire is caused by the design or neglect of such owner. [3 Mar. 1851,
c. 43, § 1.]
Sec. 4283. The liability of the owner of any vessel, for any embezzlement,
loss, or destruction, by any person, of any property, goods, or merchandise,
shipped or put on board of such vessel, or for any loss, damage, or injury by
collision, or for any act, matter, or thing, loss, damage, or forfeiture, done,
occasioned, or incurred, without the privity, or knowledge of such owner or
owners, shall in no case exceed the amount or value of the interest of such
owner in such vessel, and her freight then pending. [Ibid. § 3.]
Sec. 4284. Whenever any such embezzlement, loss, or destruction is suf-
fered by several freighters or owners of goods, wares, merchandise, or any
property whatever, on the same voyage, and the whole value of the vessel, and
1087
1088 APPENDIX.
her freight for the voyage, is not suflScient to make compensation to each of
them, they shall receive compensation from the owner of the vessel in propor-
tion to their respective losses ; and for that purpose the freighters and owners
of the property, and the owner of the vessel, or any of them, may take the
appropriate proceedings in any court, for the purpose of apportioning the sum
for which the owner of the vessel may be liable among the parties entitled
thereto. [Ibid. § 4; 27 Feb. 1877, c. 69.]
Sec. 4285. It shall be deemed a sufficient compliance on the part of such
owner with the requirements of this Title relating to his liability for any em-
bezzlement, loss, or destruction of any property, goods, or merchandise, if he
shall transfer his interest in such vessel and freight, for the benefit of such
claimants, to a trustee,, to be appointed by any coiu-t of competent jurisdiction,
to act as such trustee for the person who may prove to be legally entitled there-
to ; from and after which transfer all claims and proceedings against the owner
shall cease. [3 Mar. 1851, c. 43, § 4.]
Sec. 4286. The charterer of any vessel, in case he shall man, victual, and
navigate such vessel at his own expense, or by his own procurement, shall be
deemed the owner of such vessel within the meaning of the provisions of this
Title relating to the limitation of the liability of- the owners of vessels; and
such vessel, when so chartered, shall be liable in the same manner as if navi-
gated by the owner thereof. [Ibid. § 5.]
Sec. 4287. Nothing in the five preceding sections shall be construed to-
take away or affect the remedy to which any party may be entitled, against
the master, officers, or seamen, for or on account of any embezzlement, injury,
loss, or destruction of merchandise, or property, put on board any vessel, or on.
account of any negligence, fraud, or other malversation of such master, officers,
or seamen, respectively, nor to lessen or take away any responsibility to which
any master or seaman of any vessel may by law be liable, notwithstanding
such master or seaman may be an owner or part owner of the vessel. [Ibid.
§6.]
Sec. 4288. Any person shipping oil of vitriol, unslaked lime, inflammable
matches, or gunpowder, in a vessel taking cargo for divers persons on freight,
without delivering, at the time of shipment, a note in writing, expressing the
nature and character of sUch merchandise, to the master, mate, officer, or
person in charge of the lading of the vessel, shall be liable to the United States
in a penalty of one thousand dollars. But this section shall not apply to any
vessel of any description whatsoever used in rivers or inland navigation. - [Ibid.
§7.]
Sec. 4289. The provisions of the seven preceding sections, and of section
eighteen of an act entitled "An act to remove certain burdens on the American
merchant marine and encourage the American foreign carrying-trade, and for
other purposes," approved June twenty-sixth, eighteen hundred and eighty-
four, relating to the limitations of the liability of the owners of vessels, shall
apply to all sea^going vessels, and also to all vessels used on lakes or rivers or
in inland navigation. Including canal-boats, barges, and lighters. [Ibid. ; 18
Feb. 1875, c. 80 ; as amended by Act of 19 June, 1886, c. 421, § 4.)
Act of June 26, 1884, c. 121. (23 Stat, at L. 57.)
Sec. 18. That the individual liability of a ship-owner shall be limited to
the proportion of any or all debts and liabilities that his individual share of
APPENDIX. 1089
the vessel bears to the whole ; and the aggregate liabilities of all the owners of
a vessel on account of the same shall not exceed the value of such vessels and
freight pending : Prodded, That this provision shall not affect the liability of
any owner incurred previous to the passage of this act, nor prevent any claim-
ant from joining all the owners in one action ; nor shall the same apply to wages
due to persons employed by said ship-owners.
BILLS OF LADING
Act of Feb. 13, 1893, c. 105. (27 Stat, at L. 445.)
Be it enacted, etc. That it shall not be lawful for the manager, agent, mas-
ter, or owner of any vessel transporting merchandise or property from or be-
tween ports of the United States and foreign ports to insert in any bill of lading
or shipping document any clause, covenant, or agreement whereby it, he, or
they shall be reUeved from Uability for loss or damage arising from negligence,
fault, or failure in proper loading, stowage, custody, care, or proper delivery
of any and all lawful merchandise or property committed to its or their charge.
Any and all words or clauses of such import inserted in bills of lading or ship-
ping receipts shall be null and void and of no effect.
Sec. 2. That it shall not be lawful for any vessel transporting merchandise
or property from or between ports of the United States of America and foreign
ports, her owner, master, agent, or manager, to insert in any bill of lading or
shipping document any covenant or agreement whereby the obligations of the
owner or owners of said vessel to exercise due diligence properly equip, man,
provision, and outfit said vessel, and to make said vessel seaworthy and capable
of performing her intended voyage, or whereby the obligations of the master,
officers, agents, or servants to carefully handle and stow her cargo and to care
for and properly deliver same, shall in any wise be lessened, weakened, or avoided.
Sec. 3. That if the owner of any vessel transporting merchandise or prop-
erty to or from any port in the United States of America shall exercise due
dihgence to make the said vessel in all respects seaworthy and properly manned,
equipped, and supplied, neither the vessel, her owner or owners, agent, or
charterers shall become or be held responsible for damage or loss resulting
from faults or errors in navigation or in the management of said vessel nor
shall the vessel, her owner or owners, charterers, agent, or master be held
liable for losses arising from dangers of the sea or other navigable waters, acts
of God, or pubUc enemies, or the inherent defect, quaUty, or vice of the thing
carried, or from insufficiency of package, or seizure under legal process, or for
loss resulting from any act or omission of the shipper or owner of the goods,
his agent or representative, or from saving or attempting to save life or prop-
erty at sea, or from any deviation in rendering such service.
Sec. 4. That it shall be the duty of the owner or owners, masters, or agent
of any vessel transporting merchandise or property from or between ports of
the United States and foreign ports to issue to shippers of any lawful mer-
chandise a bill of lading, or shipping document, stating, among other things,
the marks necessary for identification, number of packages, or quantity, stating
whether it be carrier's or shipper's weight, and apparent order or condition of
such merchandise or property delivered to and received by the owner, master.
1090 APPENDIX.
or agent of the vessel for transportation, and such document shall be prima
facie evidence of the receipt of the merchandise therein described.
Sec. 5. That for a violation of any of the provisions of this act the agent,
owner, or master of the vessel guilty of such violation, and who refuses to issue
on demand the bill of lading herein provided for, shall be liable to a fine not
exceeding two thousand dollars. The amount of the fine and costs for such
violation shall be a lien upon the vessel, whose agent, owner, or master is guilty
of such violation, and such vessel may be libelled therefor in any district court
of the United States, within whose jurisdiction the vessel may be found. One-
half of such penalty shall go to the party injured by such violation and the
remainder to the Government of the United States.
Sec. 6. That this act shall not be held to modify or repeal sections forty-
two hundred and eighty-one, forty-two hundred and eighty-two, and forty-two
hundred and eighty-three of the Revised Statutes of the United States, or any
Other statute defining the liabiUty of vessels, their owners, or representatives. ,
Sec. 7. Sections one and four of this act shall not apply to the transporter
tion of live animals.
Sec. 8. This act shall take effect from and after the first day of July, eigh-
teen hundred and ninety-three.
Approved, February 13, 1893.
THE ACT TO REGULATE COMMERCE AS AMENDED.
[As published by the Interstate Commerce Commission. Revised to Jan. 1,
1914.]
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
Sec. 1. (As amended June S9, 1906, April 13, 1908, and June 18, 1910.)
That the provisions of this Act shall apply to any corporation or any person or
persons engaged in the transportation of oil or other commodity, except water
and except natural or artificial gas, by means of pipe lines, or partly by pipe
lines and partly by railroad, or partly by pipe lines and partly by water, and
to telegraph, telephone, and cable companies (whether wire or wireless) engaged
in sending messages from one State, Territory, or District of the United States,
to any other State, Territory, or District of the United States, or to any for-
eign country, who shall be considered and held to be common carriers within
the meaning and purpose of this Act, and to any common carrier or carriers
engaged in the transportation of passengers or property wholly by railroad
(or partly by raihoad and partly by water when both are used under a common
control, management, or arrangement for a continuous carriage or shipment),
from one State or Territory of the United States or the District of Columbia,
to any other State or Territory of the United States or the District of Columbia,
or from one place in a Territory to another place in the same Territory, or from
any place in the United States to an adjacent foreign country, or from any
place in the United States through a foreign country to any other place in the
United States, and also to the transportation in like manner of property shipped
from any place in the United States to a foreign country and carried from such
place to a port of transshipment, or shipped from a foreign country to any
place in the United States and carried to such place from a port of entry either
in the IJnited States or an adjacent foreign country : Provided, however. That
APPENDIX. 1091
■the provisions of this Act shall not apply to the transportation of passengers
or property, or to the receiving, delivering, storage, or handling of property
wholly within one State and not shipped to or from a foreign country from or
to any State or Territory as aforesaid, nor shall they apply to the transmission
of messages by telephone, telegraph, or cable wholly within one State and
not transmitted to or from a foreign country from or to any State or Territory
as aforesaid.
The term "common carrier" as used in this Act shall include express com-
panies and sleeping car companies. The term "railroad" as used in this Act
shall include all bridges and ferries used or operated in connection with any
railroad, and also all the road in use by any corporation operating a railroad,
"whether owned or operated under a contract, agreement, or lease, and shall
also include all switches, spurs, tracks, and terminal facilities of every kind used
or necessary in the transportation of the persons or property designated herein,
and also all freight depots, yards, and grounds used or necessary in the transpor-
tation or delivery of any of said property ; and the term "transportation" shall
include cars and other vehicles and all instrumentalities and facilities of ship-
ment or carriage, irrespective of ownership or of any contract, express or implied,
for the use thereof and all services in connection with the receipt, delivery, ele-
vation, and transfer in transit, ventilation, refrigeration or icing, storage, and
handling of property transported ; and it shall be the duty of every carrier sub-
ject to the provisions of this Act to provide and furnish such transportation
upon reasonable request therefor, and to establish through routes and just and
reasonable rates applicable thereto; and to provide reasonable faciUties for
operating such through routes and to make reasonable rules and regulations
with respect to the exchange, interchange, and return of cars used therein, and
for the operation of such through routes, and providing for reasonable compen-
sation to those entitled thereto.
All charges made for any service rendered or to be rendered in the transpor-
tation of passengers or property and for the transmission of messages by tele-
graph, telephone, or cable, as aforesaid, or in connection therewith, shall be just
and reasonable ; and every unjust and unreasonable charge for such service or
any part thereof is prohibited and declared to be unlawful : Provided, That
messages by telegraph, telephone, or cable, subject to the provisions of this
Act, may be classified into day, night, repeated, unrepeated, letter, commercial,
press. Government, and such other classes as are just and reasonable, and
different rates may be charged for the different classes of messages : And pro-
vided further, That nothing in this Act shall be construed to prevent telephone,
telegraph, and cable companies from entering into contracts with common
carriers, for the exchange of services.
And it is hereby made the duty of all common carriers subject to the provi-
sions of this Act to establish, observe, and enforce just, and reasonable classi-
fications of property for transportation, with reference to which rates, tariffs,
regulations, or practices are or may be made or prescribed, and just and reason-
able regulations and practices affecting classifications, rates, or tariffs, the
issuance, form, and substance of tickets, receipts, and bills of lading, the manner
and method of presenting, marking, packing, and delivering property for trans-
portation, the facilities for transportation, the carrying of personal, sample,
and excess baggage, and all other matters relating to or connected with the
receiving, handling, transporting, storing, and delivery of property subject to
the provisions of this Act which may be necessary or proper to secure the safe
1092 APPENDIX.
and prompt receipt, handling, transportation, and delivery of property subject
to the provisions of this Act upon just and reasonable terms, and every such
unjust and unreasonable classification, regulation, and practice with reference
to commerce between the States and with foreign countries is prohibited and
declared to be unlawful.
No common carrier subject to the provisions of this Act shall, after January-
first, nineteen hundred and seven, directly or indirectly, issue or give any inter-
state free ticket, free pass, or free transportation for passengers, except to its^
employees and theu: families, its oflBcers, agents, surgeons, physicians, and
attorneys at law; to ministers of religion, traveling secretaries of railroad
Young Men's Christian Associations, inmates of hospitals and charitable and
eleemosynary institutions, and persons exclusively engaged in charitable and
eleemosynary work ; to indigent, destitute, and homeless persons, and to such
persons when transported by charitable societies or hospitals and the necessary
agents employed in such transportation ; to inmates of the National Homes oi^
State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors'
Homes, including those about to enter and those returning home after discharge j
to necessary care takers of live stock, poultry, milk, and fruit; to employees
on sleeping cars, express cars, and to linemen of telegraph and telephone com-
panies; to Railway Mail Service employees, post-office inspectors, customs
inspectors, and immigration inspectors ; to newsboys on trains, baggage agents,
witnesses attending any legal investigation in which the common carrier is
interested, persons injured in wrecks and physicians and nurses attending such
persons : Prodded, That this provision shall not be construed to prohibit the
interchange of passes for the officers, agents, and employees of common carriers,
and their families; nor to prohibit any common carrier from carrying pas-
sengers free with the object of providing relief in cases of general epidemic, pes-
tilence, or other calamitous visitation : And provided further, That this provi-
sion shall not be construed to prohibit the privilege of passes or franks, or the
exchange thereof with each other, for the ofiBcers, agents, employees,. and their
families of such telegraph, telephone, and cable lines, and the officers, agents,
employees and their families of other common carriers subject to the provisions
of this Act : Provided further, That the term "employees" as used in this para-
graph shall include furloughed, pensioned, and superannuated employees,
persons who have become disabled or infirm in the service of any such common
carrier, and the remains of a person killed in the employment of a carrier and
ex-employees traveling for the purpose of entering the service of any such com-
mon carrier; and the term "families" as used in this paragraph shall include
the families of those persons named in this proviso, also the families of persons
killed, and the widows during widowhood and minor children during minority
of persons who died, while in the service of any such common carrier. Any
common carrier violating this provision shall be deemed guilty of a misdemeanor,
and for each offense, on conviction, shall pay to the United States a penalty of
not less than one hundred dollai-s nor more than two thousand dollars, and
any person, other than the persons excepted in this provision, who uses any
such interstate free ticket, free pass, or free transportation shall be subject
to a like penalty. Jurisdiction of offenses under this provision shall be th&
same as that provided for offenses in an Act entitled "An Act to further regu-
late commerce with foreign nations and among the States," approved February
nineteenth, nineteen hundred and three, and any amendment thereof. (See
section 22.)
APPENDIX. 1093
From and after May first, nineteen hundred and eight, it shall be unlawful
for any railroad company to transport from any State, Territory, or the District
of Columbia, to any other State, Territory, or the District of Columbia, or to
any foreign country, any article or commodity, other than timber and the
manufactured products thereof, manufactured, mined, or produced by it, or
under its authority, or which it may own in whole or in part, or in which it may
have any interest, direct or indirect, except such articles or commodities as
may be necessary and intended for its use in the conduct of its business as a
common carrier.
Any common carrier subject to the provisions of this Act, upon application
of any lateral, branch line of railroad, or of any shipper tendering interstate
traffic for transportation, shall construct, maintain, and operate upon reason-
able terms a switch connection with any such lateral, branch line of railroad,
or private side track which may be constructed to connect with its railroad,
wliere such connection is reasonably practicable and can be put in with safety
and will furnish sufficient business to justify the construction and maintenance
of the same ; and shall furnish cars for the movement of such traffic to the best
of its ability without discrimination in favor of or against any such shipper.
If any common carrier shall fail to install and operate any such switch or con-
nection as aforesaid, on appUcation therefor in writing by any shipper or owner
of such lateral, branch line of railroad, such shipper or owner of such lateral,
branch line of railroad may make complaint to the Commission, as provided in
section thirteen of this Act, and the Commission shall hear and investigate the
same and shall determine as to the safety and practicability thereof and justifi-
cation and reasonable compensation therefor, and the Commission may make
an order, as provided in section fifteen of this Act, directing the common carrier
to comply with the provisions of this section in accordance with such order, and
such order shall be enforced as hereinafter provided for the enforcement of all
other orders by the Commission, other than orders for the payment of money.
Sec. 2. That it any common carrier subject to the provisions of this Act
shall, directly or indirectly, by any special rate, rebate, drawback, or other
device, charge, demand, collect, or receive from any person or persons a greater
or less compensation for any service rendered, or to be rendered, in the trans-
portation of passengers or property, subject to the provisions of this act, than it
charges, demands, collects, or receives from any other person or persons for
doing for him or them a like and contemporaneous service in the transportation
of a like kind of traffic under substantially similar circumstances and conditions,
such common carrier shall be deemed guilty of unjust discrimination, which is
hereby prohibited and declared to be unlawful.
Sec. 3. That it shall be unlawful for any common carrier subject to the
provisions of this act to make or give any undue or unreasonable preference
or advantage to any particular person, company, firm, corporation, or locality,
or any particular description of traffic, in any respect whatsoever, or to subject
any particular person, company, firm, corporation, or locality, or any particu-
lar description of traffic, to any undue or unreasonable prejudice or disadvantage
in any respect whatsoever.
Every common carrier subject to the provisions of this Act shall, according
to their respective powers, afford all reasonable, proper, and equal facilities
for the interchange of traffic between their respective lines, and for the receiv-
ing, forwarding, and delivering of passengers and property to and from their
several lines and those connecting therewith, and shall not discriminate in their
1094 APPENDIX.
rates and charges between such connecting lines; but this shall not be con-
strued as requiring any such common carrier to give the use of its tracks or ter-
minal facilities to another carrier engaged in like business.
Sec. 4. (As amended June 18, 1910.) That it shall be unlawful for any-
common carrier subject to the provisions of this Act to charge or receive any
greater compensation in the aggregate for the transportation of passengers, or
of like kind of property, for a shorter than for a longer distance over the same
line or route in the same direction, the shorter being included within the longer
distance, or to charge any greater compensation as a through route than the
aggregate of the intermediate rates subject to the provisions of this Act; but
this shall not be construed as authorizing any common carrier within the terms
of this Act to charge or receive as great compensation for a shorter as for a longer
distance : Provided, however, That upon application to the Interstate Commerce
Commission such common carrier may in special cases, after investigation,
be authorized by the Commission to charge less for longer than for shorter dis-
tances for the transportation of passengers or property; and the Commission
may from time to time prescribe the extent to which such designated common
carrier may be relieved from the operation of this section : Provided further.
That no rates or charges lawfully existing at the time of the passage of this
amendatory Act shall be required to be changed by reason of the provisions of
this section prior to the expiration of six months after the' passage of this Act,
nor in any case where application shall have been filed before the Commission,
in accordance with the provisions of this section, until a determination of such
application by the Commission.
Whenever a carrier by railroad shall in competition with a water route or
routes reduce the rates on the carriage of any species of freight to or from com-
petitive points, it shall not be permitted to increase such rates unless after hear-
ing by the Interstate Commerce Commission it shall be found that such pro-
posed increase rests upon changed conditions other than the elimination of water
competition.
Sec. 5. {As amended August S4, 1912.) That it shall be unlawful for any
common carrier subject to the provisions of this Act to enter into any contract,
agreement, or combination with any other common carrier or carriers for the
pooling of freights of different and competing railroads, or to divide between
them the aggregate or net proceeds of the earnings of such railroads, or any
portion thereof ; and in any case of an agreement for the pooling of freights as
aforesaid, each day of its continuance shall be deemed a separate offense.
{Amendment of August 24, 1912.) From and after the first day of July, nine-
teen hundred and fourteen, it shall be unlawful for any railroad company or
other common carrier subject to the Act to regulate commerce to own, lease,
operate, control, or have any interest whatsoever (by stock ownership or other-
wise, either directly, indirectly, through any holding company, or by stock-
holders or directors in common, or in any other manner) in any common carrier
by water operated through the Panama Canal or elsewhere with which said
railroad or other carrier aforesaid does or may compete for traffic or any vessel
carrying freight or passengers upon said water route or elsewhere with whick
said railroad or other carrier aforesaid does or may compete for traffic ; and in
case of the violation of this provision each day in which such violation continues
shall be deemed a separate offense.
Jurisdiction is hereby conferred on the Interstate Commerce Commission to
determine questions of fact as to the competition or possibility of competition.
APPENDIX. 1095
after full hearing, on the application of any railroad company or other carrier.
Such application may be filed for the purpose of determining whether any exist-
ing service is in violation of this section and pray for an order permitting the
continuance of any vessel or vessels already in operation, or for the purpose of
asking an order to install new service not in conflict with the provisions of this
paragraph. The Commission may on its own motion or the application of any
shipper institute proceedings to inquire into the operation of any vessel in use
by any railroad or other carrier which has not applied to the Commission and
had the question of competition or the possibility of competition determined as
herein provided. In all such cases the order of said Commission shall
be final.
If the Interstate Commerce Commission shall be of the opinion that any
such existing specified service by water other than through the Panama Canal
is being operated in the interest of the public and is of advantage to the con-
venience and commerce of the people, and that such extension will neither
exclude, prevent, nor reduce competition on the route by water under consid-
eration, the Interstate Commerce Commission may, by order, extend the time
during which such service by water may continue to be operated beyond July
first, nineteen hundred and fourteen. In every case of such extension the rates,
schedules, and practices of such water carrier shall be filed with the Interstate
Commerce Cormnission and shall be subject to the Act to regulate commerce
and all amendments thereto in the same manner and to the same extent as is
the railroad or other common carrier controlling such water carrier or interested
in any manner in its operation : Provided, Any application for extension under
the terms of this provision filed with the Interstate Commerce Commission prior
to July first, nineteen hundred and fourteen, but for any reason not heard and
disposed of before said date, may be considered and granted thereafter.
No vessel permitted to engage in the coastwise or foreign trade of the United
States shall be permitted to enter or pass through said canal if such ship is
owned, chartered, operated, or controlled by any person or company which is
doing business in violation of the provisions of the Act of Congress approved
July second, eighteen hundred and ninety, entitled "An Act to protect trade and
commerce against unlawful restraints and monopolies," or the provisions of
sections seventy-three to seventy-seven, both inclusive, of an Act approved
August twenty-seventh, eighteen hundred and ninety-four, entitled "An Act
to reduce taxation, to provide revenue for the Government, and for other
piu'poses," or the provisions of any other Act of Congress amending or supple-
menting the said Act of July second, eighteen hundred and ninety, commonly
known as the Sherman Antitrust Act, and amendments thereto, or said sections
of the Act of August twenty-seventh, eighteen hundred and ninety-four. The
question of fact may be determined by the judgment of any court of the United
States of competent jurisdiction in any cause pending before it to which the
owners or operators of such ship are parties. Suit may be brought by any
shipper or by the Attorney General of the United States.
Sec. 6. {Amended March 2, 1889. Following section substituted June 29,
1906. Amended June 18, 1910, and August 2^, 1912.) That every common
carrier subject to the provisions of this Act shall file with the Commission created
by this Act and print and keep open to public inspection schedules showing all
the rates, fares, and charges for transportation between different points on its
own route and between points on its own route and points on the route of any
other carrier by railroad, by pipe line, or by water when a through route and
1096 APPENDIX.
joint rate have been established. If no joint rate over the through route has
been established, the several carriers in such through route shall file, print and
keep open to public inspection as aforesaid, the separately estabhshed rates,
fares and charges apphed to the through transportation. The schedules printed
as aforesaid by any such common carrier shall plainly state the places between
which property and passengers will be carried, and shall contain the classifica-
tion of freight in force, and shall also state separately all terminal charges,
storage charges, icing charges, and all other charges which the Commission
may require, all privileges or facilities granted or allowed and any rules or regu-
lations which in any wise change, affect, or determine any part or the aggregate
of such aforesaid rates, fares, and charges, or the value of the service rendered
to the passenger, shipper, or consignee. Such schedules shall be plainly printed
in large type, and copies for the use of the public shall be kept posted in two
public and conspicuous places in every depot, station, or office of such carrier
where passengers or freight, respectively, are received for transportation, in
such form that they shall be accessible to the public and can be conveniently
inspected. The provisions of this section shall apply to all traffic, transporta-
tion, and facilities defined in this Act.
Any common carrier subject to the provisions of this Act receiving freight
in the United States to be carried through a foreign country to any place in the
United States shall also in like manner print and keep open to public inspec-
tion, at every depot or office where such freight is received for shipment, sched-
ules showing the through rates established and charged by such common carrier
to all points in the United States beyond the foreign country to which it accepts
freight for shipment ; and any freight shipped from the United States through
a foreign country into the United States the through rate on which shall not
have been made public, as required by this Act, shall, before it is admitted into
the United States from said foreign country, be subject to customs duties as if
said freight were of foreign production.
No change shall be made in the rates, fares, and charges or joint rates, fares,
and charges which have been filed and published by any common carrier in
compliance with the requirements of this section, except after thirty days'
notice to the Commission and to the public published as aforesaid, which shall
plainly state the changes proposed to be made in the schedule then in force and
the time when the changed rates, fares, or charges will go into effect ; and the
proposed changes shall be shown by printing new schedules, or shall be plainly
indicated upon the schedules in force at the time and kept open to public inspec-
tion : Provided, That the Commission may, in its discretion and for good cause
shown, allow changes upon less than the notice herein specified, or modify the
requirements of this section in respect to publishing, posting, and filing of tariffs,
either in particular instances or by a general order applicable to special or pecul-
iar circumstances or conditions.
The names of the several carriers which are parties to any joint tariff shall
be specified therein, and each of the parties thereto, other than the one filing the
same, shall file with the Commission such evidence of concurrence therein or
acceptance thereof as may be required or approved by the Commission, and
where such evidence of concurrence or acceptance is filed it shall not be neces-
sary for the carriers filing the same to also file copies of the tariffs in which they
are named as parties.
Every common carrier subject to this Act shall also file with said Commis-
sion copies of all contracts, agreements, or arrangements with other common
APPENDIX. 1097
carriers in relation to any traffic affected by the provisions of this Act to which
it may be a party.
The Commission may determine and prescribe the form in which the schedules
required by this section to be kept open to public inspection shall be prepared
and arranged and may change the form from time to time as shall be found
expedient.
No carrier, unless otherwise provided by this Act, shall engage or participate
in the transportation of passengers or property, as defined in this Act, unless the
rates, fares, and charges upon which the same are transported by said carrier
have been filed and published in accordance with the provisions of this Act;
nor shall any carrier charge or demand or collect or receive a greater or less or
different compensation for such transportation of passengers or property, or
for any service in connection therewith, between the points named in such tariffs
than the rates, fares, and charges which are specified in the tariff filed and in
effect at the time ; nor shall any carrier refund or remit in any manner or by any
device any portion of the rates, fares, and charges so specified, nor extend to
any shipper or person any privileges or facilities in the transportation of pas-
sengers or property, except such as are specified in such tariffs : Provided, That
wherever the word "carrier" occurs in this Act is shall be held to mean "com-
mon carrier."
That in time of war or threatened war preference and precedence shall, upon
the demand of the President of the United States, be given, over all other traffic,
to the transportation of troops and material of war, and carriers shall adopt
every means within their control to facilitate and expedite the military
traffic.
(Amendment of June 18, 1910.) The Commission may reject and refuse to
file any schedule that is tendered for filing which does not provide and give
lawful notice of its effective date, and any schedule so rejected by the Commis-
sion shall be void and its use shall be unlawful.
In case of failure or refusal on the part of any carrier, receiver, or trustee
to comply with the terms of any regulation adopted and promulgated or any
order made by the Commission under the provisions of this section, such carrier,
receiver, or trustee shall be liable to a penalty of five hundred dollars for each
such offense, and twenty-five dollars for each and every day of the continuance
of such offense, which shall accrue to the United States and may be recovered
in a civil action brought by the United States.
If any common carrier subject to the provisions of this Act, after written
request made upon the agent of such carrier hereinafter in this section referred
to, by any person or company for a written statement of the rate or charge
applicable to a described shipment between stated places under the schedules
or tariffs to which such carrier is a party, shall refuse or omit to give such written
statement within a reasonable time, or shall misstate in writing the applicable
rate, and if the person or company making such request suffers damage in conse-
quence of such refusal or omission or in consequence of the misstatement of the
rate, either through making the shipment over a line or route for which the
proper rate is higher than the rate over another available line or route, or through
entering into any sale or other contract whereunder such person or company
obligates himself or itself to make such shipment of freight at his or its cost, then
the said carrier shall be liable to a penalty of two hundred and fifty dollars,
which shall accrue to the United States and may be recovered in a civil action
brought by the United States.
1098 APPENDIX.
It shall be the duty of every carrier by railroad to keep at all times conspic-
uously posted in every station where freight is received for transportation the
name of an agent resident in the city, village, or town where such station is
located, to whom application may be made for the information by this section
required to be furnished on written request ; and in case any carrier shall fail
at any time to have such name so posted in any station, it shall be sufficient ta
address such request in substantially the following form : "The Station Agent
of the Company at Station," together with the name of the proper
post office, inserting the name of the carrier company and of the station in the
blanks, and to serve the same by depositing the request so addressed, with
postage thereon prepaid, in any post office.
{Amendment of August 24, WIS.) When property may be or is transported
from point to point in the United States by rail and water through the Panama
Canal or otherwise, the transportation being by a common carrier or carriers,
and not entirely within the limits of a single State, the Interstate Commerce
Commission shall have jurisdiction of such transportation and of the carriers,
both by rail and by water, which may or do engage in the same, in the following
particulars, in addition to the jurisdiction given by the Act to regulate com-
merce, as amended June eighteenth, nineteen hundred afad ten :
(a) To establish physical connection between the lines of the rail carrier
and the dock of the water carrier by directing the rail carrier to make suitable
connection between its line and a track or tracks which have been constructed
from the dock to the limits of its right of way, or by directing either or both the
rail and water carrier, individually or. in connection with one another, to con-
struct and connect with the lines of the rail carrier a spur track or tracks to the
dock. This provision shall only apply where such connection is reasonably
practicable, can be made with safety to the pubUc, and where the amount of
business to be handled is sufficient to justify the outlay.
The Commission shall have full authority to determine the terms and condi-
tions upon which these connecting tracks, when constructed, shall be operated,
and it may, either in the construction or the operation of such tracks, determine
what sum shall be paid to or by either carrier. The provisions of this para-
graph shall extend to cases where the dock is owned by other parties than the
carrier involved.
(b) To establish through routes and maximum joint rates between and over
such rail and water lines, and to determine all the terms and conditions under
which such hues shall be operated in the handling of the traffic embraced.
(c) To establish maximum proportional rates by rail to and from the ports
to which the traffic is brought, or from which it is taken by the water carrier,
and to determine to what traffic and in connection with what vessels and upon
what terms and conditions such rates shall apply. By proportional rates are
meant those which differ from the corresponding local rates to and from the
port and which apply only to traffic which has been brought to the port or is
carried from the port by a common carrier by water.
^(d) If any rail carrier subject to the Act to regulate commerce enters into
arrangements with any water carrier operating from a port in the United States
to a foreign country, through the Panama Canal or otherwise, for the handling
of through business between interior points of the United States and such foreign
country, the Interstate Commerce Commission may require such railway to
enter into similar arrangements with any or all other lines of steamships operat-
ing from said port to the same foreign country.
APPENDIX. 1099
The orders of the Interstate Commerce Commission relating to this section
shall only be made upon formal complaint or in proceedings instituted by the
Commission of its own motion and after full hearing. The orders provided
for in the two amendments to the Act to regulate commerce enacted in this
section shall be served in the same manner and enforced by the same penalties
and proceedings as are the orders of the Commission made under the provisions
of section fifteen of the Act to regulate commerce, as amended June eighteenth,
nineteen hundred and ten, and they may be conditioned for the payment of any
sum or the giving of security for the payment of any sum or the discharge of
any obligation which may be required by the terms of said order.
Sec. 7. That it shall be unlawful for any common carrier subject to the pro-
visions of this Act to enter into any combination, contract, or agreement, ex-
pressed or implied, to prevent, by change of time schedule, carriage in different
cars, or by other means or devices, the carriage of freights from being continuous
from the place of shipment to the place of destination ; and no break of bulk,
stoppage, or interruption made by such common carrier shall prevent the car-
riage of freights from being and being treated as one continuous carriage from the
place of shipment to the place of destination, unless such break, stoppage, or
interruption was made in good faith for some necessary purpose, and without
any intent to avoid or unnecessarily interrupt such continuous carriage or to
evade any of the provisions of this Act.
Sec. 8. That in case any common carrier subject to the provisions of this
Act shall do, cause to be done, or permit to be done any act, matter, or thing in
this Act prohibited or declared to be unlawful, or shall omit to do any act,
matter, or thing in this Act required to be done, such common carrier shall be
liable to the person or persons injured thereby for the full amount of damages
sustained in consequence of any such violation of the provisions of this Act,
together with a reasonable counsel or attorney's fee, to be fixed by the court in
every case of recovery, which attorney's fee shall be taxed and collected as part
of the costs in the case.
Sec. 9. That any person or persons claiming to be damaged by any common
carrier subject to the provisions of this Act may either make complaint to the
Commission as hereinafter provided for, or may bring suit in his or their own be-
half for the recovery of the damages for which such common carrier may be
liable under the provisions of this Act, in any district or circuit court of the
United States of competent jurisdiction ; but such person or persons shall not
have the right to pursue both of said remedies, and must in each case elect which
one of the two methods of procedure herein provided for he or they will adopt.
In any such action brought for the recovery of damages the court before which
the same shall be pending may compel any director, officer, receiver, trustee, or
agent of the corporation or company defendant in such suit to attend, appear,
and testify in such case, and may compel the production of the books and papers
of such corporation or company party to any such suit ; the claim that any such ■
testimony or evidence may tend to criminate the person giving such evidence
shall not excuse such witness from testifying, but such evidence or testimony
shall not be used against such person on the trial of any criminal proceeding.
Sec. 10. {As amended March 2, 1889, and June 18, 1910.) That any com-
mon carrier subject to the provisions of this Act, or, whenever such common
carrier is a corporation, any director or ofiicer thereof, or any receiver, trustee,
lessee, agent, or person acting for or employed by such corporation, who, alone
or with any other corporation, company, person, or party, shall willfully do or
1100 APPENDIX.
cause to be done, or shall willingly suffer or permit to be done, any act, matter,
or thing in this Act prohibited or declared to be unlawful, or who shall aid or
abet therein, or shall willfully omit or fail to do any act, matter, or thing in this
Act required to be done, or shall cause or willingly suffer or permit any act,
matter, or thing so directed or required by this Act to be done not to be so done,
or shall aid or abet any such omission or failure, or shall be guilty of any infrac-
tion of this Act for which no penalty is otherwise provided, or who shall aid or
abet therein, shall be deemed guilty of a misdemeanor, and shall, upon convic-
tion thereof in any district court of the United States within the jurisdiction of
which such offense was committed, be subject to a fine of not to exceed five
thousand dollars for each offense : Provided, That if the offense for which any
person shall be convicted as aforesaid shall be an unlawful discrimination in
rates, fares, or charges for the transportation of passengers or property, such
person shall, in addition to the fine hereinbefore provided for, be liable to im-
prisonment in the penitentiary for a term of not exceeding two years, or both
such fine and imprisonment, in the discretion of the court.
Any common carrier subject to the provisions of this Act, or, whenever such
common carrier is a corporation, any officer or agent thereof, or any person act-
ing for or employed by such corporation, who, by means of false billing, false
classification, false weighing, or false report of weight, or by any other device or
means, shall knowingly and willfully assist, or shall willingly suffer or permit, any
person or persons to obtain transportation for property at less than the regular
rates then established and in force on the line of transportation of such common
carrier, shall be deemed guilty of a misdemeanor, and shall, upon conviction
thereof in any court of the United States of competent jurisdiction within the
district in which such offense was committed, be subject to a fine of not exceed-
ing five thousand dollars, or imprisonment in the penitentiary for a term of not
exceeding two years, or both, in the discretion of the court, for each offense.
Any person, corporation, or company, or any agent or officer thereof, who
shall deliver property for transportation to any common carrier subject to the
provisions of this Act, or for whom, as consignor or consignee, any such carrier
shall transport property, who shall knowingly and willfully, directly or indirectly,
himself or by employee, agent, officer, or otherwise, by false billing, false classi-
fication, false weighing, false representation of the contents of the package or
the substance of the property, false report of weight, false statement, or by any
other device or means, whether with or without the consent or connivance of the
carrier, its agent, or officer, obtain or attempt to obtain transportation for such
property at less than the regular rates then established and in force on the line
of transportation ; or who shall knowingly and willfully, directly or indirectly,
himself or by employee, agent, officer, or otherwise, by false statement or repre-
sentation as to cost, value, nature, or extent of injury, or by the use of any false
bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit,
or deposition, knowing the same to be false, fictitious, or fraudulent, or to con-
tain any false, fictitious, or fraudulent statement or entry, obtain or attempt to
obtain any allowance, refund, or payment for damage or otherwise in connec-
tion with or growing out of the transportation of or agreement to transport such
property, whether with or without the consent or connivance of the carrier,
whereby the compensation of such carrier for such transportation, either before
or after payment, shall in fact be made less than the regular rates then estab-
Ushed and in force on the line of transportation, shall be deemed guilty of fraud,
which is hereby declared to be a misdemeanor, and shall, upon conviction thereof
APPENDIX. 1101
in any court of the United States of competent jurisdiction within the district
in which such offense was wholly or in part committed, be subject for each offense
to a fine of not exceeding five thousand dollars or imprisonment in the peniten-
tiary for a term of not exceeding two years, or both, in the discretion of the court :
Provided, That the penalty of imprisonment shall not apply to artificial
persons.
If any such person, or any officer or agent of any such corporation or company,
shall, by payment of money or other thing of value, solicitation, or otherwise,
induce or attempt to induce any common carrier subject to the provisions of
this Act, or any of its officers or agents, to discriminate unjustly in his, its or their
favor as against any other consignor or consignee in the transportation of
property, or shall aid or abet any common carrier in any such unjust discrimi-
nation, such person or such officer or agent of such corporation or company
shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in
any coiu"t of the United States of competent jurisdiction within the district in
which such offense 'was committed, be subject to a fine of not exceeding five
thousand dollars, or imprisonment in the penitentiary for a term of not exceed-
ing two years, or both, in the discretion of the coiu-t, for each offense ; and such
person, corporation, or company shall also, together with said common carrier,
be liable, jointly or severally, in an action to be brought by any consignor or
consignee discriminated against in any court of the United States of competent
jurisdiction for all damages caused by or residting therefrom.
Sec. 11. That a Commission is hereby created and established to be known-
as the Interstate Commerce Commission, which shall be composed of five com-
missioners, who shall be appointed by the President, by and with the advice
and consent of the Senate. The Commissioners first appointed under this Act
shall continue in office for the term of two, three, four, five, and six years, re-
spectively, from the first day of January, Anno Donuni eighteen himdred and
eighty-seven, the term of each to be designated by the President; but their
successors shall be appointed for terms of six years, except that any person
chosen to fill a vacancy shall be appointed only for the unexpired time of the
Commissioner whom he shall succeed. Any Commissioner may be removed
by the President for inefficiency, neglect of duty, or malfeasance in office. Not
more than three of the Commissioners shall be appointed from the same politi-
cal party. No person in the employ of or holding any official relation to any
common carrier subject to the provisions of this Act, or owning stock or bonds
thereof, or who is in any manner pecuniarily interested therein, shall enter
upon the duties of or hold such office. Said Commissioners shall not engage
in any other business, vocation, or employment. No vacancy in the Commis-
sion shall impair the right of the remaining Commissioners to exercise all the
powers of the Commission. (See section ZJ^, enlarging Commission and increas-
ing salaries.)
Sec. 12. {As amended March S, 1889, and February 10, 1891.) That the
Commission hereby created shall have authority to inquire into the manage-
ment of the business of all common carriers subject to the provisions of this Act,
and shall keep itself informed as to the manner and method in which the same is
conducted, and shall have the right to obtain from such common carriers full
and complete information necessary to enable the Commission to perform the
duties and carry out the objects for which it was created ; and the Commission
is hereby authorized and required to execute and enforce the provisions of this
Act ; and, upon the request of the Commission, it shall be the duty of any dis-
1102 APPENDIX.
trict attorney of the United States to whom the Commission may apply to insti-
tute in the proper court and to prosecute under the direction of the Attorney
General of the United States all necessary proceedings for the enforcement of the
provisions of this Act and for the punishment of all violations thereof, and the-
costs and expenses of such prosecution shall be paid out of the appropriation
for the expenses of the courts of the United States ; and for the purposes of this
Act the Commission shall have power to require, by subpoena, the attendance
and testimony of witnesses and the production of all books, papers, tariffs, con-
tracts, agreements, and documents relating to any matter under investigation.^
Such attendance of witnesses, and the production of such documentary
evidence, may be required from any place in the United States, at any desig-
nated place of hearing. And in case of disobedience to a subpoena the Com-
mission, or any party to a proceeding before the Commission, may invoke the
aid of any court of the United States in requiring the attendance and testimony
of witnesses and the production of books, papers, and documents under the
provisions of this section.
And any of the circuit courts of the United States within the jurisdiction of
which such inquiry is carried on may, in case of contumacy or refusal to obey a
subpoena issued to any common carrier subject to the provisions of this Act,
or other person, issue an order requiring such common carrier or other person
to appear before said Commission (and produce books and papers if so ordered)
and give evidence touching the matter in question ; and any failure to obey
such order of the court may be punished by such coiui; as a contempt thereof.
The claim that any such testimony or evidence may tend to criminate the per-
son giving such evidence shall not excuse such witness from testifying; but such
evidence or testimony shall not be used against such person on the trial of any
criminal proceeding.
The testimony of any witness may be taken, at the instance of a party, in any
proceeding or investigation pending before the Commission, by deposition, at
any time after a cause or proceeding is at issue on petition and answer. The
Commission may also order testimony to be taken by deposition in any proceed-
ing or investigation pending before it, at any stage of such proceeding or inves-
tigation. Such depositions may be taken before any judge of any court of the
United States, or any conunissioner of a circuit, or any clerk of a district or cir-
cuit court, or any chancellor, justice, or judge of a supreme or superior court,
mayor or chief magistrate of a city, judge of a county court, or court of common
pleas of any of the United States, or any notary public, not being of counsel
or attorney to either of the parties, nor interested in the event of the proceedings
or investigation. Reasonable notice must first be given in writing by the party
or his attorney proposing to take such deposition to the opposite party or his
attorney of record, as either may be nearest, which notice shall state the name
of the witness and the time and place of the taking of his deposition. Any
person may be compelled to appear and depose, and to produce documentary
evidence, in the same manner as witnesses may be compelled to appear and tes-
tify and produce documentary evidence before the Commission as hereinbefore
provided.
Every person deposing as herein provided shall be cautioned and sworn (or
affirm, if he so request) to testify the whole truth, and shall be carefully exam-
ined. His testimony shall be reduced to writing by the magistrate taking the
deposition, or under his direction, and shall, after it has been reduced to writing,
be subscribed by the deponent.
APPENDIX. 1103
If a witness whose testimony may be desired to be taken by deposition be in
a foreign country, the deposition may be taken before an officer or person desig-
nated by the Commission, or agreed upon by the parties by stipulation in writ-
ing to be filed with the Commission. All depositions must be promptly filed
with the Commission.
Witnesses whose depositions are taken pursuant to this Act, and the magis-
trate or other officer taking the same, shall severally be entitled to the same
fees as are paid for like services in the courts of the United States.
Sec. 13. (As amended June 18, 1910.) That any person, firm, corporation,
company, or association, or any mercantile, agricultural, or manufacturing
society or other organization, or any body politic or municipal organization,
or any common carrier, complaining of anything done or omitted to be done by
any common carrier subject to the provisions of this Act, in contravention of the
provisions thereof, may apply to said Commission by petition, which shall briefly
state the facts ; whereupon a statement of the complaint thus made shall be for-
warded by the Commission to such common carrier, who shall be called upon to
satisfy the complaint, or to answer the same in writing, within a reasonable
time, to be specified by the Commission. If such common carrier within the
time specified shall make reparation for the injury alleged to have been done,
the common carrier shall be relieved of liabiUty to the complainant only for the
particular violation of law thus complained of. If such carrier or carriers shall
not satisfy the complaint within the time specified, or there shall appear to be
any reasonable ground for investigating said complaint, it shall be the duty
of the Commission to investigate the matters complained of in such manner
and by such means as it shall deem proper.
Said Commission shall, in like manner and with the same authority and
powers, investigate any complaint forwarded by the railroad commissioner or
railroad commission of any State or Territory at the request of such commis-
sioner or commission, and the Interstate Commerce Commission shall have full
authority and power at any time to institute an inquiry, on its own motion, in
any case and as to any matter or thing concerning which a complaint is author-
ized to be made, to or before said Commission by any provision of this Act, or
concerning which any question may arise under any of the provisions of this Act,
or relating to the enforcement of any of the provisions of this Act. And the said
Commission shall have the same powers and authority to proceed with any in-
quiry instituted on its own motion as though it had been appealed to by complaint
or petition under any of the provisions of this Act, including the power to make
and enforce any order or orders in the case, or relating to the matter or thing
concerning which the inquiry is had excepting orders for the payment of money.
No complaint shall at any time be dismissed because of the absence of direct
damage to the complainant.
Sec. 14. {Amended March S, 1889, and June Z9, 1906.) That whenever an
investigation shall be made by said Commission, it shall be its duty to make
a report in writing in respect thereto, which shall state the conclusions of the
Commission, together with its decision, order, or requirement in the premises ;
and in case damages are awarded such report shall include the findings of fact on
which the award is made.
All reports of investigations made by the Commission shall be entered of rec-
ord, and a copy thereof shall be furnished to the party who may have com-
plained, and to any common carrier that may have been complained of.
The Conunission may provide for the publication of its reports and decisions
1104 APPENDIX.
in such form and manner as may be best adapted for public information and use,
and such authorized publications shall be competent evidence of the reports
and decisions of the Commission therein contained in all courts of the United
States and of the several States without any further proof or authentication
thereof. The Commission may also cause to be printed for early distribution
its annual reports.
Sec. 15. (As amended June 29, 1906, and June 18, 1910.) That whenever,
after full hearing upon a complaint made as provided in section thirteen of this
Act, or after full hearing under an order for investigation and hearing made by
the Commission on its own initiative (either in extension of any pending complaint
or without any complaint whatever), the Commission shall be of opinion that
any individual or joint rates or charges whatsoever demanded, charged, or col-
lected by any common carrier or carriers subject to the provisions of this Act
for the transportation of persons or property or for the transmission of messages
by telegraph or telephone as defined in the first section of this Act, or that any
individual or joint classifications, regulations, or practices whatsoever of such
carrier or carriers subject to the provisions of this Act are unjust or unreasonable
or unjustly discriminatory, or unduly preferential or prejudicial or otherwise
in violation of any of the provisions of this Act, the Commission is hereby au-
thorized and empowered to determine and prescribe what will be the just and
reasonable individual or joint rate or rates, charge or charges, to be thereafter
observed in such case as the maximum to be charged, and what individual or
joint classification, regulation, or practice is just, fair, and reasonable, to be
thereafter followed, and to make an order that the carrier or carriers shall cease
and desist from such violation to the extent to which the Commission finds the
same to exist, and shall not thereafter publish, demand, or collect any rate or
charge for such transportation or transmission in excess of the maximum rate
or charge so prescribed, and shall adopt the classification and shall conform to
and observe the regulation or practice so prescribed. All orders of the Com-
mission, except orders for the payment of money, shall take effect within such
reasonable time, not less than thirty days, and shall continue in force for such
period of time, not exceeding two years, as shall be prescribed in the order of the
Commission, unless the same shall be suspended or modified or set aside by the
Commission, or be suspended or set aside by a court of competent jurisdiction.
Whenever the carrier or carriers, in obedience to such order of the Commission
or otherwise, in respect to joint rates, fares, or charges, shall fail to agree among
themselves upon the apportionment or division thereof the Commission may,
after hearing, make a supplemental order prescribing the just and reasonable
proportion of such joint rate to be received by each carrier party thereto, which
order shall take effect as a part of the original order.
Whenever there shall be filed with the Commission any schedule stating a new
individual or joint rate, fare, or charge, or any new individual or joint classifica-
tion, or any new individual or joint regulation or practice affecting any rate, fare,
or charge, the Commission shall have, and it is hereby given, authority, either
upon complaint or upon its own initiative without complaint, at once, and if
it so orders, without answer or other formal pleading by the interested carrier
or carriers, but upon reasonable notice, to enter upon a hearing concerning the
propriety of such rate, fare, charge, classification, regulation, or practice ; and
pending such hearing and the decision thereon the Commission upon filing with
such schedule and delivering to the carrier or carriers affected thereby a state-
ment in writing of its reasons for such suspension may suspend the operation of
APPENDIX. 1105
such schedule and defer the use of such rate, fare, charge, classification, regula-
tion, or practice, but not for a longer period than one hundred and twenty
days beyond the time when such rate, fare, charge, classification, regulation, or
practice would otherwise go into effect ; and after full hearing, whether com-
pleted before or after the rate, fare, charge, classification, regulation, or practice
goes into effect, the Commission may make such order in reference to such rate,
fare, charge, classification, regulation, or practice as would be proper in a pro-
ceeding initiated after the rate, fare, charge, classification, regulation, or practice
had become effective : Prodded, That if any such hearing can not be concluded
within the period of suspension, as above stated, the Interstate Commerce Com-
mission may, in its discretion, extend the time of suspension for a further
period not exceeding six months. At any hearing involving a rate increased
after January first, nineteen hundred and ten, or of a rate sought to be increased
after the passage of this Act, the burden of proof to show that the increased
rate or proposed increased rate is just and reasonable shall be upon the common
carrier, and the Commission shall give to the hearing and decision of such ques-
tions preference over all other questions pending before it and decide the same
as speedily as possible.
The Commission may also, after hearing, on a complaint or upon its own ini-
tiative without complaint, establish through routes and joint classifications, and
may establish joint rates as the macsimum to be charged and may prescribe the
division of such rates as hereinbefore provided and the terms and conditions
under which such through routes shall be operated, whenever the carriers them-
selves shall have refused or neglected to establish voluntarily such through
routes or joint classifications or joint rates ; and this provision shall apply when
one of the connecting carriers is a water line. The Commission shall not, how-
ever, establish any through route, classification, or rate between street electric
passenger railways not engaged in the general business of transporting freight
in addition to their passenger and express business and railroads of a different
character, nor shall the Commission have the right to establish any route, class-
ification, rate, fare, or charge when the transportation is wholly by water, and
any transportation by water affected by this Act shall be subject to the laws and
regulations applicable to transportation by water.
And in establishing such through route, the Commission shall not require
any company, without its consent, to embrace in such routes substantially less
than the entire length of its railroad and of any intermediate railroad operated
in conjunction and under a common management or control therewith which lies
between the termini of such proposed through route, unless to do so would make
such through route unreasonably long as compared with another practicable
through route which could otherwise be established.
In all cases where at the time of delivery of property to any railroad corpora-
tion being a common carrier, for transportation subject to the provisions of this
Act to any point of destination, between which and the point of such delivery
for shipment two or more through routes and through rates shall have been
established as in this Act provided to which through routes and through rates
such carrier is a party, the person, firm, or corporation making such shipment,
subject to such reasonable exceptions and regulations as the Interstate Commerce
Commission shall from time to time prescribe, shall have the right to designate
in writing by which of such through routes such property shall be transported to
destination, and it shall thereupon be the duty of the initial carrier to route
said property and issue a through bill of lading therefor as so directed, and to
1106 APPENDIX.
transport said property over its own line or lines and deliver the same to a con-
necting line or lines according to such through route, and it shall be the duty of
each of said connecting carriers to receive said property and transport it over
the said line or lines and deliver the same to the next succeeding carrier or con-
signee according to the routing instructions in said bill of lading : Provided,
however, That the shipper shall in all instances have the right to determine,
where competing lines of railroad constitute portions of a through line or route,
over which of said competing lines so constituting a portion of said through
line or route his freight shall be transported.
It shall be xmlawful for any common carrier subject to the provisions of this
Act, or any officer, agent, or employee of such common carrier, or for any other
person or corporation lawfully authorized by such common carrier to receive in-
formation therefrom, knowingly to disclose to or permit to be acquired by any
person or corporation other than the shipper or consignee, without the
consent of such shipper or consignee, any information concerning the
nature, kind, quantity, destination, consignee, or routing of any property
tendered or delivered to such common carrier for interstate transportation,
which information may be used to the detriment or prejudice of such shipper or
consignee, or which may improperly disclose his business transactions to a com-
petitor ; and it shall also be unlawful for any person or corporation to soUcit or
knowingly receive any such information which may be so used : Provided, That
nothing in this Act shall be construed to prevent the giving of such information
in response to any legal process issued under the authority of any state or federal
court, or to any oiBcer or agent of the Government of the United States, or of
any State or Territory, in the exercise of his powers, or to any ofiBcer or other
duly authorized person seeking such information for the prosecution of persons
charged with or suspected of crime ; or information given by a common carrier
to another carrier or its duly authorized agent, for the purpose of adjusting
mutual traffic accounts in the ordinary course of business of such carriers.
Any person, corporation, or association violating any of the provisions of the
next preceding paragraph of this section shall be deemed guilty of a misde-
meanor, and for each offense, on conviction, shall pay to the United States a
penalty of not more than one thousand dollars.
If the owner of property transported under this Act directly or indirectly
renders any service connected with such transportation, or furnishes any instru-
mentality used therein, the charge and allowance therefor shall be no more than •
is just and reasonable, and the Commission may, after hea,ring on a complaint
or on its own initiative, determine what is a reasonable charge as the maximum
to be paid by the carrier or carriers for the services so rendered or for the use
of the instrumentality so furnished, and fix the same by appropriate order, which
order shall have the same force and effect and be enforced in like manner as the
orders above provided for under this section.
The foregoing enumeration of powers shall not exclude any power which the
Commission would otherwise have in the making of an order under the provi-
sions of this Act.
Sec. 16. {^Amended March 2, 1889, June S9, 1906, and June 18, 1910.) That
if, after hearing on a complaint made as provided in section thirteen of this Act,
the Commission shall determine that any party complainant is entitled to an
award of damages under the provisions of this Act for a violation thereof, the
Commission shall make an order directing the carrier to pay to the complainant
the sum to which he is entitled on or before a day named.
APPENDIX. 1107
If a carrier does not comply with an order for the payment of money within
the time limit in such order, the complainant, or any person for whose benefit
such order was made, may file in the circuit court of the United States for the
district in which he resides or in which is located the principal operating office
of the carrier, or through which the road of the carrier runs, or in any state
court of general jurisdiction having jurisdiction of the parties, a petition setting
forth briefly the causes for which he claims damages, and the order of the Com-
mission in the premises. Such suit in the circuit court of the United States shall
proceed in all respects like other civil suits for damages, except that on the trial
of such suit the findings and order of the Commission shall be prima facie evi-
dence of the facts therein stated, and except that the petitioner shall not be
liable for costs in the circuit court nor for costs at any subsequent stage of the
proceedings unless they accrue upon his appeal. If the petitioner shall finally
prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected
as a part of the costs of the suit. All complaints for the recovery of damages
shall be filed with the Commission within two years from the time the cause of
action accrues, and not after, and a petition for the enforcement of an order for
the payment of money shall be filed in the circuit court or state court within
one year from the date of the order, and not after.
In such suits all parties in whose favor the Commission may have made an
award for damages by a single order may be joined as plaintiffs, and all of the
carriers parties to such order awarding such damages may be joined as defend-
ants, and such suit may be maintained by such joint plaintiffs and against such
joint defendants in any district where any one of such joint plaintiffs could main-
tain such suit against any one of such joint defendants ; and service of process
against any one of such defendants as may not be found in the district where the
suit is brought may be made in any district where such defendant carrier has its
principal operating office. In case of such joint suit the recovery, if any, may be
by judgment in favor of any one of such plaintiffs, against the defendant found
to be liable to such plaintiff.
Every order of the Commission shall be forthwith served upon the designated
agent of the carrier in the city of Washington or in such other manner as may be
provided by law.
The Commission shall be authorized to suspend or modify its orders upon such
notice and in such manner as it shall deem proper.
It shall be the duty of every common carrier, its agents and employees, to
observe and comply with such orders so long as the same shall remain in effect.
Any carrier, any officer, representative, or agent of a carrier, or any receiver,
trustee, lessee, or agent of either of them, who knowingly fails or neglects to obey
any order made under the provisions of section fifteen of this Act shall forfeit
to the United States the sum of five thousand dollars for each offense. Every
distinct violation shall be a separate offense, and in case of a continuing viola-
tion each day shall be deemed a separate offense.
The forfeiture provided for in this Act shall be payable into the Treasury of the
United States, and shall be recoverable in a civil suit in the name of the United
States, brought in the district where the carrier has its principal operating office,
or in any district through which the road of the carrier runs.
It shall be the duty of the various district attorneys, under the direction of
the Attorney General of the United States, to prosecute for the recovery of for-
feitures. The costs and expenses of such prosecution shall be paid out of the
appropriation for the expenses of the courts of the United States.
1108 APPENDIX.
The Commission may employ such attorneys as it finds necessary for proper
legal aid and service of the Commission or its members in the conduct of their
work or for proper representation of the public interests in investigations made
by it or cases or proceedings pending before it, whether at the Commission's
own instance or upon complaint, or to appear for and represent the Commission
in any case pending in the Commerce Court ; and the expenses of such employ-
ment shall be paid out of the appropriation for the Commission.
If any carrier fails or neglects to obey any order of the Commission other than
for the payment of money, while the same is in effect, the Interstate Commerce
Commission or any party injured thereby, or the United States, by its Attorney
General, may apply to the Commerce Coiu-t for the enforcement of such order.
If, after hearing, that Court determines that the order was regularly made and
duly served, and that the carrier is in disobedience of the same, the Court shall
enforce obedience to such order by a writ of injunction or other proper process,
mandatory or otherwise, to restrain such carrier, its officers, agents, or represen-
tatives, from further disobedience of such order, or to enjoin upon it or them
obedience to the same.
The copies of schedules and classifications and tariffs of rates, fares, and
charges, and of all contracts, agreements, and arrangements between common
carriers filed with the Commission as herein provided, and the statistics, tables,
and figures contained in .the annual or other reports of carriers made to the Com-
mission as required under the provisions of this Act shall be preserved as public
records in the custody of the secretary of the Commission, and shall be received
as prima facie evidence of what they purport to be for the piupose of investiga-
tions by the Commission and in all judicial proceedings ; and copies of and ex-
tracts from any of said schedules, classifications, tariffs, contracts, agreements,
arrangements, or reports, made public records as aforesaid, certified by the sec-
retary, under the Commission's seal, shall be received in evidence with like
effect as the originals.
Sec. 16a. (Added June 29, 1906.) That after a decision, order, or require-
ment has been made by the Commission in any proceeding any party thereto
may at any time make application for rehearing of the same, or any matter de-
termined therein, and it shall be lawful for the Commission in its discretion to
grant such a rehearing if suflScient reason therefor be made to appear. AppU-
cations for rehearing shall be governed by such general rules as the Conunission
may establish. No such application shall excuse any carrier from complying
with or obeying any decision, order, or requirement of the Commission, or operate
in any manner to stay or postpone the enforcement thereof, without the special
order of the Commission. In case a rehearing is granted the proceedings there-
upon shall conform as nearly as may be to the proceedings in an original hearing,
except as the Commission may otherwise direct ; and if, in its judgment, after
such rehearing and the consideration of all facts, including those arising since
the former hearing, it shall appear that the original decision, order, or require-
ment is in any respect unjust or unwarranted, the Commission may reverse,
change, or modify the same accordingly. Any decision, order, or requirement
made after such rehearing, reversing, changing, or modifying the original deter-
mination shall be subject to the same provisions as an original order.
Sec. 17. {As amended March S, 1889.) That the Commission may conduct
its proceedings in such manner as will best conduce to the proper dispatch of
business and to the ends of justice. A majority of the Commission shall con-
stitute a quorum for the transaction of business, but no Commissioner shall
APPENDIX. 1109
participate in any hearing or proceeding in which he has any pecuniary interest.
Said Commission may, from time to time, make or amend such general rules or
orders as may be requisite for the order and regulation of proceedings before it,
including forms of notices and the service thereof, which shall conform, as nearly
as may be, to those in use in the coiurts of the United States. Any party may ap-
pear before said Commission and be heard, in person or by attorney. Every
vote and official act of the Commission shall be entered of record, and its proceed-
ings shall be public upon the request of either party interested. Said Commis-
sion shall have an oflScial seal, which shall be judicially noticed. Either of the
members of the Commission may administer oaths and aflSrmations and sign
subpoenas.
Sec. 18. (As amended March 2, 1889.) [See section S4, increasing salaries
o/ Commissioners.] That each Commissioner shall receive an annual salary
of seven thousand five hundred dollars, payable in the same manner as the judges
of the coiu-ts of the United States. The Commission shall appoint a secretary,
who shall receive an annual salary of three thousand five hundred dollars,^ pay-
able in like manner. The Commission shall have authority to employ and fix
the compensation of such other employees as it may find necessary to the proper
performance of its duties. Until otherwise provided by law, the Commission
may hire suitable oflBces for its use, and shall have authority to procure all nec-
essary office supplies. Witnesses summoned before the Commission shall be paid
the same fees and mileage that are paid witnesses in the courts of the United
States.
All of the expenses of the Commission, including all necessary expenses for
transportation incurred by the Commissioners, or by their employees under
their orders, in making any investigation, or upon official business in any other
places than in the city of Washington, shall be allowed and paid on the presenta^
tion of itemized vouchers therefor approved by the chairman of the Commission.
Sec. 19. That the principal office of the Commission shall be in the city of
Washington, where its general sessions shall be held; but whenever the con-
venience of the public or the parties may be promoted, or delay or expense pre-
vented thereby, the Commission may hold special sessions in any part of the
United States. It may, by one or more of the Commissioners, prosecute any
inquiry necessary to its duties, in any part of the United States, into any matter
or question of fact pertaining to the business of any common carrier subject to
the provisions of this Act.
Sec. 19a. {Amendment of March 1, 1913.) That the Commission shall, as
hereinafter provided, investigate, ascertain, and report the value of all the
property owned or used by every common carrier subject to the provisions of
this Act. To enable the Commission to make such investigation and report,
it is authorized to employ such experts and other assistants as may be necessary.
The Commission may appoint examiners who shall have power to administer
oaths, examine witnesses, and take testimony. The Commission shall make an
inventory which shall list the property of every common carrier subject to the
provisions of this Act in detail, and show the value thereof as hereinafter pro-
vided, and shall classify the physical property, as nearly as practicable, in con-
formity with the classification of expenditiures for road and equipment, as pre-
scribed by the Interstate Commerce Commission.
First. In" such investigation said Commission shall ascertain and report ia
1 Increased to $5,000'by sundry civil act of March 4, 1907, 34 Stat. L., 1311.
1110 APPENDIX.
detail as to each piece of property owned or used by said common carrier for its
purposes as a common carrier, the original cost to date, the cost of reproduction
new, the cost of reproduction less depreciation, and an analysis of the methods
by which these several costs are obtained, and the reason for their differences,
if any. The Commission shall in like manner ascertain and report separately
other values, and elements of value, if any, of the property of such common
carrier, and an analysis of the methods of valuation employed, and of the reasons
for any differences between any such value, and each of the foregoing cost
values.
Second. Such investigation and report shall state in detail and separately
from improvements the original cost of all lands, rights of way, and terminals
.owned or used for the purposes of a common carrier, and ascertained as of the
time of dedication to public use, and the present value of the same, and sepa-
rately the original and present cost of condemnation and damages or of pur-
chase in excess of such original cost or present value.
Third. Such investigation and report shall show separately the property held
for purposes other than those of a common carrier, and the original cost and
present value of the same, together with an analysis of the methods of valuation
employed.
Fourth. In ascertaining the original cost to date of the property of such com-
mon carrier the Commission, in addition to such other elements as it may deem
necessary, shall investigate and report upon the history and organization of the
present and of any previous corporation eperating such property; upon any
increases or decreases of stocks, bonds, or other seciu-ities, in any reorganization ;
upon moneys received by any such corporation by reason of any issues of stocks,
bonds, or other securities; upon the syndicating, banking, and other financial
arrangements under which such issues were made and the expense thereof ; and
upon the net and gross earnings of such corporations ; and shall also ascertain
and report in such detail as may be determined by the Commission upon the
expenditure of all moneys and the purposes for which the same were expended.
Fifth. The Commission shall ascertain and report the amount and value of
any aid, gift, grant of right of way, or donation, made to any such common car-
rier, or to any previous corporation operating such property, by the Government
of the United States or by any State, county, or municipal government, or by
individuals, associations, or corporations ; and it shall also ascertain and report
the grants of land to any such common carrier, or any previous corporation oper-
ating such property, by the Government of the- United States, or by any State,
county, or municipal government, and the amount of money derived from the
sale of any portion of such grants and the value of the unsold portion thereof
at the time acquired and at the present time, also, the amount and value of any
concession and allowance made by such common carrier to the Government of
the United States, or to any State, county, or municipal government in consid-
eration of such aid, gift, grant, or donation.
Except as herein otherwise provided, the Commission shall have power to
prescribe the method of procedure to be followed in the conduct of the investi-
gation, the form in which the results of the valuation shall be submitted, and the
classification of the elements that constitute the ascertained value, and such
investigation shall show the value of the property of every common carrier as a
whole and separately the value of its property in each of the several States and
Territories and the District of Columbia, classified and in detail as herein
required.
APPENDIX. 1111
Such investigation shall be commenced within sixty days after the approval
of this Act and shall be prosecuted with diligence and thoroughness, and the
result thereof reported to Congress at the beginning of each regular session there-
after until completed.
Every common carrier subject to the provisions of this Act shall furnish to
tiie Commission or its agents from time to time and as the Commission may re-
quire maps, profiles, contracts, reports of engineers, and any other documents,
records, and papers, or copies of any or all of the same, in aid of such investiga-
tion and determination of the value of the property of said common carrier, and
shall grant to all agents of the Commission free access to its right of way, its
property, and its accounts, records, and memoranda whenever and wherever re-
quested by any such duly authorized agent, and every common carrier is hereby
directed and required to cooperate with and aid the Commission in the work of
the valuation of its property in such further particulars and to such extent as
the Commission may require and direct, and all rules and regulations made by
the Commission for the purpose of administering the provisions of this section
and section twenty of this Act shall have the full force and effect of law. Unless
otherwise ordered by the Commission, with the reasons therefor, the records and
data of the Conunission shall be open to the inspection and examination of the
public.
Upon the completion of the valuation herein provided for the Commission shall
thereafter in like manner keep itself informed of all extensions and improvements
or other changes in the condition and value of the property of all common carriers,
and shall ascertain the value thereof, and shall from time to time, revise and cor-
rect its valuations, showing such revision and correction classified and as a whole
and separately in each of the several States and Territories and the District of
Columbia,' which valuations, both original and corrected, shall be tentative
valuations and shall be reported to Congress at the beginning of each regular
session.
To enable the Commission to make such changes and corrections in its valua-
tions of each class of property, every common carrier subject to the provisions of
this Act shall make such reports and furnish such information as the Commission
may require.
Whenever the Commission shall have completed the tentative valuation of the
property of any common carrier, as herein directed, and before such valuation
shall become final, the Commission shall give notice by registered letter to the
said carrier, the Attorney General of the United States, the governor of any
State in which the property so valued is located, and to such additional parties
as the Commission may prescribe, stating the valuation placed upon the several
classes of property of said carrier, and shall allow thirty days in which to file a
protest of the same with the Commission. If no protest is filed within thirty
days, said valuation shall become final as of the date thereof.
If notice of protest is filed the Commission shall fix a time for hearing the same,
and shall proceed as promptly as may be to hear and consider any matter rela-
tive and material thereto which may be presented in support of any such pro-
test so filed as aforesaid. If after hearing any protest of such tentative valua-
tion under the provisions of thiS'Act the Commission shall be of the opinion that
its valuation should not become final, it shall make such changes as may be
necessary, and shall issue an order making such corrected tentative valuation
final as of the date thereof. All final valuations by the Conunission and the
dassification thereof shall be published and shall be prima facie evidence of the
1112 APPENDIX.
value of the property in all proceedings under the Act to regulate commerce as of
the date of the fijung thereof, and in all judicial proceedings for the enforcement
of the Act approved February fourth, eighteen hundred and eighty-seven, com-
monly known as "the Act to regulate commerce," and the various Acts amenda-
tory thereof, and in all judicial proceedings brought to enjoin, set aside, annul,
or suspend, in whole or in part, any order of the Interstate Commerce Commis-
sion.
If upon the trial of any action involving a final value fixed by the Conmiission,
evidence shall be introduced regarding such value which is found by the court
to be different from that offered upon the hearing before the Commission, or
additional thereto and substantially affecting said value, the court, before pro-
ceeding to render judgment shall transmit a copy of such evidence to the Com-
mission, and shall stay further proceedings in said action for such time as the
court shall determine from the date of such transmission. Upon the receipt
of such evidence the Commission shall consider the same and may fix a final
value different from the one fixed in the first instance, and may alter, modify,
amend or rescind any order which it has made involving said final value, and shall
report its action thereon to said court within the time fixed by the court. If
the Commission shall alter, modify, or amend its order, such altered, modified,
or amended order shall take the place of the original order complained of and
judgment shall be rendered thereon as though made by the Commission in the
first instance. If the original order shall not be rescinded or changed by the
Commission, judgment shall be rendered upon such original order.
The provisions of this section shall apply to receivers of carriers and operating
trustees. In case of failure or refusal on the part of any carrier, receiver, or
trustee to comply with all the requirements of this section and in the manner
prescribed by the Commission such carrier, receiver, or trustee shall forfeit to
the United States the sum of five hundred dollars for each such offense and for
each and every day of the continuance of such offense, such forfeitures to be re-
coverable in the same manner as other forfeitures provided for in section sixteen
of the Act to regulate commerce.
■ That the district courts of the United States shall have jurisdiction, upon the
application of the Attorney General of the United States at the request of the
Commission, alleging a failure to comply with or a violation of any of the provi-
sions of this section by any common carrier, to issue a writ or writs of mandamus
commanding such common carrier to comply with the provisions of this section.
Sec. 20. (Aa amended June B9, 1906, February 25, 1909, and June 18, 1910.)
That the Commission is hereby authorized to require annual reports from all
common carriers subject to the provisions of this Act, and from the owners of all
railroads engaged in interstate commerce as defined in this Act, to prescribe the
manner in which such reports shall be made, and to require from such carriers
specific answers to all questions upon which the Commission may need informa-
tion. Such annual reports shall show in detail the amount of capital stock issued,
the amounts paid therefor, and the manner of payment for the same ; the divi-
dends paid, the surplus fund, if any, and the number of stockholders ; the funded
and floating debts and the interest paid thereon ; the cost and value of the carrier's
property, franchises, and equipments ; the number of employees and the salaries
paid each class; the accidents to passengers, employees, and other persons,
and the causes thereof; the amounts expended for improvements each year,
how expended, and the character of such improvements ; the earnings and re-
ceipts from each branch of business and from all soiu-ces ; the operating and other
APPENDIX. 1113
expenses ; the balances of profit and loss ; and a complete exhibit of the financial
operations of the carrier each year, including an annual balance sheet. Such
reports shall also contain such information in relation to rates or regulations
concerning fares or freights, or agreements, arrangements, or contracts affecting
the same as the Commission may require ; and the Commission may, in its dis-
cretion, for the pxirpose of enabling it the better to carry out the purposes of
this Act, prescribe a period of time within which all common carriers subject to
the provisions of this Act shall have, as near as may be, a uniform system of
accounts, and the manner in which such accounts shall be kept.
Said detailed reports shall contain all the required statistics for the period
of twelve months ending on the thirtieth day of June in each year, or on the
thirty-first day of December in each year if the Commissioner by order substitute
that period ior the year ending June thirtieth, and shall be made out under oath
and filed with the Commission at its ofiice in Washington within three months
after the close of the year for which the report is made, unless additional time
be granted in any case by the Commission ; and if any carrier, person, or cor-
poration subject to the provisions of this Act shall fail to make and file said
annual reports within the time above specified, or within the time extended by
the Commission, for making and filing the same, or shall fail to make specific
answer to any question authorized by the provisions of this section within thirty
days from the time it is lawfully required so to do, such party shall forfeit to the
United States the sum of one hundred dollars for each and every day it shall
continue to be in default with respect thereto. The Commission shall also have
authority by general or special orders to require said carriers, or any of them, to
file monthly reports of earnings and expenses, and to file periodical or special,
or both periodical and special, reports concerning any matters about which the
Commission is authorized or required by this or any other law to inquire or to
keep itself informed or which it is required to enforce ; and such periodical or
special reports shall be under oath whenever the Commission so requires ; and
if any such carrier shall fail to make and file any such periodical or special report
within the time fixed by the Commission, it shall be subject to the forfeitures last
above provided.
Said forfeitures shall be recovered in the manner provided for the recovery of
forfeitures imder the provisions of this Act.
The oath required by this section may be taken before any person authorized
to administer an oath by the laws of the State in which the same is taken.
The Commission may, in its discretion, prescribe the forms of any and all
accounts, records, and memoranda to be kept by carriers subject to the provisions
of this Act, including the accounts, records, and memoranda of the movement
of trafiic as well as the receipts and expenditures of moneys. The Commission
shall at all times have access to all accounts, records, and memoranda kept by
carriers subject to this Act, and it shall be unlawful for such carriers to keep any
other accounts, records, or memoranda than those prescribed or approved by
the Commission, and it may employ special agents or examiners, who shall have
authority under the order of the Commission to inspect and examine any and
all accounts, records, and memoranda kept by such carriers. This provision
shall apply to receivers of carriers and operating trustees.
In case of failure or refusal on the part of any such carrier, receiver, or trustee
to keep such accounts, records, and memoranda on the books and in the manner
prescribed by the Commission, or to submit such accounts, records, and memo-
randa as are kept to the inspection of the Commission or any of its authorized
1114 APPENDIX.
agents or examiners, such carrier, receiver, or trustee shall forfeit to the United
States the sum of five hundred dollars for each such offense and for each and
every day of the continuance of such offense, such forfeitures to be recoverable
in the same manner as other forfeitures provided for in this Act.
Any person who shall willfully make any false entry in the accounts of any
book of accounts or in any record or memoranda kept by a carrier, or who shall
willfully destroy, mutilate, alter, or by any other means or device falsify the
record of any such account, record, or memoranda, or who shall willfully neglect
or fail to make full, true, and correct entries in such accounts, records, or memo-
randa of all facts and transactions appertaining to the carrier's business, or shall
keep any other accounts, records, or memoranda than those prescribed or ap-
proved by the Commission, shall be deemed guilty of a misdemeanor, and shall
be subject, upon conviction in any court of the United States of competent juris-
diction, to a fine of not less than one thousand dollars nor more than five thou-
sand dollars or imprisonment for a term not less than one year nor more than
three years, or both such fine and imprisonment : {Amendment of February 25,.
1909.) Provided, That the Commission may in its discretion issue orders speci-
fying such operating, accounting, or financial papers, records, books, blanks,
tickets, stubs, or documents of carriers which may, after a reasonable time, be-
destroyed, and prescribing the length of time such books, papers, or documents-
shall be preserved.
Any examiner who divulges any fact or information which may come to his-
knowledge during the course of such examination, except in so far as he may be
directed by the Commission or by a court or judge thereof, shall be subject,
upon conviction in any court of the United States of competent jurisdiction, to a
fine of not more than five thousand dollars or imprisonment for a term not ex-
• ceeding two years, or both.
That the circuit and district courts of the United States shall have jurisdiction,-
upon the application of the Attorney General of the United States at the request
of the Commission, alleging a failure to comply with or a violation of any of the
provisions of said Act to regulate commerce or of any Act supplementary thereto-
or amendatory thereof by any common carrier, to issue a writ or writs of man-
damus commanding such common carrier to comply with the provisions of said
Acts, or any of them.
And to carry out and give effect to the provisions of said Acts, or any of them,
the Commission is hereby authorized to employ special agents or examiners who
shall have power to administer oaths, examine witnesses, and receive evidence.
That any common carrier, railroad, or transportation company receiving
property for transportation from a point in one State to a point in another State
shall issue a receipt or bill of lading therefor and shall be liable to the lawful
holder thereof for any loss, damage, or injury to such property caused by it or
by any common carrier, railroad, or transportation company to which such
property may be delivered or over whose line or lines such property may pass,
and no contract, receipt, rule, or regulation shall exempt such common carrier,
railroad, or transportation company from the liability hereby imposed : Pro-
vided, That nothing in this section shall deprive any holder of such receipt or
bill of lading of any remedy or right of action which he has under existing law.
That the common carrier, railroad, or transportation company issuing such
receipt or bill of lading shall be entitled to recover from the common carrier,
railroad, or transportation company on whose line the loss, damage, or injury
shall have been sustained the amount of such loss, damage, or injury as it may be.
APPENDIX. 1115
required to pay to the owners of such property, as may be evidenced by any
receipt, judgment, or transcript thereof.
Sec. 21. (As amended March 2, 1889.) That the Commission shall, on or
before the first day of December in each year, make a report, which shall be
transmitted to Congress, and copies of which shall be distributed as are the other
reports transmitted to Congress. This report shall contain such information
and data collected by the Commission as may be considered of value in the deter-
mination of questions connected with the regulation of commerce together with
such recommendations as to additional legislation relating thereto as the Com-
mission may deem necessary ; and the names and compensation of the persons
employed by said Commission.
Sec. 22. {As amended March S, 1889, and Febriiary 8, 1896.) [See section 1,
5th par.] That nothing in this Act shall prevent the carriage, storage, or hand-
ling of property free or at reduced rates for the United States, State, or municipal
governments, or for charitable purposes, or to or from fairs and expositions for
exhibition thereat, or the free carriage of destitute and homeless persons trans-
ported by charitable societies, and the necessary agents employed in such trans-
portation, or the issuance of mileage, excursion, or commutation passenger
tickets ; nothing in this Act shall be construed to prohibit any common carrier
from giving reduced rates to ministers of religion, or to municipal governments
for the transportation of indigent persons, or to inmates of the National Homes
or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors'
Orphan Homes, including those about to enter and those returning home after
discharge, under arrangements with the boards of managers of said homes;
nothing in this Act shall be construed to prevent railroads from giving free car-
riage to their own oflScers and employees, or to prevent the principal oflBcers of
any railroad company or companies from exchanging passes or tickets with other
railroad companies for their officers and employees; and nothing in this Act
contained shall in any way abridge or alter the remedies now existing at common
law or by statute, but the provisions of this Act are in addition to such remedies :
Provided, That no pending litigation shall in any way be affected by this Act :
Provided further, That nothing in this Act shall prevent the issuance of joint
interchangeable five-thousand-mile tickets, with special privileges as to the
amount of free baggage that may be carried under mileage tickets of one thou-
sand or more miles. But before any common carrier, subject to the provisions
of this Act, shall issue any such joint interchangeable mileage tickets with special
privileges, as aforesaid, it shall file with the Interstate Conunerce Commission
copies of the joint tariffs of rates, fares, or charges on wliich such joint inter-
changeable mileage tickets are to be based, together with specifications of the
amount of free baggage permitted to be carried under such tickets, in the same
manner as common carriers are required to do with regard to other joint rates
by section six of this Act ; and all the provisions of said section six relating to
joint rates, fares, and charges shall be observed by said common carriers and
enforced by the Interstate Commerce Commission as fully with regard to such
joint interchangeable mileage tickets as with regard to other joint rates, fares,
and charges referred to in said section six. It shall be unlawful for any common
carrier that has issued or authorized to be issued any such joint interchangeable
mileage tickets to demand, collect, or receive from any person or persons a greater
or less compensation for transportation of persons or baggage under such joint
interchangeable mileage tickets than that required by the rate, fare, or charge
specified in the copies of the joint tariff of rates, fares, or charges filed with the
1116 APPENDIX.
Commission in force at the time. The provisions of section ten of this Act
shall apply to any violation of the requirements of this proviso.
Sec. 23. {Added March S, 1889.) That the circuit and district courts of
the United States shall have jurisdiction upon the relation of any person or
persons, &m, or corporation, alleging such violation by a common carrier, of
any of the provisions of the Act to which this is a supplement and all Acts
amendatory thereof, as prevents the relator from having interstate traflBc moved
by said common carrier at the same rates as are charged, or upon terms or condi-
tions as favorable as those given by said common carrier for like traflSc under
similar conditions to any other shipper, to issue a writ or writs of mandamus
against said common carrier, commanding such common carrier to move and
transport the traffic, or to furnish cars or other facilities for transportation for the
party applying for the writ : Provided, That if any question of fact as to the
proper compensation to the common carrier for the service to be enforced by the
writ is raised by the pleadings, the writ of peremptory mandamus may issue,
notwithstanding such question of fact is undetermined, upon such terms as to
security, payment of money into the court, or otherwise, as the court may think
proper, pending the determination of the question of fact : Prodded, That the
remedy hereby given by writ of mandamus shall be cumidative, and shall not be
held to exclude or interfere with other remedies provided by this Act or the Act
to which it is a supplement.
Sec. 24. (Added June S9, 1906.) That the Interstate Commerce Commis-
sion is hereby enlarged so as to consist of seven members with terms of seven
years, and each shall receive ten thousand dollars compensation annually.
The qualifications of the Commissioners and the manner of the payment of their
salaries shall be as already provided by law. Such enlargement of the Commis-
sion shall be accomplished through appointment by the President, by and with
the advice and consent of the Senate, of two additional Interstate Commerce
Commissioners, one for a term expiring December thirty-first, nineteen himdred
and eleven, one for a term expiring December thirty-first, nineteen hundred and
twelve. The terms of the present Commissioners, or of any successor appointed
to fill a vacancy caused by the death or resignation of any of the present Com-
missioners, shall expire as heretofore provided by law. Their successors and the
successors of the additional Commissioners herein provided for shall be ap-
pointed for the full term of seven years, except that any person appointed to fill
a vacancy shall be appointed only for the unexpired term of the Commissioner
whom he shall succeed. Not more than four Commissioners shall be appointed
from the same poUtical party.
{Additional provisions in Act of June 29, 1906.) (Sec. 9.) That all existing
laws relating to the attendance of witnesses and the production of evidence and
the compelling of testimony under the Act to regulate commerce and all Acts
amendatory thereof shall apply to any and all proceedings and hearings under
this Act.
(Sec. 10.) • That all laws and parts of laws in conflict with the provisions of
this Act are hereby repealed ; but the amendments herein provided for shall not
affect causes now pending in courts of the United States, but such causes shall
be prosecuted to a conclusion in the manner heretofore provided by law.
(Sec. 11.) That this Act shall take effect and be in force from and after its
passage.
Joint resolution of June 30, 1906, provides : "That the Act entitled 'An Act
to amend an Act entitled "An Act to regulate commerce," approved February 4,
APPENDIX. 1117
1887, and all Acts amendatory thereof, and to enlarge the powers of the Inter-
state Commerce Commission, ' shall take effect and be in force sixty days after
its approval by the President of the United States."
(Additimud promions in Act of June 18, 1910.) (Sec. 6, par. 2.) It shall be
the duty of every common carrier subject to the provisions of this Act, within
.sixty days after the taking effect of this Act, to designate in writing an agent in
the city of Washington, District of Columbia, upon whom service of all notices
and processes may be made for and on behalf of said common carrier in any pro-
ceeding or suit pending before the Interstate Commerce Conmiission or before
said Commerce Court, and to file such designation in the oflBce of the secretary
of the Interstate Commerce Commission, which designation may from time to
time be changed by like writing similarly filed ; and thereupon services of all
notices and processes may be made upon such common carrier by leaving a
■copy thereof with such designated agent at his office or usual place of residence
in the city of Washington, with like effect as if made personally upon such com-
mon carrier, and in default of such designation of such agent, service of any
notice or other process in any proceeding before said Interstate Commerce Com-
mission or Commerce Court may be made by posting such notice or process
in the office of the secretary of the Interstate Commerce Commission.
(Sec. 15.) That nothing in this Act contained shall undo or impair any pro-
ceedings heretofore taken by or before the Interstate Commerce Commission or
any of the acts of said Commission ; and in any cases, proceedings, or matters
now pending before it, the Commission may exercise any of the powers hereby
conferred upon it, as would be proper in cases, proceedings, or matters hereafter
initiated and nothing in this Act contained shall operate to release or affect any
obligation, liability, penalty, or forfeiture heretofore existing against or incurred
by any person, corporation, or association.
(Sec. 18.) That this Act shall take effect and be in force from and after the
expiration of sixty days after its passage, except as to sections twelve and six-
teen, which sections shall take effect and be in force immediately.
Public, No. 41, approved February 4, 1887, as amended by Public, No. 125,
approved March 2, 1889 ; Public, No. 72, approved Februaxy 10, 1891 ; PubUc,
No. 38, approved February 8, 1895; Public, No. 337, approved June 29, 1906;
Public Res., No. 47, approved June 30, 1906 ; Public, No. 95, approved April 13,
1908 ; Public, No. 262, approved February 25, 1909 ; Public, No. 218, approved
June 18, 1910 ; Public, No. 337, approved August 24, 1912 ; and Public, No. 400,
approved March 1, 1913.
INDEX.
Abandonment by consignee, 816.
Acceptance of goods, see Delivery.
of passenger, what sufficient, 900,
903.
Act of God, what constitutes, 391, 392,
396, 462, 618, 960.
negligence in not avoiding, 401, 446,
678.
as excusing common carrier, 10.
as excusing innkeeper, 206, 214, 221,
230.
Action, form of ; contract or tort, 306,
469, 774, 776, 779, 782, 878.
for injuries causing death, 1042.
limitation of, see Limitation.
who proper parties to, see Parties.
Advanced charges, 821.
cover what, 841.
lien for, 838, 847.
Agent of common carrier authority of,
304, 305, 342, 351.
authority to issue bills of lading, 566,
690, 592.
liabihty for acts of, 328, 483.
connecting carrier deemed, 846.
of carrier of passengers, authority of,
1008.
for sale of tickets, 973.
acts of beyond scope of authority,
913, 915, 916, 920, 941,
notice to, 408.
delivery of bill of lading to, 551, 554.
Agister, lien of, 81.
Assumpsit, action of for failure to carry
passenger, 1041.
action of in general, see Action, form
of.
Attachment of goods in transit, 749, 751,
840.
as excuse for non-delivery, 735, 742,
744, 751.
Baggage, carrier's liability for, 640, 850,
875.
what constitutes, 327, 329, 336, 338,
340, 344, 467, 636.
acceptance of, what sufficient, 352.
extra compensation for, 325, 331,
340, 342, 851.
lien on for fare, 851.
money not, 327.
imder passenger's control, 182, 341,
346, 348.
Baggage — continued.
Uability of connecting carrier for,
658, 664.
checks for, see Check.
of guest, liability of innkeeper for,
200.
lien of innkeeper upon, 254.
Bailee, liability of, 4, 5.
for conversion, 38.
gratuitous, 6, 10, 11, 46.
negligence of, 57, 60, 62, 64, 67.
action by, 12, 14.
of fungible property, 29, 32.
for safe deposit, 34.
delivery by, to true owner, 691.
liability over, to bailor, 13, 14.
possession by, 28.
suit by, against carrier, 772.
rights of, against third persons, see
Jus Tertii.
Bailments, ordinary, 3.
kinds of, 5.
distinguished from sales, 29, 33.
Bailor and bailee, relations of, 3.
Bill of lading, definition and nature of,
564, 572, 578.
acceptance of, constituting contract,
488, 549, 552.
delivery of to shipper's agent, 551,
554.
effect of delivery after shipment, 551 ,
555.
issued without authority, 566, 590,
592.
transfer of by delivery, 683.
not negotiable instrument, 574, 588,
683, 687.
reservation oijus disponendi in, 671,
677, 717.
rights of assignee under, 572.
transfer of title by, 581, 673, 680,
840.
parol evidence to vary, 563, 569, 573,
676, 578, 811.
provisions of as to freight, 822,
844.
provisions of as to demurrage, 828,
837.
stipulations of as to sale, 814.
estoppel by, 581.
for goods subsequently delivered,
694.
under Harter Aat, 512.
1119
1120
INDEX.
Bill of lading — continued.
under Carmack Amendment, limi-
tation of liability, S24.
for through transportation, see Con-
necting Carriers.
stipulations of, limiting liability, see
Limitation of Liability.
stipulations as to navigation, see
Perils of Navigation.
Burden of proof, as to negligence of
bailee, 73.
as to care or negligence of common
carrier, 423, 450, 799, 802.
loss or injury as showing negligence,
784, 787, 793, and see Presump-
tions.
as to exemption from liability, 395,
400.
as to negligence in transportation of
live stock, 428.
as to diligence in furnishing cars, 363.
in case of injury to passenger, 867,
928, 944, 953, 963, 967.
as to defects in machinery, track,
and appliances, 934.
as to right of passenger on freight
train, 872.
Care, see Negligence.
Carmack Amendment, construction of,
524, 533, 655.
Carrier of goods, see Common Carrier.
Carrier of live-stock, see Live-stock.
Carrier of mail under contract, 270.
Carrier of passengers, duty to carry, 868,
875, 881, 977.
palace car company not, 179.
not bound to carry objectionable
persons, 875, 885, 888, 890, 892,
896.
not bound to carry person expelled
from same train, 1078.
granting exclusive privileges, 885,
892, 896.
compensation inferred, 905.
tender of fare, 911.
lien on baggage for fare, 851.
without compensation, liability, see
Free Passenger.
liability in general, 413, 466, 862,
867, 875, 905, 907, 929, 931, 939
947, 950, 955, 981.
care and diligence required, 937, 938,
955.
not deemed insurer, 489, 495, 561,
861, 867, 929, 951, 971.
implied contract, 906.
limitation of liability by contract,
1016, 1019, 1020.
as to free passenger, 1011, 1016,
1020, 1024.
duty to have safe machinery, track,
and appliances, 785, 866, 931, 938,
947, 960.
Carrier of passengers — continued.
liability' for wrongful acts of conduc-
tor or servant, 188, 968, 970, 973.
for injury by fellow-passenger,
890, 976.
for injuries by outsiders, 981,
984.
for failure of conductor to wake,
passenger, 1007.
duty as to accommodations, 896.
liability for delay, 1005, 1007.
continuous passage, 1033.
liability of connecting carrier, 1043.
liability of for baggage, see Baggage.
who deemed passenger, see Poasenffer. /
negligence of passenger, see Contrib-
utory Negligence,
Cars, duty to furnish, 362.
Charges, for storage, 837.
for carriage of goods, see FrdgM.
advanced, see Advanced Charges.
Check, not a contract, 487, 549.
over connecting line, 659.
Claim for damages, limitation of time for
making, 538, 544.
Colored persons, special car for, 1082.
Common carrier, definition, who deemed,
300, 301, 304, 311, 313, 314, 315,
318, 321, 322, 669.
by water, 384, 395.
ferryman deemed, 412.
railroad as, 617.
hability of, for mail, 270.
liability of, for baggage, see Bag-
gage.
duty to serve all, 354, 364, 370, 373,
875.
duty to furnish cars, 362.
exclusive privileges, 886.
liabiUty of in general, 4, 9, 324, 385,
391, 454, 462, 468, 493 n., 602,
697, 748, 774, 861, 950.
for loss or damage from act of
God, see Act of Ood.
for loss or damage from public
enemy, 403, 405.
for loss due to acts ot Negli-
gence of shipper, 408, 410,
413, 416, 425, 466.
for loss or damage due to in-
herent nature of goods, 419,
421, 424, 429, 450, 678.
for failure to furnish safe ap-
pliances, 415.
in case of stowage on deck, 811.
for deviation, see Deviation.
limitation of, see Limitation of
Liability.
termination by notice, 610.
when commences and termi-
nates, see Delivery.
for delivery to wrong party, see
Delivery.
for delay, see Delay.
INDEX.
1121
Common carrier — continued.
over connecting lines, see Connecting
Carriers.
charges of, see Freight, also Advanced
Charges.
legislative control of, 377, 379, 380.
Common law, nature, of 616, 880.
Compensation for carriage of goods, es-
sential, 306, 307, 309.
implied contract for, 310.
must be reasonable, 376, 461.
regulation of, 378.
for carriage of baggage, 325, 331, 851.
for storage, 620, 837.
as affecting liability for negligence,
462, 907.
effect of fraud, 455 ; and s'ee also
Limitation of Liability.
apportionment, collection, etc., of,
see Freight.
tor carriage of passengers, see Carrier
of Passengers and Free Passenger.
Conductor of train, authority of, 872,
916, 917, 923, 925, 968, 978, 983.
Conflict of laws, 631, 1042.
Confusion of goods, 30, 31, 695.
Connecting carriers, extent of liability of,
649, 652 n., 653.
presumption of liability, as between,
666, 788, 789, 792.
partnership or joint liability of, 659,
667.
liability of for baggage, 658, 664.
limitation of liability of by contract,
559^ 634.
liability of initial carrier under Car-
mack Amendm'ent, 655.
contract of as to freight charges, 844.
delivery as between, 644.
deemed agent of owner, 790.
deemed forwarding agent, 846.
of passengers, 1043, 1047.
Consideration for contract limiting ha-
biUty, 520, 545.
for carriage of passengers, see Car-
rier of Passengers.
for carriage of goods or baggage, see
Compensation, also Freight.
Consignee, delivery as passing title to,
669, 672, 677.
liability of for freight, 825.
liability of for general average and
demurrage, 828, 836.
action by, see Parties.
Consignor, liability of for freight, 822.
action by, see Parties.
Constitutional law, charter contracts,
377.
uniformity of legislation, 379.
Construction train, passenger on, 865,
869.
Contract, written, parol evidence to vary,
567, 573.
place of performance, 633.
Contract — continued.
divisibility, see Freight.
limitation of liability by, see Limita-
tion of Liability.
action on, see Action.
Contractor, for construction, not carrier
of passengers, 865, 869.
Contributory negligence of passenger,
what constitutes, 989, 991, 995,
997, 1028.
when imputed, 994, 1000, 1001.
duty of carrier to avoid, 1028.
when question for jury, 994.
Conversion by bailee, 31, 38.
by carrier, what constitutes, 433,
675, 679, 700, 745.
defeats right to freight, 820.
Custom and usage as affecting liabihty
of carrier, 481, 482, 566.
as to delivery, 603, 605, 805.
as to acceptance, 352.
as to passing of title, 684.
as to passenger's right on freight
train, 915.
as affecting duty as to passenger,
1009.
Damages, recovery of by bailee, 13, 14.
measure of, see Measure of Damages.
proximate, see Proximate Cause.
Dangers of navigation, see Perils of Navi-
gation.
Death, recovery of damages for, 921.
Declaration, whether in contract or tort,
form of, 774, 776, 779, 781.
Delay in transportation of goods, dam-
ages for, 363, 423, 424, 432, 433,
435, 438.
in transportation of passenger, see
Carrier of Passengers.
Delivery to carrier, 336, 350, 352, 353.
as passing title, 707, 754, 757, 762,
767.
as between connecting carriers, 644,
649, 654.
effect of concealing value, see Limi-
tation of Liability.
by carrier, what sufficient to termi-
nate Uability, 598, 610, 619, 623,
628, 697.
dihgence in, required, 609, 610.
personal, when required, 598, 603,
606, 607.
whether notice required, 610.
to consignor before transportation
commenced, 806.
to true owner, 691, 739.
essential to entitle to freight, 812,
819.
waiving lien for freight, 838.
to wrong party, Uability for, 680,
697, 699, 700, 706, 710, 713, 714.
refusal of constitutes conversion,
679.
1122
INDEX.
Delivery to carrier — continued.
excused by seizure under process,
735, 736, 743, 745, 747, 761.
what sufficient to terminate right to
stop in transit, 718, 728, 732.
to consignee as passing title, 669, 672,
677.
of bill of lading as passing title, see
Bill of Lading.
of baggage, time for, 640.
Demurrage, 828, 836.
Depot, privileges at, 896.
Deviation, liability for, 441, 444.
Drover's pass, limitation of liability in,
1020.
Elevators, regulation of charges of, 289.
Employees, see Servants.
Estoppel, by bill of lading, 566, 573, 576,
578, 581, 590, 595, 693.
by warehouse receipt, 581.
Evidence, see Burden of Proof and Pre-
sumption.
Express company deemed carrier, 318,
364, 607, 669, 966.
liability of railroad company to for
loss, 886.
deUvery by, 603, 605, 607, 610.
Expulsion of passenger, for improper con-
duct, 977.
for failure to purchase ticket, 1052,
1056, 1076.
in case of mistake in ticket, 1058,
1061, 1066, 1067, 1070, 1073.
for non-payment of fare, 1029.
effect of as to right to ride on same
train, 1078.
damages for, 1060.
at what place, 1054, 1066, 1080.
Fare for passage, tender of, 911.
when not demanded, 970.
where ticket not purchased, 1054,
1075.
ejectment for non-payment, 1029.
lien on baggage for, 851.
Federal statutes, Hmitation of carrier's
liability by, 1087, 1089.
interstate commerce act, 1090.
Ferryman, liability of, 4.
deemed common carrier, 313, 412.
regulation of rates, 291.
Finder of lost goods, rights of, 16, 20, 21,
24, 27, 45.
recovery against wrong doer, 15.
Forged order, delivery under, 700, 702,
706.
Forwarder not common carrier, 321.
Fraud, effect of as to injury to passenger,
923, 924.
in concealing value of goods, see
Limitation of Liability.
Free passenger, who deemed, 917, 1011,
1020, 1024.
Free passenger — continued.
by invitation, 914.
trespasser not deemed, 916, 925.
liability for injury to, 306, 308, 862,
868, 913, 916, 941.
limitation of liability as to, 1014,
1019, 1024.
Freight, discriminations in, 370, 374, 376.
regulation of charges, 378, 380.
when carrier entitled to, 403, 803,
807.
as compensation for carriage, 500.
part performance does not entitle to,
804, 812, 820.
divisibility of, 812.
pro rata, 804, 820.
due on re-taking goods before trans-
portation, 805, 839.
dead, 833.
contract of connecting carrier as to,
844.
in case goods perish from defects,
816.
in case of loss of goods by shipper's
fault, 816.
who liable for, 822, 825.
recovery of after payment, 830, 832.
lien for, see Lien.
advanced, see Advanced Charges.
Freight train, passengers on, 871, 917.
Fruit, negligence in transportation of,
450.
Fungible property, bailment of, 29, 32.
Garnishment for goods in transit, 749,
751.
Grain, bailment of, 29, 32.
Gratuitous carriage, see Compensation.
Guest of innkeeper, who is, 167.
as distinct from boarder, 171, 225,
231, 234.
personal safety of, 183.
safety of property of, 4, 200.
Harter Act, limitation of liability under,
506, 512.
Hepburn Act, see Carmack Amendment.
Inherent defects, loss due to, see Common
Carrier.
Innkeeper, liability for guest's property,
4, 200.
public calling, 163.
who deemed to be, 163, 171, 176, 218,
223.
relation of, to guest, 167.
duty of, as to guest's safety, 183.
regulations of, 246, 896.
lien of, 254.
Insurer, common carrier deemed, 391,
457, 462, 469, 520, 544, 601, 618,
748.
carrier of passenger, not deemed,
861, 867, 929, 961, 971.
INDEX.
1123
Interest, when allowed as damages, 310.
Interstate commerce, regulation of, 378.
federal statutes, relating to, 1090.
construction of Carmaok Amend-
ment, 524, 533.
Jettison, 563.
Jurisdiction of state court under Car-
mack Amendment, 655.
Jus tertii, 15, 40, 43, 691.
King's enemy, see Public Enemy.
Law and Fact, 348, 799, 994.
Liability of carrier of goods, see Common
Carrier.
limitation of, see Limitation of Lia-
bility.
of carrier of passengers, see Carrier
of Passengers.
Lien of bailee, 75.
of pledgee, 118.
of warehouseman, 137, 150.
of innkeeper, 254.
of vendor, stoppage in transitu, 718.
of carrier for freight, 806, 807, 833.
for advanced charges, 821, 838,
841, 846.
as against true owner not con-
senting to transportation,
846, 853, 857.
waived by delivery, 838.
carrier not bound to enforce,
823.
no power to sell, 848.
for demurrage, 836.
on passenger's baggage, 851.
Limitation of common carrier's liability,
by special acceptance, 302, 402,
454.
where value concealed, 326, 332, 402,
454, 457, 463, 481.
by notice, 325, 331, 463, 467, 478,
550 n., 876.
by notice as to value, 471, 478,
481.
by contract as to agreed valuation,
508, 516, 524, 534.
by contract in bill of lading, or other-
wise, 138, 316, 444, 474, 478, 493,
528, 537, 550 u.
consideration for, 529, 545.
not good, as against negligence,
464, 490, 518 n., 787, 799.
burden of proof in such cases, 784,
784 n., 787, 793.
acceptance of bill of lading contain-
ing limitations binding, 488, 549,
550 n., 552 n., 654.
by bill of lading subsequently de-
livered, 551, 555.
effect of as to connecting carrier, 557,
634, 644, 652 n., 657.
by custom, see Custom and Usage.
Limitation — continued.
by statute, 335, 499.
under Harter Act, 505, 512.
under Carmaok Amendment,
524, 533.
for injury to passenger, see Carrier
of Passengers.
Limitation of time for claiming damages,
536, 547.
Limite<d liability act, construction of, 499.
Live-stock, liability of carriers of, 361,
419, 421, 423, 427.
Loading, liability of shipper for, 411, 425.
Loss, notice as to, 588, 544.
Lost goods, rights of finder, 15, 20, 21,.
24, 27.
Machinery, track, and appliances, lia-
bility of common carrier for loss
from defects in, 799.
liability of carrier of passengers for
injury from defects in, 931, 938,
947, 950, 956, 960.
Mail, carriage of, 261. "
Master of vessel, authority of, 941.
liability for acts of, 402, 567.
issuance of bill of lading by, 590.
Master and servant, responsibility of
master for acts of servant, within
scope of authority, 436, 870.
responsibility of master for servant's
acts beyond scope of authority,
915.
for negligence of servant, 913,
996.
for wilfully wrongful acts of ser-
vant, 435, 438, 968, 970, 973.
for injury to servant, 868.
for injury to servant from negli-
gence of fellow-servant, 909,
911.
for injury to servant, assump-
tion of risk, 911.
see Semant.
Measure of damages, interest, 310.
for delay, 364, 433.
for shipper's breach of contract, 807.
for wrongful expulsion of passenger,
1060.
Merchandise, not baggage, see Baggage.
Mistake in delivery by carrier, 696.
Money, not baggage, 327.
Mortgage, whether subordinate to
bailee's lien, 81, 82, 84, 89.
distinguished from pledge, 103.
Negligence, liabiUty of bailee, 4, 18, 47,
53.
liabihty of innkeeper, 200.
liability of warehousemen, 137.
liability of common carrier for, 395,
457.
in not avoiding loss from act of
God, 400, 446, 678.
1124
INDEX.
Negligence, liability of common carrier
for — continued.
in not avoiding, injury from in-
herent defects, 429, 450.
in not avoiding injury from ex-
cepted danger, 784, 787, 793.
in loading or storage of cargo,
613, 563, 811.
in transportation of live-stock,
427.
for delay, see Delay.
for delivery, see Delivery.
gross, 7, 55, 56, 73 n., 465, 862, 907,
942.
degrees of, 942, 1023, 1027.
question of fact or law, 348, 799.
imputed, 994, 1000, 1001.
contract against liability for, 138,
528.
as to machinery, etc., see Machinery,
Track, and Appliances.
of passenger, see Contributory Negli-
gence.
in failing to protect passenger, see
Carrier of Passengers.
burden of proof of, see Burden of
Proof.
presumption of from loss, see Pre~
sumption.
limitation of liability for by con-
tract, see Limitation of lAability.
Negotiability of warehouse receipts, see
Warehouse Receipts.
of bill of lading, see Bill of Lading.
Notice to consignee of arrival of goods,
610, 622, 626, 628.
of stoppage in transitu, 720, 724.
of rule as to demurrage, 836.
as to riding on freight treiin, 872.
as to time of traiiis, 1005.
as limiting liability, see Limitation of
Liability.
Owner of goods in carrier's hands, who
deemed, 754, 756, 762, 767.
Owners of vessels, limitation of liability
of, 499, 1087.
Palace-car companies, see Sleeping-car
Companies.
Parties in action against carrier, 754, 757,
761, 767, 769, 772.
Partners, whether connecting carriers
deemed, 659, 667.
Passenger, who deemed, 865, 868, 871,
880, 901, 903, 914, 917, 970.
servant, not, 868, 909, 910.
person pursuing special occupation,
904.
unauthorized person pursuing busi-
ness, 916.
person procuring passage by fraud,
923, 924.
baggage of, see Baggage.
■Passenger — continued.
without compensation, see Free Pas-
senger.
liability for injury to, see Carrier of
Passengers.
negligence of, see Contributory Negli-
gence.
Pawn, see Pledge.
Payment of freight, what constitutes,
830.
Perils of navigation, exception of in bill
of lading, 394, 490, 563, 784.
Plaintiff, who may be in action against
carrier, see Parties.
Pledge, liability of pledgee, 3, 8.
duty to restore, 9.
conversion of by pledgee, 39.
possession essential, 98.
distinguished from mortgage, 103.
duties of pledgee, 115.
Uen, 118.
Police power as to regulation of public
calling, 290.
of carrier of passengers, see Rules
and Regulations.
Possession of bailee, 12, 14, 19, 28.
Postmaster General, action by in behalf
of mail owner, 14.
Postmasters and carriers of mail, 261.
Presmnption, from loss of or injury to
goods, 346, 785, 799, 801.
of liability as between connecting
carriers, 666, 788, 789, 792.
from accident to passenger, 865, 943,
953, 963, 967, 997.
Private carrier, of goods, 300.
of passengers, 865.
Process, seizure of goods under as excus-
ing non-delivery, 735, 737, 743,
744, 751.
Protection of passenger by carrier, 968,
971, 973, 976, 984.
Proximate cause, 401, 441, 980, 1028.
Public calling, what deemed, 300, 300 n.,
304.
Public enemy, acts of as exempting com-
mon carrier from liability, 10, 403,
405.
Railroads, see Common Carrier, and
Carrier of Passengers.
Rates, regulation of, 291 ; see also Com-
mon Carrier.
Receipt, bill of lading deemed, 576 ; and
see Bill of Lading.
Recovery of freight paid, 829, 832.
Refrigeration, duty to furnish, 450.
Respondeat superior, see Master and
Servant, and Postmasters.
Robbery as excusing bailee, 4, 8, 10.
as excusing innkeeper, 202, 203, 207,
213, 221.
Rules and regulations of innkeepers, 245.
of passenger carriers, 871, 896.
INDEX.
1125
Rules and regulations — continued.
as to passengers on freight trains,
922.
as to purchase of ticket, 1051, 1054.
as to producing ticket, 1062, 1066,
1070, 1073.
as to place of riding, 1082.
as to conduct of passenger, 1083.
enforcement of by expulsion, 979,
1080.
Safety deposit, nature of, 34.
Sale, distinguished from bailment, 29,
33.
to enforce bailee's lien, 91.
to enforce pledgee's lien, 124, 134.
of goods by master, 814.
of perishable goods, 848.
not authorized to enforce carrier's
lien, 848.
Servant, who deemed, 973.
authority of, 872, 920.
see Master and Servant.
Sleeping-ear companies, not innkeepers,
179.
liability for injury to passengers,
188.
liability for baggage, 345.
duty to carry all, 877.
liability of railroad for negligence of,
966.
Speed, as indicating negligence, 950.
State decisions not binding in other State
or U. S. courts, 631.
Stagecoacjies, as carriers of passengers,
875, 933.
as carriers of money, 305.
Station, privileges at, 895.
Steamboat companies, liability of for
baggage, 348.
for money, 304.
as carriers of passengers, 971.
Stoppage in transitu, 718, 838.
Storage, charges for, 620, 837.
Strikers, liability for acts of, 436, 438.
Tender of freight, 830, 840.
of fare, 911.
Theft, as defense for bailee, 4, 8.
does not excuse innkeeper, 227.
Ticket, nature and effect of, 1008, 1029,
1032, 1048.
whether a contract, 345, 550, 1005,
1020.
excuse for refusal to honor, 887, 888.
effect of mistake in, 1058, 1061, 1066,
1067, 1070, 1073.
conditions of as to stamping, 1040.
transfer of, 924, 1034, 1047, 1049.
for through transportation, 659.
over connecting lines, 1037, 1045.
coupon, 665, 1037, 1042.
purchase of, 903, 1051, 1054, 1075.
failure to procure, 1042.
for continuous passage, 1033, 1037.
not good in reverse direction, 1035.
limited, 1035, 1037.
stop over, 851.
fraudulent, 924.
Time of running trains, 1005.
Title of bailor, who may question, see
Jvs Tertii.
Tort, refusal to carry passenger deemed,
878.
see Action.
Tow-boat, not common carrier, 314.
Track, defects in, see Machinery, Track,
and Appliances.
Treasure trove, 25.
Trespasser, not deemed passenger, 913,
914, 916, 918, 922.
Trover for conversion by bailee, 38.
for misdelivery by carrier 700.
Vendor, stoppage in transitu by, 718.
Vendor's lien, effect of taking note in
payment, 733.
Warehouseman, duties, 136.
lien, 137, 150.
receipts, 140.
negotiability of, 143, 148.
nature, 581.
estoppel by, 581.
regulation of rates of, 292.
carrier liable as, 601, 611, 618, 624,
630, 702, 837.
connecting carrier not, 644.
Wharfinger, as bailee, 153.
duties of, 155.
Date Due
-ggg-inPf L
*'A;V 3,4
Library Bureau Cat. No. 1137
KF 1091 A7 M12 Igi'^
Vol.
McClain, Emlin
Title ^ selection of cases on the copy
law of bailments and carriers , . . .
m^
Q«riii
■^^
Borrower's Name
///
\^Z.
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