we?i« THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A SELECTION OF CASES ON THE LAW OF 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 Copyright, 1894, By Emlin McClain. Copyright, 1896, By Emlin McClain. Copyright, 1914, By Emlin McClain. T Set up and electrotyped by J. S. Cushing Co., Norwood, Mass. , U.S.A. Pressworkby S. J. Parkhill& Co., Boston, Mass., U.S.A. o 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 als 3 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 public 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 x public service obligations can best be reached by follow- ing this course of development. 74.8843 ; v 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 op Iowa, September, 1914. PEEFACE TO THE SECOND EDITION OF CASES ON CAERIERS. Although this collection of cases as now published remains sub- stantially the same as when the Cases on Carriers of Goods were published 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 propositions 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 [.resented at the beginning of the book and carried through it by means of headings and sub- headings. There is no intention by means of this 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, arc 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 CARRIERS Vll 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 to the page where the case may be found. EMLIN McCLAIN. Iowa City, July, 1896. ANALYSIS. I. ORDINARY BAILMENTS. PAGE 1. Relations of Bailor and Bailee 3 a. In general 3 Southcote's Case 3 Coggs v. Bernard 4 Brewster v. Warner 12 The Winkfield 14 b. Lost chattels 20 Armory 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. Semans 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 v. 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 ;'. Prather 66 b. Burden of proof '3 Sanborn v. Kimball 73 5. Lien 1°. Burdict v. Murray '° Arians v. Brickley ^,6 Grinnell v. Cook '9 Williams v. Allsup &} Sargent v. Usher °'- Case v. Allen &* Small v. Robinson gj Sensenbreuner v. Mathews Doane v. Russell j 'J Lambert v. Nicklass • 9 3 X ANALYSIS. II. PLEDGES. PAGE 1. Possession- Essential Wilson v. Little Walker r. Staples 1°J Casey o. Cavaroc l^ Geilfuss v. Corrigan HO 2. Duties of Pledgee 115 St. Loskv v. Davidson U5 Drake v. White 116 3- Lien ■ }}jj Steam- o. Marsh - il& Robinson v. Hurlev 1-1 White v. Phelps 123 Bomton v. Payrow l'-i Masonic Sav. Bank v. B j*s Adm'r 129 Moses v. Grainger 133 III. WAREHOUSEMEN. 1. Duties I 36 - shmidt v. Blood Gulf Conr . v. Harrington . . 137 2. Receipts Sinsheimer v. Whiteley ... 140 Anderson v. Portland Flouring Mills Co 112 Dolliff v. Robbins 147 3*. Lien Steinman p. 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 Cas< I Rex v. Ivens 2. Essential Relation of Innkeeper and Guest 167 Kisten v. Hildebrand Hancock v. Rand 170 Orchard v. Bush 175 Walpert v. Bohan 177 Pullman Palace Car C ^nith 3. Duty as to Guest's Personal Safety I8i Gilbert v. Hoffman * Clancy v. Barker 185 4. Ll\bility for Guest'- Property - Clute •. Wigg 3 - Quinton >:. Courtney 201 Merritt v. Claghorn '- - ANALYSIS. Xl PAGE Siblev v. Aldrich - Hulett v. Swift 212 Faucett v. Nichols 21{ Johnson v. Chadborn Finance Co Fav v. Pacific Impr. Co - - Eppa v. Hinds 226 Weisenger v. Taylor - Jalie v. Cardinal" Berkshire Woollen Co. v. Proctor - - WilMna v. Earle 237 Fisher v. Kelsey 242 0. REGULATIONS -43 Markham v. Brown - State v. Steele - 6. Lien . . . 254 Cook v. Kan-. - oi Singer Mfg. I - . Miller - Robins v. Gray - VI. POSTMASTERS AND CARRIERS OF MAIL. 1. Postal Officers - Lane v. Cotton '--'-'• 2. Carriers under Contract -_ - iwyer v. Corse ■ Foster v. Metts - Boston Ins. Co. v. Chicago, R. I. & P. K. Co The Winkfield ... 288 VII. CARRIERS OF GOODS. 1. Who ap.e Common Carriers -~ a. Nature of public calling Munn o. Illinois j ' b. Who exercise such calling - Allen v. Sackrider - Gisbourn v. Hurst n - Gordon v. Hutchii - Citizens' Bank o. Nantucket Steamboat Co ■ Dwight r. Brewster jJJJ* Flint, etc. R. Co. v. Weir ; _ Pierce v. Milwaukee, etc. R. Co Gray •:. Missouri River Packet Co ™® Hafe v. New Jersey Steam Xav. Co ;J|1 Liverpool Steam Co. <\ Phoenix Ins. Co oil McArthuT v. Sears "*'% Hall v. Renfro *\% The Xeaffie JJJ Coup v. Wabash, etc. Ry. Co Buckland p. Adams Exp:'-- Co ; Roberts . 1 rner Transportation Co. v. Block c. Baggage of passengers Orange* Couutv Bank v. Brown "-- Railroad Co. v. FralofE gj Kansas City, etc. R. Co. v. Morrison Great Northern Railwav v. Shepherd *» x ii 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 3o4 Chicago & N. W. Ry. Co. v. People 354 Ayres v. Chicago & N. W. Ry. Co 358 Sargent v. Boston & Lowell R. Corp 364 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 3s:; a. Act of God 383 Proprietors of the Trent Nav. v. Wood 383 Forward v. Pittard 385 Colt v. M'Mechen 31)2 Friend v. Woods . .' 395 Railroad Co. v. Reeves 398 b. Act of public enemy I'll' Morse v. Slue \ 402 Southern Express Co. v. Woinack 403 c. Act of shipper 107 Congar v. Chicago, etc. R. Co 1<>7 Mi lti more v. Chicago, etc. R. Co 109 White v. Winnisimmet Co 112 Hart v. Chicago, etc. R. Co 4 Hi 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 o. Illinois Cent. R. Co 426 Fauclier v. Wilson 429 e. Carrier's fault or negligence 430 Scovilf v. Griffith .' ■ 430 Blackstock 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 of Liability 452 a. What valid 452 Gibbon v. Paynton 452 Harris v. Packwood 456 ANALYSIS. X1U • PACE Riley v. Home 461 Hollister v. Xowlen 4(55 Judson v. Western R. Co 477 Boon v. Steamboat Belfast 481 Blossom v. Dodd 435 b. In case of negligence 489 Liverpool Steam Co. v, Phoenix Ins. Co 489 Mynard v. Syracuse, etc. R. Co n. 498 The Main 0. Williams 498 Calderon v. Atlas Steamship Co 504 Knott v. Botany Mills 510 c. Agreed valuation olg Graves v. Lake Shore R. Co 510 McFadden 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. r. 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 557) Babcock v. Lake Shore R. Co 555 Kiff v. Atchison, T. & S. F. R. Co n. 560 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 5S8 Pollard v. Vinton 588 Sioux City & P. R. Co. v. First Nat. Bank 592 Delivery by Carrier 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 Muscbamp 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 x i v ANALYSIS. PAGE b. Delivery to consignee '••■.' ™, Sweet v. Barney °°° Bailey v. Hudson River R. Co 6*- Armentrout v. St. Louis, K. C. & N. R. Co 6/0 McEntee v. New Jersey Steamboat Co b/ 8 c. Delivery to holder of bill of lading Pennsylvania R. Co. v. Steam o»U Weyand ». Atchinson, T. & S. F. R. Co 681 Shaw v. Railroad Co 680 d. Delivery to true owner 690 The Idaho "90 e. Delivery to wrong party through mistake or fraud oJb Powell v. Myers °9° American Express Co. v. Stack 698 Price v. Oswego & S. R. Co 700 Samuel v. Cheney '"^ Edmunds v. Merchants' Despatch Transp. Co 710 Wernwag v. Phil. AY. & B. R. Co 711 Singer v. Merchants' Despatch Transp. Co 715 f. Stoppage in transitu '*~ Newhall v. Central Pacific R. Co '18 Allen v. Maine Cent. R. Co 720 Pennsylvania R. Co. v. American Oil Works 721 Branan v. Atlanta & W. P. R. Co 723 Brewer Lumber Co. v. Boston 8c A. 11. Co 729 g. Seizure under legal process 7oO Stiles v. Davis 735 Bliven v. Hudson River R. Co 736 Ohio & Mississippi R. Co. r. Yohe 739 Edwards v. White Line Transit Co 744 Riff 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 '69 Elkins v. Boston & Maine R 770 b. Form of action '73 Dale v. Hall 773 Baylis v. Lintott 775 Pozzi v. Shipton ^'8 Smith v. Seward 780 c. Burden of proof 783 Transpoi-tation Co. v. Downer 783 Shriver v. Sioux City & St. P. R. Co 786 Marquette, H. & O. R. Co. v. Kirkwood 789 Montgomery & Eufaula R. Co. v. Culver 792 d. Evidence of negligence 79 1 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 PAGE Bailey v. Damon ..„-.... 806 Sayward v. Stevens ............... 809 Western Transp. Co. v. Hoyt 817 Wooster v. Tarr 822 Merian v. Funck 823 Scaife v. Tobin 826 Wegener v. Smith 828 Ashmole v. Wainwright 829 Chase v. Alliance Ins. Co 831 b. Lien 833 Skinner v. Upshaw 833 Phillips v. Kodie 833 Chicago & N. W. R. Co. v. Jenkins 836 Potts v. N. Y. & N. E. R. Co . . . . 837 Campbell v. Conner £39 Steamboat Virginia v. Kraft 841 Wells v. Thomas 843 Briggs i7. Boston and Lowell R. Co 845 Roberts r. Koehler 849 Robinson v. Baker 852 Bassett v. Spofford 856 VIII. CARRIERS OF PASSENGERS. Who Deemed 860 Boyce v. Anderson 860 Shoemaker v. Kingsbury 863 Hoar v. Maine Cent. R."Co 867 Houston & T. C. R. Co. v. Moore 870 Public Calling 873 Bennett v. Dutton 873 Nevin v. Pullman Palace Car Co 877 The D. R. 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 Who Deemed Passengers a. Acceptance Brien v. Bennett 900 Allender v. Chicago, etc. R. Co 90 b. Persons pursuing special callings 904 Nolton v. Western R. Co 904 c. Employees ^08 Gillshannon v. Stony Brook R. Co 908 d. For compensation Tarbell v. Central Pacific R. Co 910 Wilton v. Middlesex R. Co 912 Waterbury v. New York Cent., etc. R. Co 911 Duff v. Alleghany Valley R. Co 91 r, St. Joseph, etc. R. Co. v. Wheeler 917 Toledo, etc. R. Co. v. Brooks 922 Way v. Chicago, etc. R. Co 924 Liability for Injuries a. From negligence 9"8 Christie v. Griggs 9L8 Ingalls v. Bills J -^ Meier v. Pennsylvania R. Co 93 1 XVI ANALYSIS. PAOB Steamboat New World v. King 940 McPadden v. New York Cent. R. Co. . . , 945 Grand Rapids, etc. R. Co. v. 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. v. 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. v. 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 1013 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 v. 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 Jeffersonville R. Co. v. Rogers 1051 Everett v. Chicago, etc. R. Co 1054 Townsend v. N. Y. Cent. & H. R. R. Co 1057 Frederick v. 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. Sackrider 299 Allender v. Chicago, etc. R. 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. 0. R. Co 367 Auerbach v. 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 Batton v. South & N. A. R. Co. . 984 Baylisv. Lintott 775 Bennett v. Dutton 873 v. O'Brien 60 Berkshire Woollen Co. v. Proctor . 232 Blackstock 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 v. 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 Lumber Co. v. Boston & Albany R. Co 729 Brewster v. Warner 12 PAGE Brien v. Bennett 900 Briggs v. Boston, etc. R. Co. . . 845 Buckland v. Adams Exp. Co. . . 318 Buel v. New York C. R. Co. . . 996 Burdict v. Murray 75 Calderon v. Atlas Steamship Co. . 504 Calye's case 163 Campbell v. Conner 839 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 v. 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 Dolliff 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 XV111 TABLE OF CASES. Edmunds v. Merchants' Desp. Transp. Co. . . .... Edwards V. White Line Transit Co Elkins v. Boston & Maine R. . . Empire Transp. Co. v. Wamsutta ( )il, etc. Co Epps v. Hinds Evans v. Fitchburg 11. Co. . . Everett v. Chicago, etc. R. Co. . . Express Co. v. Caldwell .... Faucett v. Nichols Faucher v. Wilson ...... Faulkner v. Hart Fay v. Pacific Improvement I Fick v. Chicago & N. W. R. Co. . Filer v. New York C. R. Co. . . Finn v. Western R. Co First National Bank v. Graham . v. Marietta, etc. R. Co. . . Fisher v. Kelsey Fletcher v. Fletcher Flint, etc. R. Co. v. Weir . Forward v. Pittard Foster v. Metts Frank v. Ingalls Frederick v. Marquette, etc. R. Co Freeman v. Birch Friend v. Woods 710 744 770 707 220 421 1054 530 429 080 223 072 995 758 63 344 242 38 305 385 278 1047 1060 700 395 Galveston H. & S. A. R, Co. v. Wallace Garden Grove Bank v. Humeston, etc. R. Co Geilfuss v. Corrigan Geismer v. Lake Shore, etc. R. Co. Gibbon v. Pay n ton Gilbert v. Hoffman Gilshannon v. Stony Brook R. Co. Gisbourn v. Hurst n. 054 569 110 437 452 183 908 300 958 301 548 949 516 300 Gleeson v. Virginia Midland R. Co. Gordon v. Hutchinson .... Grace v. Adams. ...... Grand Rapids, etc. R.Co. v. Huntley Graves v. Lake Shore, etc. R. Co. . Gray v. Missouri River Packet Co. Great Northern Railway v. Shep- herd 338 Green v. Milwaukee, etc. R. Co. . 352 Grinnell v. Cook 70 Grosvenor v. New York Central R. Co 340 Gulf Compress Co. v. Harrington 137 Hale v. New Jersey Steam Nav. Co. 311 Hall v. Renfro 313 Hancock v. Rand 170 Hannibal Railroad v. Swift . . . 342 Harris v. Packwood 450 Hart v. Chicago, etc. R. Co. . . 416 Henderson v. Louisville, etc. R. Co. 343 Hoar v. Maine C. R. Co. ... 807 PAGE Hollister v. Nowlen 465 Houston & T. C. R, Co. v. Moore 870 Hulett v. Swift 212 Hutchinson v. United States Ex. Co. 610 Hyde v. Navigation Co 596 Idaho, The 588, 690 Illinois Cent. R. Co. v. Green . . 986 v. Whittemore 1080 Ingalls v. Bills . 929 Jacobus v. St. Paul, etc. R. Co. . 1023 Jalie v. Cardinal 228 Jefferson vide 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. Chadborn Finance Co. 218 Judson v. Western R. Co. . . . 477 Kansas City, etc. R. 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. 560 v. Old Colony, etc. R. Co. . 746 Kinnick v. Chicago, etc. R. Co. . 423 Kirst v. Milwaukee, etc. R. Co. . 800 Kisten v. Hildebrand 107 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 Mc Arthur & Hurlbert v. Sears . 812 McAvoy v. Medina 20 McEntee v. New Jersey Steamboat Co 678 McFadden v. Missouri Pacific R. Co. . . • 519 McPadden v. N. Y. C. R. Co. . . 045 Main, The, v. Williams .... 408 Markham v. Brown 245 Marquette, etc. R. Co. v. Kirk- wood 789 Martin, The D. R 885 Masonic Sav. Bank v. Bang's Adm'r 129 Meier v. 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 Miltirnore v. Chicago, etc. R. Co. 409 TABLE OF CASES. XIX PAGE Missouri, K. & T. R. Co. v. Harri- man 530 Montgomery, etc. R. Co. v. Culver 792 Montrose Tickle Co. v. Dodson, etc. Co 751 Morrison v. Erie R. Co 990 Morse v. Slue 402 Moses v. Grainger 133 Munn v. Illinois 289 Murdock v. Boston, etc. R. Co. . 1067 Muschamn v. Lancaster, etc. R. Co. 646 Mynard v. Syracuse, etc. R. Co. n. 493 Nashville, etc. R. Co. v. Spray- berry 1042 National Safe Deposit Co. v. Stead 33 Neaffie, The 313 Nevin v. Pullman P. Car Co. . . 877 Newhall v. Central Pacific R. Co. 718 Nolton v. Western R. Co. ... 904 Norway Plains Co. v. Boston & M. R 016 Nurin v. Georgia R 1006 Nutting v. Connecticut R. R. Co 652 O'Brien v. Gilchrist 575 Ohio, etc. R. Co. v. Yohe . . . 739 Old Colony R. Co. v. Tripp . . 894 Orange County Bank v. Brown . 322 Orchard v. Bush 175 Packard v. Earl 605 Pennsylvania R. Co. v. American Oil Works 721 v. Stern 680 Pershing v. Chicago, etc. R. Co. . 952 Peterson v. Chicago, etc. R. Co. . 663 Philadelphia, etc. R. Co. v. Rice . 1069 Phillips v. Rodie 833 Pierce v. Milwaukee, etc. R. Co. . 307 Pittsburg, etc. R. Co. v. Hinds . 981 Pollard v. Vinton 588 Potts v. New York, etc. R. Co. . 837 Powell v. Myers 696 Pozzi v. Shipton 778 Preston v. Prather 66 Price v. Oswego, etc. R. Co. . . 700 Proprietors, etc. v. Wood . . . 383 Pulliam v. Burlingame .... 39 Pullman Palace Car Co. v. Smith . 179 Putnam v. Broadway, etc. R. Co. . 975 Quimby v. Boston & Maine R. Co. 1018 Quinton v. Courtney 201 Ra°;an v. Aiken 376 Railroad Co. v. Fraloff .... 329 v. Manufacturing Co. . . . 642 v. Reeves 398 v. Walrath 964 Railway Co. v. Stevens .... 1010 PAGE Ramsden v. Boston, etc. R. Co. . 967 Reagan v. Farmers' Loan & Trust Co 380 Relyea v. New Haven Rolling Mill Co 577 Rex v. Ivens 165 Ridgway Grain Co. v. Pennsyl- vania R. Co 546 Riley v. Home 461 Roberts v. Koehler 849 v. Turner 320 Robins v. Gray 258 Robinson v. Baker 852 v. Hurley 121 Rodgers v. Stophel 153 St. Joseph, etc. R. Co. v. Wheeler 917 St. Losky v. Davidson .... 115 Samuel v. Cheney 706 Sanborn v. Kimball 73 Sargent v. Boston, etc. R. Co. . . 364 v. Usher 82 Sawyer v. Corse 270 Sayward v. Stevens 809 Scaife v. Tobin 826 Schmidt v. Blood 136 Scovill v. Griffith 430 Sears v. Eastern R. Co 1003 Sensenbrenner v. Mathews ... 89 Shaw v. Railroad Co 685 Shelton v. Merchants' Desp. Transp. Co 552 Shoemaker v. Kingsbury . . . 863 Shriver v. Sioux City, etc. R. Co. 786 Sibley v. Aldrich 206 Singer v. Merchants' Despatch Transp. Co 715 Singer Manufacturing Co. v. Miller 257 Sinsheimer v. Whiteley .... 140 Sioux City, etc. R. Co. v. First Nat. Bank 592 Skinner v. Upshaw 833 Sleeper v. Pennsylvania R. Co. . 1049 Small v. Robinson 88 Smith v. Seward 780 South Staffordshire Water Co. v. Sharman 2 J Southcote's Case Southern Exp. Co. v. Womack . . 403 Sprague v. Missouri Pac. R. Co. . 542 State v. Cincinnati, etc. R. C. . . 372 v. Overton 1032 ^.Steele 248 Steamboat Lynx v. King . . . 445 Steamboat New World v. King . 940 Steamboat Virginia v. Kraft . . 841 Stearns v. Marsh l^ 8 Steinman v. Wilkins ^■;'_ l Stiles v. Davis '•""' Swan v. Manchester, etc. R. Co. . 1076 Sweet v. Barney ^^ Tarbell v. Central Pac. R. Co. . . 910 Thurston v. Union Pac. R. Co. . 888 XX TABLE OF CASES. PAGE Tindal v. Taylor 805 Toledo, etc. R. Co. v. Brooks . . 922 Townsend v. N. Y. Cent. R. Co. . 1057 Transportation Co. v. Block . . 322 v. Downer 783 Trent Nav. Co. v. Wood .... 383 Vinton v. Middlesex R. Co. . . 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 PAGE Wells v. Thomas 843 Wernwagw. Philadelphia, etc. R.Co. 711 Western Transp. Co. v. Hoyt . .817 Weyand v. Atchison, etc. R. Co. 081 White v. Phelps 123 v. Winnisimmet Co 412 Wilke v. Illinois Central R. Co. . 426 Wilkins v. Earle 237 Willey v. Allegheny City ... 159 Williams v. Allsup 81 Wilson v. Brett 56 v. Little 98 Wilton v. Middlesex R. Co. . . 912 Winkfield, The 14, 288 Wiser v. Chesley 61 Witbeck v. Holland 606 Woodward v. Semans .... 32 Wooster v. Tarr 822 I-VI BAILMENTS CASES ON BAILMENTS AND CARRIERS. I. ORDINARY BAILMENTS. 1. RELATIONS OF BAILOR AND BAILEE. a. In general. SOUTHCOTE'S CASE. King's Bench. 4 Coke, 83 b. 1600. Southcote 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 such 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 BAILMENTS. money, and the other refused, then there is fault in him ; and then the stealing 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 case 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 rum referi 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, sell, 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. 1 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 1 Also reported, Comyns, 133 ; 1 Salk. 26 ; 3 Salk. 11 ; Holt, 13. RELATIONS OF BAILOR AND BAILEE. 5 has been a verdict for the plaintiff, and that upon full evidence, the 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 action 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 deposition, 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 learning, 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 RELATIONS 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 non tenetur, scilicet desidiae vel negligentiae, quia qui negligenti amico 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 securus est qui parum delig enter custoditam 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 against 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 ORDINARY 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 ubi supra: his words are, is autem cut res aliqua utenda datur, re obligatur, quae commodata est, sed magna differentia est inter mutuum et commodatum; quia is qui rem mutuant accepit, ad ipsam restituendam tenet ur, vel ejus pretium, si forte incendio, ruina, naufragio, aid latronum vel bostium ineursu, consumta fuerit, vel deperdita, sublracta vel ablata. Et qui rem utendam accepit, non sufficit ad rei custodiam, quod talem diligentiam adhibeat, qualem suis rebus propriis adhibcrc solet, si alius earn diligentius potuit custodire; ad vim autem majorem, vel casus fort u it us non tenet ur qui*, nisi culpa sua inter- venerit. Ut si run sibi commodatum domi, secum detulerit cum peregre profectus fuerit, et illam ineursu bostium vel praedonum, vel naufragio amiserit non est dubium quin ad rei restitutionem teneatw. 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 bail( e 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 alterius ornamenti, vel jumenti, mercedem dederit vel promi- serit, talis ab eo desidcratur custodia; qualem deligentissimus paterfami- lias suis rebus adhibet, quam si praestiterit, et rem aliquo casu amiserit, ad rem restituendam non tent bifur. Nee sufficit 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 diligent 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 RELATIONS 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. Creditor, qui pignus accepit, re obligatur, et ad Mam restituendam tenetur; et cum hujusmodi res in pignus data sit utriusque gratia, scilicet debitoris, quo magis ei pecunia crederetur, et creditoris quo magis ei in tito sit creditum, sufficit ad ejus rei custodiam diligentiam exactam ad Inhere, quam si praestiterit, et rem casu amiserit, securus 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 ORDINARY 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, &e. 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 corn, &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 perforin 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 goods are spoiled. Secondly, it is to be understood, that there was a neglect in the management. But thirdly, it' it had appeared that the mischief happened by any person that met the carl 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 will you call this ? In Bracton, lib. 3. 100, it is called mandatum. It is an obligation, which arises ex mandate. 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 ct accipitur. This undertaking obliges the undertaker to a diligent management. Bracton ubi supra says, contrabitur etiam obligatio non solum scripto ct verbis, sed ct consensu, sicut in contractibus bonac fidei; ut in emptionibus, venditionibw, location il> us, 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 ground 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 Mors 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 ( )ourt, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows : — The plaintiff, on September L5, 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 RELATIONS 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 muoh 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 quantum 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 modern 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 v. 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 32,514/. 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 v. 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 jus tertii unless he claims under it, is well established in our law, and really concludes this case against the respondents. As I shall shew presently, a long series of authorities establishes this in actions of trover and trespass at the RELATIONS OF BAILOR 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 v. 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 betw r een 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 v. 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 ORDINARY 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 plaintiff, 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 ; 11 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 ground 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. RELATIONS 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 I 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. 508, n. (c) ; 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 Ullman v. Barnard, (1856) 73 Mass. Rep. 554 ; Parish v. Wheeler, (1860) 22 New York Rep. 494; White r. Webb, 15 Conn. Rep. 302. The case of Rooth v. Wilson, 1 B. & A. 59, is a clear authority 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 Ellenborough, 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 Ellenborough 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 OF 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 finest 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 Allen (Mass.), 548; 87 Am. Dec, 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 RELATIONS OF BAILOR 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. Durfee, 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 immediately 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. II. 75, A. 1). 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 RELATIONS- 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 v. 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. G27 ; 05 L. R. A. . 2 /4. 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 ves 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 difficult 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 "lias 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, L894, 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 th.it 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 plaint itt's 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 RELATIONS- 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 : Sovern 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. I. 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 v. SHARMAN. [1896] 2 Q. B. 44. 1896. Lord Russel of Killowen, C. J. In my opinion, 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 defendant in the mud at the bottom of the pool. The plaintiffs are the freeholders of the locus in quo, and as such they have the right to forbid anybody coming on their land or in any way interring 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 facto 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 quo. 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. Amount Received from D. W. Lee : Four hundred and fifty-five H b. wheat $455.14 n rye " corn Two hundred and fifty-five i§ 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 grain 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 and 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 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 ORDINARY 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 Hths 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 v. 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 v. 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 ORDINARY 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 judg- 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 /•. Xixon, 97 Ind. 97 (49 Am. Rep. 430, and authorities cited) ; Bottenberg v. Xixon, 97 Ind. 106 ; Schindler v. Westover, 99 Ind. 395 ; Lyon i\ 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 Blackf. 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. Randell, L. R. 3 P. C. 100 (108) ; Jones v. Kemp, 49 Mich. 9. Judgment affirmed. NATIONAL SAFE DEPOSIT CO. v. STEAD. 250 111. 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 (Hurd'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 safe 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. [28 App. Div. 68] 50 N. Y. Supp. 974, it appeared that the defendant, among other things, maintained at its warehouse safe deposit vaults, containing separate safe deposit boxes or safes. Plaintiff 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. AYe 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 deliver 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 i'. 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 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 X. Y. 539) [10 L. R. A. 481, 19 Am. St. Rep. 519, 25 X. 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. Xo 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. 1 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 X. 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 Judgment for the defendant. 1 That a conditional refusal is not evidence of conversion see Dent v. Chiles, 5 Stew. & Por. (Ala.) 383, 26 Am. D. 350 (1832), reviewing the English cases. . 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., £27. In Hays v. 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 facie sufficient to support this action. It is 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 sufficient to rebut and overthrow the estoppel imposed on a vendee from denying the title of his vendor, when called upon for the purchase- 42 ORDINARY 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. McMullen, 59 Mo. 252 ; Harvey v. 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 returned 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. 575 [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 claimant. Although the cases in which the doctrine of jus 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 Pae. R. 259 ; 33 L. R. A. N. S. 681. 1910. Mr. 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 agreement, 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 ORDINARY 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 lie cannot sel up jus tertii against his bailor, however tortuous the p ion of ! 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, 320, 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. cv. B. \ly. Co. v. Spires [1 Ga. App. 22] 57 S. E. 973 ; Barker v. Lewis S. & T. Co., 79 ( lonn. 342 [65 Atl. 143,118 Am. St. R. 1411; Klein D.Patterson, 30 La. Sup. Ct. 495, 500 ; Riddle v. Blair [14S Ala. 461 ], 42 So. 500. In the "Idaho" case, 93 U. S. 575, 581 [6901, 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 lie 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 holds the thing bailed, subject to such known right then asserted, and not b}' 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 could 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 not 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 ORDINARY 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 plaintiff 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 (Rowing 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 ORDINARY BAILMENTS. 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 unless 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- CONVERSION. 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 7 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 our 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 thd 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 line 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 v. 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 321. 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 ORDINARY 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 bad 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 bill 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 bis 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 ORDINARY 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 5/. 10s. Bi/les, 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. Lord x\binger, 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. Parke, 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. Alderson, 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. Rolfe, 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 ORDINARY 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 carriers. 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 v. 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 ORDINARY BAILMENTS. BENNETT v. O'BRIEN. 37 111. 250. 1865. Mr. 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, arid 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 liable. 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 under 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. Sherwood, 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 $10 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 clay 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 the knowledge of the proprietor or clerks ; that in that safe were kept the money and valuables of the guests and of the proprietor, who, however, 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 burden 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 $1000 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 ORDINARY 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 geruntcr," 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. 1 PRESTOX 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. The 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 it was 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 ORDINARY 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. r. Lockwood, 17 Wall, 357, 383; Milwaukee & St. Paul Railway r. 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 officers, though their employment embraced a supervision of the property, such acts not being deemed within the scope of their employment. Thus, 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 Supreme 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 effort 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 Board 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 r. 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 ORDINARY 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 v. 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. 1 b. 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 v. Lockwood, 17 Wall. (U. S.) 357 (1873), cited in this case, Mr. Justice Bradley, 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 negligence. Strictly speaking, these expres- sions are indicative rather of the degree of care and diligence which is 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 bestow 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 v. Pickford, 8 Meeson & Welsby 460 ; Hinton v. Dibbin, 2 Queen's Bench, 661 ; Wilson 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.) Toullier, 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 ORDINARY 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 that 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 ORDINARY 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, unl. 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. Orton, 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 Hen 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 lumber 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 act 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 v. 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 lien 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 c. 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 manual labour 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 SI 00, 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 v. Moore, 24 Me. 214. The rules of the common law are not to be changed by doubtful implication. Meek v. 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 Hill (N. Y. S. C.) 485 ; 38 Am. Dec. 663. 1842. Error 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 innkeeper 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. Bronson, 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 benefit 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 ; Scarf e 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. 1 And in Judson v. Etheridge, it was sug- gested by Bolland, B. that the doctrine might, perhaps, be extended to 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 1 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 lien 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 b} 7 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. Plaint id' 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 right 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. Bullard, 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 v. 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 case here on error. The facts are fully stated in the opinion, infra. Brewer, 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 possession 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 mortgage 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 lien 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 r. 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 ORDINARY BAILMENTS. a mechanic for repairs which are necessary to put it in condition for use, and the mechanic retains po . until his chaj ges is prior to and can be enforced against the mortgage, if the mortg g becomes due before the r- re made and r - . : b lined b; mechanic, where the mo: has never taken possession under his mo."- . And in Brown's Admiralty, p. _ 4. in the case of "The St. Joseph." Mr. Justice Withey thus states the law in reference to maritime liens : — Strictly maritime liens have - held priority over nior. . without reference to the p me when th g ^>und that it is as much fo: the mortg.: g s 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 mor - eurity, as well as to the ability of the mortgagor or owner to pay the mo: See also Brown r. Holmes. 13 Kas. -192 : Colquitt, el al.. v. Kirkman. ra. 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 servie - 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 c to the matter, and the exception is to the charge of the court as a wh and not to any specific portion of it. A similar answer is good to the objection that plaintiff was not _ a 1 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 that they erred. Upon the whole record, we see no error. The judgment will be affirmed. -MALL ROBINSON. 69 Maine. 42.5 : 31 Am. R. 299. 1879 Appletox. 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 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 Hollingsworth 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 v. Wright, 100 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]. Cushing, C. 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, C. 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 ORDINARY 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 jus 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 this action, it is immaterial how the respondents came into possession. In replevin, a plaintiff 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 official 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 ORDINARY 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 v. 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 Buller, 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." LI EX. 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 does 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 v. Latour, 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 has 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, 93 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. Ency. of Law, 1st ed., 46; Jones on Liens, § 523. In fact, on the mere strength of lien, he can sue neither at law nor in equity, 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. "$2000. 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, having 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, Dec. 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 thai 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 selling 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 number 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, 590 ; 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 shares 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 barn. 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 $325,011.26, 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 $218,000, 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. Mr. 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 fact 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 controlling. 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 preser 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 i 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 Harlan 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 & 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. HI 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. Dolliver, 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 conveyanc 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 tin 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, lien for the benefit of the bank, — alien 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. Bona 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. Cary, 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 thai 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 delivered, 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 Terry. 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. Tpon 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. 187.'). Contract 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, 1S72, payable in four months from date, for the sum of 8276.(58. " 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 8400, 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 8300, 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. \yj 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 fire 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 v. 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 general 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 $166.97, 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 — $520.32. 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 defendants 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; Tuckers. Wilson, 1 P. Wms. 261 ; Lockwood v. Ewer, 2 Atk. 303 ; Johnson v. Varnon, 1 Bailey's S. C. Rep. 527 ; Perry v. 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 v. 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, according 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 v. 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 v. HURLEY. 11 Iowa, 410; 79 Am. D. 497. 1861. The 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 till 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 court 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 LIEN. 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 tin 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 circumstances 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 nature 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. 12o "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 an 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 pe'rson, 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, L3 Mass. 304-306. Does the pledge of a note unindorsed operate as an assignment 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 fad 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. Barrows, 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. x\s 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 surplus 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 spe. 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- dred shares had satisfied the debt, the intestate, if living, 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 betwe< a 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 affirmed. MOSES v. GRAINGER. 106 Tenn. 7 ; 58 S. W. R. 1067 ; 53 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. Beard, 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, and Mary P. 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 interesl , only $86.50, the Central Savings Bank passed into the hands of a 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. Tins 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 author- 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 favourably for the interests of the pledgor, so far as is consistent with the rights of the pledgee. The power of sale must be exercised Math 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 thei»- 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 ha.d 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 ivarehouseman, 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 X. P. 114; 4 Esp. N. P. R. 262 ; and in Finucane v. Small, 1 Esp. X. P. R. 315, it was held that if goods be bailed to be kept for hire, if the compensa- tion be for kouseroom, 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 onus 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, n. 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. HARRIXGTON. 90 Ark. 256; 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 which 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 sufficient 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 affirmative, 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. Munger, 20 Colo. App. 56, 77 Pac. 5 ; Hunter v. 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 t he 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 ; the 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 delivered 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 1 1th, following, the constable seized the beans pursuant to said writ in Lial's suit again I Costa; Lial obtained judgment in that action and an execution issued thereon, under which the constable was about to sell the bean- 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 denned 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 v. 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, Fulkerth, 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 F. 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 attach 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 in i conclusion of law; but, admitting it to be a finding of ultimate fa< it is not sustained by the evidence. It appears from the constable's return and certain parol evidence (which was admissible in aid ol the 142 WAREHOUSEMEN. 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 therein 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, Or., 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 deliv- ered to the storer, sacked, upon the payment 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 ». 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 authoriti- 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 circumstan* ... 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, being 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. Fullkerth, 68 Cal. 607 (10 Pac. 122) ; Price v. Wisconsin Fire Ins. Co., 43 Wis. 267 ; First Nat. Bank ». Dean, 137 N. Y. 110 (32 N. E. 1108) ; First Xat. 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 RECEIPTS. 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 bona fide purchaser before maturity and from a finder or thief, — it says: "But none of these consequences are necessary attendant 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 bound 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 incumber 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 v. 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. ROBBIXS. 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 Belleview, 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 $25,000, 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 deliver of the storage tickets to plaintiff operated as an assignment of the cause 148 WAREHOUSEMEN. 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 itself, 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. 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. Th mere fact that there may have been some secret agreement or under- standing between the ticket holders and plaintiff to the effect 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 tin- 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 v. 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 purporting 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. & Welsb. 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. 15] 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. 23 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 ; I nit 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 WAREHOUSEMEN. 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 charge a 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. IV. WHARFINGERS. 1. AS BAILEES. RODGERS v. STOPHEL. 32 Pa. St. Ill ; 72 Am. D. 775. 1858. This was an action on the case by Thomas Stophel against Henry Rodgers, for negligence 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 be safe. The defendant objected to the admission of this evidence ; but the court 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 the 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 and 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 specific 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 Rosenf eld'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 harbour 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 WHARFINGERS. 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 v. 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, authorisii 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 v. 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 ordinal,. 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 measure 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 enforce 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 tin 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.] Mr. 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 permitsaid 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 WHARFINGERS. 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 by 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 sufficient 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. Id against these at the wharf. The perils are not ordinary, but they tire 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 tin- undertaking to hold securely. In the case of the City of Pittsburgh 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*. 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. In our own leading case upon the subject, Laing v. 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 me 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." 1C2 WHARFINGERS. 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 Angliac 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 existentia absque subtractione seu amissione custodire die et node tenentur, ita quod pro dcfectu hujusmodi hospitatorum seu servientium suorum hospitibus hujus- modi damnum non eveniat ullo modo quidam malef adores quendam cquum ipsius A. precii Ifis. 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, &c. 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 divcrsoriolum. And therefore if a neighbour who is no traveller, as a friend, at the request 164 INNKEEPERS. of the innhokler lodges there and his goods be stolen, &c., he shall not have an action; for the writ is, ad hospitandos homines, &c, trans- cuntes in cisdem hospitantes, &c. 3. The words are eorum bona et catalla infra hospitia ilia existentia, &c. So that the innhokler, 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 was 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 ab hostle ; and hospitator, which is used in writs for an innholder, is derived ab hospitio, and hospcs est quasi hospitium petcns. 4. The words are, ita quod pro defectu hospitator', seu servientium suorum, &c, hospitibus hujusmodi damn' non eveniat, &c, 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 chamlx r 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 words, 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 catal' infra hospitia ilia existentia absque subtractions custodire, (fee, which words (bona 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 subtractione scu amissione, extend to all moveable goods, although of them felony cannot be committed; for the words are not absque felonica captione, &c, but absque subtrac- 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. Monmouth 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 INNKEEPERS. 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 himself 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 sufficient 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. Mon. (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 1GS INNKEEPERS. 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 h\ 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 keeper, and liable as such, though he have no provision for horses. It is not necessary that he should have ;t sign indicating that he is an inn- keeper, but it must be his business to entertain travellers and passengi His duty extends chiefly to the entertaining and harbouring of travel!* etc., and therefore, if one who keep- 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 a 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 sufficient 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 travelling 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 profi and ordinary business was that of the keeper of a coffee-hoiw 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 INNKEEPERS. 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. Miller, 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 wen- 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 du t y might at any time have called him away to some distant ami 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 will 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 family 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. r. Proctor, 7 Cush. 417 [232] ; Norcross v. Norcross, 53 Me. L69 ; Walling c. 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 f|ii< 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 w T as 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. Thi< 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 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 already 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 v. Robinson, 26 Vt. 316; see, also, Parker v. Flint, 12 Mod. 255.) These cases 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 v. 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. 1 i 5 the referee refused to find that there was any substantial contract tor 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 every innkeeper sufficiently 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 affirmed. Ruger, Ch. J., Rapallo and Danforth, JJ., 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 reom 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 1/. 15s., 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 not 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 causa 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 busine 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 recei 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 In- 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 v. Mellor, 5 T. R. 273. Our decision does not touch the point which would have arisen if the place to which the plaintiff 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 ; 6L.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 buildings, 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 bis guests and the general public as desired to enjoy the pleasure and 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 public 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 t. Wellborn, 7 Ga. 296, 304 t scq.; 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. 17! I 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, 2S 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 establi ment, who receives the apparel or valuables of a bather for safe-k< while the customeris bathing, and receives a consideration for this and | use of the bathroom or dressing room and accessories to t lie bath, beii 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. Judgvu nl rt rrr.su/. PULLMAN 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 SI 180, 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, via the Milwaukee and St. Paul Railway, to Chicago, thence to St. Louis over the Alton and St. Louis Railway, for which he paid S15.25. 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 rune 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 which 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 a!one,,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 fons 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 collusion, 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 GUESTS PERSONAL SAFETY. 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 broughl this action to recover damages sustained by her in consequence of the sickness caused by said disease. She alleged in her petition thai 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 she went to the house, one of the guests was lying sick in a room in the house, and his disease proved to be the small- pox. He was examined by the physician the day before plaintiff ar- rived at the hotel, and there was evidence tending to prove that the physician then pronounced the disease small-pox, and informed defend- ants that that was its character. There is a conflict in the evidence, it is true, as to the time when defendants 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 circum- 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 DUTY 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 favour 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 boi ea 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 all 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 PERSONAL SAFETY. ] S7 articles which the child could have injured or carried away, or thai had made any movement in that direction. All this is mere surnii 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 tin- time in the discharge of any duty for and in behalf of the defendant 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, 200 [1631; Sandys v. Flor- ence, 47 L. J. C. P. L. 598; Weeks v. McNulty, 101 Tenn. 499, 4S S. W. 809, 43 L. R. A. 185, 70 Am. St. Rep. G93 ; Curtis v. Dinneen, [4 Dak. 245] 30 N. W. 148, 153 ; Sheffer v. Willoughby, 163 111. 5 1 8, 52 1 . 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 hac 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 would 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 employes 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 all 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 case 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 arc liable for the negligent or wilful acts of their servants to whom they entrusl 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 innkeeper 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 an 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 contract s. In the former, the carrier takes and the passenger surrenders to him the control and dominion of his person, and the chief, nay, practically tin- only, occupation of both parties is the performance of the contract ol 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 snl.tnits 190 INNKEEPERS. 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 PERSONAL 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 X. Y 117 1^6 127, 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 car, was within the scope of his employment to carry the passenger safely when he committed the assault. In Goddard v. 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. v. 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 r.Waldron (Ind. Sup.), 34 X. 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 train-, 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- 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 Vable 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 their 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 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." It is also called to the opinion of Judge Story, of the same tenor, in Jencks v. 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 GUESTS PERSONAL SAFETY. l'.Cj 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 eitl 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 v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257, applies in all 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 shall 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 1 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 PERSONAL SAFETY. 195 in the case at bar, and that the question was whether or not the inn- keeper's obligation included a contract of safe-keeping. If it did, the cause of action survived, and the action could be maintained ; otherwi it could 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 injuries 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 dut}', however, the law imposes. It is a public 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 tin- defendant's servant in her hotel, was not inflicted while the servant was acting within the actual or apparent scope of his employ nun t. 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 INNKEEPERS. 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, holding, 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 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, 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 GUESTS 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] 3 ! X. E. 506, 510, 24 L. R. A. 483, 41 Am. St. Rep. 440, the Supreme ' ourt of Indiana remarked : — "But common carriers, innkeepers, merchants, managers of theati 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 condui and it is probably true that the innkeeper would not be responsible 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. Hut in my opinion the law casts on the innkeeper an obligation to see to il thai 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 r. 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 v. 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, like a carrier, is engaged in a quasi-public 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. 1(>, p. 528, ami eases 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 t<> 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 ca above cited (7 Mete. 596, 601) it is his common-law duty to exerci 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 ami 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 FOR 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. Per 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 plaintiff 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. (Galye's Case, 8 Co. 32 [163] ; Bennet 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 his 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 INNKEEPERS. 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 he 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 r. 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 FOR GUEST'S PROPERTY. 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 hi 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 prevented 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 tRe 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 proper 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, whet her even 204 INNKEEPERS. common carriers were liable, without any 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 barn. 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, 26G, 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 clown 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 PROPERTY. 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, bul 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 ;t 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 bv 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 i- 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, 1 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 prima 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 ihr ancient common-law liability of innkeepers, as set forth in the writ, taken from the Rerjistrum Brevium, and found also in Fitzherbert's X. B., 94 1!. 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 come in any manner to such guests." It is, perhaps, scarcely necessary to pursue this subject farther. It 1 This case was, however, doubted and distinguished in Morgan v. Ravey, 6 II. & N. 265 (Exch. 1861). 20C INNKEEPERS. 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. Perley, 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 GUESTS PROPERTY. 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, however, to be taken with the qualification that the lo 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 v. 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. Metcalf 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. 2-, 31. On the other hand, there are numerous authorities, direct and str to the point that the innkeeper cannot discharge hims< If by slur 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, places 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 Ellenborough 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 defect u 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. 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 1» 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 statutum materia daretur cumfuribus adversus cos, quos redpiunt, coeundi." Amistead v. White, 6 Law & Eq. .3-19, was an action against an inn- keeper, and the judge charged the jury that if the owner of the - 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 ». White. In Mason v. 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 substraction or loss, night and day, ita quod pro defectu hujus modi hospitatorum sed sermentium 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 GUESTS PROPERTY. 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 happ< byhisactual 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," ike, "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.Pl. 271, 272. And in the ancient form of declaring against a common carrier the custom of the realm is alleged to be that " absque substractione, amission*, sen spoliatione, portare tenmtur, ita quod pro defectu dictorum communium portatorum, scu servientium suorum hujus modi bona et catalla, eis sic ut prefertur deliberata, non suit perdita, amissa, seu spoliata" ; and in assigning the breach it was alleged that "pro defectu bonae custodiae ipsius defendentis et servientium suorum 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 p. 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. Thb rule is maintained in Burgess v. 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 v. 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 liability 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. 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 v. 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 verdict. HULETT v. 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 affirmed, 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 common 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 GUEST'S PROPERTY. 213 secure and convenient intercourse between different portions of tin- kingdom. The safeguards, of which the law gave assurance to tin- wayfarer, were akin to those which invested each English home with the legal security of a castle. The traveller was peculiarly 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 v at liberty to fix his own compensation, and enforce summary payment. His lien, then as now, fastened upon the goods of his guest from I 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 w r ouId of necessity he at every possible disadvantage. He w T ould be without the means either of proving guilt 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 gue 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 tin- 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 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. In 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 and 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 b. Many, 21 Wend. 282, 284; Clute v. 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. v. Proctor, 7 Cush. 427 [232] ; Mason v. Thompson, 9 Pick. 280 ; Towson v. Havre de Grace Bank, 6 Harr. & Johns. 47 ; Thickston v. Howard, 8 Blackf . 535, 537 ; Kisten v. 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 GUESTS PROPERTY. 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 tin- part of the innkeeper could absolve him from his common-law obliga- tion for the loss of his guest, unless traceable to one of these exceptional causes. (Shaw v. Berry, 31 Maine, 478; Sibley v. Aldrich, 33 X. 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 findings 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 affirmed, with costs. All the judges concurred in the opinion of Porter, 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 i\ 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 FOR GUEST'S PROPERTY. them from thieves and burglars. If the horses of the plaintiff had bi stolen from the barn of the defendant and his liability depended upon the existence of negligence on his part, on proof that the doors w< 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 qu 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 bv an incendiarv. 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 barn was also caused by an incendiary. The proof offered was not merely of facts tending to establish a | 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 a place in the village on the same night, it would have had a direel and 218 INNKEEPERS. material bearing upon the question as to the character of the fire which destroyed the barn. This is not the case of the trial of a person charged with the crime of arson in burning the barn. If, on such a trial, it was sought to show, as an independent and disconnected fact, that the prisoner on the same night attempted to burn another building in the same village, it would be inadmissible under the general rule that on the trial of a prisoner for one crime, proof cannot be given that he had committed another. There are some well-known exceptions to this rule when the object is- to show the quo animo, as to the transaction on trial. But in investi- gating in a civil suit a question depending solely upon circumstantial evidence, it would, I think, be holding too strict a rule to refuse evidence such as was offered in this case, which is connected with the principal fact by circumstances which naturally tend to establish it. There is no fixed and definite rule by which it can be determined whether a collateral fact is so remote as to be inadmissible to support the principal fact sought to be established. The question must, to a considerable extent, be decided in each case, on its own circumstances, and we are of opinion that the proof offered, to which we have referred, ought to have been admitted. The judgment should be reversed and a new trial ordered. All concur. Judgment reversed. JOHNSON v. CHADBORN FINANCE CO. 89 Minn. 310 ; 94 N. W. R. 874 ; 99 Am. St. R. 571. 1903. Action in the district court for Hennepin county to recover $1335 for the loss of personal baggage and property destroyed by fire while plaintiff was a guest at defendant's hotel. The case was tried before Pond, J., and a jury, which rendered a verdict in favour of defendant. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Reversed, and new trial granted. Collins, J. The defendant in this action, a corporation, was the proprietor of what was known as the "Hotel Vendome," in the city of Minneapolis. The plaintiff and his wife, residents of Morris, in this state, while on their way to Florida, stopped for a few days at the Ven- dome, making preparations for their journey. They were undoubtedly transients, and were in this building when a fire occurred, February 7, 1902. They lost a quantity of personal property, such as wearing apparel and ornaments, and brought this action to recover the value of the same. There was a general verdict for defendant, and the jury also answered LIABILITY FOR GUESTS PROPERTY. 219 three questions submitted to them by the court. By these ansv. they found that the defendant was not guilty of negligence by reason of its failure to remove or cause to be removed the plaintiff's property from the building at the time of the fire. They also found that the plaintiff was not guilty of negligence contributing to the loss by reason of his failure to remove the goods from his room, while the third answer related to the value of the goods. Thereafter the plaintiff, upon a settled case, made a motion for judgment notwithstanding the verdict, or for a new trial. This motion being denied, plaintiff appealed. The complaint alleged that the defendant was a hotel or inn keeper, and also that the goods were lost through its negligence. The answer denied that the establishment in question was a hotel or inn, and thereby the burden of proof was cast upon the plaintiff to show, by competent testimony, that the defendant was such a proprietor, as alleged in the complaint. Upon the testimony the court below charged the jury that the establishment was not a hotel or an inn, within the meaning of the law, and that the defendant was not a hotel or an inn keeper. The view taken by the trial court seems to have been that the establishment was shown to be nothing but a lodging house, and then the rule was applied governing common lodging-house keepers — in effect, that the plaintiff could not recover unless the defendant failed to exercise ordinary care at the time of the fire, and was thus guilty of negligence by reason of which the goods were lost. In instructing the jury upon the subject of defendant's negligence, the trial court also charged that the burden of proof was upon the plaintiff to show that the defendant was negli- gent. 1. The first question which we wish to consider grows out of the fact that the court charged the jury that the building in question was not a hotel or an inn, and that the defendant was not a hotel or an inn keeper. The facts in relation to the character of the establishment were undisputed. The building was originally fitted up for offices in the upper stories, with stores upon the ground floor. One of these stores had been used as a restaurant, the proprietors being Regan Bros. The defendant finally converted the upper stories of the building into first- class sleeping apartments. The office was upon the ground floor in one of the storerooms before mentioned. The business was conducted, concededly, as is the business in any large, first-class hotel, except that the defendant itself did not furnish meals for the guests. It had no dining room or cafe. A door opened from the general entrance or hall- way into the restaurant or cafe before mentioned, but the defendant had nothing to do with the management or operation of the cafe. The establishment did not come within the definition someti; given to the term "hotel" or "inn," and yet it answered the descrip- tion of Petersdorff, who, in his Abridgment, says that an inn is a house for the reception and entertainment of all comers for gain. That the Vendome received and entertained all comers, to the extent of supply- 220 INNKEEPERS. ing them with rooms, for compensation, is not disputed. Justice Best describes an inn as a house, the owner of which holds out that he will receive all travellers and sojourners who are willing to pay a price ade- quate to the sort of accommodation provided, and who come in a state in which they are fit to be received. Other writers have defined an inn as a house where a traveller is furnished with everything he has occasion for while on his way, and that in an inn there must be provi- sion for the essential needs of a traveller upon his journey — lodging as well as food. An inn has often been defined as a place for the lodging and entertainment of travellers and passengers, their horses and attend- ants, for a reasonable compensation. There is no doubt that circum- stances and changes in modes of life and innovations in methods of travelling have very much affected and qualified the character of hotels and inns, and consequently the definitions thereof, of fifty years ago. At that time an inn was a house where the entertainment was for both man and beast — ■ for one quite as much as for the other. In these days very few people travel with horses, and the old hostelries have almost entirely disappeared. Few hotel keepers in the state, in places of any size, have barns of their own in connection with their hotels. With these changes in the ways of the travelling public, and innova- tions in hotel keeping, the definitions which have heretofore prevailed must also be changed and modified. In many cities all of the first-class places for entertainment of travellers are conducted upon the European plan solely — the rooms being furnished and rented, and the guests permitted to dine where they please — or are kept upon both European and American plans. Usually there is a cafe owned and operated by the hotel proprietor, but, as stated, in this particular instance there was none. Just what should be held if a case presented itself where there was no cafe or restaurant in connection with such an establish- ment, we are not prepared to say ; but here there was a cafe in the building — access thereto being afforded from the office and sleeping apartments without going out of doors — and it was shown by the testi- mony that on the letter-heads furnished by the defendant to the guests of its house it was stated that there was a "first-class cafe in connec- tion ; popular prices." And it is not disputed that the Regan Bros.' cafe was referred to in this advertisement. The building itself was a hotel, according to large signs upon the outside thereof — three or more in number — announcing it as the "Hotel Venome" and as an "Euro- pean Hotel." It also appeared from the proofs that the defendant had availed itself of the innkeepers' law (G. S. 1894, § 7997, et seq.), by post- ing notices in each room, whereby the proprietor attempted to restrict its liability to the occupants of the rooms in case of loss of property. If the establishment was not a hotel or inn, it was masquerading as one ; and we are of the opinion that its proprietor would have promptly resented a charge made, before the fire, that it was nothing but a lodg-, imr-house. LIABILITY FOR GUESTS PROPERTY. 221 Upon the ground of public policy, we think it must be held that where the proprietor of such an establishment as this was advertises and represents to his guests that he is keeping a hotel or inn — a public place for the entertainment of transient guests — by means of signs upon the outside of the building, posts notices in the rooms as an inn- keeper, and advertises and represents that there is a cafe" in connectioD with his sleeping apartments, thus representing to them that he fur- nishes not only rooms, but meals, he must be bound thereby, and cannot avoid his duties and responsibilities as a hotel or an inn keeper by simply showing that the cafe in the same building is owned and operated In- other persons, and that he has no hand or voice in its management. 2. The second question in this case, of importance, is as to the extent of an innkeeper's liability. That he has been held to a very stringent, unyielding rule in this respect is manifest from an examination of the cases. The policy of the law has been to render him liable to the same extent as a common carrier of goods for hire, although there has been much doubt expressed as to this extraordinary responsibility in some cases. That the law requires of him extraordinary diligence in many respects — such as the care of his guests' baggage or other property which has been confided to his actual custody — there can be no doubt. In the case of Lusk v. Belote, 22 Minn. 468, the common-law rule was adopted, and it was held that a landlord is responsible for the loss in his inn of the goods of a traveller who is his guest, except when such loss arises from the negligence of the guest, or the act of God or of the public enemy. There the guest's goods had been stolen from his room. It must be admitted that there has been a strong indisposition upon the part of courts to admit of any relaxation, just or unjust, of this rule, and it has been applied to all classes of public hotels. In Edwards on Bailments, § 462, it is stated as a reason for so stringent a rule that it was established in a period when theft and robbery were quite fre- quent, and innkeepers were thought to have many opportunities, and some temptations, to combine and connive with ruffians and others in the plunder of strangers, and that it has been continued in more modern times on the grounds of public utility and convenience. In two cases the reason for the continuance of such a doctrine has been discussed with great vigour, and, under the circumstances there appearing, not improperly. Hulett v. Swift, 33 N. Y. 571 [212] ; Wilkins v. Earle, 44 N. Y. 172 [237]. But the fact is that, in nearly all of the cases supporting the doctrine of absolute liability, unexplained thefts or losses of property were involved. No distinction was made between goods stolen, and goods destroyed by fire for which the landlord was in no manner responsible. That there might be a well-defined distinction does not seem to have been thought of. But it must be admitted that the logical consequence of the strict rule is that no discrimination can be made between losses arising trom thefts by other guests, or by servants, and those which result from such 222 INNKEEPERS. an entirely distinct cause as an accidental fire. However, in a number of states there has been a departure, and there has been adopted what is called the "rule of prima facie liability," and there are also decisions in England to the same effect. The doctrine is thus stated in 16 Am. & Eng. Enc. (2d ed.) 536 : " An innkeeper is prima facie liable for the loss of goods in his charge, but may discharge himself by showing that it happened by irresistible forces, though not the act of God or a public enemy, or by inevitable accident, or otherwise, without fault or negli- gence on his part" ; a number of cases being cited in support thereof. Cutler v. Bonney, 30 Mich. 259, and Merritt v. Claghorn, 23 Vt. 177 [202], are very strong opinions in support of this rule, and in them the subject is discussed with much force and ability. Vance v. Throck- morton, 5 Bush (Ky.) 41, is also a strong case in support of this view. See also cases cited in note to 16 Am. & Eng. Enc. (2d ed.) 538. Conceding that the rigorous rule before stated was just and neces- sary in its day, there never was any reason or foundation for it in cases where the loss was occasioned by an accidental fire, for which the landlord was not responsible, and when no negligence in connec- tion therewith could be attributed to him. In the present case the fire originated upon premises not occupied by the defendant, and over which it had no control, although in the same building. From the record, it does not appear that the fire spread into that part of the building occupied by the defendant through its negligence ; and, as before stated, the jury found, in answer to a special question, that the defendant was not negligent in an}' manner which contributed to the loss. With these conflicting rules in respect to the liability of the proprietor of a hotel or inn, we are justified in stating one to govern this case which is more just and sensible than the common-law doctrine, before referred to ; but we are not quite willing to go to the extent that some of the courts have, and absolve the landlord from all liability in case of loss through thefts if he can show that they were unavoidable accidents, or were otherwise committed without fault or negligence on his part. We do not think that the landlord of a public hotel or inn should in every case of loss be held responsible to the same extent as a common carrier, and that under some circumstances they do not stand upon precisely the same footing. Public policy does not require it, nor is such a doctrine reasonable. W r e therefore adopt what is known as the "rule of prima facie lia- bility." All losses of property incurred by guests at a public hotel or inn by fire are prima facie due to the negligence of the proprietor, but he may discharge or relieve himself from liability by showing that the loss happened by an irresistible force or unavoidable accident, such as a fire originating upon premises over which he had no control, with- out fault or negligence on his part. This doctrine does not infringe upon the common-law rule, which makes him responsible for all thefts from within his house, or unexplained, whether committed by guests, LIABILITY FOR GUEST S PROPERTY. servants, or strangers, upon the general principle that an innkeeper guaranties the good behaviour of all who may be under his roof — par- ticularly his servants. The doctrine which we adopt, and which musl control this case, is that an action cannot be maintained against a hotel or inn keeper by a guest to recover for property lost by fire which v. occasioned by unavoidable casualty or superior force, and without am negligence on the part of the innkeeper or his servants. A landlord i- not liable for a loss by fire happening through a cause beyond his con- trol. He must be reasonably diligent under the circumstances known to exist after the fire breaks out, but it is not necessary that he should be extremely vigilant or cautious. This rule is more in accordance with our views of justice, and will, we believe, commend itself to all. As before stated, the jury found that there was no negligence on the part of either plaintiff or defendant. If this cause had been properly submitted to the jury, and the jury had been instructed along the lines herein indicated, judgment could prop- erly have been ordered for the defendant, but such was not the case. The trial court was in error not only as to the nature of the establish- ment kept by the defendant, but it also charged that the burden of proof was upon the plaintiff to show that the defendant was negligent. Such is not the rule, under the doctrine of prima facie liability, herein indorsed. 3. The question of the extent of defendant's liability (that is, for what goods the plaintiff may recover) is not before us. It does not seem to have been in controversy in the court below, for, without objection, the jury was permitted to find the value of all the goods lost by plain- tiff. By not discussing this question we do not want to be understood as indorsing this view. That question can be considered after it has been passed upon by the court below. Order reversed and new trial granted. FAY v. PACIFIC IMPROVEMENT CO. 93 Cal. 253; 28 Pac. R. 943; 16 L. R. A. 188; 27 Am. St. R. 198. 1891. The Court. Upon further consideration of this cause, after hearing in Bank, we are satisfied with the conclusion reached in Department, and with the opinion there rendered, and for the reasons stated in said opinion, the judgment and order appealed from are affirmed. Beatty, C. J., and Paterson, J., dissented. The following is the opinion of Department Two, above referred to, rendered on the 23d of June, 1891 : — De Haven, J. The plaintiff recovered judgment against the de- fendant for damages occasioned by the loss of her jewellery, wearing 224 INNKEEPERS. apparel, and other articles of personal property needed for her personal use consumed by fire at the burning of the Hotel Del Monte, April 1st, 1887, of which the defendant was at that time the proprietor. The court below found that the Hotel Del Monte was, at the date named, a public inn, and that plaintiff was a guest therein. On this appeal, the defendant claims that the evidence does not sustain these findings ; and also that the burning of the hotel was an irresistible super- human cause, for which it is not liable, and that it is not, in any event, liable for plaintiff's diamonds and other jewellery, because not deposited in defendant's safe. 1 . An inn is a house which is held out to the public as a place where all transient persons who come will be received and entertained as guests for compensation, — a hotel. In Wintermute v. Clark, 5 Sand. 247, an inn is defined as a public house of entertainment for all who choose to visit it, and this definition was quoted with approval by this court in Pinkerton v. Woodward, 33 Cal. 596. The fact that the house is open for the public, that those who patronise it come to it upon the invitation which is extended to the general public, and without any previous agreement for accommodation or agreement as to the duration of their stay, marks the important distinction between a hotel or inn and a boarding-house. This difference is thus stated in Schouler on Bailments : " An inn is a house where a keeper holds himself out as ready to receive all who may choose to resort thither and pay an ade- quate price for the entertainment; while the keeper of a boarding- house reserves the choice of comers and the terms of accommodation, contracting specially with each customer, and most commonly arrang- ing for long periods and a definite abode." (Schouler on Bailments, 253.) We think the evidence in this case is full and complete to the point that the Hotel Del Monte was a public inn. It not only had a name indicating its character as such, but it was also shown that it was open to all persons who have a right to demand entertainment at a public house ; that it solicited public patronage by advertising and in the dis- tribution of its business cards, and kept a public register in which its guests entered their names upon arrival and before they were assigned rooms ; that the hotel, at its own expense, ran a coach to the railroad station for the purpose of conveying its patrons to and from the hotel ; that it had its manager, clerks, waiters, and in its interior management all the ordinary arrangements and appearances of a hotel, and the prices charged were for board and lodging. These facts were certainly sufficient to justify the court in finding, as it did, that the appellant was an innkeeper. (Krohn v. Sweeney, 2 Daly, 200.) Nor was the force of this evidence in any wise modified by the fact that the hotel was not immediately upon a highway, or that the grounds upon which it stood were enclosed and the gates closed at night. The location of the hotel, the extent of the grounds surrounding it, and the manner in LIABILITY FOR GUESt's PROPERTY — — •> which these grounds were improved, and reserved for the exclu i and enjoyment of those who patronised it, doubtless made the hotel more attractive to those who chose to make a transient resort of it I did not convert it into a mere boarding-house. A hotel is none the les one because in some respects it may be conducted differently or hi more attractions than other public hotels, so long as it is held out to the public as a place for the entertainment of all transient persons who may have occasion to patronize it. "Modes of entertainment alter with the fashion of the aye, and to preserve a clear definition is not easy. It is not wayfarers alone, or travellers from a distance, that at the present day give character to an inn, the point being rather that people resort to the house habitually, no matter whence corning or whither going, as for transient lodging and entertainment." (Schouler on Bailments, 249.) 2. The evidence shows that the plaintiff was a guest, and not a boarder. The fact that upon her arrival, and before being assigned to her room, she ascertained what she would have to pay for the room and board is not sufficient of itself to show that she was not received as a guest. (Pinkerton v. Woodward, 33 Cal. 597; Hancock v. Rand, 94 X. V. 1, 46 Am. Rep. 112 [170]; Jalie v. Cardinal, 35 Wis. 118 [228]; Hal! v. Pike, 100 Mass. 495; Berkshire Woollen Co. v. Proctor, 7 Cush 417 [232].) The Del Monte being a public hotel, in the absence of evidence show- ing the plaintiff went there as a boarder, the presumption would be that she went there as a guest. (Hall v. Pike, 100 Mass. 495.) Not only does the evidence fail to overthrow this presumption, but the testi- mony of the plaintiff shows that she was there as a mere temporary so- journer, without any agreement as to the time she should stay, and with only the intention on her part of resting a week or two, and then pro- ceeding to the East. She obtained no reduction of price in considera- tion of an agreement to remain a definite time, or as a boarder ; nor was there anything said from which it could be inferred that there was any understanding between her and the defendant that she was to be received as a boarder, and not as a guest. 3. Under section 1859 of the Civil Code, an innkeeper is liable for the loss of personal property placed by his guests under his care, " un- less occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of some one whom he brought into the inn." In this case, the loss was occasioned by the burning of the hotel, and the origin of the fire is not shown further than that it broke out in one of the rooms in which there was nothing except the batteries which supplied the bells with electricity. Under this state of facts, the de- fendant is liable. (Hulett r. Swift, 33 N. Y. 571, 88 Am. Dec 405 [212].) A fire thus occurring cannot be considered an "irresistible superhuman cause," within the meaning of section 1859 of the Civil 226 INNKEEPERS. Code. The words "irresistible superhuman cause" are equivalent in meaning to the phrase "the act of God," and refer to those natural causes the effects of which cannot be prevented by the exercise of pru- dence, diligence, and care, and the use of those appliances which the situation of the party renders it reasonable that he should employ. (1 Am. & Eng. Ency. of Law, 174.) A loss arising from ah accidental fire is not caused by the act of God, unless the fire was started by light- ning or some superhuman agency. (Miller v. Steam Nav. Co., 10 N. Y. 431 ; Chicago, etc. R. R. Co. v. Sawyer, 69 111. 285, 18 Am. Rep. 613.) 4. The court finds that the property lost was such as was needed for the present personal use of the plaintiff. We cannot say that the evidence does not support this finding. It certainly cannot be said that jewellery worn by a woman daily must, when not actually Upon her per- son, be deposited with the innkeeper, in order to make him responsible for its loss in the inn. If worn daily, it does not cease to be needed for present personal use when its possessor lays it aside upon retiring for the night. Nor is it necessary, in order to render the innkeeper liable, that the property should have been delivered into his exclusive personal possession. " The guest may retain personal custody of his goods within the inn, — as of his trunk and its contents, his wearing apparel, and other articles in his room, and any jewellery or valuables carried or worn about his person, — without discharging the innkeeper from responsibility." (Jalie v. Cardinal, 35 Wis. 126 [228].) We have examined the other points made by appellant, but do not think they call for special discussion. The rule which makes an innkeeper liable for the value of the prop- erty of his guest, in case of its loss by fire, may at first thought be deemed a harsh one ; but the loss must' fall somewhere, and section 1859 of the Civil Code provides upon whom it should properly fall, and the innkeeper's liability in this respect is one of the burdens per- taining to the business in which he is engaged, and in view of which it must be supposed that he regulates his charges. 1 Judgment and order affirmed EPPS v. HINDS. 27 Miss. 657 ; 61 Am. D. 528. 1854. Mr. Justice Fisher delivered the opinion of the court. This was a suit brought by the plaintiff below against the defendant as an innkeeper in the town of Holly Springs, to recover the amount of 1 But by amendment to sec. 1859 of the Civil Code, in 1895, the liability of inn- keepers was reduced to that of depositary for hire. LIABILITY FOR GUEST'S PROPERTY. money alleged to have been stolen from the son of the plaintiff, while a guest of the defendant in September, 1850. The son's trunk was, at his request, taken at night, on retiring to bed, to his room. After arriving at the room he proves that he put the money which had been furnished to pay his travelling and collegiate expenses by his father in the trunk ; that after retiring to bed, a stranger was brought into the room, and placed in another bed; that this stranger left very early next morning; that the son, after getting up next morning, discovered that his trunk had been, during the night, broken open, and his money, amounting to the sum of $185, stolen. These are the important facts in the case, and are, in our opinion, sufficient to sustain the verdict found by the jury for the plaintiff. It is, however, said that the money belonged to the son and not to the father, and that the suit should therefore have been brought in the name of the former. The son was merely invested with a discretion as to the expenditure of the money. It was the means provided by the father for the son's support while travelling and attending college, and the loss necessarily fell upon the party who was bound to furnish other means for the same purpose. . The next objection is, that the fact of the son's ordering his trunk to be taken to his bedroom, exonerates the innkeeper from liability for a theft committed in the room. The rule is directly the reverse, and so stated and recognized by the authorities referred to by the counsel for the plaintiff in error. The son by such act only conformed to a general custom, and the innkeeper could only relieve himself by showing that he was to be responsible for the trunk and what might be put in it, when left at a particular place. Prima facie his responsibility for the property of his guests extends to every part of his house into which it is usual for such property to be taken. This is the general rule, which can only be limited by the innkeeper showing that there was a different understanding between him and his guest, in regard to the property of the latter. Judgment affirmed. WEISENGER v. TAYLOR. 1 Bush (Ky.) 275; 89 Am. D. 626. 1867. Judge Robertson delivered the opinion of the court : — The appellant, Henry Weisenger, sued the appellees, J. M. & G. H. Taylor, for $90, stolen from a room occupied by him while a guest in their public inn; charging that the loss resulted from their culpable negligence. The circuit court sustained a demurrer to the petition, and, on fail- ure to amend, dismissed it. The common, like the civil law, but even more stringent, exacl 228 INNKEEPERS. 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 alio- LIABILITY FOR GUEST 8 PROPERTY. 229 gation of partnership, but admitted that at the time plaintiff is alh 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 omitted.] 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 <»r 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 max seen., 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 INNKEEPERS. 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 guest 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 law 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 fir-t 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 l:.'.—l:tt roi. ; r.-: - • • ■ exit. -.j-'- . •: - j J '•■:•-.": • ;•■ :.be weeJk :~_; v • ?■: r.r plait.:;- :'::•. .•:.*•„--* -•:... -.v ::.-•: ti-it J -. >"-■"- -" ' ■-- * -■" --" i as ^ v -."'..'•• .. " la tr*r. elJe: keeps - r_ •:•-:.. ai. i t: •: re.it ■ . - " -" " ■■ ' - ■•-" "> t.: a . :- nxr! .•• i- : i' . : •:•- - Ins't.ainJy est.a' .-: •.•:. '.•tmeeij tLt-m. Neither tht !•:-• r:.i : " "..-: : Lit a maauco re nnauQ&s aft ami " : : * .. ■ .._•••■ • • : •.•- ;: .^ make as itio tdbe pruoe : :•:"..•• *"."_ '.•:•: ;• "i-" .' ~?~~ ->'i.v tie: ".:.-.■ i-..:.:." "•'...- ^ '• '.. - •' ..'■•:, :. .. j - •-". Hi..: i. ::• :••• rer_ -.••-: ' >ee: -*-:■..*•■ "■• : "J '.:.-. art .em n .•: tbt - • - - i,od gnestt existed ibelrweeim tthen: , m : > "en _•-,.-.-. _•: }-".... v •: ■ _rt :■•:"'"->•:■: i. reoues: .' v.-.: kind il would doul :- 7"- •; :••;• '-• •_•:--: wL : '•. was kna ad was .:. (tfcuese wcxr .- : ■ _..-;■■ ■_.' f " : :'" ::. \ht e^-demoe, ::...* "'.r ::;.".•;• :.". . : " :••"'.■ id •■-. ■..-." ' •■ plawrt iffl tA Idbfi : '.::.•: - J Affiliass, it3w Mt^Ddant; art : 1 liable-" Itr wffll be ©8. .jenaienal prJiE)d|ale- made, t&a* : ,(m ;■..-:•:;•■ :* •. - ;■■■*"" ■- Ti "--- ~ ".-"..v " :.•-■ --'•• -•>;'■'■ urJcs; uuaaa "..i, r. :>•;•. \. ..* . " ' - :.-'..". -- aftter naoitioe ffinwnm ttjbe npnnVf--. 4.-. • :"•_..-. ':.-. - .. . v :•-'■•-:•:--' ej 1 ts Joss unl ess depoe-::. -~ i«eTS :. iSd mol e-xTusK iht ■.■'■ - . , - : - -- ' It is Ek-e ■;«teBB(d- r.e.^'. :v".:'v : ~. iJ'.e :•.."" " "'.^ : -- : -" ~ ttal be ca-r:.: dot t.o r-i ■ •- cowml, and ttbaf tie supposed that «oc - "-gliseii "■ ae par .-.-:.-. i '•,-;• ;•.-.*_ ' _t -- :. »■ ><:'.: -■. tj sit a waDt 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 Falstaff, 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 affirmed. BERKSHIRE WOOLLEN CO. v. PROCTOR. 7 Cush. (Mass.) 417. 1851. Fletcher, 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. 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 monej had I. ecu taken from the trunk. He immediately gave notice to the defendant 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 defendai 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 thin- 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' exception But the court ruled that it was competent for the defendants to pi 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 LIABILITY FOR GUEST'S PROPERTY. 235 with an innkeeper there, for board at his inn, he is a hoarder, 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 defendant-, 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 gu< 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 plaint ill, 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 Cush. 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 amount 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 Cush. 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. 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 the 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. Whi 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, Coin- 592 to 594; Story on Bailm., §§ 478, 481 ; Sneider v. 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. G55. 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 INNKEEPERS. city of New York, on the evening of the 20th of April, 18G3. 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 FOR GUEST'S PROPERTY. 239 sible only to the extent of a reasonable sum for the travelling expen of the plaintiff. This sum, the jury in response to a special inquiry by the judge at the trial, fixed as the sum of $1000. Our principal duty to determine which of these rules is the correct one. Whether the defendants were bound to receive on deposit so large a sum, is not in question. They did receive it, and deposited it in their safe, in pursuance of their notice, and the statute by which it was authorized. Whether the label upon the same was a sufficient com- pliance with their notice, is not before us. The statute makes no men- tion of a label, and nothing can be more vague than this term a> used in their notice. The most general idea of a label is not of a sepan strip of paper or parchment, but a written description of the article upon which it is placed or made, as to its ownership, or character, or quality or extent. The name of Mr. Wilkins was a label. It indi- cated the ownership. The sum of $20,000, if written upon the envelope, would have been a label. It indicated the value of the parcel. A simple indorsement of the word money, or valuables, would have been a label. If the defendants deemed a label important, and wished to raise a ques- tion of law upon the sufficiency of the label on this package, they should have made a specific point upon it at the trial, and asked for a ruling there. This they did not do, and the question cannot be made in this court. The liability of an innkeeper for the goods of his guest, has been settled for centuries. The act of 1855 does not purport to create it nor even to declare it. It assumes the liability. It enacts that when- ever the proprietors of an hotel, shall provide a safe in their office for the keeping of money, jewels, or ornaments, belonging to their guests, and shall notify their guests thereof, and a guest shall neglect to deposit his money, jewels or ornaments therein, the proprietor shall not be liable for any loss of the same by his guest. This act assumes that before its passage, the innkeeper was liable for the loss of the money, jewels, or ornaments of his guest. It assumes that he still remains liable, if a deposit is made by the guest of his money or jewels, according to the terms of the act. It neither enlarges or restricts the liability. It leaves it as the common-law fixed it, with the condition as to money and jewels, that if a particular notice is given by the innkeeper, the liability shall not attach unless such money and jewels are deposited in the office safe. In the present case this notice was given and the condition was complied with. The liability stands therefore as the common-law fixed it. In support of a rule, which in its general terms is conceded by all, it is not necessary to cite authorities. I will hereafter refer to some of those, which in their facts bear upon the point now in consideration. Is there any basis in principle or in the authorities for the distinction made by the defendant, to wit, that an innkeeper is Liable only for such an amount of money as is necessary for the reasonable expens< 240 INNKEEPERS. of the guest ? This distinction is sought to be maintained upon the analogy to the case of a carrier of passengers, who is liable only for money or articles convenient to the traveller on his journey, and not for goods or merchandise as such. I will cite a few among the many cases reported in the English courts, as well as in those of this State, to show that this distinction cannot be maintained. I think it will appear that the innkeeper is liable to the guest for the value of all his property lost, whether it be intended for his personal convenience, or for traffic, or for any other general or permanent purpose. The law was correctly laid down by Lord Coke in Calge's [Calye's] case [163], more than 250 years since. (8 Co. Rep. 203, 32a.) That case contains an abstract of the law touching the liabilities of innkeepers. [The opinion is quoted practically in full.] In Bennet v. Mellor (5 T. R. 273) the case was this : The plaintiff's servant had taken a quantity of goods to market to sell. Being unable to dispose of them, he went with them to the defendant's inn, and asked the defendant's wife if he could leave the goods there till the next market day, the week following. She replied that she could not tell, for they were very full of parcels. The servant then sat down, had some liquor and put the goods on the floor immediately behind him. When he got up, after sitting a little while, the goods were missing. A recovery was had, which, upon a rule to show cause before Ashcurt, Buller and Grose, JJ., was sustained. It will be observed that the subject here was merchandise, which the servant had taken to market, and which he wished to store until the next market day. It had none of the quality of baggage or of articles of personal convenience. In Kent v. Shuckard (2 B. & Ad. 803) the head-note is, " An inn- keeper is responsible for money belonging to his guest." The plaintiff and his wife were guests at the defendant's inn. The wife left her reticule, containing money, on her bed. Returning for it in a few minutes, it was gone. The report does not state the amount of the money lost. On the trial it was urged, on behalf of the innkeeper, that he was responsible for goods and chattels only, and not for money. The jury found a verdict for the plaintiff ; and on a motion before Lord Chief Justice Tenterden and Justices Parke, Taunton and Patteson, the same point was taken. Andrews, sergeant, urged, that while inn- keepers are liable for goods and chattels, " there is no authority to show that they are so for money. If they be, there will be no limit to their responsibility. An innkeeper cannot know or form any judgment of the amount of money a guest may have." The court sustained the verdict, holding the innkeeper responsible for the money. In Jones v. Tyler (1 Ad. & Ellis) the horse and gig of the guest were taken in charge by the defendant's hostler, who placed the gig in the open street. The gig having been stolen, the innkeeper was held responsible. Richmond v. Smith (8 B. & Creswell, 9) was a recovery against the LIABILITY FOR GUEST'S PROPERTY. 2 1 1 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. Clut< 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 guesl 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 plaint ill' 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 butter 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 X. Y. K. 57 1 I [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 tin- de- fendant's counsel cannot be maintained. I am not aware of a single reported case wdiich 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 Missouri 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 FOR GUEST S PROPERTY. 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 In- liable for the losses of their guests caused by the theft or negligent 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, 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 tin- 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 i wayfarer, but which, at his request, were to be placed on exhibition i 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 REGULATIONS. 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 ari rom 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 agreement of that character. Nor can such an agreement be implied merely from the knowledge on the part of the innkeeper that a gi 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 bagj 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, 1 835. 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. Parker, 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 travellers 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 REGULATIONS. and another excluded, so long as each has the same connection with his guests — the same lawful purpose — comes in a like suitable condi- tion, and with as proper a demeanor; any more than he has the righl to admit one traveller and exclude another, merely because it is his pleasure. If one comes to injure his house, or if his business operates directly as an injury, that may alter the case — but that has not been alleged here. And perhaps there may be cases in which he may have a righl to exclude all but travellers and those who have been sent for by them. It is not necessary to settle that at this time. In the present case it appears that stage coaches brought their pas- sengers to the plaintiff's inn from various quarters, and carried them away in different directions. It is understood that Hanover was not a place where the lines of stages or conveyances terminated, and where passengers were left to seek their own conveyance onward, as is often the case in the larger cities ; but that the line of stages extended through the place in such manner that travellers might reasonably expect con- veyances onward would be tendered for their use. The drivers of some of the coaches were accustomed to resort to the plaintiff's inn, and boarded there. Under these circumstances, we see no objection to the first part of the charge to the jury. The defendant had clearly a right to establish a line of stage coaches, and to go to the plaintiff's inn with travellers, and he might of course lawfully enter it for the purpose of leaving their baggage and receiving his fare. And we are of the opinion that, so long as others were permitted to do the same, the defendant had an equal and lawful right, notwith- standing any prohibition by the plaintiff, to enter the plaintiff's inn for the purpose of tendering his coach for the use of travellers, and solicit- ing them to take passage with him ; and for that purpose to go into the common public rooms of the inn, where guests were usually placed to await the departure of the stages, although he was not requested by such guest; provided there was a reasonable expectation that pas- sengers might be there, and he came at a suitable time, in a proper manner, demeaned himself peaceably, and remained no longer than was necessary, and was doing no injury to the plaintiff. But the jury should have been instructed that the defendant might forfeit this right by his misconduct, so that the plaintiff might require him to depart, and expel him; and if, by reason of several instan. of misconduct, it appeared to be necessary for the protection of his guests or of himself, the plaintiff might prohibit the defendant from entering again, until the ground of apprehension was removed. Thus if affrays or quarrels were caused through his fault, or he was noisy, disturbing the guests in the house — interfered with its due regulation — intruded into the private rooms — remained longer than was nee sary, after being requested to depart — or otherwise abused his right, 248 INNKEEPERS. as by improper importunity to guests to induce them to take passage with him ; the plaintiff would have a right to reform that, and, if neces- sary, to forbid the defendant to enter, and treat him as a trespasser if he disregarded the prohibition. So, if, after a lawful entry of the defendant, he committed an assault upon the plaintiff, or any trespass upon his property ; the plaintiff might treat him as having entered for the unlawful purpose, and as a tres- passer ab initio. 8 Co. (Dub. ed.) 291 ; 10 Johns. 373 ; 12 Johns. 408 ; 11 East, 402; 5 Taunt. 198. Perhaps the trespass upon the person or property of a guest might come within the same rule — but this is not clear, and need not now be settled. If others were guilty of an assault upon the defendant, or of mis- conduct towards him, that would not justify him in making an assault, except in self-defence, nor furnish an excuse for improper conduct on his part ; but if he behaved himself with propriety, the misconduct of the drivers of other lines towards him would furnish no ground for his exclusion, unless it was at the time of a disturbance, and for the pur- pose of restoring quiet to the house. As the jury were not correctly instructed upon these points there must be a New triaL STATE v. STEELE. 106 N. Car. 766; 11 S. E. R. 478; 19 Am. St. R. 573. 1890. [In a prosecution for assault and battery before a Justice of the peace, defendant, the manager of the Battery Park Hotel, was charged with having forcibly «nd wrongfully ejected one Weaver from the hotel premises. The defense was that Weaver was at the time of the alleged ejection, engaged in soliciting business as a livery man from the guests of the hotel, in violation of regulations made by its manage- ment. The defendant, having been convicted in the Justice's Court, appealed to the county Criminal Court, where he was again convicted on a trial before a jury, and from this conviction he now appeals. The exceptions relied on related to instructions in which it was left to the jury to say whether or not the rules and regulations adopted by the Battery Park Hotel were reasonable and proper, and whether other persons engaged in the same business as the prosecutor were permitted by the defendant to go to the hotel for the same purpose for which the prosecutor went there, the jury being told that under such circum- stances it would not matter that the rules of the hotel forbade the prosecutor to enter the premises of the hotel for that purpose.] Avery, J. It was formerly held by the courts of England that where an innkeeper ailured travellers to his tavern by holding himself out to REGULATION'S. 249 the public as ready to entertain them, and then refused to receive them into his house when he had room to accommodate them, and after they had tendered the money to pay their bills, he was liable to indict- ment. But this doctrine, says Bishop, has little practical effect at this time, being rather a relic of the past than a living thing of the present : 1 Bishop on Criminal Law, sec. 532; Rex v. Lewellyn, 12 Mod. Rep. 445. In a dictum in State v. Mathews, 2 Dev. & B. 42 1, this old principle was stated with some qualification, viz., "that all and every one of the citizens have a right to demand entertainment of a public innkeei if they behave themselves and are willing and able to pay for their fare; and as all have a right to go there and be entertained, they are not to be annoyed there by disorder, and if the innkeeper permits it, he is subject to be indicted for a nuisance" : Rommel v. Schambacl 120 Pa. St. 579 [6 Am. St. Rep. 732]. The duty and legal obligation resting upon the landlord is to admit only such guests as demand accom- modation, and he has the right to refuse to allow even travelers who are manifestly so filthy, drunken, or profane as to prove disagreeable to others who are inmates, and thereby to injure the reputation of his house, to enter his inn for food or shelter, though they may be abun- dantly able to pay his charges : 2 Wharton on Criminal Law, sec. 1587 ; Regius v. Rymer, 13 Cox C. C. 378. The right to demand admission to the hotel is confined to persons who sustain the relation of guests, and does not extend to every individual who invades the premises, not in response to the invitation given by the innkeeper to the public, but in order to gratify his curiosity by seeing, or his cupidity by trading with, patrons who are under the protection of the proprietor : Wharton on Criminal Law, sec. 625. The landlord is not only under no obliga- tion to admit but he has the power to prohibit the entrance of any person or class of persons into his house for the purpose of plying his guests with solicitations for patronage in their business ; and especially is this true when the very nature of the business is such that human ex- perience would lead us to expect the competing drummers, in the heat of excitement, not only to trouble the guests by earnest and continued approaches, but by their noise, or even strife. The guest has a positive right to demand of the host such protection as will exempt him from annoyance by persons who intrude upon him, without invitation and without welcome, and subject him to torture by a display of their wares or books, or a recommendation of their nostrums or busini That learned and accomplished jurist Chief Justice Shaw, delivering the opinion in Commonwealth v. Power, 7 Met. 600 [41 Am. Dee. 465], said : "An owner of a steamboat or railroad, in this respect, is in a con- dition 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 comforl of his guests wdio there seek repose as to the peace and quiet of tin 1 vicinity, and to repress and prohibit all disorderly conduct therein; and of 250 INNKEEPERS. course he has a right and is bound to exclude from his premises all dis- orderly persons and all persons not conforming to regulations neces- sary and proper to secure such quiet and good order. This principle was stated as an established one, and used by the court as an argument to sustain, by analogy, its ruling, announced in a subsequent portion of the opinion, that a railroad company had a right, by its regulations, to exclude from its depot and cars, at any station, persons who visited them for the purpose of soliciting passengers to stop at particular hotels ; and one of the reasons given for holding the regulation rea- sonable was, that where the agents urged the claims of their respective hotels " with earnestness and importunity, it was an annoyance to the passengers." The doctrine is there laid down, too, that persons other than passengers prima facie have the right to enter the depot of a rail- road company, as others besides guests may go into hotels without making themselves trespassers, because, in both instances, there is an implied license given to the public to enter ; but such licenses, in their nature, are revocable, except in one case as to passengers, and in the other as to guests, who have the right to enter the train, ticket-office, or hotel, as the case may be, if they are sober, orderly, and able to pay for transportation or fare. The court went further in that case, and held that in enforcing the reasonable regulation against drummers for hotels at the depot, the servants of the railway company were not guilty of an assault for expelling by force, not excessive, a person who had repeatedly violated the regulation by going upon the platform and soliciting for a hotel, though, on the particular occasion when he was ejected from it he had a ticket and intended to take the train destined for another town, but failed to disclose to such servants the fact that he entered for " another purpose, when it was in his power to do so." Were we to follow the analogy to which the principle laid down in that case would lead, an innkeeper could not only make and enforce a regulation forbidding persons to come on his premises for the purpose of soliciting his guests to patronize the livery-stables that they might represent, but he might, in enforcing the rule against one who had previously violated it after notice that he should not do so, put such person off his premises, without excessive force, though at the particu- lar time the person had entered with the bona fide intent to become a guest at the hotel, but failed to announce his purpose ; or under the same principle, he might expel by force one who becomes a guest and takes advantage of his situation to subject other inmates of the house to the annoyance of drumming for such establishments. The same distinction is drawn between guests and others who enter a hotel intent on business or pleasure, by the courts of Pennsylvania. In Common- wealth v. Michell, 1 Phila. 63, and Commonwealth v. Mitchell, 2 Pars. Cas. 431, it was held that an innkeeper is bound to receive and fur- nish food and lodging for all who enter his hotel as guests and tender him a reasonable price for such accommodations ; but " if an individual REGULATIONS. 251 (other than a guest) enters a public inn, and his presence is disagreeable to the proprietor and his guests, he has a right to request the pel depart, and, in case of refusal, to lay his hands gently upon him and I him out, and if resistance is made, to employ sufficient force to put him out, without incurring liability to indictment for assault and battery." Justice Story, in Jencks v. Coleman, 2 Sum. 244 [891], discussed the doctrine to which we have referred, that the right even of one who pays for his passage on a steamboat or railway is subject not only t<> the limitation that he shall be sober, and shall not be guilty of such nuisance or make such disturbance as shall annoy other passenger whose characters are doubtful, dissolute, suspicious, or unequivocally bad, but to the further restriction that he may be refused admittance, or expelled after he enters the boat or car, if it appear that his object is to interfere with the interests or patronage of the proprietors, or com- pany, so as to make the business less lucrative to them." In the case last cited, the proprietors of the boat Franklin had entered into a contract to run a line of stages between Boston and Provi- dence in connection with the boat, which was running from New York to Providence. The plaintiff, Jencks, had been in the habit of coming on board the boat at Newport to solicit passengers for an opposite line of stages between Providence and Boston, thus interfering with the owners of the boat, and the arrangement made by them for their own profit and advantage with a different line from that represented by said plantiff, just as in the case at bar the proprietors of the hotel had entered into a contract with one Sevier by which they were to re- ceive ten per centum of the amount realized by him for the hire of carriages to the guests of the Battery Park Hotel. Justice Story, too, runs the parallel between the hotel and the boat line just as Chief Jus- tice Shaw did between the inn and the railway company, but with the marked difference that the former goes much further in tracing the anal- ogy that makes the public house subject to some of the same liabilities created, and entitled to the full measure of protection afforded by law to companies engaged in transporting passengers. In discussing the principle, he says: "A case still more strongly in point, and which, in my judgement, 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 distance of a few miles, to decoy the passengers away the moment they arrive at the inn. Is the innkeeper bound to entertain and lodge 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." In the case of Barney v. Oyster Bay, etc. Steamboat Co., t',7 N. Y. 302 [23 Am. Rep. 115], the court of appeals held that a company running a line of steamboats for transporting passengers had a righl to establis in connection with their boats, an agency for the delivery of ba{ 252 INNKEEPERS. the terminus, and that one who had had the contract to transfer such baggage upon similar terms two years before could be expelled and refused as a passenger, if, after notice, he would not discontinue his efforts to induce passengers to employ him in the same capacity rather than an expressman with whom the company had entered into a later agreement, for their own pecuniary interest, to deliver the baggage of its passengers. All of the authorities that we have cited above are collated and approved in Angell on Carriers, sees. 530, 530a, 530b. In the case of Harri3 v. Stevens, 31 Vt. 79 [73 Am. Dec. 337], it was held that when a railway company erected station houses, it impliedly opened the doors of them to every person to enter, but that the license was revocable to all persons except those who had legitimate business there, growing out of the operation of the road, and with the officers and employees of the company, and that the corporation had the right to direct all other persons to leave the depot or ticket-office, and on their refusal to depart, to remove them. It was further held, in the same case, that it was a reasonable regulation to require every one who expected to take the train, and desired to remain in the station house for that purpose, to purchase a ticket, and that the servants of the company would be justified in expelling, without excessive force, one who did not declare his purpose to buy a ticket, and actually buy it within a reasonable time, or one who had bought a ticket, even if he failed to disclose that fact when requested to leave. In the recent case of Old Colony R. R. Co. v. Tripp, 147 Mass. 35 [9 Am. St. Rep. 661] [894] the court laid down the rule in reference to the rights of persons at depots, as follows : " Passengers taking and leaving the cars at the station, and persons setting down passengers or delivering merchandise or baggage for transportation from stations, or taking up passengers or receiving merchandise that had been trans- ported to the station, had a right to the building and grounds, superior to the right of the plaintiff [corporation] to exclusive occupancy." And it is further held to be the correct construction to be placed on a statute passed by the legislature, giving to all persons "equal terms, facilities, and accommodations for the use of its and other buildings and grounds," that it was intended only to govern the relation between the common carrier and its patrons ; and hence that a railroad company, even in the face of such a statute, had a right to contract with an individual to furnish the means to carry incoming passengers, or their baggage and merchandise, from its stations, and might grant to him the exclusive right to solicit the patronage of such passengers. Upon a review of all the authorities accessible to us, and upon the application of well-established principles of law to the admitted facts of this particular case, we are constrained to conclude that there was error in the charge given by the court to the jury. . . . 3. The regulation, if made by an innkeeper, that the proprietors of livery-stables, and their agents or servants, shall not be allowed to enter REGULATIONS. his hotel for the purpose of soliciting patronage for their business from his agents, is a reasonable one, and after notice to desist, a person vio- lating it may be lawfully expelled from his house, if excessive force be not used in ejecting him: Commonwealth v. Power, 7 Met. 600 [41 Am. Dec. 465]; Harris v. Stevens, 31 Vt. 79 [73 Am. Dec. 31 See also Grizwald v. Webb, reported in 41 Alb. L. J. 351, Ft. I., Nov. 1889; Old Colony R. R. Co. v. Tripp, 147 Mass. 35 [9 Am. St Rep.' 661] [894]. 4. An innkeeper has unquestionably the right to establish a news- stand or a barber-shop in his hotel, and to exclude persons who come for the purpose of vending newspapers or books, or of soliciting emplo ment as barbers, and in order to render his business more lucrative, he may establish a laundry or livery-stable in connection with his hotel, or contract with the proprietor of a livery-stable in the vicinity to seci, for the latter, as far as he legitimately can, the patronage of his gue in that line for a per centum of the proceeds or profits derived by sudi owner of vehicles and horses from dealing with the patrons of the public house. After concluding such contract, the innkeeper may make, am! after personal notice to violaters enforce, a rule excluding from I hotel the agents and representatives of other livery-stables who enter to solicit the patronage of his guests; and where one has persisted in visiting the hotel for that purpose, after notice to desist, the proprietor may use sufficient force to expel him if he refuses to leave when re- quested, and may eject him even though on a particular occasion he may have entered for a lawful purpose, if he does not disclose his true intent when requested to leave, or whatever may have been his purpo in entering, if he in fact has engaged in soliciting the patronage of the guests : Barney ». Oyster Bay, etc. Steamboat Co., 67 N. Y. 302 ';.' "> Am. Rep. 115]; Jencks v. Coleman, 2 Sum. 224 [891] ; Harris v. S vens, 31 Vt. 79 [73 Am. Dec. 337] ; Angell on Corporations. 8. The defendant, as manager of the hotel, could make a valid con- tract for a valuable consideration with Sevier to give him the exclusive privilege of remaining in the house and soliciting patronage from the guests in any business that grew out of providing for the comfort or pleasure of the patrons of the house. The proprietors of the public house might legitimately share in the profits of any such incidental business, as furnishing carriages, buggies, or horses to the patrons, and for that purpose had as full right to close their house against one who attempted to injure the business in which they had such interest. a> the owner of a private house would have had, and this view of the ca is consistent with the doctrine enunciated in Markham v. Brown, 8 N. H. 523 [31 Am. Dec. 209] [245]. There was no evidence tending to show that Chambers had actual permission from the proprietors to approach the inmates of the hotel on the subject of patronizing him. nor that they had actual knowledge of the fact that he had continued 254 INNKEEPERS. his solicitations after receiving a similar notice to that sent to the pros- ecutor. The fact that he was overlooked or passively allowed to remain in the hotel (it may be, under the impression on the part of the defendant that he had desisted from his objectionable practices) cannot, in any view of the law, work a forfeiture of the right to enforce a reason- able regulation made to protect their legitimate business from injury. If, therefore, a permit on the part of the defendant to Chambers to "drum" gratuitously in the house would at once have opened his doors to all of the competitors of the latter (a proposition that we are not prepared to admit), the defendant did not, so far as the testimony dis- closes the facts, speak to him on the subject, and the soundness of the doctrine that, without interfering with the legal rights of the guests, the proprietor of a hotel is prohibited by the organic law from granting such exclusive privileges to any individual as to the use or occupancy of his premises, as any other owner of land may extend, is not drawn in question. We therefore sustain the second and third assignments of error. His honor erred, for the reasons given, in instructing the jury that the guilt of the defendant depended upon the question whether he permitted Chambers or Sevier to solicit custom in the house. He had a lawful right to discriminate, for a consideration, in favor of Sevier, while it does not appear from the evidence that he granted any exclusive privi- leges to Chambers. We hold that the regulation was such a one as an innkeeper had the power to make, and must not be understood as approving the idea that the sanction of the municipal authorities could impart validity to it, if it were not reasonable in itself, and within the powers which the law gives to proprietors of public houses in order that they may guard their own rights and protect their patrons from annoyance. For the reasons given, the defendant is entitled to a new trial. 6. LIEN. COOK v. KANE. 13 Oreg. 482; 11 Pac. R. 226; 57 Am. R. 28. 1886. Lord, J. This suit was instituted by the plaintiff, as an innkeeper, to enforce a lien against a piano, put in his possession by the defendant as his guest, for a debt due for lodging and entertainment. By the facts stipulated, it is admitted that the relation of innkeeper and guest existed between the plaintiff and defendant when the plaintiff, at the LIEN. request of the defendant, paid the freight charges on the piano, ami 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 comm sion, but that the plaintiff did not know it was tin- property of such third person, but received it in his character as an innkeeper and the property of his guest. Upon this state of facts, we arc 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, US 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 r. 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. InBroadwood 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, am! 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 circumstance-, 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 gu< brings with him in journeying; the contrary has been laid down 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 upon 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 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. Vanderburgh, 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. Hollenbeck, 27 Wis. 202 ; Threfall v. Borwiek, 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 INNKEEPERS. 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. Kay, 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. That 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. 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 purpo 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 VI. POSTMASTERS AND CARRIERS OF MAIL. 1. POSTAL OFFICERS. LANE v. COTTON. King's Bench. 1 Ld. Raym. 646. 1701. > The plaintiff brought an action upon his case against the defendant- 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 tin- 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 tin- 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 char-' - 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 'etter directed to John Jones, at Worcester, and delivered it t«» Qnder- hill 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 POSTMASTERS 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. Gould 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 securit}' 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 lias 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. 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 !. 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 muster 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 guesl put to grass by his order for the same reason. Plowd. 308. b, 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 salar 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 judg 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 CARRIERS 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 Underhill 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 Molloy, 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 v. 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 OFflCERS. 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 vi 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 mercatoribus . 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 /. per annum ('which is a sufficient reward) paid out of the profits of the office. And 266 POSTMASTERS AND CARRIERS 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 liable 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 ease did 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 general receives the letters, safely to keep and send ; so thai 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 /. 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 lie 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 exchanj 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 virtutc 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 virtute 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. Objection. This will be to make the defendants responsible ! 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 Br< • 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 Bree 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 negl* 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 /. 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 lull- some other means. Answer. That will not excuse the defendants ; no more than it wil 270 POSTMASTERS AND CARRIERS 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 office 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. 1 2. CARRIERS UNDER CONTRACT. SAWYER v. CORSE. 17 Gratt. (Va.) 230; 94 Am. D. 445. 1867. Joynes, 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- 1 Accord: Whitfield v. Lord Le Despencer, 2 Cowp. 754 (1778). To same effect as to negligence of a subordinate in the postal telegraph service, see Bainbridge v. Postmaster-General, [1906] 1 K. B. 178. CARRIERS 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 w r ith 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 ciren instances 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 upon 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. & Welsb. 109 ; Burnett v. Lynch, 5 Barn. & Cres. 589 (1 2 Eng. C. L. R. 327) ; Farrant v. Barnes, 11 Com. B. R. X. S. 553 (103 Eng. ( '. L R. i 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 POSTMASTERS 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 v. 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 found 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 Despencer, 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. Mclivoy, 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 v. Attorney General, 1 Phillips' R. 306. The doctrine is thus stated in 1 American Leading Cases (3d ed.), CARRIERS UNDER CONTRACT. 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 subordinat< 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 filling the character of officers or agents of the government. Hall v. Smith, 2 Bingh. R. 156 (9 Eng. C. L. R. 357), Holliday r. Si 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 1 1. Mayor &c. of Manchester, 2 Hurl. & Nor. R. 204 ; Weightman v. Cor- poration of 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 lie 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 err- 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. & Ndr. 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 Collett 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 plaintiff 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 whin 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 requin that he shall take the oath before he enters upon his duties. As Flemii 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 offices, and to deliver it into the post office 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 tin- 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 v. 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 negligeni 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 wi- the government, and was therefore not responsible for the misfeasanc or negligence of those employed by and under him. For the reasi 276 POSTMASTERS AND CARRIERS 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 which 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 v. 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. 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 stipulations 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. _77 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 v. Williamson, 2 Fairf. R. 495, is relied on. In that case it was held that where a clerk in the post office 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, va th carriage and preservation of the mail, the defendant in error will 1 entitled to recover. The degree of care which Fleming was bound to 278 POSTMASTERS 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 perforins 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-office Department, and those who carry the mail from place to place are equally necessary, and engaged in the business of tin government. A rider or driver employed by the contractor for carrying the mails is an assistant about the business of the government. Although cm- 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 offender. The duty of contractors to carry the mail is to carry it from place to place, subject to the regulations of the post-office 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 r. 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 a. much part of the business of the government, as the serviee rendered at the offices by postmasters; and those employed about earning t 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 POSTMASTERS AND CARRIERS 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 Conwell v. Voorhees, 13 Ohio, 523, and Hutchins v. Brackett, 2 Fost. 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 v. 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 v. Fisher, 11 Smed. & M. 431; Sullivan v. Collins, 18 Iowa, 228; Palfrey v. Railroad Co., 4 Allen, 55; Allen v. Prater, 35 Ala. 169; Edwards v. Baugh, 11 Mee. & W. 641 ; Longridge v. Dorville, 5 Barn. & 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 Volland, 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 CARRIERS UNDER CONTRACT. the casualty company, and as assignee of said company, and by reason of a claim of subrogation, seeks to recover the amount paid, from tin- defendant. The defendant demurred to the petition, and its demurrer was sustained, and judgment was rendered against the plaintiff for costs. Plaintiff appeals. DeemeX 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 rate 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-office 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 Hankers' 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 lial \<\ then the assured shall, at the request of this company or its agents, 282 POSTMASTERS AND CARRIERS 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, tabor 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 be 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 freighl and passengers, was under a general duty to everyone whom it undertook 1 1 1 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 transmit til distributing and delivering all mail matter. It has a monopoly on tli ; ^ 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 follow: rates, viz. : . . ." 284 POSTMASTERS AND CARRIERS 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 productiveness 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. v. U. S., 24 Ct. CI. 350 ; U. S. v. Alabama G. S. R. Co., 142 U. S. 615 (12 Sup. Ct. Rep. 306, 35 L. Ed. 1134); U. S. v. 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 postoffice department. In so far as they handle the mail, they are simply instrumentalities of the government for the performance of a CARRIERS 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 POSTMASTERS AND CARRIERS 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 officer, 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. Cas. 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 v. 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 tuo," 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; Coleman Frazier, 4 Rich. Law, 146; Maxwell v. Mclvoy, 2 Bibb, 211; Fitz- gerald®. Burrill, 106 Mass. 446; Raislert). Oliver, 97 Ala. 710(12 South. Rep. 238, 38 Am. St. Rep. 213) ; Sawyer v. Corse, 17 Gnu. 230 (99 Am. Dec. 445) [270]; Railroad 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 X. 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. 155 (16 S. W. Rep. 849, 10 L. R. A. 36) ; Railway Co. v. Hampton, 61 Tex. 427 ; Railway Co. v. Wilson, 79 Tex. 371 (15 S. W. Rep. 2S0, 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 & O. 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 X. 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 fulfilled its duty and it is not liable for the negligence of subordinate employees to whom it must of necessity delegate its work. Xow, 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 An. Dec. 248). The only case directly in poin.t 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. CARRIERS OF GOODS. 1. WHO ARE COMMON CARRIERS. 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 is doubt, the expressed will of the legislature should be sustained. The Constitution contains no definition of the word " deprive.*' 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 CARRIERS 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 °f the Union. By the Fifth Amendment, it was introduced info 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 in 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 v. R. & B. Railroad 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 sic 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. 538, "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 ARE 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 colonization, to regulate ferries, common carriers, hackmen, ba] 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 I).- 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, Cong] 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 L848, "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. From 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 prongs 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 tin' common law, from whence came the right which the Constitution protects, we find that when private property is "affected with a pub- lic interest, it ceases to be juris privati only." This was said by Lord Chief Justice Hale more than two hundred years ago, in bis treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without an objection as an essential element in the law oi 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 extenl 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 Mai 1 Harg. Law Tracts, G, the king has "a right (if franchise or privi- lege, that no man may set up a common ferry fur all ) ers, without a prescription time out of mind, or a charter from the king 292 CARRIERS 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 cloth 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. R. 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. 537) : — WHO ARE COMMON CARRIERS. 293 "There is no doubt that the general principle is favored, both in law and justice, that every man may fix whatever price he plei 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 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 tilings 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. 539) : — " 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. (1ST. 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 ARE COMMON CARRIERS. It matters not in this case that these plaintiffs in error had built their warehouses and established their business before the regula- tions complained of were adopt!. 1. 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 authoril for the common good. They entered upon their busi rid pro- vided themselves with the means to carry it on subiecl to this condition. If they did not wish to submit themselves to such inter- ference, they should not have clothed the public with an into their concerns. The same principle applies to them that i the proprietor of a hackney-carriage, and as to him it has never been supposed that he was exempt from regulating statutes or ordinal because he had purchased his horses and carriage and establis his business before the statute or the ordinance was adopted. Justice Field (dissenting). 1 ....... 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 - 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 musl use his own as not to injure his neighbor, — sic utere tuo ut alienum non Icedas, — 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 Slate 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) 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 con: 1 Justice Strong concurred in the dissent. 296 CARRIERS 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 alienum non tcedas, which being of universal application, it must, of course, be within the range WHO ARE COMMON CARRIERS. 297 of legislative action to define the mode cud manner in which one may so use his own as not to injure others." Thorpe v. Rutland & Burlington Railroad Co., 27 Vt. 14'.). "We think i principle growing out of the nature of well-ordered civilized si says the Supreme Court of Massachusetts, "that every holdei property, however absolute and unqualified may In- his title, holds it under the implied liability that his use of it shall not le injurious to the equal enjoyment of others having an equal right to tin enjoy- ment of their property nor injurious to the rights of th» communi Commonwealth v. Alger, 7 Cush. 84. In his Commentafie . speaking of the protection afforded by the Constitution to pri 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 tu sary to pre rent 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 offensive 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 use 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 receiving 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 buhl assertion of absolute power by the State to control at its discretion the property and business of the citizen, and fix the compensation he shall receive. The will of the legislature is made the condition upon 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 rights of property are left solely dependent upon the will of 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 i* 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 i 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 of the doctrine [announced by the majority] is, that 5 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. If 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 CARRIERS. 299 b. Wlio exercise such Calling. ALLEN et al., Appellants, v. SACKRIDER et ah 37 N. Y. 341. 18G7. Parkek, J. The action was brought against the defendants to charge them, as common carriers, with damage to a quantity of grain shipped by the plaintiffs 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 1859 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 $1346.34; that the 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 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 sea any property in whose use the public lias no interest." See also his dissent (Field, Jackson, and White, concurring) in Brass v. Stoeser, 153 U. S. 391 (18U4), a case also relating to regulation of elevator charges. 300 CARRIERS 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 , x to be, any man undertaking, for hire, to carry the goods of 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 him, from place to place." In Orange Bank v. 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 Richardson, 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 per cur. 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 emplo} r , 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 use, and it was held that it could not be distrained. WHO ARE COMMON CARRIERS. JJQ] from port to port; her appearance in the harbor of Ogdensburgh, waiting for business, was an emphatic advertisement that she sought employment." These facts do not appear in the findings of tin- referee, 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 assumpsit. 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 plaintiff 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 Air. Jeremy I 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 gel 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 CARRIERS OF GOODS. patinn pro hac 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 cast', 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 ■>\ 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; bat 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 Penns3 r lvania, 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 AUE COMMON CARRIERS. 393 dictated by the solitary and mountainous regions through which las course for the most part lay, than it is by the frequented thorough- fares of England. But the Pennsylvania wagoner was not alv. 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 ho with loads to Pittsburg or Wheeling, the principal poin mbark- ation on the Ohio. But no one supposed they were not 1 ll.le as common carriers; and they always compensated losses as such. They presented themselves as applicants for employment to ti. who could give it; and were not distinguishable in their appearai or in their equipment of their teams, from carriers by profession. 1 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 from the plough to turn teamster at the solicitation of his neighbor, shall be answerable for nothing less than good faith; but £ am unable to understand why a wagoner soliciting the employ- ment of a common carrier, shall he 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 case — 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. 1 CITIZENS' BANK v. NANTUCKET STEAMBOAT CO. 2 Story (U. S. C. C), 16. 1811. Story, 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 intru 1 Ace. : Moss v. Bcttis, 4 Heisk. 661. Contra: Fish v. Chapman, 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 ; 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 luggage : that the taking small packages was an affair of the drivers, WHO ARE COMMON OAERIEES. 305 who received the 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 consequi the opportunity they had of earning small sums of money in this way; whereas large packages were usually entered on the way-hill, and the proprietors received the compensation for the tr portation. Parker, 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. Coolev, 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 plaintiff 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 R. 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. Keliance 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 thau 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. •n- WHO ARE COMMON CARRIERS. PIERCE 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 compe 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 rilled, 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 bo 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 ti rates, and also to carry the bags both ways whenever the customer might desire it, without any further charge, there can be no dim lit 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 upon the grain. Persons who become its customers in view of : 308 CARRIERS OF GOODS. a custom do so with that understanding. And the patronage and the freights paid are the consideration for carrying the bags. 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 by 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. R. R. Co., 24 N. Y. 222; see also Bissel v, Railroad 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. By the Court. The judgment is affirmed, with costs. WHO ARE COMMON CARRIERS. 309 GRAY v. MISSOURI RIVER PACKET CO., Appellant. 64 Mo. 47. 1876. Norton, Judge. This was an action in which 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 River 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 Rider, 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 hiin. He asked Rider 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. Rider 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 Rider, 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 Rider said when he was applied to for the price that he would not charge him much, if anything. After an injury results to property intrusted to a common carrier 310 CARRIERS 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 by 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; Cushing v. Wells. Fargo & Co., 98 Mass. 550; Woodward v. Illinois Central R. R. Co., 1 Bissel, 503; Corby v. Davidson, 13 Minn. 92; Mote v. Chicago & N. W. R. R. Co., 27 Iowa, 22. In the case of Atkinson y. 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 ARE COMMON CARRIERS. 311 HALE v. THE NEW JERSEY 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 Es"p. Ca. 127; 10 Johns. It. 7; Story on Bailments, 319, 323. LIVERPOOL STEAM CO. v. PHC3NIX INS. CO. 1 129 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 comnn is a common carrier, with the liability of an insurer against all losses, except only such two irresistible 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. 1 For the remainder of the case, see page 197. 312 CARRIERS OF GOODS. In the present ease 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. . . . McARTHUB & HUBLBERT v. SEARS. 21 Wend. (N. Y. Sup. Ct.) 190. 1839. COWEST, 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, Ay mar 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. Fitch, 12 Conn. B, 419. In Elliott v. Bozell, 10 Johns. B. 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 ARE COMMON CARRIERS. 313 shippers to be very dangerous: see also Kemp v. Coughtry, 11 Johns. R. 107; Colt v. M'Mechen, 6 Johns. R. 160; Harrington v. Lyles, 2 Nott. & M. 88, 89, and the cases there cited. Williams v. Grant, 1 Conn. R. 487, and several cases hereafter cited. Bell r. Heed, 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. RENFRO. 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 Robertson & Co. v. Kennedy, 2 Dana, 430, a common 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 pri- sons indifferently, with their carriages and goods." Angell on the Law of Carriers, sec. 82. THE NEAFFIE. 1 Abbott (U. S. C. C.)i 405. 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 CARKIEKS OF GOODS. A common carrier is often defined to be: "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 Xeatlie " 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 vet carriers would be answerable for such loss. That tow-boats are not common carriers has been held in the fol- lowing eases: Caton v. Rumney, 13 Wend. 387; Alexander v. Greene, 3 Hill, 9; Wells v. Steam Navigation Co. , 2 Comst. 204; Pennsyl- vania, D. & M. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248; Leonard v. Hendrickson, 18 Penn. St. 40. In Vanderslice r. The Superior, 13 Law Rep. 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 CABBIEE8. oig trine. I am aware that a contrary doctrine had been applied bv the Supreme Court of Louisiana to steam-tugs towin the city of New Orleans and the mouth of the Mississippi ]; These tow-"boats are distinguishable from those plying in the har- bor of New Orleans; but if it were otherwise, I think the of authority and reason is with those who hold tow-boats not v eoinmon carriers. 1 . . . COUP v. WABASH, etc. RY. CO. 5G 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 un< which the transportation was directed. The principal questions raised on the trial arose out of discussions concerning the nature 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 wijl be first considered. Plaintiff had a large circus property, including horses, wild ani- mals, and various paraphernalia, with tents and appliances i 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 \ je, 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. Augusl 21st, imbia City, August 22d, exhibiting at Detroit August 23d, and then t>> turned over to the Great Western Transfer Line boats. Plaintiff was to furnish his own cars, and two from anothe: in good condition and running order. It was agreed that "fort! use of the said machinery, motive-power, and men, and the privileg< above enumerated, plaintiff should pay $400 for the run t" Delphi, $175 to Columbia City, and $225 to Detroit, each sum to be paid before leaving each point of departure." It was further expressly stipulated that the agreement was not 1 Ace. : Varble v. Bigley, 14 Bush (77 Ky.), 098 ; 29 Am. R. 436 (187'.»). 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 liabilit}^ 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- taken by carriers. The trains were to be made up entirely of cars WHO ARE .COMMON CARRIERS. 317 which belonged to plaintiff, and which the defendant neither loa 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 also 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 River 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. A.11 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 EXPRESS CO. 97 Mass. 1-21. 18G7. Contract to recover the value of a case of pistols. In the Superior Court judgment was entered for the plaintiffs on agreed facts; and the defendants appealed to this court. Bigelow, 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 tit 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 Etedfield on Railways, 1-1 (i. 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 thr contract of carriage is essentially modified by the peculiar mode in which the defendants undertake the performance of the service. I he 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 ARE COMMON OABRIEES. ;;pj to a different mode of conducting business, by which the carrier enabled to select his own servants and vehicles and to personal care and oversight of them, arc wholly inapplicable to a contract of carriage by which it is understood between the par that the service is to be performed, in part, at least,,by m< u agencies over which the carrier can exercise do managemenl or con- trol whatever. P>nt 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 ne 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 (rod 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 propi 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 :; like service in the modes formerly in use. IT a person a-sumes to do the business of a common carrier, lie can, if he sees fit, confine it within such limits that it may be done under his personal care supervision or by agents whom he can select and control. But it he undertakes to extend it further, he must either restrict his liability by a special contract or bear the responsibility which the law affixes 320 CARRIERS 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. Judgment for plaintiff. 1 KOBERTS v. TURNER. 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 River, 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 1 Defendant's attorney relied in argument on Roberts v. Turner, which follows. WHO ARE COMMON CARRIERS. 321 twelve shillings per barrel, and the price which he had agreed to for the transporting the goods in question to that phut- wa& shillings; the defendant had no interest in the freight of the g< and was not concerned as an owner in the boats employed in 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* 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 busin 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 that 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 (5 T. R. 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. R. 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 CARRIERS 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 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; 89 111. 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. c. 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 a- 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 15th of November, 1827, were the owners or pro- WHO ARE COMMON CARRIERS. 323 prietors of a steamboat called the "Constellation," navigate 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 pass money; touching upon the passage from New York to Albany at village of Newburgh, for the purpose of landing passengers and their baggage or effects; that on the said loth 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 I ; . 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 Newb'urgh, 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, 18L'7. 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 office. 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 office 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 jilace pointed out, and went on shore, and was absent eight or ten minutes. While on shore he bought some oranges, which lie held in a band- kerchief until the boat got under weigh, when lie went to the oflice 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 CAKKIEKS 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 he 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 without 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, sufficient 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 CARRIERS. 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 tin- 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 affor ort 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 tin- value is made known to him at the time of delivery and a premium for insurance paid, such notice, if brought home to the knowli 326 CARRIERS 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. R. 333; 4 Burr. 2298; 5 Com. L. R. 476; 8 Pick. 182; 11 Com. L. R. 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 Rolle, 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 i\ T ew York to the bank, the plaintiffs also must be held WHO ARE COMMON CABBIEES. responsible to the defendant for his conduct; the obligation must be reciprocal. Instead of committing the several packages of n. the captain, which of themselves generally indi eir 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 g] care and caution in the safe conveyance of the money, which he naturally would bestow in proportion to the value, the agent of the plainl 2)ut them into his trunk, and committed it to the captain as his I 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, 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 "/.. 19 Com. I.. It. 219, in some respects resembles this case. Th - plaintiff going to L., and took a seat in a, public conveyance. lb- had v him a bag labelled "T. Miles, traveller,'' containing clothes worth 328 CAKRIERS OF GOODS. about fifteen pounds. Before he 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 sufficient 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 CARRIERS. 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. RAILROAD COMPANY v. FRALOFF. 100 U. S. 24. 1879. Error 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 River Railroad 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 Russia, 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 wearing 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, ot attending dim. balls, and receptions. A portion of the laces was made by her ancestors upon their estates in Russia. After remaining some weeks in the city of New York, she started upon a journey westward, going 330 CARRIERS OF GOODS. first to Albany, and taking with 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 River Railroad 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 Falls 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 court 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 ARE COMMON' CARRIERS. 331 minor and merely technical nature, which do not involve the merits of the case, 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 I 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 courl -.aid 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 < 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. I 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 CAEKIERS 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 effect 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 CARRIERS. 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 • 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 Rep. 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 gives him, the carrier secures such exemption from responsibility, not, however, because the passenger, uninquired of, failed to disclose the chara6ter 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 Dot 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, gratification, 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 pr< guidance from the court as to the law governing such cases. It was for the jury to say to what extent, if any. the 1 ;e 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 the 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 CARRIERS. jury under instructions correctly defining the legal rights of pari Parsons v. Bedford, 3 Pet. 440; 21 How. 167; Insurance Company v. Folsom, 18 Wall. 249. It is, perhaps, proper to refer to one other point suggested in tin- elaborate brief of counsel for the company. Our attention i to section 4281 of the Revised Statutes, which declares that "if any shipper of platina, gold, gold-dust, coins, jewelry, . . . tiin! . . . 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 he 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 sufficient 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 Field, with whom concurred Mr. Justice Miller and Mr. Justice Strong, dissenting. I dissent from the judgment of the court in this case, t do not think that two hundred and seventy-five yards of lace, claimed by the owner to be worth $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. R. CO. v. MORRISON. 34 Kan. 502. 1886, Osr March 2, 1884, William Morrison filed his petition against the Kansas City, Fort Scott & Gulf Railroad Company, in the District Court of Labette County, to recover $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 Fort Scott to Parsons, 336 CARRIERS 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 plaintiff 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 occasious 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. Horton, 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. P. 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 CARRIERS. 337 Bailments, 499; Hutchinson on Carriers, § 079. The decision 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. Railway Co., 2 L. II. 6 Q. B. (ill'. 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. Railroad Co., 10 How. Pr. 330; Porter v. Hilderbrand, 14 Pa. St. 129. The case of Davis v. Railroad Co., supra, and Porter v. Hilderbrand, supra, are cited by Thompson 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, § 083. These cases are quite similar to the one at bar, excepting that the tools in controversy are more valuable. In Davis v. Railroad Co., the contents of the trunk consisted of ordinary wearing apparel, a gun, and a set of harness-maker's tools, worth ten dolku-s. 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 $55 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 recover} 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 abi but in the language of the court in McGill v. Rowand, •"> Barr. 151, the correction is to be found in the intelligence and integrity of the 338 CARRIERS 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. 1 GREAT NORTHERN RAILWAY, Appellant, v. SHEPHERD. 8 Exch. 30. 1852. Parke, 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. Angeil on Carriers, sec. 115; Story on 1 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. R. 6 Q. B. 612. Contra : Onimit 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 a travelling salesman: Gleason v. Transportation Co., 32 Wis. 85. WHO ARE COMMON CARRIERS. Bailments, 526, 5th ed. note. In this case, nine-tenths of the art: were of the latter description. Now, if the plaintiff hud can these articles exposed, or had packed them in the shape of mer- chandise, so that the company might have known what they w< 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 7 & 8 Vict. c. 85 unless the court shall be of opinion that the fact that the charg< 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 aid- 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 thai the company are not liable; and the judgment of the court below must be reversed. KANSAS CITY, F. S. & M. R. CO. v. McGAHEY. 63 Ark. 344; 38 S. W. R. 659 ; 36 L. R. A. 781 ; 58 Am. St. R. 111. 1897. [For this case, see infra, p. 636.] 340 CARRIERS OF GOODS. MICHIGAN CENTRAL R. CO. v. CARROW. 73 111. 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 regulations 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 checked 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]; Batsou 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 ARE COMMON CARRIERS. 341 ing to carry merchandise, and lie Lad no right to impose bis goods subtilely upon the company, and then seek to make the obligation chat 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 Railway Co. y. 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 case 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. Cockburn, C. J., agreed with the jui 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 frei 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 impure as to the contents oi the luggage, but it was the duty of the plaintiff himself to give 342 CAKRIEKS 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. R. 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 RAILROAD 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 course, 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. 2 1 Ace: Humphreys v. Perry, 148 U. S. 627. 2 But in Blumantle v. Fitchburg 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 ARE COMMON CARKIERS 343 HENDERSON v. LOUIS VILLI-:, etc. R. CO. 123 U. S. 61. 1887. This was an action against a railroad company. Judgment foi defendant. Plaintiff sued out this writ of error. Justice Gray. 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, L883, the defendant, being a common carrier of goods and persons for hire, received her into one of its ears 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 usuallv 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 Kay St. Louis, where he stopped the train, and she despatched a trusty person to the place where the baghad 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 wholly lost to the plaintiff by the gross negligence of the defendant as aforesaid.'' • ••••••••••a 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-ra knew or supposed the bundles to contain merchandise, or that other passengers bad 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 won- therefore erroneous. 344 CARKIEKS 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. FIRST 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 ARE COMMON CARRIERS. not subjected to the custody of the carrier, it is difficult to see I 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 sum money, or small parcels of great value, without communicating the fact to the carrier, or paying anything for their transportation. Bi I 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 h;is 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. 1 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 nil the terms of the contract into which he enters. Such ticket, like the ordinary railroad ticket, is little more than a symbol intended to show to the agents in charge of the car that the possessor has entered into a contract with the company owning tin' ear. by which h< 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. : Weeks v. N. Y., N. H., & H. R. R. Co., 72 X. V. 50. 346 CARRIERS 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, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has with him from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, yet it is its 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. 1 1 Contra: Pullman P. C. Co. v. Lowe, 28 Nebr. 239. WHO AKE COMMON CARRIERS. CLARK v. BURNS. 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 tin- Superior Court on an agreed statement of facts in substance as follows : — The defendants are the owners of the Cunard line of steamers, called, which run between Boston and Liverpool, and New Fork and Liverpool, and are common carriers of passengers and freight betv, 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. Winn 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 plaint ill'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-cl passengers on board the defendants' steamers, and it is the usual custom of the defendants not to permit the locking of state- r, 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 bhe 348 CARRIERS 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, Brigham, C. J., ruled that the plaintiff could not maintain this action, and ordered judgment for the defendants; and the plaintiff alleged exceptions. Gray, 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 Railroad, 7 Hill, 47; Abbott v. Bradstreet, 55 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 the part of the defendants, was, taking the most favorable vieAv 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 CABRIEE. 349 2. DELIVERY TO CARRIER. GROSVENOR, Respondent, v. NEW YORK CENT. It. CO. Appellant. 39 N. Y. 34. 1868. The complaint in this action alleges that, in April, 1861, tin- 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 i 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 inches. That two or three hours after it was left, 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 plaintiff'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 Buffalo. At the close of the plaintiff'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. B. B. Co., 7 Hill, 47; Blanchard v. 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 DELIVERY TO CAERiER. 35] 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 prima feu submit to the jury the question whether the baggage-man was am ized to receive the property, and whether the notice fco him wa itself sufficient. Persons dealing with railroad corporations, 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 defendanl 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, I 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 bad 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 wa 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 R. 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 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, Ave 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. R. Co., 20 Conn. 354. DELIVERY TO CARRIER. 353 The instruction which is the foundation of plaintiff's obj directs the jury that there was no evidence of a delivery of the trunk to the defendant. In this we think there is error. Their \v;ts evi- dence tending to show a course of business on the part of defendant, a custom, to receive baggage left at the station-i 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 deliver, the property within the rules above announced, — wh 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 plum- tiff's trunk was received under this custom. It is a well-settled rule that the courts cannot determine upon the sufficiency 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. R. Co., ,35 Iowa, 585. The judgment of the District Court is reversed, and the cause remanded. Reversed. 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 liability 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 Shurto cannot be clearly seen to have been that it should be transported to 354 CARRIERS 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 graiu 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. ■ ••••••••••a 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 office." N. J. Steam Nav. Co. v. Merch. Bank, 6 Hmv. 381; Sanford v. Railroad 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 Raymond, 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 commondaw 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 ijoods 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 ;is 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 CARRIERS 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 warehouse 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. Harriot v. L. & S. W. R. R. 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. & X. 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 & X. 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 Eeedsburg, 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 Eeedsburg," 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 be- 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 :it Reeds- 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 Reedsburg 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 sheep, four to be loaded at La Valle and three at Reedsburg: (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 Reedsburg, 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 could, 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 sufficient 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 IS, 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; (25,26, 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 lor errors 360 ' CARRIERS OP 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. From 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 loss 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 clays 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. R. Cas. 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 at, 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 li stock offered upon notice and tender, and without restriction, then it would be difficult to see upon what ground it could discrimina 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 Richard- son v. C. & N. W. R. Co., supra, and is supported by the logic of 362 CARRIERS OF GOODS. numerous cases. North Penn. R. Co. v. Commercial Bank, 123 U. S. 727; Moulton v. St. P., M. & M. R. Co., 31 Minn. 85, 12 Am. & Eng. R. Cas. 13; Lindsley v. C. M. & St. P. R. Co., 36 Minn, 539; Evans v. E. R. Co., Ill Mass. 142; Kimball v. R. & B. R. Co.. 26 Vt. 247, 62 Am. Dec. 567; Rixforcl v. Smith, 52 N. H. 355; Clark v. R. & S. R. Co., 14 N. Y. 570, 67 Am. Dec. 205; South & N. A. R. Co. v. Henlein, 52 Ala. 606; Baker v. L. & N. R. Co., 10 Lea, 304, 16 Am. & Eng. R. Cas. 149; Philadelphia, W. & B. R. Co. v. Lehman, 56 Md. 209; McEadden v. M. P. R. 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, but his obligation ■is to carry according to his 2)"blic profession." Johnson v. Midland R. 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. R. Co. v. Nicholson, 61 Tex. 491; Chicago & A. R. Co. v. Erickson, 91 111. 613; Rallentine v. N. M. R. Co., 40 Mo. 491; Guinn v. W., St. L. & P. R. 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 ordinarily 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 R. 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 cars, 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 tune and 364 CARRIERS 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 so 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 EAILBOAD COBPOEATION. 115 Mass. 416. 1874. Tort 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 SERVE THE PUBLIC. the damages caused by withdrawing from him the means for further prosecution. The complaint is, that under the guise of a proposal to sell or let the privilege which the plaintiff and hi dates 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 refus 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 th- 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 t] .eral 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 as may have been authorized to enter upon or unite with and use them. Gen. Sts. c. 63, § 117. All the provisions of law for the regulation of railroads e 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 trans 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 vh 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 a in which the tracks would be used for the running of trains or 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 wheh they disregard such regulations as are provided by law, or required by a reasonable consideration of the public convenience 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 Kailroad v. Gage, 12 Gray, 393. If such a rule has been established by the St. of 1867, c. 339, the plaintiff's case 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 plaintiff 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 SEEVE THE PUBLIC. 367 facilities as he requires, for his special business as carrier, < their roads. His claim must stand upon the right to demand such facilities independently of any enjoyment of like facilities by otl As an absolute right this cannot be maintained. The plaintiff contends that the "parcel department" which defendants have established, to the exclusion of the plaint iff and others desiring to make like arrangements, is in contravention >■] the equality required by the statute, as much as if it were condm 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 cars 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 Judgment must be for the defendants. J ATCHISON, TOPEKA & SANTE ¥fi R. CO. v. DENVER & NEW ORLEANS R. CO. 110 U. S. 607. 1884 This was a bill in equity filed by the Denver & New Orleans Bail- 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 Ee Railroad Company, a Kansas corporation, owning and operating a railroad in that State from the Missouri River, 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. Contra: New England Exp. Co. v. Maine Cent. R. Co., 57 Me. 188 ; Mc.Duffee v. Portland, &c. 11.. 52 X. H. 430. 368 CAKRIEKS OF GOODS. — a Colorado corporation. The two roads so operated by the Atchison, Topeka & Santa Fe 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 Fe 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 Railroad 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 & Rio 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 & Rio Grande and about three-quarters of a mile from the union depot, at which the Atchison, Topeka & Santa Fe and the Denver & Rio 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 Fe [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 cf 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 Fe" Company continued its through business with the Denver & Rio 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 Fe Company in Pueblo, DUTY TO SERVE THE PUBLIC. 3G9 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 & Rio Grande Company. Mr. Chief Justice Waite. ....... 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 Railroad, 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 therefor. 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 corporations, 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 Fe 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 for 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 Fe 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 in- to interchange business at that place, but to compel the Atchison. 370 CARRIERS OF GOODS. Topeka & Santa Fe 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 Fe 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 & Rio 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 Constitution 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 aerainst undue or unreasonable discriminations in facilities. DUTY TO SERVE THE PUBLIC. 37J This necessarily disposes of the question of a continuous busim or a through line for passengers or freight, including through t icl 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 physical 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 Fe 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 Fe is that of a Pueblo customer, and it does not necessarily follow that the price which the Atchison, Topeka & Santa Fe 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 reasonal lc 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 CARRIERS 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 Ye, 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 & Kio 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 case 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 rel. v. CINCINNATI, etc. E. CO. 47 Ohio St. 130. 1890. Bradbury, 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 SERVE 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 Railway 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 CARRIERS 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. Railway, 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 Rice 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 Rail- way Company, after allowing the Camden Consolidated Oil Company a rebate, and allowing the Baltimore & Ohio Railway 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 case of George Rice v. The Louisville & Nashville Railroad 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 (Railroad 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 Not 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 comp 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 13 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 sufficient 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 sufficient 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 cars 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 rig Jit to make or charge a rate of freight per hundred pounds for transporting oil in iron tank cars, substantially lower than for transporting it in barrels^ in car- load lots. 376 CARRIERS 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 rationabili ; 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. 18S2. Cooper, 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 v. 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; Fitch burg Railroad Com- pany v. Gage, 12 Gray, 393. The important point to every freighter DUTY TO SERVE THE PUBLIC. :;:: 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 v. B. & E. Railroad Company, 1 B. & S. 112, 151, 165; McDuffee v. Portland & Rochester Railroad, 52 1ST. 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: Ransoine v. Eastern Counties Railway, 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, 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 sufficient 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 begn no damage. The third ground of demurrer was, therefore, well taken. 1 CHICAGO, BURLINGTON & QUINCY R. CO. v. IOWA. 94 U. S. 155. 1876. Appeal from the Circuit Court of the United States for the Pis trict of Iowa. Mr. Chief Justice Waite. Railroad 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 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. 3 Ace: Fitch burg R. Co. v. Gage, 12 Gray, 393; Ex parte Benson, 18 S. C. 38 : Johnson v. Pensacola, etc. R. Co., 16 Fla. 623. 378 CARRIERS OF GOODS. The Burlington and Missouri River Railroad Company, the bene- fit of whose charter the Chicago, Burlington and Quincy Railroad 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, arid 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 good 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, and 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 rendei such a regulation no longer necessary, and it was abandoned foi 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 tenant 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, 348, 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 CARRIERS OF GOODS. any class, it lias 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 Field and Mr. Justice Strong dissented. REAGAN v. FARMERS' LOAN & TRUST CO. 154 U. S. 362. 1894. Mr. Justice Brewer. ........ It appears from the bill that, in pursuance of the powers given to it by this act, the State commission [Reagan 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 deed] 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 coin- 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. 155 [377] and Peik v. Chicago & Northwestern Railway, 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 ma within the absolute discretion of the carriers, but was subject to legislative control. As stated by Justice Miller, in Wabash, etc. Railway v. Illinois, IIS U. S. 557, 509, 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 U. S. 307, 331, and while the right of control was re-affirmed, 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. Beidelman, 125 U. S. 680, 689. Again, in Chicago & St. Paul Railway 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 reasonableness, 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 Railway 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 U. 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 regulation of rates, operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional 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. CARRIER'S LIABILITY. a. Act of God. PROPRIETORS 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 Hnll 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 Avas 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. Hera 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 iniscou- 384 CARRIERS 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. CARRIER S LIABILITY. 385 The case 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. Willes, Justice, of the same opinion. Ashhurst, 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. Buller, 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. Hide discharged. FORWARD v. PITTARD. 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 the 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 with 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 neditrence in the defendant. That the fire was not occasioned by lightning." N. 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 Raymond, 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. R. 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 of 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 substractione, amissione, seu spoliatione, porta re tenentur, ita quod pro defectu dictorum communium portatorum seu servientium suortim, hujusmodi bona et catalla eis sic ut prefertur deliberata, non sint perdita, amissa, seu spoliatay It then states the breach, that the defendant had not delivered them, and "pro defectu bona) custodioe ipsius defendentis et servientium suorum perdita et amissa fuerunt" In Brownl. Red. 12, the breach in a declaration against a carrier is, " defendens tarn negligenter et improvide custodivit etcarriavit, &c." In Clift. 38, 39, Mod. Intr. 91, 92, and Heme, 76, •the entries are to the same effect. In Rich 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. For an exception is always of some- thing comprehended within the rule, and therefore excepted out of it; but the act of God 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 v. Bernard, 2 Lord Raymond, 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 eases falling within the reasoning of what are vulgarly called "acts of God" should not 388 CARRIERS 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. CARRIERS 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 AVils. 281 [773], and the Proprietors of the Trent Navigation v. Wood, 3 Esp. 127 [383], there were c 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 plaintiff's horse was drowned. This case is recognized in Williams v. Lloyd, S. \V. 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 Ho. Abr. 10, pi. 18, Bro. Tit. Action sur le Case 78. And it is also recognized in Williams v. Hide and Ux. Palm. 548. 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 plaintiff'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. Red. 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 CARRIERS 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 inducit privilegium 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 sufficient 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 case 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. Raym. 220, s. c. ; 1 Mod. 85. In Barclay and Heygena, E. 24, G. 3, B. II., 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. CARRIERS 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 tin- plaintiff; for when the law is once known and established, the parties may contract according to the terms which it prescrib As to negligence being a matter of fact, that is answered by the decision in the Company of the Trent Navigation against Wood. Lord Mansfield. 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. tide 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 CARRIERS OF GOODS. COLT v. M'MECHEN. 6 Johus. (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 on 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, For 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 Y r ork 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 carrier'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 sudden 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 the hoyman, 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 unus\ial, 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 CARRIERS OF GOODS. v. Wood, the vessel was sunk, by driving against an anchor, in the river Huniber, 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 uear 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 casus for- tuities was defined, in the civil law, to be quod fato contingit, cuivis diligentisshno 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. caeeiee's liability. 395 FRIEND, 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. 2o ( .t, it was decided by this Court that the owners of boats engaged in tin- upper navigation of James River 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 sufficient 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 River 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 CARRIERS 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 River, 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 officers 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 R. 421, and Williams v. Grant, 1 Conn. R. 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. R. 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 baffled, 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 carrier'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. NioloD, 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. R. 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 light 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 398 CARRIERS 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. 1 RAILROAD CO. v. REEVES. 10 Wall. 176. 1S69. In error to the Circuit Court for the Western District of Ten- nessee, the case being this : — Reeves sued the Memphis and Charleston Railroad 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 Railroad Company on the 5th of March, and reloaded into two of its cars, about five o'clock in the afternoon. The Memphis and Charleston Railroad track extends from l 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 v, Astor, 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. Turney v. Wilson, 7 Yerg. 340, S. P. But see Cherry 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 Mc Arthur v. Sears, 21 Wend. 190. CARRIER'S LIABILITY. 399 Memphis to Stevenson, Alabama, a point west of Chattanooga, on the Nashville and Chattanooga Railroad. Between Chattanooga and Stevenson, by a contract between the two companies, the trains of the Memphis and Charleston road were drawn by engines belon ingtothe 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- tanooga 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 morning 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 washi 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 1th (Thursday), at which time it reached the high-water mark of 1S47. That night it rose an average of four inches an hour from 7 p. m. to G..'i(» 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 standing 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 w thus damaged. Had it gone off on the evening of the nth 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 t<» submerge the cars and injure the freight. No one expected the 400 CARRIERS 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 hills, and there was a universal destruction of property as well of individuals as of railroads passing 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 of 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 whicli 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 spectator, 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 Kailroad 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 River. 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 CAREIEES 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. 1 b. Act of Public Enemy. MORSE v. SLUE. 2 King's Bench. 1 Vent. 23S. 1672. The case was argued two several terms at the bar, by Mr. Holt for the plaintiff, and Sir Francis Wilmington 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. Eirst, by the Admiral Civil Law the master is not chargeable pro damno fatali, 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 wherefore the master is liable is, because he 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, i Ace: Fox v. Boston &c. B. Co., 148 Mass. 220 ; Eodgers v. Missouri Pac. B. Co., 75 Kan. 222, 88 Pac. B. 885, 121 Am. St. B. 416. Contra : Condict v. Grand Trunk B. Co., 54 N. Y. 500 ; Green-Wheeler Shoe Co. v. Chicago, B. I. & P. B. Co., 130 Iowa, 123, 106 N. W. E. 499, 5 L. B. A. N. S. 882. 2 Elsewhere reported : 1 Vent. 190 ; 1 Mod. 85 ; 2 Lev. 69 ; T. Baym. 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 off 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. R. McFarland, 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 CARRIERS 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 assum,2)sit. We will, therefore, proceed to inquire whether the plaintiff 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- tiff 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 Richmond and Lynchburg. About the middle of March, 1865, the boxes containing the goods in question were delivered to R. 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 depot, 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 carrier'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 were 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 that between the 16th of March and the 17th of April, large quantities of freight were sent from Richmond 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 de jure 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 CARRIEKS OF 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 plaintiff 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 plaintiff 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., 752. 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 carrier'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 during 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 held liable 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. Reverse the judgment. c. Act of Shipper. CONGAR v. CHICAGO, etc. R. CO. 24 Wis. 154. 1869. The plaintiffs shipped, by defendant's road, trees and other nursery stock from Whitewater, in this State, directed to "Iuka. 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 CARRIERS OF GOODS. pany, and at Quincy were transferred to the Quincy & Missouri Rail- way, by which they were transported to Iuka, 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 Iuka, 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 authorities have it, the very 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 carrier's liability. 409 obvious perversion of the 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 Iuka, 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 Iuka 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 Iuka was situated; and that said map represented said Iuka as being in Keokuk County aforesaid. The answer further alleges that the goods were directed to " C. E. Cox, Iuka, 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. MILTIMORE v. CHICAGO, etc. R. CO. 37 Wis. 190. 1875. Action 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- Janesville 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 Ripley, their agent, applied for transportation of the wagon in an open or platform car, as they desired it shipped without taking it 410 CARRIERS 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 run it on ; that Ripley 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 Ripley'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 plaintiff'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 Chicago, 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 car, 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 CAREIEU'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 wag< as it was understood he would do, and of securing it to the car. Whatever means and appliances he deemed necessary and propel 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 Janesville 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 CARRIERS OF GOODS. taken upon themselves that 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 case, the ferry company would not be chargeable with the full liabilities of common carriers of merchandise. The liability in this case 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 CARRIERS LIABILITY. 41.] on board their boat, when the loss has been occasioned by their default. It is the duty of a ferry company to provide a good ami 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 propertv 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 custodi- an d 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 therefor. The same principle is also further illustrated in the various 414 CARRIERS 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; Clarke. 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 often 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- cakrier's. liability. 4 1 .', 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, pa\ rag the usual toll for his horse and wagon. The plaintiff 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 Avith 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 thrown 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 CARKIEKS OF GOODS, HAET v. CHICAGO, etc. R. 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 in 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 f 100 each, unless by special agreement noted on the contract, and no such special agreement was noted on the coDtract. 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. Reed, 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 carrier's liability. J 17 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 hirn 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. Kaym. 909; Forward v. Pittard, 1 Dura. & E. 27 [385] ; Riley v. Horne, 5 Bing. 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, aud 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 cases 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 CAEKIEKS OF GOODS. d. Nature of goods. CLARKE 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 tram 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 injurv was received by a danger incident to this mode of carriage of this species of property, and which the defendants could not, bv the exercise of diligence and care, prevent, or by inevitable accident; that, in the absence of any agreement to CAREIEES LIABILITY. the contrary, it was the business of the defendants to provide a i son to look after the horses on their passage, if their safety required such oversight. The defendants' counsel excepted, and then a verdict for the plaintiffs. The judgment having been affirmed at a general term in the fifth district, the defendants appeal Dkxio, C. J. The fact that the plaintiff was allowed a p 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 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 inevitable 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 stated 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 CAKKIEKS OF GOODS. pensities of the animal undertaken to be carried, the ordinary re- sponsibilities of the carrier should attach. Palmer v. The Grand Junction Railway Company, 4 Mees. & 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. FITCHBURG E. CO. Ill Mass. 142. 1872. Tort agcainst common carriers to recover for injuries to the plaintiff'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 tra 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 eitherthe 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, mav 422 CARRIERS OF GOODS. destroy themselves in attempting to break loose, or may kill each other. If the injury in this 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 Railroad 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. Renfro, 3 Met. (Ky.) 51 [313]. And in a New York case, Conger v. Hudson River Rail- 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 Railroad 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 Railway Co., L. R. 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 carrier's liability. 423 not to be held liable in this action. Upon this point the burden of proof maybe 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 BROS. v. CHICAGO, etc. R. CO. 69 Iowa, 665. 1886. Plaintiff delivered a car-load of hogs to 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 train on which the plaintiff's hogs were shipped for about twelve hours. When the train arrived at Chicago, eighteen of the hogs were dead, and others were so injured as to depreciate their value in market. Plaintiff brought this action to recover the damages occasioned by the injury, 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 defendant in its answer denied that the delay in delivering the hogs in Chicago was caused by any negligence 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. The verdict and judgment were for plaintiffs, a motion for a new trial being denied. Defendant appealed. Reed, J. I. Defendant offered evidence on the trial to prove ' that the wreck which obstructed the track, and delayed the train on which the hogs were being transported, occurred without fault on its part, and that it caused the track to be cleared and sent the train forward as soon after the accident as practicable; but the evidence was excluded by the court on the plaintiff's objection. Defendant sought to prove these facts in excuse of the delay in delivering the hogs at Chicago. There was no express undertaking by the defend- ant to transport the property to its destination within any specified time. The law, however, implies an undertaking by it to deliver it there within a reasonable time. But, with 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 CARRIERS 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. It was bound , notwithstanding the accident, to use the highest degree of care during the delay for the safety of the property. If the removal of the hogs from the car during the time was necessary for their protection from injury, and it was possible to remove them, defendant was bound to do so ; and it was bound to give them whatever personal attention was necessary for their protection from injury during the time. But it did not offer to show that it had unloaded them from 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 the property, and that its CARRIERS 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, when the cause of damage for which recompense is sought, is connected with the character or propensities of the animals undertaken to be carried, the ordinary responsibility of the carrier does not attach. The reasons for the exception to the general rule as to the liability of the carrier, which arises when he undertakes to transport live-stock, are very apparent. There are dangers incident to the transportation 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 rendered necessary by the character of the property in this respect. In every other respect the carrier is held to be an insurer of the property. In our opinion, the present case is not within the exception to the rule. The injury was caused by the " piling up " of the hogs while struggling to get near to or away from the doors of the car. The pro- pensity, however, was to do this only when the train was standing. Owing to the obstruction of the track, it was kept standing at a station for twelve hours, and, without doubt, it was during that time that the injury occurred. But the danger was not one against which provision could not be made. The injury might have been prevented either by unloading the hogs or giving them personal attention while in the car. There is no claim that this could not have been done, and we think defendant was bound to do it. As there was nothing shown which tended 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 CARRIERS 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 CENTKAL E. CO. 153 Iowa, 695; 133 N. W. R. 746. 1912. McClaix, 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 cars 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 ; " the 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 carrier's liability. 4_'7 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 plaintiff 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, 17G, 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 plaintiff 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 CARRIERS 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 sufficiency 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 R. Co., 104 Iowa, 659; Terre Haute, etc., R. Co. v. Sherwood, 132 Ind. 129 (31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239 and note) ; St. Louis & S. E. R. Co. v. Wells, 81 Ark. 469 (99 S. W. 534) ; Libby v. St. Louis, I. M. & S. R. Co., 137 Mo. App. 276 (117 S. W. 659); Cleve v. Chicago, B. & Q. R. Co., 77 Neb. 166 (108 N. W. 982, 124 Am. St. Rep. 837) ; 15 Am. & Eng. Ann. Cas., 33, and note. • •••«••••••» The judgment must be reversed. carrier'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. Robin- 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 X. 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 CARRIERS 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. GRIFFITH. 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 hundi'ed 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 plaintii'is had contracted to sell it to one Greenman, the} 7 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, carrier'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 " McCoun ; " 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 was as follows : — " New York, May 24, 1849. "Keceived 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.' 1 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 shilling 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 by 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 CARRIERS LIABILITY. 433 goods to Albany, the 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. R. 531 ; Story on Bail. § 508. In Ellis v. Turner, which was an action on the ease, the carrier conveyed the goods beyond the place of destina- tion, intending to deliver them on his return, but they were greatly damaged 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. Gdtman, 4 Wend. 61.3; Hawkins v. Hoffman, 6 Hill, 586; 2 Saund. R. 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 CARRIERS 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 effect 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 YORK, etc. R. 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 CARRIERS LIABILITY. 435 the same general subject, which 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 w. 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, " was enti 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 period they returned to theii 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 Rosbotham, 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 submitted 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 Avas 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 Railroad Company, 17 1ST. 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 R. R 436 CARRIERS OF GOODS. Co., 6 Duer, 375; Wibert v. The N. Y. & Erie R. R. Co., 2 Kern. 245. But in the absence of a legal excuse, he is answerable for any delay to forward them 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 Reports, 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 v. 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, moral 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. 137 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 R. 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 SHORE, etc. R. 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 CARRIERS 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 Railroad Co., 12 N. Y. 245; Blackstock v. N. Y. & Erie Railroad 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- in«- 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 defendant. The mischief did not come from the strike — from the refusal of the CARRIERS 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 perforin 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. R" R. Co. 17. Hogen, 84 111. 36; Pittsburg, C. W. L. R. Co. v. Hallowell, 65 Ind. 188; Bennett v. L. S. & M. S. R. R. Co., 6 Am. & Eng. R. Cas. 391; I.'& W. L. R. R. Co. v. Juntzen, 10 Bardwell, 295. The cases of Weed ». Panama R. R. Co., 17 N. Y. 362, and Blackstock v. K Y. &Erie R. R. Co., lBosw. 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. 1 DAVIS v. GARRETT. 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, 114|- 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 &e. R Co. v. Hazeu, 84 111. 36. 440 CARRIERS 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 Regent'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 Regent'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 Regent'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 Regent'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 Regent'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 master of 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 sufficient 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 vessel was destroyed, which variation will necessarily occur in each individual case. But the objection taken is, that there is no natural or necessary 4:42 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. Roberts. 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, CARRIER'S LIABILITY. j.43 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 to Waterford; 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. Ride discharged. CONSTABLE v. NATIONAL STEAMSHIP CO. 154 U. S. 51. 1894. Mr. Justice Browx. 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, Bev. 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 case of The Scotland, 105 IT. 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 1854, 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 warehouseman, 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 Kailroad, 30 N. Y. 564. But, if such deviation be a customary 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 IT. 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 fire happening after unloading the cargo was reasonable and valid. 2. That the discharge of the cargo at the Inman pier was not, in carrier's liability. 445 the eye of the law, a deviation such as to render the carrier au 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 affreightment. 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. & F. 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 officers and crew of the 'Lynx,' they ought to find 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 CASHIERS 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. Naptox, 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 from 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. R. 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 CARRIER'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 oi Charleston and Col, S. B. v. Bason, 1 Harper, 262, a boat grounded on an inland passage to Charleston, from a reflux of the 1 and fell over, when the bilge-water ran into the cabin and injured a box of books belonging to the plaintiff. Richardson, 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 bo 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, the 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 officers 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- ficial 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 of 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. R. 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 officers 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 the cause remanded. carrier's liability. 449 BRENNISEN v. PENNSYLVANIA R. CO. 100 Minn. 102 ; 110 N. W. 362. 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 Railway 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 Railroad Company, to the city of Buffalo, New York, for delivery to the plaintiffs at that point. The Atlantic Coast Railway Company and other connecting lines extended to Sunbury, Pennsylvania, and there connected with the Pennsylvania Railroad 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'; (b) 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 CARRIERS 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 carrier's liability. 451 would amount to want of such care, it would be an act of negligence. As said in Merchants v. Cornforth, 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. R. 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. R. 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 Railroad 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 Railroad 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 arrived 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 CARRIERS 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 1 In the case of Beard v. Illinois Central R. Co., 79 Iowa, 578 (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 by law to protect the goods from destruction and injury resulting from conditions which, in the exercise of due care, may be 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 cars 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 aud 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-bills, 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 earn 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 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, 485. 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 case of a common 454 CARRIERS 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 even- 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 j^ear 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 Eoll 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 the 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 igainst the carrier, for the money only (the other things being of no considerable value), abating £3 only for carriage. Quod durum videbatur circumstantibus. Now I own that I should have thought this a fraud; and I should have agreed in opinion with the circum- stantib'us; which seems to have been also the opinion of the reporter. So in the case 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 Avas 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 nol 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 lie had not expressly proposed a caution against being answerable for moi 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 reAvard 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 him upon more caution in admitting the evidence. But it appeared to be notorious in the country where this transaction happened, that 456 CAERIERS 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. HARRIS 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, o . 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. Ad. per cwt. , while for ordinary bulky articles he charged 6s. only, and he contended that the higher price of 9s. Ad. 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. Ad. 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. Lawrence, 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 accpiainted 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 Lawrence, 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. '[Lawrence, J. In Nicholson v. Willan it was very doubtful whether the goods had gone by any carriage.] By the statutes 3&4W.&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 than 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. Russell, 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. [Lawrence, 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 the 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, Carth. 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, 5 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 Rep. 532. 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 case the goods were not lost in the course of the carriage which the defendant had undertaken, but he had gone beyond the 460 CAKKIEHS 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 hnd 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 Kenrick 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. R. 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. [Lawrence, 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 omissive, 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. Chambre, 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. Rule 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 65, 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 CARRIERS 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 he 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. From 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 g(" 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 compres into a very small compass. Parcels containing these bills are tinually sent by common carriers. As the law compels curriers 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 of the owner of the goods to apprise the carrier that the parcel was of value. The legislature would probably think, if its attention wer iller] to the subject, that a stamp duty on contracts relative to inland 464 CARRIERS OF GOODS. carriage would, be a very heavy and very inconvenient tax, and would remove the 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 consequences of a loss by gross negligence. 1 . . . HOLLISTER v. NOWLEK 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 part of the route lying between Avon and Le Roy. East of Canandaigua the line was owned by other proprietors. The plaintiff resided at Utica, and at that place entered as a passenger in the Telegraph line for Buffalo. His baggage consisted of a trunk, containing clothing 1 The judge discusses the sufficiency of certain notices, but that portion of the opinion is not deemed important, and is omitted. — [Ed.] 466 CARRIERS OF GOODS. the value of $116.75. The fare was duly paid. On the' 20th July, 1833, before daylight in the morning, the plaintiff left Avon in the defendant's coach ou 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 off. 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. Bronson, 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. K, 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 ^uest 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 t lie 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 office, 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 notiee, 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 losses except those occasione 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 CARRIERS 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. B. 160 [392] ; Elliot v. Eossell, 10 Johns. E. 1 ; Kemp v. Coughtry, 11 Johns. E. 107. In Roberts 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; 5 Bing. 217; 3 Taunt. 272, per Lawrence, J.; 2 Kent, 599; Story on Bailments, 328; 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. R. 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 col- 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 him by the law. This is an action against a person, who, by an ancient law, held as it were a public 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, by the common law ; a carrier is in the nature of an insurer." See also Hide v. Proprietors, etc., 1 Esp. R. 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 Riley 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 1;hese 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 CARRIERS OF GOODS. "though coach proprietors of the present day are a respectable and opulent class, many of the persons employed by them resemble * tfi u P» CO O H W PL, « X X O W ►J Pi o w w Q r ca M & o SZ5 fe < 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 farther agreed that said express shall not bo liable for loss or damage unless the claim therefor be made in writing at their prin- cipal office, with this receipt annexed, within thirty days thereafter. 486 CAERIEES 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. From the judgment entered upon this report, an appeal was taken to the General 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 B. K. Co., 442; French v. Buffalo, N. Y. & Erie B. B. Co., 4 Keyes, 108. The principal question in this case is, whether there was a con- 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. 457 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 not at all attractive, while other parts of the paper are quite so. Considerable stress is laid upon the fact that the words, "Read this receipt," were printed on the card in legible type. The receipt reads : " Received 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 communit} r ; 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. R. R. 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 passage to the place indicated on the ticket." In the cases of Prentice u. Decker, 49 Barb. 21, ami 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. R. 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 could be read, would have that effect. The attention 488 CARRIERS 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. 4gQ lislied 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 affirmed, 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. LIVERPOOL STEAM CO. v. PHENIX INS. CO. 129 U. S. 397. 1S89. Mr. 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 Xew 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 CARRIERS 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. 315; 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 Railroad Co. v. Lockwood, 17 Wall. 357. 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 for 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 Act 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 Unit.-! States of the previously existing law on this subject is the Ad of 1851, to limit the liability of ship-owners (Act of March 3, 1851, c. 43 ; 9 Stat. 635 ; Rev. Stat. sec. 4282-4289, and that act leaves fchem 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 b} r 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 carri< t 492 CARRIERS OF GOODS. carefulness and diligence in performing the service; not merely an abstract carefulness 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 Railroad Co. v. Lockwood shows that it affirms 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. Pratt, 22 Wall. 123, 134 ; Bank of Kentucky v. Adams Express Co., 93 U. S. 174, 183 ; Railway Co. v. Stevens, 95 U. S. G55 [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.], 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., SO X. 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 ordinary liabilities as carriers are under without fault or uegligence 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 terms. In New Jersey Steam Navigation Company o. Merchants' Bank, 6 How. [U. S. R.], 344, a contract that the carriers 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 policj by which courts should be guided in the construction of contracts designed to relieve common carriers from obligation to exercise care and diligence in the prosecution of their business, which the law imposes upon ordinary bailees for hire engaged in prii business. In the recent case of Loekwood v. Railroad Co., 17 Wall. 357, the Supreme Court of the United States decided that a common carrier cannot lawfully stipnl for exemption from responsibility for the negligence of himself or his servants. Ii we felt at liberty to review the question, the reasoning of Justice Bradley in that 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 of 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 IT. S. 102; Carpenter v. Washington Ins. Co.. 16 Pet. 495, 511; Swift v. Tyson, 16 Pet. 1; Railroad Co. c. National Bank, 102 U. S. 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, German} 7 , 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. Stand, 3 Moore P. C. (x. s.) 272, 278, 285, 286; 25 Laurent Droit Civil Francais, no. 532; Mellish, L. J., in Cohen v. Southeastern Railway, 2 Ex. D. 253, 257. 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- wotild 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; 26 id. 442 ; 42 id. 212 ; 49 id. 263 ; 51 id. 61. Li.MLJ'ATiON OF LIABILITV, nized in the admiralty courts of either. The Lottawanna, 21 Wall. 558; The Scotland, 105 U. S. 24, 29, 33; The Belganland, 111 U. S. 355, 369; The Harrisburg, 119 U. S. 199; The Hamburg. _' Moore P. C. (x. s.) 289, 319; s. c. Brown & Lush, 253, 272; Lloyd v. Guibert, L. R. 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 am! 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 pro visions 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. B. 2 Ad. & Ec. 393; Taubman v. Pacific Co., 26 Law Times (jt. s.) 704; Steel v. State Line Steamship Co., 3 App. Cas. 72; Manchester, etc. R. 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." Robinson v. Bland, 1 W. Bl. 234, 256, 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 lias 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. Micon, 114 U. S. 218; Watts v. Camors, 115 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. Oh 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 United 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, 1 Lloyd v. Guibert; 2 and Chartered Bank of India v. Netherlands Steam Navi- gation Co., 8 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 lie 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 Railroad 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; Rev. Stat. sec. 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. (s. s.) 272. 2 6 B. & S. 100 ; s. c. L. R. 1 Q. B. 115. 8 9 Q. B. D. 118, and 10 Q. B. D. 521. 498 CARRIERS 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 A.merican 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 MAIX 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 River on January 5, 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 $1577.38, 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 87070.10. On appeal to the Circuit Court this decree was affirmed, and the owners of the Main appealed to this court. Mr. Justice Brown, 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 bv 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. 553, 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. 452; Code of the Netherlands, Art. 321 : Belgian Code, Art. 216; Italian Code, Art. 311; Russian Code, Art. 500 CARRIERS OF GOODS. 649; Spanish Code, Art. 621, 622; Portuguese Code, Art. 1345; 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, c. 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 their 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. 50! into the Kevised 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. 50, 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 less 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 Mulloy 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 fracht, whether it be a compensation for transportation in ships by sea, or carriage by land, either of goods or persons, in gross, or detail." 502 CARRIERS OF GOODS. With the 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. Plemyng, 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. E. 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. 156, 164. It does not, however, include the cargo, which, presumptively at least, does not belong to the owner of the ship. 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. Nor 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 Republic, 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. 157, 184, remarked : " A statute for the purposes of public policy, derogating to the extent of injustice, from the legal rights of individual 504 CARRIERS 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. CALDERON v. ATLAS STEAMSHIP COMPANY. 170 U. S. 272 ; 18 S. C. Rep. 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 $5413.18, 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 the provision : " And finally, in accepting this bill of lading, the shipper, owner and consignee of the goods, 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 each of the twenty-nine packages, or $2900 in all. Calderon v. Atlas Steamship Co., 64 Fed. Eep. 874 From 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 U. S. App. 587. Mr. Justice Brown, after stating the case, delivered the opinion of the court. Two questions are presented by the record in this case: First, 506 CARRIERS OF 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 $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 the 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, officers, agents or servants to carefully handle and stow her cargo, and to care for and properly deliver the same, 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 CARRIERS OF 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 $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. Fraloff, 100 U. S. 24, 27 [329], and Hart v. Pennsylvania Railroad, 112 U. S. 331, and the principle announced in Magnin v. Dinsinore, 56 N". Y. 168 ; S. C. 62 N. Y. 35 ; 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 lia- 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 Ballou 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 valua- 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 not, 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 S100 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 8100 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 CARRIERS OF GOODS. 1 Win. IV, c. 68, which received a construction similar to that we have given to it in Morritt v. Northeastern Railway 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. Railway 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 case — 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 proper delivery of the property. This would be in direct contravention of the Harter Act. Indeed, we understand it to be practically conceded that under the construction we have given to this clause of the contract the exemp- tion would be unreasonable and invalid. Tlie decree of the District Court is therefore reversed, and the case re- manded to that court with directions to assess the value of the libeUant's goods, and to enter a decree in conformity with the opinion of this court. Mr. Justice White concurred in the result. Mr. Justice Brewer dissented. KNOTT v. BOTANY MILLS. 179 U. S. 69 ; 21 S. C. Rep. 30. 1900. Mr. Justice Gray 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 2 )ersonam i n 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 River 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 Rules, 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 sufficient 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 CARRIERS 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 libellants. 76 Fed. Rep. 582. 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 U. S. 711. Before the act of Congress of February 13, 1893, c. 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 U. 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 constructed 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 CARRIERS 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. 583-585 ; 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, 550, 551. 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, "froin 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 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 Eepresentatives, 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. Rec. 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 CARRIERS 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. GRAVES v. LAKE SHORE, etc. R. 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 were "shipped at an agreed valuation of $20 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 plaintiffs 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 responsibility; 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 Railroad, 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 CARRIERS OF GOODS. lie 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 with 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 Railway, 7 H. & N. 437; s. c. 3 H. & C. 343; Railroad v. Fraloff, 100 U. S. 24 [329], Muser v. Holland, 17 Blatchf. C. C. 412; s. c. 1 Fed. Rep. 382; Hart v. Pennsylvania Railroad, 2 McCrary, 333; s. c. 7 Fed. Rep. 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. 1 Judgment affirmed. 1 Ace. : Hart v. Penn'a. R. Co., 112 U. S. 331 ; Ballou v. Earle, 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 one-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 former. 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. Rail- road Company, 16 Lea, 225 ; Moulton v. St. P., M. and M. Railway Company, 31 Minn. 85; Railroad Company v. Simpson, 30 Kan. 615 ; Railroad Company v. Abies, liO Miss. 1017 ; U. S. Express Company v. Blackman, 28 Ohio St. 144; Black v. G. LIMITATION OF LIABILITY. 519 McFADDEN v. MISSOURI PACIFIC R. CO. 92 Mo. 343. 1887. Ray, 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 Wis. 319 ; A. G. S. Railroad v. Little, 71 Ala. Oil. See also Rosen field v. Railway Company, 103 Ind. 121 ; M. P. Railroad Company!'. Fagan, 35 Am. and Eng. Railroad Cases, 666 ; 97 111. 525 ; S. C. 34 Am. R. 197. The rule is the same now, except that in this day of special contracts it has bet n 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 oi f the stipulations of the special contract. 2 Greenlenf Evi., sec. 219 ; 52 Ala. 606 ; 71 Ala. 611 ; 7 Yer. 340 ; 8 Hum. 498 ; 9 Bax. 188 ; 2 Lea, 296 ; 2 Pickle, 63 Pa. St. 14; 36 Minn. 539 ; s. c. 1 Am. St. R. 692 ; 60 Miss. 1017 ; 2S Ohio St. 144 ; 55 Wis. 319 ; Lawson on Con. of Car., sees. 245, 246, 247, and 248 ; Hutchin- son on Car. sec. 764 ; Schouler on Bail, and Car., sec. 439. .... Caldwell, J., in Railway Co. v. Wynn, 88 Tenn. 320. 1889. 520 CARRIERS OF GOODS. thirty-one dollars per car, which 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 other 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; Foutaine v. Boatman's Sav. Inst., 57 Mo. 552; 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. CRONINGER. 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 $137.52, 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 tiled 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." Mr. Justice Lurton, 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 affirmed in 522 CARRIERS 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. Railroad v. New York, 165 U. S. 628; Chicago, Milwaukee & St. P. Ry. v. Solan, 169 U. S. 133, 137 ; Richmond &c. Ry. v. Pat- terson Co., 169 U. S. 311 ; Cleveland &c. Ry. v. Illinois, 177 U. S. 514 ; Pennsylvania Railroad 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 traffic ; 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 transporta- 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 CARRIERS OF GOODS. 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 own 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. 1 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 affirmatively 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 : Provided, 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 LIABILITY. 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 Railroad, 112 U. S. 331 ; or that deter- mined by the supposed public policy of a particular state, Pennsyl- vania Railroad v. Hughes, 191 U. S. 477; or that prescribed by statute law of a particular state, Chicago &c, Railroad 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 d^ picted by the Supreme Court of Georgia in Southern Pacific Co. v. Crenshaw, 5 Ga. App. 675, 687, 63 S. E. Rep. 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 CARRIERS OF GOODS. but that Congress intended to take possession of the 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 Ry. v. State of Washington, 222 IT. S. 370; Southern Railway v. Reid, 222 U. S. 424 ; Mondou v. Railroad, 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. Ry. 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 LIMITATION 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 lull 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 of 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 filed 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 Railroad, 3 Wall. 107; Railroad Company v. Lock- wood, 17 Wall. 357 ; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Hart v. Pennsylvania Railroad, 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. Railroad, 3 Wall. 107 ; Railroad v. Lockwood, 17 Wall. 357 ; Hart v. Pennsyl- vania Railroad, 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. Ry. v. Estill, 147 U. S. 591, 619 ; Prim- rose v. W. U. Tel. Co., 154 U. S. 1, 15 ; Chicago &c. Ry. v. Solan, 169 U. S. 133, 135 ; Calderon v. Atlas Steamship Company, 170 U. S. 272, 278 [504] ; Pennsylvania Railroad 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 Railroad, 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 K. Y. 170, 175 ; 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 CARRIERS OF GOODS. abrogate the 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. R. R. 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. Rep. 99 ; Larsen v. Oregon Short Line, 38 Utah, 130 ; S. C, 110 Pac. Rep. 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. Rep. 550. 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. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. HARRIMAN. 227 U. S. 657 ; 33 S. C. Rep. 397. 1913. The facts, which involve the validity under the Carmack Amend- ment 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. Mr. Justice Lurton 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 Regulate Commerce, as amended by the act of June 29, 1906 (•"■ 1 Stat. 584, c. 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 Regulations for the Transportation of Live Stock. NOTICE. This Company has two rates on live stock. 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 Risk, 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 Grove 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. 1 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 CARRIERS 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 limitation 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 affirmed. 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 Ry. 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. Rates in Cents Per 100 lbs. Cattle (See Rule 3.) Distance Commodities Carloads 380 miles and over 370 .. 26| Rule 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 Car mack 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 Railway 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 CARRIEKS 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 Railroad, 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 r. Pennsylvania Railroad, and Kansas City &c. Railroad 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 cla 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. u. Croninger, 226 U. S. 491 [520] ; Michigan Central Railroad v. Vree- land, [227 U. S.] 59. 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 I limitation or qualification be just and reasonable, and does notexem from loss or responsibility due to negligence. Adams Express Com- pany v. Croninger, and Michigan Central Railroad v. Yreeland, 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. Riddlesbarger 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.), 85 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. Time 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, until the 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 liability 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 s use, 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 much 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 <>t duty which public policy demands. But that which was public 538 CAKRIEES 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 Eailroad Company, 1 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, 2 where the decisions are extensively reviewed, the same doctrine is a.sserted. 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' negligence, 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 i 3 Wallace, 107. 2 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. 1 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 CARllIEKS OF GOODS. contract with 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 emploj^ers, 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, 1 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. 2 In Lewis v. The Great Western Railway Company, 3 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. 4 There the receipts for the goods contained a provision that there should be no liability i 62 Pennsylvania State, 83. 2 34 New York Superior Court, 390. 3 5 Hurlstone & Norman, 867. 4 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. Tin- 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, should 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 CARRIERS OF GOODS. SPRAGUE v. MISSOURI PACIFIC R. CO. 34 Kan. 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 the first part, or its nearest station agent, before said stock is removed from the 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 tne 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. Upon 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 reached 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 CARRIERS 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 therefor. 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 law? 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 of God, or the public enemy. It is now a well-established rule of law that this liability may be 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- standing^ 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. And 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. .11.- 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. Ely. 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 v. St. Louis, Kansas City & Northern Ely., 76 Mo. 514; 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. eh. 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 consideratior< for the stipulation in question is sufficiently shown. It follows from what has been said, that the judgment ef «f all concerned are the same as if the goods had been actually shipped before the bill of lading had been signed. 1 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. 3 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 prima 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. 4 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. 5 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 i Rowley v. Bigelow, 12 Pickering, 307 ; The Eddy, 5 Wallace, 495. 2 Maclachlan on Shipping, 338-9 ; Smith's Mercantile Law, 6th ed. 308. 3 Bates v. Todd, 1 Moody & Robinson, 106 ; Berkley v. Watling, 7 Adolphus & Ellis, 29 ; Wayland v. Mosely, 5 Alabama, 430 ; Brown v. Byrne, 3 Ellis & Black- burne, 714 ; Blaikie v. Stembridge, 6 C. B. n. 8. 907. * 1 Greenleaf on Evidence, 12th ed. § 305 ; Bradley v. Dunipace, 1 Hiirlstone & Colt, 525. * Hastings v. Pepper, 11 Pickering, 42 ; Clark v. Barnwell etal., 12 Howard, 'J. 2 ; Ellis v. Willard, 5 Selden, 529 ; May v. Babcock, 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. 1 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. 2 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. 8 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. 4 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. Scurr, Law Reports, 2 Q. B. 98 ; Swainston v. Garrick, 2 Law Journal, N. S. Exchequer, 355 ; African Co. v. Lainzed, 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 a/., 10 Wallace, 383 ; Simmons v. 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. 1 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. 2 Apply that rule to the case before the court and it is clear that the rilling 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. 3 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. 4 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 v. 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. 8 The Rebecca, Ware, 210 ; Dodge v. Bartol, 5 Greenleaf, 286 ; Walcott v. Ins. Co., 4 Pickering, 429 ; Cooper Co. v. Ins. Co., 22 id. 108 ; Adams v. Ins. Co., id. 163. 4 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. 1 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. 2 Parol evidence, said Mr. Justice Nelson, in the case of Creery v. Holly, 3 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. 4 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 ; 5 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. i 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. 2 Shackleford v. Wilcox, 9 Louisiana, 38. 3 14 Wendell, 28. * Sproat v. Donnell, 26 Maine, 187 ; 2 Taylor on Evidence, §§ 1062, 1067 ; Hope v. State Bank, 4 Louisiana, 212 ; 1 Arnould on Insurance, 70; Lapham v. 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 which took place before <•. 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. 1 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. 2 Remarks, it must be admitted, are found in the opinion of the court, in the case of Vernard v. Hudson, 8 and also in the case of Say ward v. Stevens, 4 [809 J 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 RY. 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. Rothkock, 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 Avalnut 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 was indebted to Wells Bros, in the sum of $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- 8 3 Sumner, 406. 4 3 Gray, 101. 570 CARRIERS 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 sufficient 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 of 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 value unknown) consigned as marked and numbered in the margin, upon the terms 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 are 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 distiuctly 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 business 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 or 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. Marks and consignees. Car No. 560 A. & N 1006K. S. J.&C. B. 9450 S Description of Ar- ticles given by Con- signee. Walnut lumber Weight, subject to Correction. 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- erly 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 $ 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 sun^ 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 CARRIERS 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. E. 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 that 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 expl 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 consignee, it shows upon its face that it does not express the full agreement between the parties, and the parol evidence was doubtb admitted upon the ground that the contract was partly in writii 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 on 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, § 13 b 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. 6 E. 888; and other cases.] But, after the carrier or his agent h 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 CARRIERS OF GOODS. described. As is said in Meyerstein v. Barber, L. R. 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, hoAvever, assignable, and the assignor may maintain an action thereon in hi* own name. It possesses attributes not common to the ordinary non-negotiable instruments enumerated in section 2084 of the Code. The instruments 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 OF 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 properly, 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 country, 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'BRIEN v. GILCHRIST. 34 Maine, 554. 1852. On exceptions from the District Court, Rice, 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 feet, 576 CARRIERS OF GOODS. more or less, and are to be delivered in the like good order and condition, at the said port of 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 ; 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 lading, so far as regards the condition of the goods shipped, is prima facie evidence of a high nature, but not conclusive. Barrett v. Kogers, 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. & B. 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 Dickerson 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 Wayland v. Moseley, 5 Ala. 430, the court say, "that 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." [n 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, .'! Sum]. 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 KOLLING 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 CARRIERS 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 $62.50 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 until 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 case 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. R. 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 goods 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 Rolling 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. R. 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 qaestion 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- ments 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 were accepted, and that the freight-money is therefore to be paid. It is true that there was an acceptance, and that the respondents arc liable for the freight-money. But they have nevertheless a right to 580 CARRIERS 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. DRIGGS. 137 N. Y. 271 ; 33 N. E. R. 326 ; 33 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 LIABILITY. 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, ISTeight & 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 CARRIERS 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 case 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 AVatts, 424), Huston, J., in delivering the opinion of the Pennsylvania Supreme Court, held that generally a bill of lading could not be 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 bill 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 defendanl took them and unknown to it really contained nothing but salt. A verdict for the plaintiff (who was a bona fide holder for value) was, then set aside and a new trial granted. 584 CARRIERS OF 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 K Y. 590); Armour v. Railroad Co. (65 id. Ill), and Miller v. Hannibal & St. Jo. R. R. (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 bill 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 enough 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. R. R. {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. R. R. 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, so 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 bbls. 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 (supra). It was held that it was not. Although there was in the bill of lading the added expression, "contours 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 1858; 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 v. Perrin, 16 K 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 CARRIERS OF GOODS. THE IDAHO. 93 U. S. 575. 1876. [For this case, see infra, p. 690.] POLLARD v. VINTON. 105 U. S. 7. 1881. Error 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 lonafide 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 bills of lading for freight shipped on defendant's steamboat, ' Ben Franklin.' This authority to execute and deliver bills of lading has two limi- 590 CARRIERS OF GOODS. fcations; namely, 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 agenc}". 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 the same reason applies to a signature made by a master out of the course of his employment. The t 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. \Y<: say the apparent authority, because any secret instructions by the owner, inconsistent with the authority with which the ma 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 Rep. 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 Co. v. Schuyler, 34 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 fai 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 depeuds 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 RAILROAD COMPANY, Plaintiff in Error, v. FIRST NATIONAL BANK OF FREMONT, Defendant in Error. 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 $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 Berkleys. Watling, 7 Ad. and El. 29; but THE BILL OF LADING. 593 that case was decided on another point, although Littledale, J., said in his 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. Riches, 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 pro Jiac vice, the general owner is estopped to show the truth, as 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 not 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 Dickersori v. 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 has 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. R. 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. R. R. 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. 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 ti niony 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 imp. 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 the 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. Objec- 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 affirmed. Judgment affirmed. 596 CARRIERS OF GOODS. 7. DELIVERY BY CARRIER. A. To TERMINATE 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 DELIVERY BY CARRIER. 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 inconvenience 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 Kenyox; to set aside which a rule having been obtained. Lord Kenyon, Ch. J. This is a question of very general concern, since few days in the year occur in which cases do not 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 carriers 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 c 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 CARRIERS 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, in 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 hous6 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 deli vei DELIVERY BY CAREIER. 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. Ashhurst, 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 case the liability of the defendants continued until the goods were delivered. Had it not been 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. Buller, 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 interi 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 aud 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 CARRIER. G01 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 dischaa 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 wen- ready to have delivered them to the Stockport carrier; but no such carrier being then arrived, what were the defendants to do? They 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, 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. Grose, 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 curriers? 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 decisive 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 wei carry them. They did not deliver them at that place; the delivery 602 CARRIERS OF GOODS. at the warehouse was not a delivery to the plaintiffs 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. 23 111. 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 DELIVERY BY CARRIER. 603 carrier, undertook to convey from Chicago, Illinois, to Madison, Wisconsin, and there to be delivered to 1). J. Baldwin, or his authorized agents, and which undertaking the said defendant failed to perform. Breese, J. The question in this case is, was there sufficient evidence of a delivery of this package, or of an offer to deliver, as will discharge the liability of the express company as ;i 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 officers 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 bein^' shown to be, at Madison, to deliver by that book to the consignees in person, or to their authorized agent, at their pla< E 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 CARRIERS 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; G-arnett v. Willan, 5 Barn. & Aid. 53; Duff v. Budd, 3 Brod. & Bing. 177; Hyde v. The Naviga- tion Company, from the Trent to the Mersey, 5 T. R. 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; dick- ering v. Forolm, 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 rule 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, referred 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 determi the recovery. It may be the proof in that case showed the entry ol the package on the delivery book, and an offer at the bank pi after bank hours, and a refusal to receive it on that account) 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. PACKARD v. EARL. 113 Mass. 2S0. 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 personal! at his residence at West Mansfield, and until such delivery thei liability as carriers continued. This liability they under! limit by proof of usage in their business to leave packages sent to C06 CARRIERS 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 sufficiently favorable to the defendants. Stevens v. Reeves, 9 Pick. 198; Berkshire Woolen Co. v. Proctor, 7 Cush. 417. • ••••••••••• Exceptions overruled. WITBECK, Respondent, v. HOLLAND, Treasurer of the American Express Company, Appellant. 43 X. 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 Y"ork, 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 names. ARTICLES. Dollars Cents. Consignee. Where from. Destination. Amount charged. By whom received. Pck. • $320 Martin Witbeck. H. I. Schenectadv, N. Y. • si.::. Myers. DELIVERY BY CARRIER. 607 Myers was the 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 middle 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-office. Between one and three days there- after, the agent impaired of two men, conductors upon the X. Y. Central Railroad, running from Schenectady to Troy, and also incpiired 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 office 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 $320, with interest from December 7, 1864. From 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 CARRIERS 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; all 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. Newton, 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. Redfield on Eailways, § 127; Thomas v. Boston R. R. 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. Red- field on Railways, § 127. These were established for the purpose of extending to the public the advantages of personal delivery enjoyed in 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 CARRIER. 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 ap] 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 CARRIERS OF GOODS. HUTCHINSON v. UNITED STATES EXPRESS CO. 63 W. Va. 128 ; 59 S. E. E. 949; 14 L. R. A. N. S. 393. 1908. Poffenbarger, 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 small and of little value, lie took them from the express office, 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-office 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, 1905, 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 priven 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 office 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 relieved 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 lia- 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 person 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. R. Co. I I W. Va. 538, 67 Am. St. Rep. 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 hues, which, ordinarily, do not make deliveries to the consignees, but, on the arrival of the goods at the points of destination, store them 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 instramen talities for the transportation of goods generally ; and, as such, they 612 CARRIERS OF GOODS. are insurers so long as the 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. From 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. Rep. 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. 553. 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. Q\% company is bound to give notice of the arrival of the goods is not inconsistent with the holding in Berry v. West Virginia & P. R. 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. R. Co. cited. While this 614 CARRIERS OF 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. R. 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. E. 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, but 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, 554, 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. Rep. 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. Richmond & D. R. Co. v. Benson, 96 Ga. 203, 22 Am. St. Rep. 1 16, 12 S. E. 357 ; Missouri, K. & T. R. 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 office 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, lie 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. Ib- could then have said that the omission of duty on the part of thi press company had wrought injury to him Affirmed. 616 CARRIERS OF GOODS. NORWAY PLAINS CO. v. BOSTON AND MAINE R. E. 1 Gray (Mass.) 263. 1854. Actiok of contract upon the agreement of the defendants to transport certain goods from Rochester, 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 coining 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 DELIVERY BY CARRIER. G17 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 ari 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 effect 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 nut 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 CARRIERS 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 Eugland 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 Railroad, 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 CARRIES. G19 amount to no defence, and would therefore be inadmissible in evi- dence. If, on the contrary, the transit was at an end, if the d ants had ceased to have possession of the goods as common carriers, and held them in another capacity, as warehousemen, then th< 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 arc 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, traversiug 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 lu- ffs side, at some intermediate point. The rule in regard to ships is very exactly stated in the opinion of Buller, J., in Hyde /•. Trent & Mersey Navigation, 5 T. R. 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 im 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 access i hie placi 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 CARRIERS OF GOODS. goods forwarded, must, in the absence of proof to the contrary, b& presumed to be assented to by them, so as to constitute the implied contract between them — that they will carrj' 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 Railroad, 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. R. 581, and Hyde v. Trent & Mersey Navigation, 5 T. R. 389 [596]. See also Van Santvoord v. St. John, 6 Hill, 157, and McHenry v. Philadel- phia, Wilmington & Baltimore Railroad, 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 DELIVERY BY CARRIER. 621 the safety of the goods, and for ordinary care and attention of theii servants and agents, in keeping and delivering them when railed 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. Row 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 fall 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 oi 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 air 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 country. 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 case 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- clusive, that Ames, the plaintiffs' authorized agent, had actual notice of the arrival of both parcels of goods. In applying these mles 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 CABRIEB, we consider them all immaterial. The argument strongly ui was, that the responsibility of common carriers remained until 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 i^ occupied, for passenger cars; so that goods may arrive and he un- laden at an unsuitable hour of the night to have the depot open fur 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 ear 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 lie 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. R. CO. 135 Ky. 361 ; 122 S. W. R. 181; 25 L. 11. 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 CARKIERS 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 postoffice 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 traffic 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. From 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 CARRIER. 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, Railroads, 2d ed. § 1527; note to Denver & R. G. R. Co. v. Peterson, 97 Am. St. Rep. 76; East Tennessee, V. & G. R. Co. v. Kelly, 91 Tenn. 699, 17 L. R. A. 691, 30 Am. St. Rep. 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. R. Co. v. Mahan, 8 Bush, 184, and Wald v. Louisville, E. & St. L. R. Co. 92 Ky. 645, 18 S. W. 850, 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 R. 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 25th; 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, g26 CARRIERS OF GOODS. ami the owner or consignee has had reasonable opportunity of receiv- ing and removing them. . . . What such reasonable time shonld 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 serve 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 stipulation 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 CARRIER. 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 go< after the carriage, Avere delivered to the consignee. 2 Kent, Com. 604 ; Moses v. Boston &M. R. Co. 24 N. EL 71, 55 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 conveniens 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. 523, 64 Am. Dec. 381 ; Leavenworth, L. & G. R. Co. v. Maris, 16 Kan. 333 ; Wood v. Crocker, 18 Wis. 316, 86 Am. Dec. 773 ; United Fruit Co. v. New York & B. Transp. Co. 104 Md. 576, 8 L. R. A. (N. S.) 240, 65 Atl. 415, 10 A. & E. Ann. Cas. 437 ; Columbus & W. R. Co. v. Ludden, 89 Ala. 612, 7 So. 471 ; 5 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 25th, 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 ascertain 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. 1,20 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 rea- sonable time commences to run is the time when the consignee had not and could not, in the exercise of reasonable diligence, know 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 Ave have expressed as to what constitutes reasonable time. In Redfield 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 CARRIERS 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. FAULKNEB 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 Erocedure. (Eeported below, 12 J. & S. 471.) The question submitted was as to the liability of defendants, common carriers, for the loss of certain goods. Millep., 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 cars 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 CARRIER. 631 mon carrier until he has delivered the goods, or offered to deli them to the consignee, or has done what is equivalent, by giving to the consignee, if he can be found, due notice ai eir arrival, and by furnishing him a reasonable time thereafter to take charge of or to remove the same. Gatliffe v. Bourne, 4 Bing. X. C. -".1 I : s. < .. 11 Clarke & Fin. 45; Price v. Powell, 3 Comst. 322; Zinn v. N. -I St. Co., 49 N. Y. 442; Sherman v. Hudson Kiver R. R. Co., G4 id. 254; The Sultana v. Chapman, 5 Wis. 454; Sleade v. Payne, 1 I La. Ann. 453; Graves v. H. & N. Y. St. Co., 38 Conn. 143; C. & R. I. R. R. v. Warren, 16 111. 502; Moses v. B. & M. K. R., 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, and 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 tire 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. R. R. Co., 1 Gray, 263 [616] ; Rice 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 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 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 cour and the decisions have been direct and clear, that while the decisions of local courts in reference to matters purely local in the 632 CAKKIERS 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, 5 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. Richardson v. Goddard, 23 How. [U. S.] 38; The Tangier, 1 Clifford, 396; Moses v. B. & M. R, R., 32 K. 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 DELIVERY BY CARRIER. G33 been adopted. It is sufficient to say that in reference to a law not of a single State, but affecting the commerce of the world, the d 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. II. 'J: Gray v. Jackson, 51 id. 9; Knowlton v. Erie Railway Co., 19 Ohio St. 260; M. & St. P. R. Co. v. Smith, 7 Chicago Leg. News, 171. 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 the 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. R. R. 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 pn and practical character of the rule which it established. The case of Curtis v. D., L. & W. R. R. Co., 74 N. Y. 116, involve,! 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 pari 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 1 1 634 CARRIERS 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. B. Co., 45 id. 626; Whitford v. Panama B. 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. 500; Eoot v. G. W. E. E. Co., 45 id. 524; Sherman v. H. E. E. E. Co., 64 id. 260. DELIVERY BY CARRIER. 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 perforin 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 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 rei nizes and admits the operation of the laws of another State 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 Sta 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. Sanaa. 69 N. Y. 24. In the consideration and determination of the case b< fore us, it is worthy of notice that the contract made in New York, as the rec 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 was silent as to delivery. It may, perhaps, be doubted whether the 638 CARRIERS 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. 1 KANSAS CITY, F. S. & M. R. 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 Cockburn in Macrow v. Great Western Railway Co., L. R. 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 Railroad 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." Uuder 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. 6215. With the ex- 1 Ace. : Railroad Co. v. Hatch, 52 Ohio St., 408, 39 N. E. R. 1042. DELIVERY BY CARRIER. ception of the amount of the baggage, the statute is substantially the contract of the carrier with the passenger, as stated in Hannibal Rail- road Co. v. Swift, supra. What is baggage, within the rule of the carrier's liability, is often difficult 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. Rose upon the " General Liability of Carriers of Passengers for Baggage," in 2 Am. & Eng. R. 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- port them as such. If he wishes to avoid responsibility for them as baggage, he must refuse to receive them in that way. Railway Co. v. Berry, 60 Ark. 433 ; Minter v. Pacific Railroad Co., 41 Mo. 503 ; Sloman v. Great Western Railway Co., 67 N. Y. 208 ; Great Northern Railway Co. v. Shepherd, 8 Exch. 30 [338] ; Mauritz v. K Y., Lake Erie & Western R. Co., 21 Am. & Eng. R. Cases, 286; Waldron v. Chicago & K W. R. Co., 46 K W. Rep. 456 ; Oakes v. Northern Pacific R. Co., 48 Am. & Eng. R. Cases, 437 ; Hannibal Railroad v. Swift, 12 Wall. 262 [342] ; Texas, etc., R. Co. v. Capps, 16 Am. & Eng. R. Cases, 118 ; Hamburg-American Packet Co. v. Gattman, 127 111. 598. In Railway 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 can 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 Railroad, supra, a passenger delivered his trunk and a piece of carpet to the baggage master of a railroad com- 638 CARRIERS 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, une 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 Fentonville 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. 5o, 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. McGahey, purchased for himself and his family, consisting of a wife and three small chil- Thirty dresses (children's) . . . Twenty-five shirts and underwear Twenty articles underwear, ladies' Twelve pairs socks Twenty-five yards cloth DELIVERY BY CARRIER. dren, three tickets, Avhich 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 : "Four feather beds 40 lbs. each, 40 cts $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 30.00 12.00 Estimate 12.00 1.80 3.G0 Razor hone 1-50 Knitting yarn 1-50 Three suits clothing 24.00 Two pairs pants -- 00 Four cotton shirts 2.00 Four pairs drawers (gents') 1.60 Two razors 3.00 Two pairs shoes (ladies') -•• ),) Five table cloths '■'•■"" Eight hand towels 2.00 One lot of pictures (photographs) 10.00 One lot carpenter tools 5.00 Seven books 2.70 Set knives and forks 1-00 One clock !- 25 Six buckets and two flat irons Total amount 8508.95" 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 1 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 pa< 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 CARRIERS 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 exerci:,^ 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. 510. 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. 510; 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 K Y. 548 ; Ouimit v. Henshaw, 35 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 CARRIER. (',11 tion as soon as his baggage, will not have the effect of extending 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 po- 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 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, 35 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. Reversed and remanded for a new trial. 642 CARRIERS OF GOODS. B. Termination of Liability as Bailee. a. Delivery to Connecting Carrier. RAILROAD CO. v. MANUFACTURING CO. 16 Wall. (U. S.), 318. 1872. In error to the Circuit Court for the District of Connecticut; the ease 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 Railroad 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 will 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.' 1 '' 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. in large quantities at the railroad depot in Detroit. This accumula- tion of freight there, and the limited ability of the line of propel to receive and transport it, were well known to the officers of the road, but neither the consignor, consignee, nor the station-master at tfackson were informed on this subject. The wool was carried over the road to the depot in Detroit, and remained there for a period of six days, when it was destroyed by an accidental fire, not the result 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 I railroad company. The charter of the company, which was plead' <1 and offered in evidence, contained a section thus : — "The said company may charge and collect a reasonable sum for storage 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; Provid* (in- stances the same as other contracts. In Wisconsin a pass pur- chased a through ticket from the Chicago & Milwaukee Railway Company from Milwaukee to New York City, and at the Bame time delivered her trunk to that company, and received | c 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, sta 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. Tins we tnink 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. Rid. Co. v. Copeland, 21 111. 332; Carter v. Peck, 4 Sneed [Tenn.], 203; Railroad v. Weaver, 9 Lea, 38; B. & 0. Eld. Co. v. Campbell, 36 Ohio St. 647; same case, 3 Am. & Eng. Eld. Cases, 246; 2 Eorer on Railroads, p. 1001. From 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 assume. 1 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 Rid. Co., 132 Mass. 423; Railroad 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 shown upon what part of the route the injury or loss occurred. The other theory upon which a recovery is sought is, that th several connecting lines over which the baggage was to be carried should be treated as a continuous and united line, and that 660 CARRIERS 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 companies, 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 CARRIER. 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 tin- issuance of through checks, while it resembled a partnership, did not constitute one, nor make any of the connecting curriers liable tor a loss not occurring on its own line. Croft u. B. & 0. Kid. Co., 1 Mc Arthur, 492. In Hartan v. Eastern Eailroad 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 month, 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 Kid. Co. v. Tripple & Co., 42 Ark. 465; same case, 18 Am. & Eng. Rid. Cas. 562; Aigen v. Boston & Maine Rid. Co., 132 Mass. 123; same (3(32 CAKKIEKS OF GOODS. case, 6 Am. & Eng. Rid. Cas. 426; Darling v. Boston & Worcester Eld. Co., 11 Allen, 295; Kessler v. Railroad Co., 61 N. Y. 538; Irwin v. Eld. Co., 92 111. 103; Insurance Co. v. Rid. Co., 104 U. S. 146; same case, 3 Am. & Eng. Rid. Cas. 260. Among the cases relied on by the defendant in error is Hart v. Rid. 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 Rid. Co. v. Fort, a decision by the commission of appeals of the State of Texas, reported in 9 Am. & Eng. Rid. 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. Railroad Co., supra, which, as we have seen, was deter- mined upon other considerations. The same may also be said respecting Texas & Pacific Railway Co. v. Ferguson, another de- cision of the commission of appeals of Texas, 9 Am. & Eng. Rid. 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 Rid. 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 CARRIER. by such action they stood substantially in the position of pai I the through business, and were jointly and severally liable us such. The concurrence of the other justices was, however, placed upon the ground that as the last carrier, and the one which was sued, recei 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 arrangement* and agreements of connecting carriers are such as to constitute i 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 remanded for another trial. All the justices concurring. PETERSON v. CHICAGO, ROCK ISLAND AND PACIFIC R. 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. Rothkock, 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, alle that, at the time the tickets were purchased by Peterson and the journey was made, the four railroad companies owned and operate 1 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 664 CARRIERS 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, Kock 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. Eailway 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. 11, speaking of a bill of lading, it is said: DELIVERY BY CARRIER. "On its face, it is but a memorandum, and not in form a contract inter partes. It is doubtless an instrument fitted for the occasion in which it is usually employed; and while what is clearly expres may not be contradicted by oral testimony, unless under the quali- fication of fraud or mistake, yet there is no rule which exclu 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 1ST. Y. 306. This court has determined that, where a contract is partly in writing and partly by verbal ag i 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 Rock Island Railroad 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 Rock 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 Rock 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 effect, 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 <■ 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. Railway 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 shov. what purpose these initials were placed there, but it is conci 688 CAEEIERS 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 Fe 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. Railway 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 v. 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 above 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 carrier. There was no evidence at what point the goods were stolen, and the court held the defendant liable upon the presumption that the goods DELIVEKY BY OAKETEE. were stolen in the possession of the last carrier. In Brintnall v. Railway 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 foods to the next carrier in the line. It may be said of all the cited cases that they rest mainly upon what is deemed presumptii These presumptions are grounded upon the necessities of the c rather than upon any clear and well-defined legal grounds, [ndeed, many of them are really grounded upon the thought that, when- 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 incumbent on the defendant to show itself clear of the loss. In one of the cited ca Smith v. Railway 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 Wolff v. Railway Co., 68 Ga. 653; and in Railway Co. v. Fort, 9 Am. & Eng. R, R. Cas. 392, and Rail- way Co. v. Ferguson, 9 Am. & Eng. R, R. Cas. 395, the Supreme Court of Texas holds that, when a person purchases a through tick. 1 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. 7:;:;: Hood v. Hail- way Co., 22 Conn. 12; Knight v. Railway Co., 56 Me. 240; Croft v. Railway Co., 1 McArthur, 492; Kessler v. Railway Co.. 61 N\ V. 538; Railway Co. v. Roach, 35 Kan. 740; 12 Pac. Rep. 93. The length of this opinion forbids that we should review these rases. After a very full and careful examination of the subject, Mr. Hutchinson, in his work on carriers (page 131), says: "From the cases it maybe deduced: First, that where carriers over different routes have associated themselves under a contracl lor a division of the profits of the carriage in certain proportions, or of the from it, after deducting any of the expenses of the business, they 668 CAEEISES 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 Rock 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. Reversed. b. Delivery to Consignee. SWEET v. BARNEY. 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 affirmed 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 CARRIKI;. 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 exchai and collections with other banks; and he acted as its represent;) 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 bank. The defendants' office was in the same building with the Clearing House, and Messenger requested the defendants to ki 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, al 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 sate delivery of property intrusted to them. Russell v. Livingston. L9 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 rebutted; and if in an action for non-delivery by the consigner against the carrier that presumption be overcome, the action is properly brought in the consignor's name. Price w. 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 Railroad, 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 CARRIER. 671 the defendants' office, I think no one would doubt the defend., were discharged. The case then turns upon Messen If an authorized agent in the premises, a delivery to him was effectual as a delivery to the principal. The question of agency a question of fact, and was settled by the verdict of the jury. We tli ink 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 carrie This disposes of the case unless there was some error committed at circuit in submitting the question of Messenger's authorit . the jury, or in the court's refusing to charge as requested. 1 h been unable to discover auy 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 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 assump- 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 tin- property of the depositor. The ordinary presumptions applicable to a consignment of property 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 tln-ir 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 sufficient answer to this defence to say, that Buch 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 the 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 Bettled, that it is the duty of the carrier, not only to transport the goods safely to the place of delivery, bat 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 [5961 I, 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 deli 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 th 672 CARRIEKS OF GOODS. BAILEY v. HUDSON RIVER 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. Church, C. J. It is undisputed that Alden, Friuk & 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, Frink & 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 obligation 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 proven 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. 515, 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 carrier on receipt of the package. The arrangement 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 upon the plaintiffs, or in any manner impair or affect their rights. DELIVERY BY CARRIER. 673 compliance with 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 n 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 /•. Wight, 24 Wend. 169; Haille v. Smith, 1 Bos. & Pul. 503. In the latter case, Eyre, J., said: "From 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 non-performance of the contract. It is urged by the counsel for the defendant that no bill of lading was forwarded or delivered to the plaintiff's, and that until this was done the title remained in the consignors. This is undoubtedly true in mai iy 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 ei 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 CARRIEKS 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. It. 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 Eochester 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 case 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 case, even if standing DELIVERY BY CARRIER. alone and unexplained they might have. A bill of lading for wh as between the parties, the invoices were a substitute, can ah. be explained by parol. It may be shown by parol to hav< intended as evidence of an absolute sale, a trust, a mort pledge, a lien, or a mere agency. 2 Hill, 151; 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 tin- plaintiffs at a specified price, but were to be sold and tin- avails ap- plied. The relation of the plaintiffs was more nearly that of trusl having the title, and bound to dispose of the property and apply the proceeds in a particular manner, and the consignors were the cestui* 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 plaint i Its agreed to accept that particular property, and the subsecpient 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. 4.~> N. Y. 49; 6 Hill, 586; 24 Wend. 169; Story on Bailment, 414; 31 X. Y. 490. It was its duty to deliver the property to the real owner. 45 N. Y. .'54. Judgment affirmed with costs. ARMENTROUT v. ST. LOUIS K. C. & N. R. CO. 1 Mo. App. 158. 187G. Blackwell, 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 CARRIERS OF GOODS. boxes of eggs, whereby said eggs were totally lost to plaintiff, as he alleges, to his damage $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 the price of $1,528.04; he paid $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 car 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 CAEKIEE. 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 $1,156.02; the said j of $1,641.78 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, it' 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, $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 Ottumwa, by defendants, from McCullough & 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 ship to his agent at the point of consignment, for presentation to tin- 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 CAKRIERS 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 commissiou 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. From 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 JERSEY 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 DELIVERY BY CARRIES. 679 made by plaintiff upon defendant, who refused to deliver them, upon tender of charges. There was conflicting evidence I i 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 rec< 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 affirmed 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 v. whether the qualification was reasonable: and if reasonable and made in good faith, it was no evidence of a conversion. Alexander r, Southey, 5 B. & Aid. 247; Holbrook v. Wight, 24 Wend. 169; Rogers w. Weir, 34 N. Y. 463; Mount v. Derick, 5 Hill, 455. 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 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 the 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, ."> 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 he 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 CARRIERS OF GOODS. a proper delivery. The circumstances of this case, the 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. PENNSYLVANIA R. CO. v. STERN & SPIEGEL. 119 Penn. St. 24. 1888. Mr. Justice Paxsost. 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 CARRIER. Qgl 91 U. S. 618. There could be no delivery except in accordance with the bill of lading. Dows v. Milwaukee Bank, 91 U. S. • Stollenwerck v. Thatcher, 115 Mass. 224. The invoice standing alone furnishes no proof of title: Benjamin on Sales, sec. 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. 1 WEYAND v. ATCHISON, T. & S. F. R. 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 [gno.is] could not be 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, !."> ; 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. Calloway v. Hughes, 1 Bailey, 553; 1 (Jonklin's Admiralty, 196 ; Fisk v. Newton, supra. H no right under any circumstances to deliver to a stranger. Justice Strong, in The Thames, 14 Wall. 98. 682 CARRIERS 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 first 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. Kobinson, 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. From 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 Ky. & Trans. Co., 69 N. Y. 374. Aa DELIVERY BY CARRIER. examination of that case and the cases therein cited will show that what the court really decided was that a delivery of the forward* 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 an- 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 priced!' 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 1ST. 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. *782, 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 Grove Bank v. Humeston & S. Ry. 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 bona jide pur* 684 CARRIERS OF GOODS. chaser for value, will divest the ownership of the person who lost them, or from whom they were stolen." Shaw v. Railroad 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. Ry. 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 DELIVERY 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 cont i will be presumed to have contracted with reference to it. Couch v. 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. 251. 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 /•. Bailey, 49 N. Y. 473; Higgins v. Moore, 34 N. Y. 425; North Penn. Ky. Co. v. Commercial Bank, 123 U. S. 727; 8 Sup. Ct. Rep. 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. RAILROAD CO. 101 U. S. 557. 1879. Error 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 bein<* 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 fori 686 CARRIERS OF GOODS. but, without being detected, substituted the duplicate for the 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 deposited on the same clay with the North Pennsylvania Railroad 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 the}' 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 affirmative, 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. SI law & Esrey thereupon sued out this writ of error. • Mr. Justice Strong. 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, and during the transit of the cotton from St. Louis to Philadelphia, the DELIVERY BY CARRIER. 687 indorsed bill of lading was stolen by one of the firm of Kuhn & Brother, and by them indorsed over to Miller & Brother, for an advance of $8,500. The jury 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 CARRIERS 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, nothing 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. Race, 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, require it. DELIVEKY BY CARRIER. 689 It was subsequently held applicable to merchants' drafts, and in Peacock v. Rhodes, 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 moi 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 CARKIEES 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. . . . Mr. 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 CARRIER. 091 mits a common carrier to show, as an excuse for non-deli very 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 Rolle'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 K Y. 403 [736]. And so, when the bailee 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 Bing. 382 ; Biddle 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 bailor 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. Biddle v. Bond, siqira. 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 baihv can set up the jus tertii. There is no substantial reason for the opinion. No matter whether the shipper has obtained the possession h< to the carrier by fraud practised upon the true owner. <>v whether he mistakenly supposes he has rights to the property, his relation to C92 CARRIERS 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 we 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. Recurring, 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 CARRIER. 093 7th of the month. In fact however, when the bill of lading was given, no snch cotton had been received by the brig ; but on the 5th 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 Rowley 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 694 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," together 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 " Colsou " and taken to the "Ladona," twenty-five other bales wen- 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 1 ia 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 condil 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 "Idaho." 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 dist La- 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 oi 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 CARRIERS OF 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 case 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 v. Ten Eyck, 2 Johns. Ch. 62, 108 ; Weil v. Silverston, 6 Bush (Ky.), 698 ; Hesseltine v. Stock well, 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. Error from 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 board a 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 CARRIER. 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 truck. 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 affirmed 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 New 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. Bep. 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 CAKKIEKS OF GOODS. AMERICAN EXPRESS CO. v. STACK. 29 Ind. 27. 1867. Gregory, 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 plaintiff; 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 office 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 office, 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 15th (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 package was returned to the defendant's office. On the morning of the loth 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 In- 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 agent, in the presence of Lillis, what the package contained, and the man replied that it contained a bond for $500, and one for $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, Xew 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 In- 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 effort to acquire such information. 700 CAKRIERS 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 misdelivery of goods by a ware- houseman, although such misdelivery bas 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. 1 PRICE v. OSWEGO & SYRACUSE R. 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. Grover, 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 1 Ace. : Pacific Express Co. v. Shearer, 160 111. 215, 43 N. E. R. 816, 37 L. R. A. 177, 52 Am. St. R. 324. DELIVERY' BY CARRIER. 701 6uch additional facts as were necessary for that purpose. This p 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, 45 N. Y. L75. In the present case there was no evidence warranting the finding of any additional facts sustaining the legal conclusion. The qu< 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, 1806, 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 pricos 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. II. 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 consigns 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 CARRIERS 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 plaintiff 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 plaintiff 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 CARRIER. 703 if delivery be made to the wrong person, either by an innocent mis- take or through fraud of another, they will be responsible, and tin- wrongful delivery will constitute a conversion. McEntee '•. The New Jersey Steamboat Co., 45 N. Y. 34 [678]. It is of the liability oi warehouseman after the responsibility as carrier had terminated that the chief judge is speaking in the opinion in Bnrnell v. The X. Y. Central R. R. Co., 45 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., Os 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 whoso 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 CARRIERS 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 and DELIVERY BY CARRIER. 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 substa to the plaintiff that there was a business firm at Oswego wishing 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 stranger 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. Nurse there- after came and presented this letter, with ah 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, 700 CARRIERS OF GOODS. that being the address specified in the 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. R. 467. 1883. Tort, against a common carrier, for the conversion of a quantity of cigars. At the trial in the Superior Court, before Colburn, 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 CARRIER. -qj 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 w r as so reported in the books of E. Russell 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, or 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 1595, in the post-office, and used printed letter-heads with his name printed as "A. Swannick, P. 0. box 1595." This man wrote the letters to the plaintiff 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 he 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 receive it on the ground that he had ordered no cigars. Afterwards, on the arrival of the packages, the value of winch 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 CARRIERS 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 Bailroad, 110 Mass. 26. The fact that there were two bearing the name made it the duty of the defendant to 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 in 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. K. 6 Ex. 36. There the plaintiffs, induced by a fie- titious order sent to them by one Heddell, an agent of theirs to DELIVEKY BY CAHlilER. 709 procure orders, sent goods by the defendants, who were carriers, dressed to "C. Tait & Co., 71 George Street, Glasgow." There no such firm as C. Tait & Co., but Heddell had made arrangem* to receive the goods, at No. 71 George Street. Upon the arrival of the goods, the defendants, in the usual course of bus in. at a notice to 71 George Street for the consignee to call for the good-, 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 Railroad, L. R. 5 Ex. 51; Clough v. London & North Western Railroad, L. R. 7 Ex. 26. The cases of Winslow v. Vermont & Massachusetts Railroad, 42 Vt. 700, American Express Co. v. Fletcher, 25 Ind. 492, and Price v. Oswego & Syracuse Railway, 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. 1 Exceptions overruled. 1 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. Swanuick, the person who was well rated in the commercial agency books, 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 CARRIERS OF GOODS. EDMUNDS v. MERCHANTS' DESPATCH TRANSP. 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 Rockwell, 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 cases 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 DELIVERY BY CARRIER. 71 1 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 Bent them. Dunbar v. Boston & Providence Railroad, 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 c were tried together, there must be a new trial in each. It seems to have been assumed that the same questions are rai 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. Y>y referring to the mercantile agency, he tacitly represented that lie 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., X. S., Ex. 105; Kings- ford v. Merry, 26 L. J., N. S., Ex. 83; Barker v. Dinsmore. 7U 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 susta ined. WERNWAG v. PHIL., W. & B. R. CO. 117 Penn. St. 46. 1887. [Agreed statement of facts.] The defendants are common car- riers of goods between Philadelphia, Pa., and Washington, I>. C. William P. Wernwag and T. Russell 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 good the city of Washington, D. C. The said firm of E. F. Witmer & 712 CARRIERS OF GOODS. Co. employed one Wilbur F. 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 Fast Freight. Terms 5 | 30 — 30 days extra dating. 4 1 5 &c, &c, &c. (Signed) E. F. Witmer & 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 plaintiffs. 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 filed. 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 plaintiff 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 satisfied 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 CARRIERS OF GOODS. peril, and the whole risk of a wrong delivery rests upon him. In Shenk v. Steam Propeller Co. , 60 Pa. 109, we said, Sharswood, J. : " Whatever doubt may hang over the question as to the termination 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 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." 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. SINGER v. MERCHANTS DESPATCH TRANSP. 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 P>oston 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 P>ank 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 CARRIERS 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.] Loring, 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. Northern 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 Railroad, 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 Railroad, 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 agent 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. 7] 7 in Boston for eleven years, and had been sending goods to Springfield Illinois, for about five years previous to November 21, 1900 about six or seven times a year to the same Guralnik, and had always sent his goods addressed in the same way, namely, : . 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 Raphael 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 Railroad, 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 Railroad, 110 Mass. 26 ; Samuel v. Cheney, 135 Mass. 278 [706] ; M'Kean v. M'lvor, L. R. 6 Ex. 36; Stimson v. Jackson, 58 N. H. 138 ; Conley v. Canadian Pacific Railway, 32 Out. 258 ; The Drew, 15 Fed. Rep. 826 ; Nebraska Meal Mills v. St. Louis Southwestern Railway, 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 CARRIERS OF GOODS. f . Stopjmge in Transitu. NEWHALL v. CENTRAL PACIFIC RAILROAD CO. 51 Cal. 345 ; 21 Am. R. 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 iu 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 under review has been decided or discussed. There are numerous decisions, both in England and America, to the DELIVERY BY CARRIER. effect that where goods are consigned by the vendor to the ven 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 R. 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 tin- bill of lading not fairly and honestly assignable," has a superior equity to that of the vendor asserting a recent lien, known, perhaps, onh himself and the vendee. (Brewster v. Sime, 42.Cal. loO.) These being the conditions which determine and control the rela- tive rights of the vendor and assignee, where the assignment is ma 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 I 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 Sali section eight hundred and sixty-six, takes an assignment of a bill of 720 CARRIERS OF GOODS. lading "without notice of such circumstance as renders the bill of lading not fairly and honestly assignable." The law provides ho 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. R. 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.] Emery, 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, to have the goods stopped. While such a statement is probably usual, it does net 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 CARRIER. 721 that, " all that is required is some act, or declaration of the vendor countermanding the delivery." Brewer, J., in Rucker v. Donava Kan. 251 (19 Am. R. 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. Ry. 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, foith interest from the date of the writ. PENNSYLVANIA R. CO. v. AMERICAN OIL WORKS. 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 Beveral 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 CARRIERS 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 implied 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 restored 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. right: Hays v. Monille, 14 Pa. 48. But as between the can the seller, there was no balance of accounts for carriage oi I consignments, for the delivery of the goods to the consignee withoul payment of the freight was a voluntary surrender of the lien upon them, and the security which the lien afforded. The carrier by delivery gave credit to the consignee, and undertook to Look to his solvency and integrity. The former bills were therefore paid so Ear as the consignor was concerned, and the carrier had no 1 * -_r : l 1 or m ground for calling upon him to pay any balances due upon them. The clause in the bill of lading which has been brought to 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 cl 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 fin- 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 affirmed. BRAN AN v. ATLANTA & WEST POINT RAILROAD CO. 108 Ga. 70; 33 S. E. R. 836 : 75 Am. St. R. 20. 1899. Little, J. Branan Brothers instituted an action in trover against the Atlanta and West Point Railroad Company and ('. V. Truitt. to recover 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, taki from the railroad company an ordinary bill of lading, which the siguors transmitted to the consignee. The tobacco arrived in I.. 724 CARRIERS OF GOODS. Grange over the Atlanta & West Point Railroad, 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 compaiiy 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 R. 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 CARRIER. 725 some interest. Chancellor Kent, in tlie 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 transit,, 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 buyer 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 ti*ansit at the time. Mr. Parsons, in his Law of Contracts, volume 1, bottom page 624, says that it is sometimes difficult 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 consign''", 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 CARRIERS 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 3553 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. R. R. 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. R. R. 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 CARRIER. 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. Rep. 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 nol necessary, for a proper decision of the question which arises in tin- 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. Rep. 63, the supreme court of Ohio ruled: "The right of stoppage in transit" is regarded with favor, and the engrafting of further restrictions upon the rule governing it is not warranted by public policy. The 728 CARRIERS 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. Rep. 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 Rights, Remedies, and Practice, section 2495, note 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 Bran an 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, R. 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. R. R. 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 CARRIER. 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. BBEWEB LUMBEE CO. v. BOSTON & ALBANY E. CO. 179 Mass. 228 ; 60 N. E. R. 548 ; 54 L. R. A. 435. 1901. Eeplevin 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 Eichardson, J., who found for the plaintiff, and, with the assent of both parties, reported the case 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 no 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 off for cas 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 Paid, 730 CARRIERS 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 "3mos. " " " 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 BY CARRIER. 7;i 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 qua 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 Eailroad, 106 Mass. 67. Durgy Cement & Umber Co. v. O'Brien, 123 Mass. 12. Inslee v. Lane, 57 N. H. 454. 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. D. 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. Fitchburg 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, " Whal 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 charj the Huntington Avenue yard, was contradictory to that of Paul. He 732 CARRIERS 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- dict 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 for 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 CARRIER. 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 tin- 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, 157 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 be 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 rule are the final ones or not. Thus in Arnold v. Delano, 4 Cush. 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 plaintiffs from stopping the goods in transitu. To the same effect is Mohr v. Boston & Albany Railroad, 106 Mass. 67. See also Re 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, 588. 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 agreement, 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 j ill i in tiff. 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 firm 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 I lion, 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 hrm 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 plaintiffs 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 CARRIERS 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. Robinson, Turwhitt's Exch. R. 1069; 4 Dowling, 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 Londou. 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 Abinger, C. B., observed that the defendant's refusal to 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 RIVER R. CO. 36 N. Y. 403. 1867. Parker, 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 DELIVERY BY CARRIER. handles, of the value of $4,338.82, 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 1 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, 1859, 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 oi 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 CARRIERS OF GOODS. at a subsequent time in New York, to which they adjourned, assumed in conjunction with said Francis, to remove the secretary from his office, 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 be 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 CARRIER. ■ 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 rooms, claiming them under plaintiffs' mortgage, and as agent of the company, and directing Rooney, 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 Rooney thereupon put them back where they belonged, and where they had been the day before, and that they remained there about a month. 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 if 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 right 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 it, 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 R. CO. v. YOHE. 51 Ind. 181. 187;'). 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 CARKIEES 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 took possession thereof; 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; 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. 74| 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 officer, 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 Redf. Railw., 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 CAKEIERS 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 River R. R. 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 officer 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 CARRIER. 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 R. R. 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 officer seizing the goods. The rulings of the court on the motions to stay the proceedings in 744 CARRIERS 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. EDWAKDS v. WHITE LINE TKANSIT CO. 101 Mass. 159. 1870. Contract 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 coin 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. For 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. Freeman, 14 Gray, 56G; 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 CARRIERS OF GOODS. pressly recognized in the closing paragraph of the opinion of Mr. Justice Kelson. 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 officer, 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- vention 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 officer 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 R. CO. 117 Mass. 591. 1875. Tort, 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 CARRIER. 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 S. Carroll, a duly appointed and qualified constable of the city of Boston, without fraud or collusion on its part, against its will, and Avith 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 As, 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 officers 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, c. 141, §§ 1, 26. 748 CARRIERS OF GOODS. But in 1869, the legislature again revised the wholo law upon the subject, re-enacted the provision of the G'en. 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 officer 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. Kaym. 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 CARRIER. 749 and also when process was served. Issue being joined, the facts were found as alleged by the plaintiff. While the package was thus in transit and in the custody of the trustees in Boston, this process was served upon them." Lord, J., ordered the trustees to be charged, and they alleged exceptions. Morton, 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 tiled 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 Bottom 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 sufficient 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 owuer, 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 officers 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 CARRIERS 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. Bobbins, 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 iu 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; 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 case of Clark ?>. Brewer, 6 Gray, 320, cited by the trustees, is clearly distinguishable from the case at bar. In Clark v. 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 contract 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. DELIVERY BY CARRIER. 7.-4 MONTROSE PICKLE CO. v. DODSON & HILLS MANUF. CO. 76 Iowa, 172. 1388. 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. Rothrock, 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 do 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 River 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 CARRIERS 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. By. 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 REMEDIES AS AGAINST CARRIER. 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 jST. 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. Who 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 CARRIERS OF GOODS. goods, delivered the same to the 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 "Xot guilty ;" and the plaintiffs obtained a verdict. The defendant's counsel (Mr. Sergeant Davy, Mr. Sergeant Bur- land, and Mr. Hotckins) moved for a new trial; objecting that the action ought to have been brought in the name of the consignee of 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 tempjore, 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. Jfansfield, 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 p> a ^ 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 circumstances 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 j>ersons who agreed with him and were to pay him. Rule discharged unanimously. DAWES v. PECK. King's Bench. 8 Terra 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 REMEDIES AS AGAINST CARRIER. 755 forfeited to the Crown and were seized. This case came on to be tried 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 Rugby, 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 wa 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 been sent conformably to your orders and by the carrier yon 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 Ersklne and. Raine showed cause against the rule. A delivery of goods to a carrier named by the consignee, as in this case, 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 R. 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 CAERIERS 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 i n 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. 1 do not find that anything which I have advanced is REMEDIES AS AGAINST CARRIER. 757 broken in upon by the two cases which have 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 7,-)S CARRIERS OF GOODS. damage for the loss of the goods, if it appeared that 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. Rule discharged. FINN v. WESTERN R. CORP. 112 Mass. 524. 1S73. 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 Olean, 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 Olean; that when he shipped the shingles, he filled in triplicate the following shipping bill: "Olean, 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, r><> M. of 18 in., Sorted Shaved Shingles, marked J. S. C. — Extra. 150 bunches, To M. of 18 in., No. 1 Shaved Shingles, marked J. S. C. REMEDIES AS A.GA] IS! CAERIEE- 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 Railroad Company or thi Assignees, at Greenbush, N. Y. Consignee to pay freighl on tl delivery at the rate of seventy-five cents per M. Eor Shaved Shingh and sixty-two and one-half cents per M. for the Sawed Shingl $2.50 for towing less amount advanced Master, one hundred and fifty-two and fifty-one hundredths dollars, M. W. Finn, Consignor. James Smith, Master. .$ 152. 50;" that one of the hills 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 ".). 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 Olean to Greenbush, to be forwarded from thence by the Western Railroad to Clark; that this was the usual mode of conveyance ; that between the years 1 858 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 Railroad 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. 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 CARRIERS 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, 1ST. 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 agent 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 Einn 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 CARRIER. 701 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 Finn 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 CARRIERS OF GOODS. Wells, J. The only question argued by the defendant, upon 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 whom, 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 CARRIER. 7G3 If, however, the purchaser designates the carrier, making him his agent to receive and transmit the goods; or if the sale is compl< ite 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 Blanchard 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 tort. This is true of the leading early cases from which the doctrine is mainly derived : Dawes v. Peck, 8 T. P. 330 [754] ; also of Griffith v. Ingledew, 6 S. & R. 429; Green v. Clark, 5 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 fco have been assumed by various judges, as we think, erroneously, that the right of recovery necessarily involved the question with whom the original contracl 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 CAKKIERS OF 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 hirn 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 Griffith 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 REMEDIES AS AGAINST CABEIBE. 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 follows 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 affirmed, 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 y. Bristol & Exeter Kailway 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 CARRIERS OF GOODS. lor sale is not a mere agent of the purchaser in so doing. He ia 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 Finn'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 &ny 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. KRULDER v. ELLISON. 47 N. Y. 36. 1871. Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming 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. ■ .Newell & Turpin, 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, REMEDIES AS AGAINST CARRIER. 707 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. R. 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, Puller, 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 con- signor agreed to pay, and paid the carrier in 1770. In Dawes v. Peck, 8 Dura. & 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 lie 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- 768 CAKEIEKS OF GOODS. signee, from the time of delivery, on board the vessel. This in 1809. In Dutton v. Solomonson, 3 Bos. & Pul. 582, same doctrine. Lord Alvanley, 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 hy 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. K. 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. B. 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 transitu, and it gave KEMEDIES AS AGAINST CARRIER. 709 no right of action to the vendor to sue for the loss of the vend goods, though the vendor, as agent for vendee, paid the carriage, 01 in like character, specially contracted with the carrier to transport. Had the consignor agreed with the consignees to deliver the goods to them at Kochester, the rule would be different. Then the con- signees would not be the owners till delivery at Rochester. 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 facta 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. FREEMAN v. BIRCH. King's BeDch. 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 plaintiff. 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 in 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. Peck, 8 T. R. 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 CARKIERS OF GOODS. vested in the vendee, he should have brought the action. Again, in Dutton v. Solomonson, 3 Bos. & Pull. 584, xfc 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. Littledale, 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. Parke, 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. R. 659. Rule refused. ELKINS v. BOSTON & MAINE R. 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, wl^ose 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 CARRIER. 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 Railroad, 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- ance 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 had 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 CARRIERS OF GOODS. In the present case the coat, which is the subject of this action, being in the possession of Jonathan Elkins, 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 Under 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. & Bos. 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 case, 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 CARRIER. 77;] 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, 12 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 affirmed the contract made with D, by C, and could not afterwards recover from B. Sanderson v. Lamberton, 6 Binn. 129. Upon the principles above stated, our opinion is that the plaintiff may maintain this action. Judgment on the verdict. b. Form 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 CAERIEKS OF GOODS. on board his keel, that the goods were kept so negligently by him that they were spoiled, to the plaintiffs damage ; upon the general issue noti 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 plaintiff'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 Booth, for the defendant, insisted that, this declaration nob 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 te 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 suscepit, etc., which shows that it is ex contractu ; in the present case the promise to carry safely need not be proved, the REMEDIES AS AGAINST CARRIER. 77.-, law raises it, the breach is very right that he did not deliver them safely, but so negligently kept them that they were spoiled. Foster 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. Replication that £15 was not suffi- cient. The plaintiff at the trial obtained a verdict for £5 above t he 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. Kydd, 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. 1 decided, with reference to the question of costs, that an action against a common carrier for not safely delivering soods 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 plaintiff 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 therefrom, 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 Ry. Co., 1 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, 2 where the action was against a livery -stable keeper for negligence in the care of a horse, the court thought that the i 2 E. & E. 844 ; 29 L. J. (Q. B.) 184. 2 1 H. & N. 500 ; 26 L. J. (Ex.) 71. REMEDIES. AS AGAINST CARRIER. 777 cause of action was founded on contract. This decision preceded that of Tattan v. Great Western Ry. Co., 1 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. Ravey 2 was decided. In that case an innkeeper's executors wen- 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. Bullen, 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. Ravey: 3 "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 consider the case of Tattan v. Great Western Ry. Co., 1 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 Ry. Co. 1 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 Ry. Co. 1 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. Honyman, 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 : 4 " 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 assumjjsit or case upon tort, is not disputed ; such as actions against attorneys, surgeons, and other professional men, for want of propel i 2 E. & E. 844 ; 29 L. J. (Q. B.) 184. 2 6 H. & N. 265 ; 30 L. J. (Ex.) 131. 8 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 Ky. Co. 1 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. Rule 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 i 2 E. & E. 844 ; 29 L. J. (Q. B. ) 184. KEMEDIES-AS AGAINST CARRIER. 77., in and about the conveyance and delivery thereof as aforesaid; hut 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 fare 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, Coleridge, and myself. The form of the declaration is in case, and differs from that used in Bretherton v. Wood [3 Brod. B. 54], 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 CARRIERS OF GOODS. the defendants to be common carriers 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 sufficient for the present pur- 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 tee cannot disturb that verdict. We purposely abstain from giving any opinion whether the doctrine in Govett v. Radnidge [3 East, 62] or that in Powell v. Layton, 2 N. R. 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. Rule 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 REMEDIES AS AGAINST CARRIER. 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 (Conyngham,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 a ferryman 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 -.'una] undertaking and obligation to keep suitable boats and fasl 7S2 CARRIERS OF GOODS. the failure in which 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 are 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. Rep. 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 be was such a bailee as to be liable in the manner now contended for, and if he was, that is 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 v. 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. R. 356, 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. & Cres. 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 CARRIER. 78 I 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 . TRANSPORTATION CO. v. DOWNER. 11 Wall. (U. S.) 129. 1870. Error to the Circuit Court of the United States for the North- ern 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 (lun- 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 bil] 784 CARRIERS 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. 1 In Clark v. Barnwell, 2 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 the 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. 36 ; Sherman and Redfield on Negligence, § 12 ; Whitworth v. Erie Rly. Co., 87 N. Y. 413. Per Hard, J., in Kiff v. Atchison, &c. R. Co., 32 Kan. 263. 2 12 Howard, 272. REMEDIES AS AGAINST CARRIER. 735 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 Company, 1 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 Railroad Company, 2 the Court of Appeals of New York held that the mere fact that a passenger on 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 l 3 Hurlstone & Coltman, 596. 2 18 New York, 543. 786 CAKRIEES OF GOODS. with 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 R. CO. 24 Minn. 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 Railroad 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 coidd not recover without gross negligence of the defendant, REMEDIES. AS AGAINST CARRIER. 737 which 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 carrier 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; French v. Buffalo, N. Y. & E. R, Co., 43 X. Y. 108; Sager v. S. & P. & E. R. Co., 31 Me. 228, and Kalhnan v. United States Express Co., 3 Kan. 205, affirm 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 care." And this rule is followed in Swindler v. Hillard, 2 Rich. (S. C.) 286; Baker v. Brinson, 9 Rich. 201; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362; and Whitesides v. Russell, 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 CARRIERS 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. R. 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. R. 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 affirmed, in Smith v. The New York Central R. Co., 43 Barb. 225, and Laughlin v. The Chicago & Northwestern R. 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 case 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. REMEDIES AS AGAINST CARRIER. 759 MARQUETTE, HOUGHTON & ONTONAGON R. CO. v. P. KIRKWOOD. 45 Mich. 51. 1880. Case. Defendants bring error. Reversed. 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, the}' 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 CAERIEKS 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. K. 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 case 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 cases REMEDIES. AS AGAINST CARRIF.H. 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 XJrobability 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 human 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 obligation 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 into 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 that the presumption could not be raised without foundation. And 792 CARRIERS OF GOODS. in Midland Railway 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 Railroad 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 R. 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 tvuuks 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 EEMEDIES. AS AGAINST CARRIER. 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 R. R. 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 excerjts 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. R. Co. v. Moore, 51 Ala. 394. An arrange- ment, such as the one shown by the evidence^ imposed on the clef end- 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. Railroad 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 Railroad 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 v. Railroad Co., 88 N. C. 547, it was held, 794 CARRIERS 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, the 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 & Giiard R. Co. v. Copeland, 63 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 ieliver 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 case 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. R. 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 REMEDIES -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 foi transportation, and their delivery. Code of 1876, § 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. R. Co., 88 N 1 . 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 Richmond & Danville Railroad Company, was managing and operating the road that received the freight, with other connecting roads, under the general name of the Piedmont Air-Line Railway, 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 injuryoccur- ring on its own road. Chi. & R. I. R. Co. v. Fahey, 52 111. 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. & X. Ala. R. 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 CARRIERS 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 connection 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 difficulties 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. R. Co., 11 Allen, 295. Reversed and remanded. REMEDIES AS AGAINST CARRIER. 797 d. Evidence of Negligence. EMPIRE TRANSPORTATION CO. v. WAMSUTTA OIL REFINING AND MINING CO. 63 Perm. St. 14. 1869. Error 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 Trunkby, 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 cars 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 cars. 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. I first discovered that the forward car on the end next the forward engine was on fire. The train was stopped. I tried ta 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 CARRIER. 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 affirmed: 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. Sharswood, 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 Eailroad 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 Railroad Co., 8 Casey, 414; Pennsylvania Railroad Co. v. Ozier, 11 id. 60; Pittsburg & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith, 294; Glassey v. Hestonville Passenger Railway 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 in consequence of any defect, or to which it may have contributed. Hart v. Allen, 2 Watts, 114; New Jersey Railroad Co. v. Kennard, 9 Harris, 204. When merchandise, of whatever character, is carried on the same railroad train with cars 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 any 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 CAKKIERS 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 insufficiency 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. KIRST v. MILWAUKEE, LAKE SHORE & WESTERN R. 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 REMEDIES AS AGAINST CARRIER. 801 waived. It appeared on the trial that the plaintiffs delivered in good condition to the defendant, at its depot in Milwaukee, 28 car- 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 Railway 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 t\\e 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, gQ2 CARRIERS 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 affirmed. CARRIER'S COMPENSATION. 803 9. CARRIER'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 River, 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 whs 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 Eyre, 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.]. Eyre, 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 CARRIERS OF GOODS. which 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 difficulty 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 carrier'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. Rooke, 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 cases, 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. Lord Campbell, C. J. We entirely agree to the law laid down by Lord Tenterden in his treatise (8th ed.), p. 595, and in Thomson v. Trail, 2 Car. & P. 334, E. C. L. R. 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 CARRIERS 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 15th 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 taken the defend- ants' lumber to Sacramento, adding the demurrage for the time they CARRIERS 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- tiffs 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 ohe 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 them 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 tin' 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 bis 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 carrier'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 Eiver Eailroad, 2 Denio, 610; Abbott on Shipping, 411; Sedgw. Damages, 361. New trial ordered. A new trial was had at this term and resulted in a verdict of 1,052.99 for the plaintiffs. SAYWARD v. STEVENS. 3 Gray (Mass.), 97. 1854. Assumpsit to recover a balance due for freight of an invoice of lumber from Boston to San Francisco. 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 f 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 CARRIERS 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 CARRIER'S COMPENSATION. 811 plaintiffs agreed to convey the articles enumerated in the 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 deck; 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 rale 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 exeJusio alterius is peculiarly applicable. The only fair and legitimate 812 CARRIERS 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 apportionable ; 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 ail 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; Ritchie 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 contra* and to be liable pro rata for the carriage of the goods actually received by him. Abbott on Shipping, 406; Ship "Nathaniel Hooper," 3 Sumner, 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 ami 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 CARRIERS 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, R. 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 COMPENSAT] s]j 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 ma had the right to convert the merchandise into money, but not th 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 affreightment 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 maybe 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 con- 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 <><•> rruled. 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 CARRIERS 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. But 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 carrier'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 lie 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. WESTERN TRANSP. 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 Buffalo, 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 carrier by the consignees. 818 CARRIERS OF 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, Fit. Buff, to N. Y., 10. " Lake frt. and Buff. Chgs., 5| — 842.38. 41 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 with the oats arrived safely at New York, Friday, November 5th, 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. Church, Ch. J. The decision in the case of the present plaintiff against Barber, 56 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 CARRIER'S COMPENSATION. gjg 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 cast- 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 the 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 oats 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 case, 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 Brooklyn. 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 Ellenborough 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 CAKRIERS OF GOODS. As the plaintiff cannot recover under the contract, if he has any claim for freight it is only iox 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 iti?ieris." 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 Ellenborough, 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. P. 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 j>a,y pro rata or any freight CARRIER'S COMPENSATION. 821 can be drawn. The circumstances strongly 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 pro 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. R. 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 5| 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 CAKEIERS 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. TARR. 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. R. 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, 281, 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. s_'"> 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. 26<>. 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 assigne.es, "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 en 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. Row, 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 freigl it- 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 plaintiffs. MERIAN v. FUNCK. 4 Denio (N. Y. Sup. Ct.), 110. 1847. Error to the Superior Court of the city of New York. Funck 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 CARRIERS 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, 1840, 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 defendants 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 we.re 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 lulls 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 carrier'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. Jewett, 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 v. 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 CARRIERS OF GOODS. SCAIFE v. TOBIN. King's Bench. 3 Barn. & Ad. 523. 1832. This was an action by the plaintiffs as surviving owners 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 7>ayley, 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 25th 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 carrier's compensation. 827 consignors, and an account of the sale of Mr. Cramer's goods 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. 1 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. * Opinion of Parke, J., is omitted. 828 CARRIERS OF GOODS. WEGENER 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 Crowder, 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. Jervis, C. J. 1 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. l Opinions of other judges are omitted. carrier's compensation. 829 ASHMOLE v. WAINWRIGHT. 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 Colekidge, 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 os., 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 5s. an unreasonable sum'.' 3. 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. 6d. 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. 6d. if the court should be of opinion that a tender was unnecessary. [On a rule yiisi."] 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 CARRIERS OF GOODS. goods without express bargain, the owner, the plaintiff, 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 iie here. My only difficulty has arisen from the necessity for a tender. Astley v. Reynolds, 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 case, 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. Coleridge, J. I never doubted that an action for money had and received might be maintained to recover money paid on the CARRIER'S COMPENSATION. 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 demand, it could not be for the plaintiff to ascertain the specific sum. See Jones v. Tarleton, 9 M. & W. 675. Rule 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, Xew 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 $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 Greenock, £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 CARRIER S COMPENSATION. 833 freight is not earned, in the absence of any express agreement to the contrary. • ••• *••••■ Judgment for the plaintiff. b. Lien. SKINNER 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. RODIE. 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 15th of October, 1810, White, the bankrupt, entered into a charter-party with the defendants for the hire of the ship "Flora," 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 CARRIERS 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, and 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.] Littledale, 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. 1 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. 2 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. Richardson, 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 Roceus, 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. carrier's compensation. 835 the sole question intended to be made was upon the fair meaning of the charter-part}^ which goes further than the common form, in stipulating that if the vessel should not be fully laden with tin- 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; l 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 Ellexborough, 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. Bayley, 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 Ellexborough, 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 unascertained, which the parties are entitled to recover for the non-completion of the cargo, common ly l 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 & NORTHWESTERN R. CO. v. JENKINS. 103 111. 588. 1882. Mr. 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 snipping 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. carrier's compensation. 837 We held, in the case of Illinois Central R. R. 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 Richards v. Michigan Southern and Northern Indiana R. R. Co., id. 404; and in the case of Porter v. Chicago and Rock Island R. R. 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. Railroad companies have warehouses in which to store freights. Owners of vessels have none. Railroads 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 YORK & NEW ENGLAND R. CO. 131 Mass. 455. 1881. Tort 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 $20Sj 838 CARRIERS 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 $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 $398, with interest from the date of the writ; otherwise, judgment for the defendant. Gray, 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 rest 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 Railroad, 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 compensation. 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, 1S74; 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 his 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, 595 [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 affirmed. STEAMBOAT VIRGINIA v. KRAFT. 25 Mo. 76. 1857. One 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 said 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 River, 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." \\ a 842 CARRIERS OF GOODS. have copied the above extract 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 usage 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 tfie 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- CARRIERS COMPENSATION. 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 thein 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 jnd 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, 1855. 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 R ail- 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 company, 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 CARRIERS 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 Railroad Company to the Michigan Central Railroad Company to excite any suspicion that the charges were unreasonable. The court decided the cause for the plaintiffs. A motion for a review was made and 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. carrier's compensation. 845 BRIGGS v. BOSTON & LOWELL R. 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 Racine, 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 Racine, 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 CARRIERS 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 Racine 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 G-roton, 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. §§ 502, 537. 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. For 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 carrier's compensation. 847 not intend that they should be sent. And in such case the last car- rier will be entitled to a lien upon the goods, w>>\ only for the freight earned by him on his own part of the route, but also for the freight which has been accumulating from the coinmencemenl 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 by 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 thereof for the purpose of enforcing their lien upon it, be held to have unlawfully converted it to their own use. This conclusion does not at all conflict with the decision in the case of Robinson v. Baker, 5 Cush. 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 ti 848 CARRIERS OF GOODS. perform; no right to exercise any control over it for any other pui ' 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 Racine. 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 eel.), 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 carrier's compensation. 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 lien 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 the damages. ROBERTS v. KOEHLER. 30 Fed. R. (U. S. C. C.) 94. 1S87. Deady, 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 CARRIERS OF GOODS. bination ticket and took up the coupon, entitling the plaintiff to transportation on the railway between Portland and Ashland, a distance of about 300 miles, and gave hirn his private check for future identification; that at Grant's Pass, a station some miles south of Roseburg, 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, $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 carrier'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. Grinnell, 30 N. Y. 609; Burnell v. New York Cent. Ry. 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. I (vert Liens, § 142; Thomp. Carr. 524, § 11; Ang. Carr. § 375; 2 Ror. Rys. 1003, § 11. But this lien does not extend to the clothing oi other personal furnishings or conveniences of the passenger in his immediate use or actual possession. Eamsden v. Boston & A. Ry. 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 Ror. Rys. 971, § 10; 2 Wood, Ry. Law, § 347; Cleve- land, &c. Ry. Co. v. Bartram, Jl Ohio St. 457; 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 CARRIERS 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 $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. 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 materia] facts are as follows: 1 — 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. CARRIER S COMPENSATION. and delivered to plaintiff's agent duplicate bills of lading, by which the company undertook to deliver the flour to the agent of the V, tern Railroad 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 Railroad 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. Fletcher, 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. 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 §54 CARRIERS 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. Richards, 6 Whart. 418, the court, in giv- ing an opinion upon another and entirely different 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 case 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. CARRIER'S COMPENSATION. s.",- Thus the case stands upon direct ami 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. Richards, 6 Wharf. 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 CARRIERS OF GOODS. The common carrier is responsible for the 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. SPOFFOKD. 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- carrier's compensation. S57 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. Allen, 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 Kuss. on Crimes, 1; Mowrey v. Walsh, 8 Cow. 238. The fraudulent and wrongful taking being proved with the felo- nious intent, the animo 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 Russ. on Crimes, 22; Lewis y. Commonwealth, 15 S. & R. 93; Commonwealth v. James, 1 Pick. 375; Cary 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 access 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. carrier'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 ship] 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 must be affirmed. 860 CARRIERS OF PASSENGERS,, VIII. CARRIERS OF PASSENGERS. 1. WHO DEEMED. BOYCE v. ANDERSON. 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 plaintiff in error, Mr. Rowan, 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 plaintiff, 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 jury, 1. That if they find, from the evidence, that the defendants were owners of the steamboat, and by themselves, their officer, 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. Mi! 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 whieh 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 CARKIERS OF PASSENGERS. 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 passeugers 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. 141) 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, or 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. 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. SHOEMAKER v. KINGSBURY. 12 Wall. (U. S.) 369. 1870. Error to the Circuit Court for the District of Kansas. Suit for damages for personal injuries happening on a rail car; the case being thus : — In 1867 Shoemaker and another were contractors for building the Eastern Division of the Union Pacific Railway 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 car, and who stored their tools there, as also the lamps used on the cars. The road was not yet delivered over to the Pacific Railway Company, and the contractors did not 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 854 CARRIERS OF PASSENGERS, conductor of the 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 what 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 thrown 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 were 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. 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 months. 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 actio]). 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 plaintiff, who was sheriff 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 plaintiff the defendants trere 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 a r e liable. They are also bound to provide careful and skilful servants, com- 866 CARRIERS 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: 1 "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 case 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. Pennsylvania & Reading R. Co., 30 Penn. St. 234. WHO DEEM K 1 1. 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 of 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 a 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. HOAR v. MAINE CENTRAL R. 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 common carriers of passengers between Waterville and West Water- 868 CARRIERS 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 to 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. R. R. 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 to his right to protection from neglect, from a pay passenger, — if he is to be regarded as a passenger to be carried by the defendants. Phil. & Read. R. R. Co. 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. 809 In Graham v. Toronto, Grey & Bruce Railway 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 brakeinen. On October 31 1872, after work was over for the day and the train was returning to Owen Sound, where the plaintiff, 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, ('. .)., "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 Railway 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 b} T 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., 57 N. Y. 383. Union Pacif. R. 870 CARRIERS 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 Mary 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. §7j 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. Moore, 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 officers 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 controvert* d, when a railroad company makes other suitable provision for ] 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 CARRIERS 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 Railway, 58 Me., 187, relied upon by appellee, goes, — but which, even on its facts, seems to be greatly questioned by Judge Bedfield, the distinguished com- mentator on railroad law (Redf. Am. Railroad 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. 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 an 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. DUTTON. 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 ;it" such rates of fare as they thought expedient; and the amount thus received, in instances where they thought proper to receive less 874 CARRIERS OF PASSENGERS. 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 extra 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 one line should not take, for apart of the distance where the route was the same, passengers who were going on further in another line; 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 lie 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 to the opinion of this court upon these facts. Parker, 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 GALLING. s ;- condition. Story on Bailments, 328; 5 Bing. R. 217 [461], Riley y. Home (15 Eng. C. L. R. 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 sufficient excuse for a refusal. 2 Sumner, 221 [891], Jencks v. Coleman; 19 Wend. R. 239. The principle which requires common carriers of goods to take all that are offered, under the limitations before suggested, seems well to apply. Like innkeepers, carriers of passengers are not bound to receive all comers. 8 N. H. Rep. 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. The} 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 CARRIERS OF PASSENGERS. is an attempt to limit their responsibility in a particular case, or class of cases, on account of their agreement with French. 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 French'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 he by an express contract. 19 Wend. 234 [465], Hollister 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 sufficient 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 jmmshed, 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 PALA.CE CAE CO. 106 111. 222. 1883. Mb. Justice Mulkey. 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 review. 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 CARRIERS 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. AVithout stopping, for the present, to inquire whether the posi- PUBLIC CALLING. 879 fcion 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 contract? 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 da)', 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 question, 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 exereise 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 CARRIERS OF PASSENGERS. 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 thai " 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 case 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 we 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 cars 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 ie 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 affairs 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, offering 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 tin' 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 8S2 CARRIERS OF PASSENGERS. 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 o± 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 have 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 between the company and the plaintiff, upon which an action of assumpsit might have been maintained, does not at all affect the right 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 better 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. gS3 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 between 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 b} T the parties towards each other? Clearly not. What were some of these implied duties? On the part of the plaintiff, he impliedl}* agreed to conduct himself in a cpiiet 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 order 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 m-opriety. Xone 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 car, 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 CARRIERS OF PASSENGERS. the best-considered cases, both English and American. Burnett v. Lynch, 5 Barn. & Cress. 589; 11 Eng. Com. Law, 597; Hancock v. Coffin, 21 Eng. Com. Law, 318; Dickson v. Clifton, 2 Wils. 319; Boorman v. Brown, 3 Adol. & 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. & Fin. 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 m 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. imposed the 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 f 1000 as his damages for ejecting him from the steamboat "D. R. 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 f 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 CARRIERS OF PASSENGERS. or in the business of receiving arid distributing parcels or'baggage, 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., § 591a; 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 Xav. 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 are 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. 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 boat 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 CARRIERS OF PASSENGERS. THURSTON v. UNION PACIFIC R. CO. 4 Dillon (U. S. C. C), 321. 1877. It was alleged, and not denied, that plaintiff 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"inonte- 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. Dundy, 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 diseases, 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 ($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 Morton, 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 other things, as follows: "If the jury find that the plaintiff was in the defendants' car in a state of intoxication, so as reasonabl; 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 CARRIERS OF PASSENGERS. or language, offensive 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, the defendants are liable." The jury returned a verdict for the plaintiff, with $1000 damages; 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 effect 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. 89] 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 to 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 TASSENGERS. 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. Story, 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. X'i:; 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. I 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 whose 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 trespa >s 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 thej'- 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. TRIPP. 147 Mass. 35. 1888. Tort for obstructing the station grounds of the plaintiff at Brock- ton. At the trial in the Superior Court, before Thompson, 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 wagODS 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 Sons, 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. Allex, 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 Railroad v. Gage, 12 Gray, 393. Spofford v. Boston & Maine Railroad, 128 Mass. 326 896 CARRIERS 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 snch 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 X. Y. 301, and Jencks v. Coleman, 2 Sumner, 221 [891] are cases directly in point. See al Commonwealth v. Power, 7 Met. 596, 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 traffic 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 CARRIERS OF PASSENGERS. favor of any particular person or company, or any particular descrip^ tion of traffic, in any respect whatsoever." Marriott v. London & Southwestern Railway, 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 Railway, 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 Rail- way, 2 C. B. (N. S.) 702; Barker v. Midland Railway, 18 C. B. 46. Besides Marriott's case, ubi supra, Palmer v. London, Brighton, & South Coast Railway, L. R. C. P. 194, and Parkinson v. Great Western Railway, L. R. 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 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." 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 receive 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 with them, and shall receive with such other railroads, reasonable and 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 and 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 CARRIERS OF PASSENGERS. portation. 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. R. 6 C. P. 554; Palmer v. London, Brighton & South Coast Railway, 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. ALLENDER v. CHICAGO, ETC., R. 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 CARRIERS 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 linger, 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. Four 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. UAYj t) . . . . . . . . . • • 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 Co che jury matters outside of the evidence produced. The sixteenth instruction given is as follows : — WHO DEEMED PASSENGERS. 903 "And she may recover not only the amount of damages which she suffered 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 tin- exercise of slight care and diligence after she became aware of the injury of which she complains." This instruction is erroneous. It is the 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 oi care which a common carrier owes a passenger, until he had actually obtained admission to the car. If the doctrine of the instruction he 904 CARRIERS OF PASSENGERS. not right, then a person taking passage at a way station, without 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. NOLTOX v. WESTERN K. CO. 15 N. Y. 444. 1857. Demurrer 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 conveved 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. Selden, 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 car.e of the public interests, and left those of the mail agent to such protection as the law would afford. Another distinction is, that in the cases 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 CARRIERS OF PASSENGERS. 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 plaiutiff'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 Coggs 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 sufficient 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 CARRIERS 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 iuterests 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. 1 c. Employees. GILLSHANNON v. STONY BROOK R. 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 Bioelow, 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 labor 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 sufficiently 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 Railroad, 4 Met. 49; Hayes v. Western Railroad, 3 Cush. 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, arid not engaged in any duty connected with running the trains, and so not engaged in any 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, 01 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. 1 d. For Compensation. TARBELL v. CENTRAL PACIFIC R. 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 miles 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 McNulty 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, 59 N. E. R. 60, 52 L. R. A. 326, 83 Am. St. R. 284. WHO DEEMED PASSENGEES. 911 Sandersox, J. In actions of this character it is not necessary that the plaintiff should allege a strictly legal tender of his fare. 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 natun 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 case 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 CARRIERS OF PASSENGERS. way by reason of his not being taken to Colfax. It does not appeal 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 sufficient compensation for the injury which he sustained. WILTON v. MIDDLESEX K. CO. 107 Mass. 108. 1871. Tort 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, and 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 rare- 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 iujury. It follows, that sin- 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 w 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. Kamsden 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 Railroad 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. Casr to stand for triac 914 CARRIERS OF PASSENGERS. WATERBURY v. NEW YORK CENTRAL, etc., R. CO. 17 Fed. Rep. (U. S. C. C.) 671. 1883. Wallace, J. The plaintiff 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 plaintiff 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 plaintiff 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 trains 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 PASSEMi «,]- the plaintiff was entitled to be carried as a passenger, as an imi condition of the contract to carry his cattle. The most that can be fairly claimed for the plaintiff upon the evidence is that In- riding upon the engine permissively. If he was riding there with the consent of the defendant, express or implied, it is not matt-rial, 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 suffices 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 had 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 v. Old Colony, &c, R. Co. 3 Allen, 18. As is tersely stated by Blackburn, J., in Austin v. Great Western Ry. Co. 15 Weekly Rep. 86.3, "the right which a passenger by railway has to be carried safely does not depend on his having made a contract, but 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 cattle. 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 circumstai 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 CAERIERS 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. E. 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- shannon 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., R. CO. v. WHEELER. 35 Kan. 185. 1886. Action by De Witt C. Wheeler, as administrator of the estate of Frank Wheeler, deceased, against The Railroad Company, to recover damages for the benefit of the next of kin of the decedent, whose death is alleged to have 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 est of Frank Wheeler, deceased, brought this action under § 422 of t In- 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 $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 AYheeler was travelling in a 918 CAERIERS OF PASSENGERS. public conveyance by virtue of a contract, express or implied, with the carrier, as the payment of fare, or that which is accepted as an equivalent therefor, while the evidence offered 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 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: — " Under 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 PASSENGERS. is that degree of care which persons of ordinary prudence would usually exercise under like circumstances." It is contended that Frank Wheeler was an intruder upon tin- train, for whose injury no liability could arise against the company, for two reasons: First, that the conductor had instructions n< I carry passengers on the construction train; and second, that i. the nature of the business which was being done with the train, and also its equipment, it was apparent that the company did permit passengers to be carried thereon. Neither of these circum- stances will defeat a recovery in this ease. It is true the condi had been instructed not to allow persons to ride upon his train as passengers, but Frank Wheeler had no knowledge of such insl 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 of 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 mi 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 aright 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 consequei of its negligence or want of care. C. & A. Rid. Co. /■. Michie, Adm'x, 83 111. 427, was an action by the administratrix to recov< t 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 on the engine without the permission of tin' 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 pen sion was not the permission of the company, as he hail no pow< 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 ha*> 920 CAKRIERS 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. Ely. 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] ; O. & 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. & O. 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. ((_>[ 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 pa rs were not only occasionally but commonly carried upon the freight a 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 upon the road, and the passengers had frequently ridden on the con- struction train, and had frequently been taken on at points othei than stations where the train was at work. Henry Wheeler si i that prior to the accident he rode upon the construction train to Wathena, and paid fare to the conductor for such ride. A. J. Mo wry, 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 tin rein. 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 plaintiff 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 CARRIERS 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 beuefit 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. BROOKS. 81 111. 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 Railway 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 Walker 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 the company would not be liable for the negligence of their officers. 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 1 able regulations for the government of their emplo; ind the power to enforce them; that is a reasonable regulation which pro- hibits persons from travelling upon their roails without purchasing a ticket or paying fare; that a person going on their road in kin 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 1 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 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 to 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 sufficient 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 pass 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 then verdict. For the errors indicated, the judgment of the court below must K reversed and the cause remanded. 924 CAEKIEES OF PASSENGERS. WAY v. CHICAGO, etc., R. CO. 64 Iowa, 48. 1884. The plaintiff is the administrator of the estate of John Way, deceased. 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 R. 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. 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 Forgrave, for the ticket showed upon its face that no one had a right to travel upon it but Forgrave. By the presentation of tin- ticket, the decedent falsely personated Forgrave, with the intention of deceiving the company; and he did deceive it, and to its in jury. 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 passen-er, 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. R. Co. v. Beggs, 85 111. 80. In that c 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 U. 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 & Red- 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. Rupp, 3 W. & S. 21; Hayes y. 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. v. Brooks, 57 Pa. St. 346; Wilton v. Middlesex, R. Co., 107 Mass. 108 [912] ; Flint, &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 PASSENGERS. 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 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 presenl ition of this tic] with coupons and contract attached, ^\Ir. K. (•. Forgrave may travel, " &c. While section 2085 treats of instruments whereby the maker acknowledges labor to be due another, and while a valid assignn may undoubtedly be made of such instruments under the statute, 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. Thesection 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 tin- 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 sufficient 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 CARRIERS OF PASSENGERS. 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 FOR INJURIES. a. From negligence. CHRISTIE v. GRIGGS. 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. turning of the coach is proved, negligence on the part of tb< is implied. He has always the means to rebut this presumption, if it be unfounded; and it is now incumbent on the defendant 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 nnd at a moderate pace. Sir James Mansfield said, as the driver had been cleared of tverything 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, on 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 off, 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 930 CARRIERS 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 — which 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 aDd 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 FOR INJURIES. 931 answerable for all injuries to passengers arising from accidents hap- pening to their coaches, although proceeding from causes which t 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- sengers 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 CAERIERS OF PASSENGERS. 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 Cas. 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. R. 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 Ring'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. 259, 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. present case was neither discussed nor started, viz., whether t! 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., said 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 CARRIERS OF PASSENGERS. on the part of the stage proprietor, as to the sufficiency 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 the 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 roadworthy 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. R. 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 Railroad 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 Hollister 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 case which 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 o\irs, 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 vessels, and practically resolve themselves into questions of negli' LIABILITY FOR INJURIES. 937 gence; so that the evils are very few that arise from the mainte- nance of the doctrine that a ship nnist 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 f safe, suffi- 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. R. 493. New trial granted. MEIER v. PENNSYLVANIA R. CO. 64 Penn. 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. Agxew, J. It is agreed on all hands, says Judge Redfield, in his work on Railways, 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 Railroad 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 Pittsbur" & Connellsville Kailroad Co. v. McCleary, G 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 the 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 Parr, 482. Judge Pell says, it is long since settled that the common daw- 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. Put though (he says) in legal contemplation they do 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 Eailroad Co. v. Aspell, 11 Harris, 149, and Sullivan v. The Phil- adelphia & Reading Eailroad 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. Railroads must keep pace with science and art and modern improvement in cheir 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 CARRIERS OF PASSENGERS. own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it; Laing v. Colder, 8 Barr. 482; Sullivan v. Philadelphia & Beading Bailroad Co., 6 Casey, 234; Shearman & Bedfield on Negl. § 280; Bedfield on Bailways, § 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 WOBLD v. KING. 16 How. (U. S.) 4G9. 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, in 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 FOR INJURIES. \m boats to go from place to place free of charge; that the appeJ formerly been employed as a waiter on board this boat; and just before she sailed from Sacramento he applied to the master fi free passage to San Francisco, 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 authority 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, 559; Grant v. Norway, 10 Com. B. 688, S. C. 2 Eng. L. and Eq. 337; Pope v. Nickerson, 3 Story, R. 475; Citizens Bank v. Nan- tucket Steamboat Co. , 2 Story, R. 32. But different employments may and do hav.e different usages, and consequently confer on the master different powers. And when, as in this case, a usage appears to be general, 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 Reading Railroad ( !om- pany v. Derby, 14 How. R. 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 whethei the consideration for such transportation be pecuniary or otherwise, 94:2 CARRIERS 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 Roman 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 R. 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 v. The Essex Bank, 17 Mass. 479, R., would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman 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 Roraain, 191, &c. 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 LIABILITY FOE [NJTJRI1 ,,^ his care to the injury or loss which is likely to be sustained by any improvidence on his part." Story on Bailments, § \~>. It is also settled that, if the occupation or employment be i requiring skill, the failure to exert that needful skill, either b< it is not possessed or from inattention, is gross oeg] Thus Heath, J., in Shields v. Blackburn, 1 H. Bl. 1(>1, say-: " It 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 tin- 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 "/. r. 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 Art 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 ami faithfully, endangers, to a frightful extent, the lives ami 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 In- 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 oi 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, collapsi injurious escape of steam shall be taken as full prima facie evidence sufficient to charge the defendant, or those in his employment, with 944 CARRIERS 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 Fay, 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 either 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 INJURIES. (,}- 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 lias occurred in such a strife, this court cannot treat the evidence of those engaged in it, and prima facie 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 Daniel dissented. McPADDEN v. NEW YOEK CENTRAL R. CO. 44 X 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 overturnedj 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 CAEKIERS 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 car 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. Earl, 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 FOB INJURIES. 947 1st. If the rail was broken before it was reached by the train goin 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 v.. broken before this train reached it. It is unquestioned that tin- accident was caused by the broken rail, and if the plaintiff claimed that the defendant was liable, because the rail was broken before tin- train upon which he was riding reached it, it was incumbent upon him 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 not 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 Railroad Company, the accident, 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 out of this State. It was in conflict with I previous case, in the same court, of Hegeman v. The Western Kail- road Corporation, 3 Kern. 9. The only authority cited to sustain the decision was the English case of Sharp v. Grey, 9 Bing. 4.">7. 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 affirmed 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 road worthy. 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 CARRIERS 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 down 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 sufficient 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 Railroad 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 euemy ; 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 different 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 FOR INJURIES. 949 tion," I am not satisfied that it would be either wise or just. Rail- 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 railroad 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 a< 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, Ch. C, and Leonard, 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 RAPIDS, etc., R. CO. v. HUNTLEY. 38 Mich. 537. 1878. Trespass on the case. 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 oars 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 CARRIERS 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 suspicious or prejudices in such a matter. The 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. No 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. R. R. v. Coleman, 28 Mich. 440; G. R. & I. R. R. v. Judson, 34 Mich. 506; Ft. Wayne, J. & S. R. R. v. Gildersleeve, 33 Mich. 133; M. C. R. R. v. Dolan, 32 Mich. 510. 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 FOR INJURIES. 95] sons supposed to be competent dealers, just as they buy their ol .. articles. All that they can reasonably be expected to do is to pur- chase such cars and other necessaries as they have reason to beli 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 delects, 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 Richardson v. Great Eastern Railway Co., L. It. 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. R. 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 Readhead v. Midland Ry. Co., L. R. 4 Q. B. 379. r l New York cases which were relied on upon the argument of the present cause were considered in the light of a large number oi 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 CARRIERS 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 w r ent 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 w r as 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 w T ith 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 Avas 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 FOE INJURIES. 953 were in all respects such as had been found sufficient by the n 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, in d in the usual way of inspecting such appliances by the most carefully and prudently managed railroads of the country, by an empli 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 burden 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 happenii 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 CARRIERS OF PASSENGERS. 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 to produce in making out his case originally, and he is entitled to recover on that proof, unless the carrier can overcome the presump- 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 plaintiff's intestate was the breaking down of the bridge, and the consequent precipitation of the car into the 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. R'y Co., 48 Iowa, 236. LIABILITY FOR INJURIES. II. The following instructions were given by the Circuit Court: "It is a duty of a railway company, employed in transporting | sengers, to do all that human care, vigilance, and foresight can , onably do, consistent with the mode of conveyance and the pracl operation of the road, in providing safe coaches, machinery, I rails, angle-bars, or splices, bridges and roadway, and in the i duct and management of its trains for the safety of its | jers, and to keep the same in good repair. The utmost degree of . 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 Ao, 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 construe; preservation, inspection, and repairs of its road-bed, bridges, tracl;. 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, ami 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, 555; Sales <•. Western Stage Co., 4 Iowa, 574; Bonce v. Dubuque St. R'y Co.. 53 id. 278; Kellow v. Central Iowa R'y Co., 68 id. 470. It is insisted that the instructions are in conflict with this rule. The position of counsel is that, by the use of the words reasonable, reasonably j>r 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 negligence of the servants of the sleeping-car company, hut the 966 CARRIERS 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. Rep. 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 attach 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. Roy, 102 U. S. 451, where the liability 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 compan}^, a passenger may well assume that the whole train is under one general management. Thorpe v. Railway Co., 76 N. Y. 402; Kinsley v. Railroad Co., 125 Mass. LIABILITY FOR INJURIES. 54. How far a railway company may, by agreement with sleeping-car company, known to the passenger, rate itself foi liability for such injuries, is a question concerning which we ex] i 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 interference 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 thai 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. Roscoe's N. P. Ev. (14th ed.) 695; Thompson on Car. Pas. 209; Schouler on Bailments, 642; 2 Wait's Act & Def. 90; Pierce on Rail. (ed. of 1881) 298; Johnson v. Railroad Co., 20 X. Y. 65; Readhead v. Midland Pailw. Co., 4 L. R. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Railw. v. Fawcett, 1 Moore (P. C.) 101, 116; cf. Czech v. General Si Nav. Co., 3 L. R. C. P. 14. But the general question was carefully considered in Railroad 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. Railroad Co. 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. RAMSDEN v. BOSTON, etc. R. CO. 104 Mass. 117. 1870. Tort for an assault and battery. Trial in the Superior Court, before Reed, J., who made the fol- lowing report to this court : — 968 CARRIERS 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 days 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 case, 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: 'Upon 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 announcement 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 master. Philadel- phia & Reading Railroad 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 Railroad Co., 15 Gray, 20. It has been ad- judged by this court that if, in the exercise of his general 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 Hail- 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 exercis' threat 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 passen-. r 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, committed an assault upon the passenger, the corpo- ration was not responsible for such acts, was therefore erroneous. Verdict set asi\ CHICAGO, , etc. R. CO. v. FLEXMAN. 103 111. 546. 1S82. Mr. Chief Justice Craig. This was an action brought by James Flexman, 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 CARRIERS OF PASSENGERS. to leave the car he missed his watch, and supposed it had been stolen. He then refused to leave the train until he recovered the Avatch, 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. Aftei 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 demand 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 Jjord 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 FOR INJURIES. Q^l 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 t*ackel I o. <■. Tin. 111. 608, it was held that a steamboat company, as a carrier of pas- sengers for hire, is, through its officers and servants, bound to the utmost practicable care and diligence to carry its pas ifely 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 passen The same rule that governs a steamboat company must <*lso 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 Ry. 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 manuer in which they execute the trust. . . . He must not only protect his pas 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 Ry. Co., 36 Wis. 657, 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 aud Northwestern R. R. Co., 44 Iowa, 314, and N. 0., St. L. and C. R. R. 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 arc 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 CARRIERS 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 or 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 affirmed. FICK v. CHICAGO, etc. K. 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 that 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 FOR INJURIES. The answer alleged that the plaintiff with two or three comp ions, all grossly drunk, entered the station at Wilton and eominen an assault upon one E. W. Davis, who was then and there ene in the business of mail carrier from the post-office at Wilton t. trains of the defendant, and that the said Davis resisted as he law- fully might. Otherwise the answer denies the allegations of tl complaint. The jury returned a special verdict. The facts found then will sufficiently appear from the opinion. The jury also assessed the plaintiff's damages at $200. Both parties moved for judgment on the special verdict. The motion of the plaintiff 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 Fred E. Davis, a ticket to Norwalk. tie- 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 he no contn 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 I 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 | 974 CARRIERS OF PASSENGERS. therefor. It is alleged in the complaint that the plaintiff 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 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 R. Co., 153 N. C. 296, 69 S. E. R. 238, 32 L.^R. A. N. S. 1209. LIABILITY FOK INJURIES. 975 c. Acts of fellow-passengers or otli- PUTNAM v. BROADWAY, etc. R. CO. 55 N. Y. 108. 1873. Action by Ellen S. Putnam, as administratrix, against the Broad* way and Seventh Avenue Railroad 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 Foster, who was intoxicated, got on the ear 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 cl< of the trial. If the evidence, upon any view that can be taken 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 feet 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 CARRIERS OF PASSENGERS. 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, P. W. & C. R. Co. v. Hinds, supra ; Flint v. Norwich and N. Y. 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 charge; 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 plnintiff, 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. <)77 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 othi 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 bound to exercise the utmost vigilance in maintaining order, and guarding the passengers against violence, from whatever Bource 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 oecasion 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 CARRIERS OF PASSENGERS. front door of the car being closed, and, during the residue of the passage to Forty-sixth Street, 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 be 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 attach 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. There was no evidence tending to show that the conductor y in fault for not removing the person of Foster from the car. He exerted his police powers by causing him to desist from his offen- sive acts and approaches toward the females, and supposed thai he had done all that was necessary to preserve the peace and keep good order upon the car, to secure the other passengers against furl 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, withoul tin- expulsion of the offender, the conductor could hardly have been called upon to proceed to extremities and put the latter from the by force. An unnecessary resort to force, in ejecting a p; 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 eonductor, 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 ear. 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 dri 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 neffli- 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 concisely 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 carrier is liable for any injury to other passengers which m reasonably be anticipated, or naturally be expected to occur in view of all the circumstances, and of the number and character of the 980 CARRIERS OF PASSENGERS. 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 authorizing 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. Pv., 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, 51 Me. 325; Railroad Co. v. Reeves, 10 Wall. 176 [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 jonduct of the 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. PITTSBURGH, FORT WAYNE & CHICAGO R. 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 Railway Company, for injury to her whilst riding on the defendant's train. Woodward, C. J. The action is for an injury sustained by the plaintiff's wife whilst she was a passenger in the cars 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 fighting of passengers among themselves. Drunken and 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 officers 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 oi 982 CARRIERS 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 fact 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 FOB INJUEI1 . by the wayside. No such element enters into the implied conti It is one of the incidental risks which all who travel w themselves, and it is not reasonable that a ; tuld ti. it upon the transporter. These observations are equally applicable to the id prop tion. The conductor did not '•allow" improper numbers, uo more than improper characters, to get upon the cars. He says he took do fare from them, and in no manner recognized them as ; To allow undue numbers to enter a car is a great wrong, all great as knowingly to introduce persons of improper character, and in a suitable case we would not hesitate to cha tie prac 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 could 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 it 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 his 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 re: 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 the 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 ou minds. We think there was error in submitting the case upon the r 984 CARRIERS 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 facias de novo awarded. BATTON v. SOUTH AND NORTH ALABAMA R. CO. 77 Ala. 591. 1884. Somerville, 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 R. R. Co. v. Rector, 104 111. 296; Gordon v. Grand St. R. 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. violence and rudeness of its own officers and agents, but also of intruders who are strangers. We need not say that there may 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 tin- wrong or injury done the passenger by such strangers must have been of such a character, and perpetrated under such circum as that it might reasonably have been anticipated, or naturalh pected to occur. In Britton v. Atlanta & Charlotte Ry. Co., N. C. 536; 18 Am. & Eng. R. Cas. 391; s. c. 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 previ oted, 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 R. Co. v. Hinds, 53 Penn. St. 512 [981] ; Pittsburg R. Co. v. Pillow, 76 Penn. St. 510; Goddard v. Grand Trunk R. Co., 57 Me. 202 ; s. c. 2 Am. Rep. 39 ; Cooley, Torts, 644, 645; Nieto v. Clark, 1 Cliff. 145; Putnam v. Broadway R. Co., 55 N. Y. 108; s. c. 14 Am. Rep. 190. In the case of the Pittsburg Ry. 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 passengers, 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 Rorer, Railr. 951. They are bound to keep their stations in proper repair, and sufficiently lighted, and to provide 9S6 CAKUIERS OF PASSENGBKS. rea-onable accommodations for the passengers who are invited and expected to travel their roads. Knight v. Portland E. 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 It. Co. v. Schwindling, 101 Penn. St. 258; s. c. 47 Am. Hep. 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 R. 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 was 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 FOR INJURIES. appellee was a stranger on the road, and wanted to know when he arrived at Ashley; that the conductor said to him, no uneasiness ; we always see that our passeng< put off at their regular stations;" that they stopped at Centralia, and remain* there awhile; that Centralia is fourteen miles from Ashley; that . went to sleep, and remained so until he heard the locomotive whisl . and the station called out of Irvington, which was seven and on< half miles from Ashley; that it was four miles from Irvington to Richview; that Irvington and Richview were the only station 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 Rich- 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 w T hen the cars became about still he stood up in his seat and looked back, and asked the passengers if th 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 f< off the car, and left him hanging by one hand; his weight pull him loose, and he fell and received the injury; that it was betw< 10 and 11 o'clock at night when he arrived at Little Muddy Brid_ 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. Oilman testified that he could not remember having any conversa- tion with any passenger on that train, and says if a passenger _ 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 sle< coach, a ladies' car, a gentlemen's car, a second-class and baggage car combined, and an express car. On leaving Centralia. he s;. 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 br;. man's business, although he did it also. That night one tan was stationed between the sleeping-coach and ladies' car. He 988 CARRIERS OF 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 FOR INJUBI1 989 involved no danger or 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 [brakemenj 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 Railroad 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, 40 id. 75; Chicago, Burlington & Quincy Railroad Co. v. Van Patten. 64 id. 511; Chicago Rock Island & Pacific Railroad Co. v. Bell, 7<> 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. & Connellsvilie Railroad Co. v. Andrews, 39 Md. 329; 2 Redf. Am. Railway Cases, 552, in note to McClurg's case; The Indianapolis, etc., Railroad Co. v. Rutherford, 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 Redfield on Railways, 224, 236. The judgment must be reversed, there being no cause of action under the evidence. MORRISON v. ERIE R. 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 plaintiff, 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 plaintiff while leaving a car on defendant's road at Niagara Falls. 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. Further facts appear in the opinion. At the close of plaintiff's evidence and also of the entire evidence defendant's counsel 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 FOR INJURIES. 991 custody, and control of the plaintiff, as his child, and the cars . under motion, and he knew it when he took her under his arm to go out of the car, and when the cars 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. Folger, 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 dow T n, 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 car, 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 car, 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 con- duct, and she is to be judged therein-. The train still moving, tie y 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 car. To reach the earth from the latter, a person must go down from off the steps thereof, still lower, on to the 992 CARRIEES 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 plaiutiff under one of his arms, having but the other to sustain and guide himself, thus laden; holding fast Avith 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. R. R. , 49 N. Y. 47 [995], and cases cited; Penn. R. R. 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 FOR 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 I 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. R. l;.. 37 N. Y. 287; 49 id. siqira, 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. R. 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. R. Co., L. R. [3 Exch.], 150; affirmed [Exch. Ch.]. 4 id. 117. Though in Penn. R. R. 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, and 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 plaint it 994 CARRIERS OF PASSENGERS. which is the same 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 ib; 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 w r eight 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. X. B. & T. B,. E. Co., 6 Gray, 64. is, in principle, in support of the foregoiug; as is also Phillips v. LIABILITY FOE INJURIES. 995 Hens. & Sar. K. R. Co., 49 N. Y. 177. And see also Nichol Sixth Av. R. R. Co., 38 N. Y. 131. The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur except Church, 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. 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 negligence. Plaintiff took passage at Rochester for Fort 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 to her, the court charged that he did not see that it would make any difference 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. Grover, 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, R, 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 by the brakeman to get off where and when she did, but the evi 996 CARRIEES OF PASSENGERS. dence was conflicting as to whether this direction to her was given by the brakeraan 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 brakeman 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 CENTRAL 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, 1857, 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 minutes 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. at the speed of about twenty-five miles an hour. The engine 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 t 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 v. 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. • •••••••••••a 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 train 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 oi 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' negli caused the injury complained of, the plaintiff .should have been nonsui because his careless, conduct contributed to produce it. The mis- conduct alluded to is, that, upon seeing the approaching train and 998 CARRIERS OF PASSENGERS. men jumping from other cars to avoid the 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 car with him, 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 negligence. 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 c like the present one. The plaintiff was not standing or riding on the platform at the time of the collision, but was hurrying 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. NORTHEASTERN R. 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 Martin, 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, 1857, plaintiff, 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 Railway, for the purpose of proceeding together to Berwick-upon-Tweed by the 10.51 a.m. train. The plaintiff and Airs. 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 Tweedmoutli was on the sidi 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 Mi-. 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 tickets, immediately left the ticket-offieo and wenl to the em the station-yard to superintend the unloading of some and 1000 CARRIERS 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. P>efore the passenger train for which the plaintiff and Mrs. Park had taken tickets arrived at the station, a goods train coining 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 FOR INJURIES. 1001 survived, she could not have maintained any action against the company; and we think that the infant is so identified with her ih.it the action in his name cannot be maintained. The relation 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. Rule absolute. In the Exchequer Chamber. 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 CARRIERS 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 difference 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 graudmother. 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. Crowder, 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. Bramwell, 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 adult, or that LIABILITY FOR DELAY. 1(1 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, sucli 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; thi nd plea denies this, and states that the plaintiff was under the direction and control of a person who, with the plaintiff, was wrongfully <>u the railway; and the verdict shows this plea to be true. 'I 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. 1 5. LIABILITY FOR DELAY. SEARS v. EASTERN R. 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 loth of September, 1865, the plaintiff was a resident of Nahant, near Lynn, and the defendants before then publicly undertook and contracted with tin- 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 i The passenger is not so far identified with the carrier that negligi Dee of the eti rier will be imputed to him in an action againsl a third person foi an accident du« .to the negligence of such third person causing him injury. See Little r. Hackett, no U. S. 366. (1886.) 1004 CAKRIERS 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- tiff 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 thereupon 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 11.15, arriving at Lynn at 11.45. The defendants offered to prove, if competent, that this usage oi LIABILITY FOR DELAY. 1005 detaining the train was generally known to the people using the Eastern Railroad, and that the number of persons generallygi 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 nmst be for the breach of the contract which the defendants made with the plain- tiff. He had purchased a package of tickets entitling him t passage in their cars for each ticket from Boston to Lynn. This constituted a contract between parties. Cheney v. Boston & Fall River Railroad, 11 Met. 121; Boston & Lowell Railroad v. Proctor, 1 Allen, 267; Najac v. Boston & Lowell Railroad, 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 Rail- way, 5 El. & Bl. 860. It is an offer which, when once publicly made, becomes binding, if accepted before it is retracted. Boston & Maine Railroad v. Bartlett, 3 Cush. 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. Bailroad 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 <).:;<) 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 cara 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 CARRIERS 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, 11 Cush. 101; Malone v. Boston & Worcester Railroad, 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 who 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. Hay ward 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. CO. 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 FOIl DELAY. ], a "book," which entitled him to travel on the ears of the defendant company from Atlanta to his home at Clarkston, — a point 1" I the regular stations on the road at Decatur and - Mountain, at which trains stopped to put off and take on passi w hen so noti- fied. On the night in cpiestion he took passage at Atlanta for his home, and when he delivered the conductor his ticket In- inforo him that he had lost much sleep the night before, and would prob- ably sleep on his journey, and requested him when he reached bis destination, to awaken him and put him off, which the condu promised to do. He slept until be 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 lab under considerable mental anxiety, on account of the sil a 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 bad it with him. He reached home in time to relieve her with tbe 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, bad in some instances performed this service for passengers. It was in- cumbent upon tbe 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 ] of a failure to stop at the designated point sufficiently long for the plaintiff to get off the cars. Thirdly, because it did not satis 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 contrib 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 100 g CARRIERS OF PASSENGERS. 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. Ry. Law, 491. It likewise seems a necessary implication from this rule, that the train should be stopped at the point of destination a sufficient 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 5 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. K)09 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 see to the debarkation of passengers. They should haye the stal announced; they should stop the trains sufficiently long for the pa - 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 pel who are sick, and ask his assistance in getting on and oil' 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 R. 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 sufficient time and opportunity to leave the vehicle. Hutch. Can.. § 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 Redf. Am. Ry. Cas., 536, ">l" 542; 3 Am. and Eng. R. Cases, 340. How far a custom npon 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 office, 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 CARRIERS OF PASSENGERS. 6. LIMITATION OF LIABILITY. EAILWAY CO. v. STEVENS. 95 U. S. 655. 1877. Error to the Circuit Court of the United States for the District of Maine. This was an action on the case 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. The 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 indorsement 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. LIMITATLON OF LIABILITY. 10H 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, was 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 the 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 passenger, 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 sufficient 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, could 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 a ment, in which the the mutual interest of the parties was c< It was part of the consideration for which the plaintiff cons> take the journey to Montreal. His expenses in making I rney 1012 CARRIERS OF PASSENGERS. were to be paid by the defendant, and of these the expense of his 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 tne LIMITATION OF LIABILITY. whole transaction. There was a consideration for it, both go< valuable. It necessarily follows, therefore, that it was a carrj for hire. Being such, it was not competent for the defendant, a common carrier, to stipulate for the immunity expressed on th<- b of the pass. This is a sufficient answer to the argument j 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 d upon Railroad 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?' 1 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 nece> for our decision. Judgment affirmed. 1 BATES v. OLD COLONY R. 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 lie 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 neo-ligence 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 exercis. due care. None of the passenger ears m the same tram with the i Contra: Bissell v. New York Central Et. Co., -2:. N. Y. 1 12. I i 10 14 CAKKIERS OF PASSENGERS. ba^o-age car ware 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 any 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 cars, 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 bag car, as an expi messenger, under the above arrangement with the express comp and contract signed by himself, and holding a ticket thus stum: he received his injuries. The following regulation, signed by th<- defendant's general manager, was posted and enforced in the b gage ear in which the plaintiff rode while in the employmenl express company as a messenger on the defendant's road and at 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 dent or injuries while riding in such car. Conductors and baggage-mast will be particular at all times not to permit any passenger to ride in the gage car without the special permit, which will be stamped on the tickel 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 under this regulation — were doing business over that portion of the defendant's road during the year 1885, and at tin- 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 questioi 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 cars, 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 tha the defendant would allow him to ride in the baggage curs. In- 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 whil< 1Q16 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 car 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 nesrligence 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. 1D17 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, d not arise under this contract as construed in this case. See Rail- road Co. v. Lockwood, 17 Wall. 357; Griswold v. New York & New- England Railroad, 53 Conn. 371. It was not a contract for carriage over the road, but for the use of a particular car. The cons: ation of the plaintiff's agreement was not the performance of any- thing by the defendant which it was under any obligation to d< which the plaintiff had any right to have done. It was a privi granted to the plaintiff. The plaintiff 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 trulls- 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 Railroad, 115 Mass. 41 (i [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 build i and grounds, and, at any point where its railroad connects with another railroad, reasonable and equal terms and facilities of in 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 passei trains on reasonable terms, equally favorable to all express com- panies. If that were the meaning of the statute, no questions a 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 <>nly question that would arise is whether the terms granted reasonable. 1018 CARRIERS 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 nesrlia'ence 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. 1 QUIMBY v. BOSTON", etc. R. CO. 150 Mass. 365. 1890. Tort 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 OF LIABILITY. Id solicitation by the general manager of the defendant corporation. The face of the pass bore the following: — "1062. Trip Pass. Boston and Maine Railroad. Pasa Asa <,>uiraby auh v. Narragansett Steamship Co., Ill Muss. 512; Townsend v. M. Y. C & H R R. R. Co., 56 N. Y. 295 [1057]; Duke and Wi1 W. R. R. Co., 14 Up. Can. C. B. 369. According to these con- clusions the judgment for the defendants was con. 1032 CARRIERS OF PASSENGERS. STATE v. OVERTON. 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 Railroad 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 cars. 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 one 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. Id 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 ;_ r i 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, ami procurii 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 lie had paid his fare to Morristown, and was entitled to be carried there by the train in which he had originally taken his passa for that purpose alone it was given to him; that train he had left voluntarily, without the knowledge or assent of the conductor, and without giving up his check. The check was therefore value], 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 usage or the custom upon the road, he is entitled to he carried 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 CAKEIEKS OF PASSENGEKS. 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 v. 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. form: "163. Issued by Grand Trunk 1;. R., and Boston & Maine R. R., Portland to Boston. Valid only within seven days. I class. Form 39. J. Hickson, General Manager, 3376," and ai similar in form, but which he is unable to ibe; thai he i the defendants' cars at Portland for Boston, whither hi that he gave up the " similar" ticket on his passage to Boston, when the defendants promised and assured the plaintiff that "described" was good for a passage for him over the defenda railway from Boston to Portland; that on the 26th day of Janu 1876, at Boston, he entered the cars to be conveyed to Portland, was in pursuance of said payments and ticket (described; con v. to South Lawrence, where he was ordered out; that he re-ento and was conveyed to Haverhill; that the defendants then ordi him to leave the cars and ejected him therefrom and refused to cany him to Portland. The plea was, not guilty. Peters, 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 tickel 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. 309j Shedd v. Troy & Boston Railroad, 40 Vt. 88; Johnson v. Concord Railroad, 46 N. H. 213; Boston & Lowell Railroad Co. v. Proctor, 1 Allen, 267; 1 Redf. on Railways, 99, and notes. It has been held also that if the words "good upon one train only " are prii upon a ticket, the holder is not entitled to change from one train to another after the passage is begun. Cheney v. Boston & Maine K. R. Co., 11 Met. 121. Redf. on Railways, 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 tin- 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 au- 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 passengt on« 1038 CARRIERS OF PASSENGERS. venieutly 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 Railroad, 117 Mass. 544. Plaintiff nonsuit. AUERBACH 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 Railway 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 Buffalo 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 Railway on account of New York Central and Hudson River Railroad one first-class passage, Buffalo to New York." , Being desirous of stopping at Rochester, the plaintiff purchased a ticket over the defendant's road from Buffalo to Rochester, and upon that ticket rode to Rochester on the 25th, 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. Each 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 liable 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. Herice 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 Railway Co., 15 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 not 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 that 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 SPRINGS R. 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 Railway Company in Chicago a ticket for a passage to Hot Springs and back (which is copied in the margin, 1 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 him, 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 plaintiff 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 CARRIERS OF PASSENGERS. 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 Gray. 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 the TICKETS. 1041 veturn trip under the unstamped ticket, and without paying further Sare. As he absolutely declined to pay any such fare, the fact that the 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 Railway, 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 v. Pennsylvania Railroad, 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. R. 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 CARRIERS OF PASSENGERS. Iu Butler v. Manchester, Sheffield & Lincolnshire Railway, 21 Q. B. D. 207, 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. R. CO. v. SPRAYBERRY. 8Baxt. (Tenn.) 341. 1874. McFarland, J. Sprayberry purchased from an agent of the Nashville & Chattanooga R. R. 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 roads 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 River 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 R. R. 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 sufficiently 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 cases 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 t to pay his fare upon another route. It was held that the plaintiff was 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. R. Co., de- cided at Jackson by this court in April, 1872, was this, the plain- 1044 CARRIEKS 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, that 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 baggage. That where tickets of this character are sold they are to be regarded as distinct tickets 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 Redfield 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 first 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 aud 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 R. 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. Blaxdford, 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 $35.55, 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 CAKRIEES 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. First, 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 Railroad Company, 68 Ga. 653; Hawley v. Screven, 62 Ga. 347. In 2 Redf. Railw., § 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 River R. 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. R. 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 & Alton Railroad 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 giiarantee 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 fpay 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. [On another point judgment reversed.'] FRANK 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. R. R. 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 Railroad 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 RAILROAD 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 the refusal to take off the same. Mr. Justice Truxkey. 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 Gth, 1863, P. L. 582, 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 plaintiff'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 which 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, the 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. BEGULATIONS. 1051 8. EEGULATIONS. JEFFERSONVILLE E. CO. v. EOGEES. 28 Ind. 1. 1867. Erazer, 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 for 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 $51.95. That the ticket agent was at that time supplied with tickets, and instructed to sell them, was clearly proven, 'rickets 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 1S46, 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 CARRIERS OF PASSENGERS. 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 here, 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 New 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 Railroad 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 Eailroad 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 regular KEGULATIOXS. 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 ihe 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 plamtift 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 CARRIERS 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. R. CO. 69 Iowa, 15. 1886. On the morning of August 18, 1881, the plaintiff took passage on defendant's railroad at a small station named Weston, intending to travel to Council Bluffs, 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. Rothrock, 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 ^REGULATIONS. 1055 by rail by the 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 traffic. 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. Regard 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 CARRIERS 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. Regard 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 REGULATIONS. 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. R. R. CO. 56 N. Y. 295. 1874. Grover, 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 Rhinebeck. 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 CARRIERS OF PASSENGERS. 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 Railroad Co., 53 X. 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 jjive 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 Railroad Company, stipra. 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 REGULATIONS. 1059 cars ; that before going on board the car 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 plaintiff off the car, still he was entitled to recover of the company punitory damages if he v 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. I 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 CARRIERS OF PASSENGERS. could ascertain. All this is claimed to result from the wrongful act of the conductor 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 go 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 by 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: Folger and Andrews, JJ., concurring on the first ground; Church, C. J., concurring on last ground stated in opinion. FREDERICK 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 plain- 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 Ishpeniing 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 plaintiff did not attempt to read what 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, fete. 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 that 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. 521, 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. a*nd 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 cases, 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- ject. 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, inconvenience 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 pure! laser 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 produced 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 sufficient, and we do not consider it necessary to analyze or review them. Townsend v. 1ST. Y. C. & H. R. R. R. Co., 56 N. Y. 298 [1057] ; Hibbard v. N. Y. & E. R. R., 15 N. Y. 470; Bennett v. N. Y. C. & H. R. R., 5 Hun, 600 ; Downs v. K Y. & N. H. R. R., 36 Conn. 287; C, B. & Q. R. R. v. Griffin, 68 111. 499; Pullman P. C. Co. v. Reed, 75 111. 125; Shelton v. Lake Shore, etc. Ry. Co., 29 Ohio St. I am of opinion that the judgment should be affirmed with costs. Cooley, 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. BRADSHAW v. SOUTH BOSTON RAILROAD COMPANY. 135 Mass. 407. 1S83. Tort for being expelled from one of the defendant's cars. Trial in the Superior Court without a jury, before Colburn, 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 REGULATIONS. 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 sufficient 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 5> 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 CARKIERS 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 be 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 difficulties 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 greater 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 which results from his failure to have a proper ticket. It follows that the plaintiff 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. R. 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 plaintiff 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 i Ace ■ Pennington v. Illinois Cent. R. Co., 252 111. 587, 97 N. E. 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 CARRIERS OF PASSENGERS. actually expressed upon the tickets, or what marks or punched holes they bore. The circumstances of there 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 Railroad, 11 Met. 121; Yorton v. Milwaukee, Lake Shore & Western Railway, 54 Wis. 234; Townsend v. New York Central & Hudson River Railroad, 56 N. Y. 295 [1057] ; Petrie v. Pennsylvania Railroad, 13 Vroom, 449 ; Dietrich v. Pennsylvania Railroad, 71 Penn. St. 432; "Frederick v. Marquette, Houghton & Ontonagon Railroad, 37 Mich. 342 [1060] ; McClure v. Philadelphia, Wilmington & Baltimore Railroad, 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 REGULATIONS. 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 be 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 Fittsfield, 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 of 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 Railway, 106 Mass. 153. Exceptions overruled. PHILADELPHIA, W. & B. R. CO. v. RICE. 64 Md. 63. 1885. Robinson, 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. Xow you can ride on it." The next day, the plaintiff, 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 could 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. inasmuch 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. Railroad Co., 18 Reporter, 147 ; Frederick v. Railroad Co., 37 Mich. 342 [1060] ; Yorton v. Railway Co., 57 Wis. 234; 11 N". W. Rep. 482; Bradshaw v. Railroad Co., 135 Mass. 407 [1064]. It is sufficient 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 REGULATIONS. 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 could 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 unnecessary 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 Eriedenrich 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 1 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 CARRIERS 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. R. CO. v. RILEY. 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 plaintiff, 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. Riley 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 to 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. Cooper, 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. REGULATIONS. 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 Myrtle, 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 plaintiff 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 appellant. The jury awarded her dam- ages in the sum of $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, Xew 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 CARRIERS 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 hrief 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. R. Co. v. Fixe, 11 Am. & Eng. Ry. Cas. 108. In a more recent case in Michigan than those cited by appellant's counsel, Hufford 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 the 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. Eailroad 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 sufficient 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 principal 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 conductor 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. R. 132 Mass. 116. 18S2. Tort 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. Devens, 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 Railroad, 46 N. H. 213; St. Louis, Alton & Terre Haute Railroad v. South, 43 111. 176; Illinois Central Railroad v. Johnson, 67 111. 312; Indianapolis, Peru & Chicago Railroad v, 1076 CARRIERS OF PASSENGERS. Rinard, 4G Ind. 293; Du Laurans v. St. Paul & Pacific Railroad, 15 Minn. 49. The number of persons carried, the rapidity with which the cars 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, 53 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 office. 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-office 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 office. 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- REGULATIONS. 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 Railroad, 24 Conn. 249; Bordeaux v. Erie Railway, 8 Hun, 579. 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 sitpra ; Chicago & Alton Railroad v. Flagg, 43 111. 364; Jeffersonville Railroad v. Rogers, 28 Ind. 1 [1051] ; Indianapolis, Peru & Chicago Railroad v. Rinardj 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, ubi supra. 1078 CARRIERS OF PASSENGERS. The cases of Porter v. New York Central Bail road, 34 Barb. 353, Nellis v. New York Central Bailroad, 30 N. Y. 505, and Chase v. New York Central Bailroad, 26 N. Y. 523, all depend upon a stat- ute of New York applicable to the New York Central Bailroad 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 plaintitf , 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 traiu 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 Deny, 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 reneAv 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 REGULATIONS. 1079 already been 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. In O'Brien v. Boston & Worcester Railroad, 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 Railroad, 47 Iowa, 82, and in O'Brien v. New York Central & Hudson River Railroad, 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 Railroad, 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 CAKEIEKS OF PASSENGERS. ILLINOIS CENTRAL R. CO. v. WHITTEMORE. 43 111. 420. 1867. Lawrence, J. This was an action of trespass brought by Whit- tern ore against the Illinois Central Railroad 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 R. R. v. Flagg, 43 111. 3G4, that the neglect to buy a ticket before entering the train, when required by the rules of the road, was the same thing in substance as the refusal to pay the fare, and justified an expul- sion only at a regular station. But the refusal to surreuder 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 moie 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. R. R. Co. v. Parks, 18 111. 460; Hilliard v. Gould, 34 N. H. 230; Cheney v. Boston & Maine R. R. 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 sonable. 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 w. 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 CARRIERS OF PASSENGERS. CHICAGO, etc. R. CO. v. WILLIAMS. 55 111. 185. 1870. Appeal from the Circuit Court of Winnebago. County; the Hon. Benjamin R. Sheldon, Judge, presiding. This was an action on the case, brought in the court below by Anna Williams, a colored woman, against the Chicago & North- western Railway 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 Rock- 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 brakeman to prevent her. At the time she attempted to obtain a seat in that car, on appellants' train, there were vacant and unocciipied 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, EEGULATIONS. 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, in 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 and 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. R. 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 by 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. R. Co. v. Miles, 55 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 wrongfulry 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- REGULATIONS. 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, and 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. Breese, 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 sufficient 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 court 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 : Provided, 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 relieved 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 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 anywise 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 diligence 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 public enemies, or the inherent defect, quality, 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 anv 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 liability of vessels, their owners, or representatives. Sec. 7. Sections one and four of this act shall not apply to the transporta- 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 29, 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 railroad 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 United 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 hand'ing 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 facilities 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 their families, its officers, 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 or State Homes for Disabled Volunteer Soldiers, and of Soldiers' and Sailors' Homes, including those about to enter and those returning home after discharge ; 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 : Provided, 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 officers, 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 dollars 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 the 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, where 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 application 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 if 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 24, 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 which 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 Commission 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 purposes," 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 24, 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 established rates, fares and charges applied 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 he 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 to 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, 1912.) 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 and 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 public, 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 lines 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, 1S89, and June IS, 1910.) That any com- mon carrier subject to the provisions of this Act, or, whenever such common carrier is a corporation, any director or officer 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- lished 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 court 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 court, 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 resulting 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 Domini eighteen hundred 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 24, enlarging Commission and increas- ing salaries.) Sec. 12. (As amended March 2, 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. trlct 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 court 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 commissioner 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 proceeding 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 liability 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 2, 1889, and June 29, 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 Commission 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 : Provided, 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 maximum 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 unlawful 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 solicit 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 officer or agent of the Government of the United States, or of any State or Territory, in the exercise of his powers, or to any officer 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 hearing 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 29, 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. HOS 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 Court 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 purpose 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 sufficient reason therefor be made to appear. Appli- cations for rehearing shall be governed by such general rules as the Commission 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 2, 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 courts 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 official seal, which shall be judicially noticed. Either of the members of the Commission may administer oaths and affirmations and sign subpoenas. Sec. 18. (As amended March 2, 1889.) [See section 24, increasing salaries of 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 courts of the United States. The Commission shall appoint a secretary, who shall receive an annual salary of three thousand five hundred dollars, 1 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 offices 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 expenditures for road and equipment, as pre- scribed by the Interstate Commerce Commission. First. In such investigation said Commission shall ascertain and report in 1 Increased to $5,000 by sundry civil act of March 4, 1907, 34 Stat. L., 1311. 1110 APPENDIX. detail as to each p iece 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 operating such property; upon any increases or decreases of stocks, bonds, or other securities, 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 the 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 Commission 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 Commission and the classification 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 fixing 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 Commission, 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. (As amended June 29, 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 sources ; 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 purpose 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 winch 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 for the year ending June thirtieth, and shall be made out under oath and filed with the Commission at its office 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 under 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 traffic 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. 1H5 required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof. Sec. 21. 04s 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 2, 1889, and February 8, 1895.) [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 officers and employees, or to prevent the principal officers 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 Commerce Commission copies of the joint tariffs of rates, fares, or charges on which 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 2, 1889.) That the circuit and district courts of the United States shall have jurisdiction upon the relation of any person or persons, firm, 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 traffic 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 traffic 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 : Provided, That the remedy hereby given by writ of mandamus shall be cumulative, 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 29, 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 hundred 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 political 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." (Additional provisions 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 Commission or before said Commerce Court, and to file such designation in the office 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 February 10, 1891 ; Public, 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 t 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. hen for, 838, 847. Agent of common carrier authority of, 304, 305, 342, 351. authority to issue bills of lading, 566, 590, 592. liability 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. Hen on for fare, 851. money not, 327. under passenger's control, 182, 341, 346, 348. 1119 Baggage — continued. liability of connecting carrier for, 658, 664. checks for, see Check. of guest, liability of innkeeper for, 200. hen 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. 1 transfer of by delivery, 683. not negotiable instrument, 574, 588, 683, 687. reservation oijus disponendi in, 571, ( 677, 717. rights of assignee under, 572. transfer of title by, 581, 673, 680, 840. parol evidence to vary, 563, 569, 573, 576, 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 Act, 512. 1120 INDEX. Bill of lading — continued. under Carmack Amendment, limi- tation of liability, 524. 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 Passenger. negligence of passenger, see Contrib- utory Negligence. Cars, duty to furnish, 362. Charges, for storage, 837. for carriage of goods, see Freight. 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. liability 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. liability 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 Qod. for loss or damage from public enemy, 403, 405. for loss due to acts or 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 see also Limitation of Liability. apportionment, collection, etc., of, see Freight. for 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 Amendment, 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 lia- bility, 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 liability 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 liability, 598, 610, 619, 623, 628, 697. diligence 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, liability 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, 751. 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. delivery 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, 1056, 1080. Fare for passage, tender of, 911. when not demanded, 970. where ticket not purchased, 1054, 1075. ejectment for non-payment, 1029. hen on baggage for, 851. Federal statutes, limitation 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, 15, 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, 915, 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, 245, 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, 951, 971. INDEX. 1123 Interest, when allowed as damages, 310. Interstate commerce, regulation of, 378. federal statutes, relating to, 1090. construction of Carmack 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, 805, 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 n. 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 Carmack Amendment, 524, 533. for injury to passenger, see Carrier of Passengers. Limitation of time for claiming damages, 536, 547. Limited 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, 538, 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 Servant. 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, liability of bailee, 4, 18, 47, 53. liability 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, 513, 563, 811. in transportation of live-stock, 427. for delay, see Delay. for delivery, see Deliver!/. 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 Liability. 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 train, 872. as to time of trains, 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, w T hat 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. lien, 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. Presumption, 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-car 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. Stagecoaches, 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 Jus 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. ■